Transfers, Releases & Resettlements

Vice-President Cheney’s Funny Criticism of President Obama for Not Complying with the GTMO Notice Requirement

By Jack Goldsmith
Wednesday, June 4, 2014, 4:46 PM

I laughed when I heard former Vice-President Cheney on the Laura Ingraham show (approximately the 8:15-9:10 mark) criticizing President Obama for not notifying Congress under Section 1035 of the 2014 NDAA about the Bergdahl swap.  Ingraham complained about the failure of members of Congress to stand up to "the flouting of American law,” including the “failure to notify Congress” about the Bergdahl swap, which she described as one of a “host of moves that are in my mind clearly flouting settled American law.”  Vice-President Cheney responded:

I think you’re right.  The latest one of course is this debate over whether he should have notified the Congress.  The statute was pretty clear.  There are places where presidents don’t agree with what Congress does and we were often involved in some of those when I was involved in government.  Like the War Powers Act, I personally think it is unconstitutional.  But what we’ve always done is say that we think it is unconstitutional but at the same time work with the Congress to avoid a major confrontation over it and still go ahead and do what we needed to do, for example, send troops to the desert for Desert Storm.

This answer is a bit confusing.  I think in the first part the Vice-President agrees that President Obama flouted American law in not giving notice, and in the second part  says that Article II disregard of some statutes (like the War Powers Resolution) would have been lawful, but that he, perhaps unlike President Obama, believes in working with Congress when disregarding its statutes.

Both parts of this answer are contrary to the Vice-President’s past views and actions.

I am confident that Vice-President Cheney would have argued for invoking Article II to flick away Section 1035 in a similar context if he were in power.  (Whether he would have made the Bergdahl deal is another issue, but I have no doubt that he would have deemed unconstitutional a congressional notice requirement that stood in the way of a sensitive wartime transfer of detainees to garner the release of a captured American soldier.)  The modern use of signing statements that invoke the Commander-in-Chief power to disregard congressional regulation of military operations – and especially congressional notification requirements – originated in the second term of the Reagan first Bush  administration (see page 1083 ff. of this piece by Barron and Lederman).  It is no accident (see n. 590) that “[t]he dramatic shift coincides with Richard Cheney taking office as Secretary of Defense.”  A few years earlier, Representative Cheney was the Ranking Member on the Iran-Contra Minority Report.  The Report is as full-throated a defense of Executive power vis a vis Congress as you will find.  It is relevant here for its constitutional defense (p. 477 ff.) of the Carter administration’s failure to comply with statutory notification requirements (in the covert action context) for several months in exercise of the president's "constitutional obligation to protect American lives."  To put it mildly, Vice-President Cheney did not adopt a narrower view of the exclusive Commander-in-Chief power vis a vis Congress during the George W. Bush administration, when he and his Office advocated for many types of Commander-in-Chief overrides of congressional statutes.  Nor did the Vice-President advocate for working with Congress “to avoid a major confrontation,” either as Secretary of Defense (when he often confronted Congress on it regulation of DOD and led the charge for defying Congress on Desert Storm), or during the Bush administration (when he was the leading voice for not working with Congress, and instead for going-it-alone under Article II, on military commissions, detention, surveillance, interrogation, and other issues).