Last summer I wrote of the administration’s constitutional arguments for disregarding congressional transfer restrictions in swapping the Taliban 5 for Bowe Bergdahl:
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.
And last week I explained how the logic of the Executive branch’s constitutional arguments in the Bergdahl context might extend to transferring the GTMO detainees to the United States as part of closing GTMO. Below I follow up by analyzing two legal sources that help to illustrate limitations in the administration’s constitutional argument in the Bergdahl context, as well as the difficulty of extending that argument to closing GTMO generally.
Bradbury’s 2009 OLC Opinion. Five days before Barack Obama assumed the presidency, George W. Bush’s acting OLC chief Steven Bradbury issued an OLC opinion that, in the context of cautioning against reliance on some earlier OLC opinions, analyzed Congress’s power over wartime prisoner detention and transfer. A 2002 OLC opinion had claimed that “the power to dispose of the liberty of individuals captured and brought under the control of United States armed forces during military operations remains in the hands of the President alone” because the Constitution does not “specifically commit the power to Congress.” Bradbury’s opinion rejected this proposition. It noted that “[t]he Captures Clause of Article I, which grants Congress power to "make Rules concerning Captures on Land and Water," id. cl. 11, [appears] to provide separate authority for Congress to legislate with respect to the treatment and disposition of enemy combatants captured by the United States in the War on Terror.” It further noted that Brown v. United States, 12 U.S. (8 Cranch) 110 (1814), relied on the Captures Clause to comment “favorably on Congress's authority to regulate the treatment of prisoners of war—and, indeed, actually suggested that the exercise of such congressional authority counseled against locating the authority to detain enemy prisoners solely in the general war powers of the President.” Bradbury’s opinion did not, however, say that Congress’s power here was exclusive. Rather, it noted that “the President's constitutional authority to deploy military and intelligence capabilities to protect the interests of the United States in time of armed conflict necessarily includes authority to effectuate the capture, detention, interrogation, and, where appropriate, trial of enemy forces, as well as their transfer to other nations.” The opinion did not explore how to assess the relevant congressional and presidential authorities in a Jackson Category 3 situation other than to say that “Congress may not unduly constrain or inhibit the President's exercise of his constitutional authority in these areas.”
Kavanaugh Concurrence in Kiyemba. Eight months in to the Obama presidency, the D.C. Circuit in Kiyemba denied habeas corpus relief to nine GTMO detainees who opposed transfer off the island on the ground that they were likely to be tortured in the recipient country. Judge Kavanaugh joined the opinion of the court but then wrote separately to “emphasize” this point (among others):
First, our disposition does not preclude Congress from further regulating the Executive’s transfer of wartime detainees to the custody of other nations. Congress possesses express constitutional authority to make rules concerning wartime detainees. See, e.g., U.S. CONST. art. I, § 8 (“Congress shall have Power … To … make Rules concerning Captures on Land and Water”). The constitutional text, Justice Jackson’s Youngstown opinion, and recent Supreme Court precedents indicate that the President does not possess exclusive, preclusive authority over the transfer of detainees. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring). Except perhaps in a genuine, short-term emergency, the President must comply with legislation regulating or restricting the transfer of detainees. In other words, under the relevant precedents, the President does not have power to trump legislation regarding wartime transfers in a Youngstown category-three situation. To be sure, there are weighty policy reasons why Congress may not seek to restrict the Executive’s transfer authority or to involve the Judiciary in reviewing war-related transfers. That presumably explains why Congress has not done so. But to the extent Congress wants to place judicially enforceable restrictions on Executive transfers of Guantanamo or other wartime detainees, it has that power.
The Obama Argument for Denying Congressional Transfer Restrictions. As best I can tell, the Obama administration has twice explained why it believed it could disregard the notice requirements on the transfer restriction in the Bergdahl context. First, an unsigned legal analysis that DOD supplied GAO relied on Morrison v. Olson, 487 U.S. 654, 695 (1988) for the proposition the transfer restrictions would have “prevent[ed] the Executive Branch from accomplishing its constitutionally assigned functions,” and on Nixon v. Administrator of General Servs., 433 U.S. 425, 443 (1977), for the proposition that the congressional impingement on Executive prerogative was not “‘justified by an overriding need’ to promote legitimate objectives of Congress. After citing these sources, DOD maintained:
The Administration had determined that providing notice as specified in the statute would undermine the Executive’s efforts to protect the life of a U.S. soldier. Congress’s desire to have 30 days to weigh in on the determination that the Secretary had already made, in accordance with criteria specified by Congress, that the transfer did not pose the risks that Congress was seeking to avoid, was not a sufficiently weighty interest to justify this frustration of the Executive's ability to carry out these constitutionally assigned functions. Thus, even though, as a general matter, Congress had authority under its constitutional powers related to war and the military to enact section 1035(d), that provision would have been unconstitutional to the extent it applied to the unique circumstances of this transfer.
Second, in a hearing last June on the transfer of the Taliban 5, DOD General Counsel Stephen Preston explained the administration’s constitutional views in general terms. Preston noted that “the administration sought the guidance from the Department of Justice on the applicability and impact of the 30-day notice requirement under these circumstances and received guidance from the Department of Justice,” and that the guidance was conveyed “not by means of a formal memorandum opinion, but rather by e-mail exchange principally.” Preston summarized that guidance in the hearing, perhaps most extensively here:
Sir, we believe the [statute with the detainee transfer restrictions] is constitutional. The question was the constitutional implications of its application in the particular circumstances here. And the administration determined that it was necessary to forego the full 30 day formal notice to the eight committees under the constellation of circumstances presented in this situation in which the president was seeking to free a servicemember in captivity and in peril. And the circumstances can be described in terms of the fragility of the negotiations and concerns about delay and leaks and the impact in a premature ending of the negotiation. The circumstance of a fleeting opportunity to effectuate the exchange. The secretary mentioned that from the time it was decided to do an exchange to the actual execution was something on the order of 96 hours, the potential harm to Sergeant Bergdahl if the deal became public, all this in the context and backdrop of uncertainty as to his physical condition and the realization that this might be our last, best change to get him. It was in that circumstance, Mr. Chairman, … that with the deal coming together and the prospect of having a decision to transfer, the concern was that delaying, at that point, for 30 days to effectuate notice of the transfer would scuttle the deal and could possibly further endanger Sergeant Bergdahl.
Analysis. These constitutional explanations for what the administration did are conclusory and thus hard to assess. (It would be nice to see the OLC email advice, which Congress has requested, and any OLC analysis that undergirded that advice; but those documents are not public.) Nonetheless, a few comments are possible.
Both the unsigned DOD advice and the Preston testimony acknowledge that Congress has authority to regulate detainee transfers but assert that in the context of the Bergdahl matter the notice requirement unduly burdened a constitutionally assigned presidential function. In neither context did the administration analyze the significance and scope of the Captures clause, or specify the source and scope of the president’s burdened military functions, or explain (beyond conclusory statements about unduly burdening presidential power) the scope or implications of the constitutional override. Nor has the government in this context mentioned Youngstown, Hamdan, or Hamdi. As Kavanaugh suggested, all three of these cases (and the latter two concretely) indicate that Congress has significant controlling authority in Jackson Category 3 situations in related post-9/11 wars military contexts.
That said, both Bradbury and Kavanaugh recognize that in some circumstances related to transfer the President’s authority must prevail. I suspect that the USG lawyers took particular solace in this sentence from Kavanaugh’s concurrence: “Except perhaps in a genuine, short-term emergency, the President must comply with legislation regulating or restricting the transfer of detainees.” Kavanaugh does not explain the basis for his possible emergency exception to compliance with the transfer restrictions. But the USG in its constitutional explanations has consistently emphasized the exigent nature of the negotiations with the Taliban and the threat to Berdahl’s life.
While the Bergdahl situation might plausibly be deemed an emergency, however, it is hard to see how transferring GTMO detainees to the United States can be deemed an emergency. This is one way of illustrating the difficulty of extending the Bergdahl analysis to closing GTMO. Another problem is that, as Youngstown suggests, Congress’s prerogatives during war are more certain, and the President’s less so, when the relevant activity takes place in the domestic sphere.