The Unconstitutional Detention of Mexican and Canadian Prisoners by the United States Government

A recent article by Professor Bassiouni addresses the procedures for the transfer of prisoners under agreements with Mexico and Canada and certain "substantive constitutional issues" in a most interesting way. Nevertheless an interest in addressing constitutional problems from the most thorough of approaches possible compels further comment on federal powers and constitutional rights. Professor Bassiouni's efforts are noteworthy but his stated conclusion that "[t]he scheme for the transfer of offenders is a laudable step which should be supported by the bench and bar should not be unquestioningly accepted. The transfer agreements represent a retreat from the constitutional protection of fundamental rights and a deplorable attempt to aggrandize federal powers through transnational agreements.

It is difficult to understand why international and constitutional lawyers have not actively opposed the agreements. Recent literature has ignored the fundamental constitutional question of whether a transnational agreement can authorize the continued incarceration in the United States of individuals who were prosecuted for violations of foreign law in a foreign tribunal using foreign procedures. It seems inescapable that no agreement with a foreign government can confer such powers upon the state or federal government.