I really wonder whether the difference you're pointing out between the Tories in the UK and the Republicans here isn't that the Tories are in the opposition, and the Republicans are not. I.e., Republicans are all for executive power when they hold it, as they do now. Don't you imagine that their fervor for unchecked executive authority is going to vanish in an instant once President Obama is inaugurated? Just like the Tories will all pipe down once Gordon Brown is no longer PM? I think you're attributing far too much principle to both groups.

Is it possible that if Bush moved all the prisoners at Guantanamo to a location where the U.S. only has a transient possession of the facility that it would allow Bush to get around habeas?

Not meaning to cut Glenn off at all, but might I recommend Marty Lederman's post on this at Balkinization.

http://balkin.blogspot.com/2008/06/what-does-court-say-about-two-big.html

Believe me Glenn, we are in total agreement re the Democrats, and re the fact that opposition is supposed to serve a check on power, whether motivated by principle or by pure self-interest. I am not foolish enough to expect purity, believe me. And perhaps you are right that I am not giving John Major and David Davies enough credit. I guess time will tell.

Boy, they will really give space to pretty much anyone, won't they? A regular column to Jonah Goldberg, and a guest op-ed for Jamie Kirchick? I mean, neither of these guys has ever done anything in their lives to justify treating them as anything other than spoiled brats, and not terribly intelligent ones at that. Further evidence of the LA Times' removal of itself from any claim to be a player in the big leagues.

For the record, while China announced last year that they were going to lift their ban, they have not yet done so. I just got an application for a visa to go there later this year, and they still ask you whether you have HIV and, I am told by people who have recently been through the process, if you answer "yes" your visa is denied.

Also, for the record, let's not forget that it was Bill Clinton who signed the HIV ban into law. There were many things I admired about Clinton, and he was obviously light years ahead of our current President, but I'll never quite forgive him for this one (or for DOMA).

Isn't it just another form of quarantine for the sake of public health, which nearly every government has practiced in some form or another?

I'll try not to yell here. Quarantine is practiced to prevent contagion, but HIV, while infectious, is not contagious. That is, one cannot contract HIV from an HIV+ person from casual contact. HIV transmittal requires, essentially, unsafe sexual conduct or sharing of needles, either of which is in the power not only of the HIV+ person but any potential "infectee" easily to prevent. Particularly where a society already has substantial number of HIV+ persons, there is no reason to think that allowing further HIV+ persons in will materially increase the rate of infection.

In short, there is no substantial public health rationale to such an exclusion. Fear, stigma, and the fact that HIV is (thought to, wrongly) only affect certain "disfavored" groups -- gays, IV drug users, etc. -- is what's behind these policies.

that was a thing of beauty.

Glenn, the WSJ report (which I saw on TPM) is saying that immunity is condition on presentation of "substantial evidence" to the district court that the PResident authorized, determined to be lawful, yada yada. Now, I'm under no illusions that this could not be easily met, but that's different from the AG certification you're citing. Seems to be different versions of the bill circulating, perhaps?

Just a few thoughts in response to a few commenters regarding whether Congress can actually do what they're proposing here, i.e., retroactively grant immunity. Probably, yes. Whether you have a right to sue in court is a matter that is for the legislature (or created by courts under common law). What the legislature giveth, it can generally taketh away. Moreover, while there are specific prohibitions in the constitution about certain types of retrospective legislation (e.g., ex post facto laws), and while there's a presumption against reading legislation to operate retrospectively, it is nevertheless normally within Congress' power to enact legislation relating to civil causes of action and have it operate retrospectively, providing they clearly indicate such an intent. This draft bill is probably sufficient.

That probably means that, as to any federal right of action, this law would be constitutional. Not as clear to me where Congress gets the power in this instance to wipe out any state-law causes of action that might exist (e.g., for violation of state-constitution analogs of the 4th amendment), but I suspect that the commerce power or some power relating to national security would be found to be sufficient.

And I don't really see a separation-of-powers issue here as to the immunity: Congress is specifying the parameters of a defense to liability, not telling the courts whether that defense has been satisfied. This is pretty routine stuff in that regard.

What does, to me, raise an interesting separation of powers issue is the provision Glenn highlights in update II, namely, the provision that the court can't specify its reasons for ruling on the immunity. That does strike me as an illegitimate encroachment on the courts' power to adjudicate, although I admit to having never looked at that issue.