In addition to the questions regarding the circumstances that led up to the Taliban taking Sgt. Bowe Bergdahl into custody, another controversy that has arisen in the wake of Bergdahl’s release has been the issue of whether or not the Obama Administration complied with the law in making the deal. Specifically at issue is a provision in the most recent defense spending bill that requires the President to give Congress notice of any deal that would include the release of prisoners being held in the detention facility at Guantanamo Bay. As I noted on Saturday evening, this was one of the first complaints that members of Congress made when the deal was made public, and while I initially tended to dismiss the seriousness of those charges, further examination seems to indicate that the legal issues are, at the very least, cloudy and that, politically, the Administration may have created a confrontation with Congress that it could have avoided.
Among the first to weigh in on the issue, not surprisingly, were those who we often see commenting on legal issues on cable news. George Washington University Law Professor Jonathan Turley, for example, doesn’t seem to think there’s very much question that the transfer violated the law:
CNN ANCHOR: Jonathan, did the White House violate federal law?
JONATHAN TURLEY: They did. I don’t think the White House is seriously arguing they’re not violating federal law. To make matters worse, this is a long series of violations of federal law this president has been accused of. I testified twice in Congress about this record of the president in suspending or ignoring federal laws. This is going to add to that pile. I don’t think there’s much debate that they’re in violation of the law. What’s fascinating, Carol, is when this law went to the president, he used a signing statement which, if you recall as a senator, he opposed, and ran against for president. But he actually used one in this circumstance and said, ‘I’m going to sign this, but I actually think that notice requirement is unconstitutional.’ He’s essentially arguing the very same principle of George Bush, that when it comes to Gitmo, he has almost absolute power, that it is his prerogative, his inherent authority to be able to make these decisions as he sees fit.
CNN’s Legal Correspondent Jeffrey Toobin agrees:
CNN legal analyst Jeffrey Toobin declared on Monday that President Barack Obama “broke the law” when his administration failed to give Congress notice of at least 30 days before releasing five ranking Taliban members from Guantanamo Bay. Toobin said that a presidential signing statement did not absolve Obama from culpability for failing to abide by the law mandating congressional notification.
“I think he clearly broke the law,” Toobin said. “The law says 30-days’ notice. He didn’t give 30-days’ notice.” Toobin added that Obama’s opinion expressed in a signing statement “is not law.”
“The law is on the books, and he didn’t follow it,” Toobin added.
(…)
“I do think that his critics have a very good point here,” Toobin asserted. He noted that Congress and the courts are unlikely to do anything about it. “But, you know, it matters whether people follow the law or not,” he concluded.
Here’s the video of Toobin’s remarks:
In a post on Sunday just hours after the release was announced, Josh Blackman, who teaches at South Texas College of Law and previously clerked for two Federal Appeals Court Judges, posted about the legal issues, and helpfully, posts the relevant section of the law:
1027.Prohibition on the use of funds for the transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba
None of the funds authorized to be appropriated by this Act for fiscal year 2013 may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee who—(1)is not a United States citizen or a member of the Armed Forces of the United States; and
(2)is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.
Also relevant is Section 1025 of the act, which contains the thirty day notice requirement:
a)Notice required
The Secretary of Defense shall submit to the appropriate congressional committees notice in writing of the proposed transfer of any individual detained pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) who is a national of a country other than the United States or Afghanistan from detention at the Detention Facility at Parwan, Afghanistan, to the custody of the Government of Afghanistan or of any other country. Such notice shall be provided not later than 10 days before such a transfer may take place.
(b)Assessments required
Prior to any transfer referred to under subsection (a), the Secretary shall ensure that an assessment is conducted as follows:
(1)In the case of the proposed transfer of such an individual by reason of the individual being released, an assessment of the threat posed by the individual and the security environment of the country to which the individual is to be transferred.
(2)In the case of the proposed transfer of such an individual to a country other than Afghanistan for the purpose of the prosecution of the individual, an assessment regarding the capacity, willingness, and historical track record of the country with respect to prosecuting similar cases, including a review of the primary evidence against the individual to be transferred and any significant admissibility issues regarding such evidence that are expected to arise in connection with the prosecution of the individual.
(3) In the case of the proposed transfer of such an individual for reintegration or rehabilitation in a country other than Afghanistan, an assessment regarding the capacity, willingness, and historical track records of the country for reintegrating or rehabilitating similar individuals.
(4) In the case of the proposed transfer of such an individual to the custody of the Government of Afghanistan for prosecution or detention, an assessment regarding the capacity, willingness, and historical track record of Afghanistan to prosecute or detain long-term such individuals.
Blackman also makes note of the New York Times report on the signing statement that the President signed when he signed the bill into law, which states in its relevant part:
Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose. I continue to oppose this provision, which substitutes the Congress’s blanket political determination for careful and fact-based determinations, made by counterterrorism and law enforcement professionals, of when and where to prosecute Guantanamo detainees. For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation, and in certain cases may be the only legally available process for trying detainees. Removing that tool from the executive branch undermines our national security. Moreover, this provision would, under certain circumstances, violate constitutional separation of powers principles.
Presidential signing statements, of course, are something that became something of a cause celebre among opponents of the Bush Administration, who saw them as a manner in which the Bush White House was essentially inventing for itself the power to decide which laws it can choose to obey, and which it can choose to ignore. In reality, of course, signing statements were not an invention of the Bush Administration, although it is certainly the case that they did use them to a march larger degree that previous Presidencies, and in a manner that had a far more serious impact on the Separation of Powers than previous Presidents had. That’s one of the reasons why, as a candidate, President Obama spoke out strongly against the Bush Administration’s use of Signing Statements, although once he became President he discovered he had a decidedly different view of the matter.
Leaving aside that bit of political hypocrisy, though, there remains the question of whether or not the provisions of the 2013 NDAA that purport to limit the President’s authority over the disposition of Guantanamo detainees is constitutional. The Administration quite obviously argues in its Signing Statement that it is, but Timothy Sandefur puts forward a powerful rebuttal against that argument:
The allegation of unconstitutionality rests on Article II, Section 2, which declares that the President “shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” This “commander in chief” provision is often said to include an extremely broad power to act unilaterally in defense of national interests. And I believe that this is often the correct conclusion. The President does have discretion to act without Congressional authorization in times of urgency—including deploying troops, conducting surveillance, and so forth.
But the Constitution limits that power in many ways—ways not accounted for by the more enthusiastic advocates of “the unitary executive.” The first is hinted at in the provision quoted above: the President is Commander in Chief of the militia when called into the actual service of the United States. Called by whom?Not by the President: he has no constitutional authority to do this on his own. Instead, Article I Section 8 givesCongress the power “[t]o provide for calling forth the Militia,” and “provide for…governing such Part of [the militia] as may be employed in the Service of the United States.” Congress makes the laws that the President executes even in military matters of this sort.
More to the point here, Article I Section 8 gives Congress the power “[t]o make Rules for the Government and Regulation of the land and naval Forces”; to “raise and support Armies” (we’ll come back to that); and “[t]o define and punish…Offenses against the Law of Nations.” The President is denied power to do any of these things. Thus his power as Commander in Chief does not allow him total power over the armed forces or foreign policy. On the contrary, he is given an indefinite range of power to enforce laws and regulations that Congress may then define and limit. While the President can act on his own in many cases—particularly in cases where Congress has not spoken at all on the subject—that power is always subject to control by Congress.
The most important of all of these controls is the power over appropriations. The Constitution’s authors, familiar with the abuses of the Stuart monarchy,which had levied war without Parliament’s consent and even refused to convene Parliamentbecause it would have refused to appropriate funds to run those wars, gave Congress the power of the purse. And even that is tightly constrained—Article I section 8 denies Congress the power to make military appropriations for more than two years at a time (and the House, in charge of originating revenue bills, meets every two years, so only one Congress at a time).
“This power over the purse,” wrote Madison, “may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”
Thus Congress has the power to make military appropriations, and within those appropiations to include provisions that deny the President power to use the money in specified circumstances—to fund the military, but at the same time block the use of funds for removing prisoners from Guantanamo—and impose a notice requirement on sending prisoners out of the country.
Michael Ramsey makes the argument on the side of those favoring the Administration’s argument, essentially stating that the President’s inherent authority as Commander in Chief gives him the discretion to make decisions like this notwithstanding the limits that Congress may try to put on him, but Ilya Somin is unconvinced:
Many general rules adopted by Congress under the “Government and Regulation Clause necessarily constraint the president’s “immediate management of the war effort.” For example, Congress has adopted laws regulating the abuse, torture, and other mistreatment of prisoners – even in cases where the president might think that torturing a prisoner is tactically advantageous. Congress has adopted laws restricting the use of chemical and biological weapons – again even in cases where the president might think it would be tactically advantageous to do so. The same goes for laws restricting the release of prisoners. The president might think it is tactically advantageous to make lopsided exchanges with terrorists. But Congress might disagree, and choose to ban such deals, or – as in this case – at least subject them to scrutiny by imposing a modest reporting requirement (thereby, perhaps, also making them more difficult to carry out). If Congress can restrict the types of weapons the president has at his disposal, and the kind of treatment he can subject prisoners to, they can also restrict the release of prisoners.
Perhaps Congress would be unduly infringing on the president’s powers as commander-in-chief if it tried to make individual tactical decisions on a case-by-case basis (e.g. – appointing a committee to screen individual prisoners and decide which of them should be released, based on individualized tactical considerations). But that’s not what Congress has done here.
On the surface, it appears to me that Somin, Turley, Toobin, and the others who have argued that the President violated the law here make a very good case. The requirements of Section 1025 of the Act in particular seem exceedingly clear. If a transfer is to take place, then notice must be provided in accordance with the statute. There do not appear to be any exceptions to this requirement set forth in the text of the law. There’s also no real question that the Administration didn’t comply with the law here. While it’s true that it was at first Republicans who spoke up about the White House’s failure to provide the required notice, this is an issue that has been raised across the political aisle in the three days since Bergdahl’s release. Just today, for example, Senate Intelligence Committee Chairwoman Dianne Feinstein stated that it was “very disappointing” that the Administration had failed to go forward with the required notifications before finalizing the deal that released Bergdahl. And Turley and Toobin are hardly conservatives.
On some level, I’m sure, there will be those who will wonder why this matters. After all, Bergdahl has been freed from captivity, which I think we can all agree is a good thing regardless of whether or not he is guilty of desertion for his actions in 2009. Additionally, it doesn’t appear that there is a penalty per se for violating the notice requirements of Section 1025 and the other requirements that the law imposes on the President. However, it strikes me that Toobin makes a very good point in his comments above. At some point, it matters whether or not the law is being followed regardless of whether or not good consequences follow as a result. In this particular case, the law in question is meant to be an assertion of Congress’s proper authority, which makes the President’s decision to ignore it so blatantly seem even more egregious. The Administration will argue that exigent circumstances, allegedly Sgt. Bergdahl’s health, justified proceeding without giving property notice, but this makes little sense. It seems obvious that the arrangements for this transfer took some amount of time to put together, why couldn’t the Administration have notified the appropriate Congressional Committees at that point? Even if there aren’t any legal consequences per se, it strikes me that failure to take even this limited step is going to create political problems with Congress that the President could have very easily avoided.
Inevitably, there will be hearings about each of the aspects of this story that are raising controversy, but it strikes me that this may be the most important one that Congress needs to deal with. Much was made during the Bush Administration of the President’s disregard for the limits of his Constitutional authority, and rightly so, and here we have another example of it sitting right in front of us. Members of Congress are upset, and they have every right to be upset. The President did something he should not have done, and he didn’t follow the law. The fact that he did it for a “good reason” is, in the end, rather irrelevant.
Update: The videos of the remarks by Toobin and Turley were inadvertently left off the post when it was first published, they have been added now.
Update 4/4/2014: The above links are to the FY 2013 version of the the NDAA [PDF], which was apparently the first to include the notice requirements rather than a complete bar on transferring prisoners without Congressional consent. The new notice requirements, set forth in Section 1035 of the FY 2014 NDAA, are essentially the same, although the notice period was extended from 10 days to 30 days:
(d) NOTIFICATION.—The Secretary of Defense shall notify the appropriate committees of Congress of a determination of the Secretary under subsection (a) or (b) not later than 30 days before the transfer or release of the individual under such subsection. Each notification shall include, at a minimum, the following:
(1) A detailed statement of the basis for the transfer or release.
(2) An explanation of why the transfer or release is in the national security interests of the United States.
(3) A description of any actions taken to mitigate the risks of reengagement by the individual to be transferred or released, including any actions taken to address factors relevant to a prior case of reengagement described in subsection (c)(3).
(4) A copy of any Periodic Review Board findings relating to the individual.
(5) A description of the evaluation conducted pursuant to subsection (c), including a summary of the assessment required by paragraph (6) of such subsection.
The 2014 language is slightly different from the 2013 language, but not substantially so, and not in a manner that would give the Administration much of an out here, in my opinion. At the very least, they have created unnecessary political problems on both sides of the aisle on Capitol Hill just because they didn’t do something as simple as pick up the phone last week and notify the heads of the Intelligence and Armed Services Committees in the House and Senate of what was going on.
