Two Legal Takeaways from Yesterday’s HASC Hearing

By Jack Goldsmith
Thursday, June 12, 2014, 9:19 AM

Yesterday’s HASC Committee Hearing (video here) on the Bergdahl swap was pretty eventful.  At least two important legal issues were discussed: the legality of not notifying Congress about the swap, and the legal consequences of the end of the Afghan conflict.  The first has received the most attention, but the administration arguably made some underappreciated news on the second.

Notice.  DOD General Counsel Stephen Preston says that he sought advice from DOJ’s Office of Legal Counsel on the legality of not complying with the 30-day notice requirement in Section 1035 of the 2014 NDAA in the context of the Bergdahl swap.  He further stated that OLC informed him by email (as opposed to formal written opinion) that such non-compliance was lawful because the statute as applied in the Bergdahl context intruded on the President’s Commander in Chief power under Article II.  In other words, as I suggested last week, the Obama administration disregarded the notice requirement in this context on the ground that it was unconstitutional as applied.  As Preston explained:

The president has authority under article II and has a duty and responsibility to exercise that authority [to transfer detainees in exchange for Bergdahl].  It's not a matter of ignoring the law.   It's where the exercise of his constitutional authority is in tension with a statute, where in this case, his duty and authority to protect servicemembers, to protect U.S. citizens abroad, where the application of this particular provision in this particular set of circumstances would interfere with the exercise of authority, then the statute yields to the constitutional authority either as a matter of interpretation or through the application of separation of powers principles.

Both Secretary of Defense Hagel and Preston said that the administration believed the notice provision was constitutional in general, and that the administration planned to comply with it in normal circumstances.  Preston explained that the principle of constitutional override was limited to the “extraordinary set of circumstances in which the president was seeking to repatriate a servicemember who was in captivity and in peril.”  (He further stated that he did not “want this transfer in connection with the Bergdahl exchange to be interpreted as an exception to the statute whenever there are emergent situations.”)

End of Conflict.  I think Preston made more news on the end-of-conflict issue than on the notice issue.  He stated several times what we all know to be true: That when the armed conflict with the Taliban ends, the military detention rationale for detaining them under international law and domestic precedents ceases.  The hard question is:  When does that armed conflict end?  There have been several suggestions in the press that it will end with the withdrawal of combat troops from Afghanistan, and even some suggestions that one rationale for the release of the five Taliban detainees in exchange for Bergdahl was that they would soon need to be released in any event.  Preston dropped several hints that the administration does not necessarily think, as a legal matter, that the armed conflict that justifies detention of Taliban detainees (much less al Qaeda detainees) will end any time soon.  For example, he said: “I'm not aware of any determination as yet, that with the cessation of the current combat mission at the end of this year that the armed conflicts are determined to be over such that it would trigger the consequences that we've been discussing.”  This is unclear, but I think it means that there has been no determination that the end of the combat mission in Afghanistan (whatever that means) would by itself trigger a duty to release Taliban detainees.  Preston seemed to make this point with more force in this exchange (my emphasis):

PRESTON: Now, it has been suggested that the Taliban may also be candidates to be held as associates of Al Qaida as the conflict with Al Qaida continues.

MCKEON: The point that Mr. Smith made is that this conflict may not end in December just because the majority of our troops are pulled out.


MCKEON: Is that your understanding?

PRESTON:  That's my understanding as well, sir.

And this exchange, in which the point is made more expansively (my emphasis):

SCOTT: Which leads me to a bigger concern in what you said at the start, which was that today, this country has had and has the authority to hold detainees that would potentially change in the future, but it would not necessarily change at the end of '14 when we essentially declare we're no longer engaged in hostilities in Afghanistan, but that that would continue as long as we were in a conflict with the Taliban and Al Qaida.  And -- and I guess my question is, that's your opinion, correct?

PRESTON:   That's my understanding of how the international law principles apply.

This exchange was important as well:

PRESTON:  There will come a point in time where the conflict ends, and if there is not an alternative basis for which to hold them, the law of war basis would no longer be available to us.

WALORSKI:  Right. What is that point in time? Is that point in time when we pull out our -- on the drop date the president made, and say, hey, by the end of 2015, '16, we are going to be completely pulled out; they're going to be on their own.

PRESTON:  That's a -- when an armed conflict comes to an end is a rather complex question. One could answer it, as my predecessor* did, in terms of the degradation of the enemy -- this was with reference to Al Qaida -- to the point where they no longer present a threat.  Our view, and I think it's reflected in the president NDU speech, is that this is -- our government works best, our country is strongest when both of the political branches focus on issues such as the end of a conflict.

The last statement by Preston is the most important, I think.  He says that “our view,” and the view inherent in the President’s NDU speech, is that end-of-conflict issues should be decided jointly by Congress and the President.  I have never seen that point suggested by the administration, and I had not read the NDU speech that way.  As a matter of constitutional law, the President almost certainly does not need Congress’s approval to declare a conflict to be over.  But a declaration of the end of the conflict – with the Taliban, al Qaeda, or both – would trigger legal pressure and eventually a legal duty to release all Taliban and/or al Qaeda detainees not subject to trial, including ones the President has deemed too dangerous to release.  That is a consequence, I expect, that the administration cannot swallow.  So if it wants to declare an end to the conflict, it needs a new legal basis to maintain detention for those too dangerous and threatening to release.  And this can only be done with Congress’s help, perhaps along the lines Steve has suggested.  Also, bringing these dangerous detainees to the United States would require congressional approval along a number of dimensions.  So perhaps in suggesting that Congress participate in end-of-conflict issues, Preston has in mind these larger issues.

*  Preston’s mention of his predecessor’s answer (in the last quotation above) is a reference, I think, to Jeh Johnson’s Oxford speech, where he stated that the armed conflict with al Qaeda would end “when al Qaeda and its associated forces" are so degraded that they cannot “attempt . . . a strategic attack.”