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The President Pretty Clearly Disregarded a Congressional Statute in Swapping GTMO Detainees for Bergdahl

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Monday, June 2, 2014 at 1:03 PM

Marty Lederman tries mightily to interpret Bergdahl’s release as consistent* not inconsistent with the wishes of Congress, but I don’t think he succeeds.

Section 1035 of the 2014 NDAA authorizes the Defense Secretary to “transfer or release any individual detained at Guantanamo” if he makes certain certain determinations, and it further requires without exception that the Secretary “shall notify” the appropriate Committees “not later than thirty days before the transfer or release.”  Marty seems to argue that the administration acted consistent with congressional intent or the “spirit of the statute.”  He says: “It’s difficult to imagine that Congress would have intended to insist upon such a 30-day delay if the legislators had actually contemplated a time-sensitive prisoner-exchange negotiation of this sort; but the statute does not on its face address such a rare (and likely unanticipated) case.”  Perhaps Congress might have thought differently were this case before it, who knows.   But the NDAA is sprinkled with exceptions, and Congress included no exception to Section 1035’s notice requirement.  So I don’t think it accurate or useful to say that the statute doesn’t address the Bergdahl situation, since it imposes a requirement without exception.  (I am surprised* doubt that Marty of all people indulges an implied exception to a national security statute based on emergency situations not contemplated by Congress, and I would be just as surprised if the Administration embraced this argument, but that is another story.)

I also think, contra Marty, that the President pretty clearly exercised his constitutional powers under Article II to disregard the statute.  The President in his signing statement said that in “certain circumstances,” Section 1035 “ would violate constitutional separation of powers principles,” and he noted in that context that the “executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers” – just this case (as Marty notes).  Moreover, Secretary Hagel, when asked whether the transfer violated the Section 1035, said:  “[W]e believe that the president of the United States is commander in chief, has the power and authority to make the decision that he did under Article II of the Constitution.”  I suppose you could argue that this statement is ambiguous since the President  has the authority to order the transfer absent the congressional restriction.  But Hagel was talking about what the President did in the face of the congressional restriction, and in context he clearly says that he and whomever else “we” refers to (either DOD or the USG) believe that President Obama can disregard Section 1035 in the exercise of his Article II Commander in Chief powers.  (This conclusion is also consistent with National Security Advisor Rice’s statement that “given the president’s constitutional responsibilities, it was determined that it was necessary and appropriate not to adhere to the 30-day notification requirement, because it would have potentially meant that the opportunity to get Sergeant Bergdahl would have been lost.”)

To say that the President disregarded a federal statute because he interpreted it in the emergency context before him to impinge upon Article II is not at all to say that the President acted wrongly or unlawfully.  It’s actually quite a hard legal issue, with few real precedents.  But that seems to me to be the issue.

* Changes more accurately reflect Marty’s post.

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