Last week I explained how the Obama administration might extend it constitutional arguments for disregarding statutory detainee transfer restrictions in the Bergdahl context to the restrictions on transferring GTMO detainees to the United States. (Earlier today I elaborated on these arguments.)
Some people questioned this passage in my post last week:
As far as I can tell Congress as an institution has acquiesced in the administration’s legal arguments supporting both the Taliban five transfer and the unconstitutionality, in some circumstances, of the Homeland transfer restrictions. If the President does transfer some or all of the GTMO detainees to the United States, he will be able to say that he has for years been signaling his authority to do so and that Congress has done little if anything as an institution to object.
When I said that “Congress as an institution has acquiesced,” I meant that Congress has done little of substance in response to the President’s disregard of a statute that has widespread support in Congress. But it would be wrong to suggest that Congress has done nothing. As far back as October 20, 2011, HASC Chairman Buck McKeon wrote the President in response to administration criticisms of the detainee transfer provisions and explained in (very) general terms the constitutional basis for them. In a hearing last June at least a few members of the HASC (most notably Representatives McKeon and Scott) pushed DOD General Counsel Stephen Preston on the administration’s constitutional arguments (though they failed to ask probing questions and in my view Preston easily bested them). A few members at that hearing also asked Preston for a copy of the DOJ email advice and Preston said he would consider the request; it is unclear whether DOD ever subsequently gave HASC the advice, but it has not been made public. Then, in September of last year, the House passed a Resolution that “condemns and disapproves of the failure of the Obama administration to comply with the lawful 30-day statutory reporting requirement in executing the transfer of five senior members of the Taliban from detention at United States Naval Station, Guantanamo Bay, Cuba” and that “stipulates that further violations … are unacceptable.” Finally, the HASC Subcommittee on Oversight and Investigations is looking into the Bergdahl matter, and Chairman McKeon said at last June’s hearing that the investigation included the administration’s “violation of national security law.”
These steps are unlikely to deter the Executive branch from using the constitutional override logic again, including as applied to closing GTMO. Some have asked me what more Congress could do since it already passed a clear statute that the President disregarded. It is hard for Congress to push back against the President in this context, especially when judicial review is unlikely in a timely manner. But it still has Madisonian tools.
Congress, or some subset of it, could explain its views of the constitutional issue. One of the more embarrassing aspects of the GAO’s feeble analysis of the DOD position on the constitutional issue was its assertion that GAO does “not offer any opinion on the constitutionality of section 1035” because it “is not our role or our practice to determine the constitutionality of duly enacted statutes.” The members at the HASC hearing weren’t much better at articulating a response to DOD’s constitutional argument. As DOD correctly pointed out in response to GAO, one cannot assess the legality of what DOD did without addressing the constitutional issue. It would be helpful to Congress’s legal position if it actually did a written legal analysis of DOD’s constitutional position to state why it believes it to be wrong. A good place to start would be with the Bradbury OLC opinion and the Kavanaugh Kiyemba concurrence that I discussed this morning. One problem, of course, is that Congress lacks a unitary structure and doesn’t have an OLC that is expert in constitutional analysis and that can speak definitively for entire branch of government about legal matters. (GAO cannot do this, as we have just seen.) Nonetheless, there are plenty of good lawyers in Congress (including on the HASC and SASC) who could do this legal analysis on behalf of some if not all members of the committees.
Congress could insist on seeing the DOJ analysis that formed the basis for the override. I doubt that DOD turned over the DOJ email advice because the advice has not been made public. But if the advice were made public it could be subject to scrutiny and criticism, and the public (and Congress) might have a better idea about whether the logic of the advice extends to transferring detainees to the United States in the face of transfer restrictions. But how can Congress get the document if DOJ does not want to turn it over? A subpoena is a possibility. Holding up appointments or important appropriations until Congress receives the legal document is more effective. But such a step takes congressional resolve and focus that has thus far been lacking in this context.
Congress could draw out the administration on its GTMO closure plans. The Bergdahl swap was probably a one-off situation. The real question is whether the administration will use the logic of constitutional override to disregard the transfer restrictions on bringing GTMO detainees to the United States as part of closing GTMO. If Congress worries about this, it should act in every setting – hearings, confirmations, letter requests to agencies, etc. – to tie down DOD and DOJ on this issue. Congress might be comforted if it can get the administration to acknowledge that the logic of the Bergdahl disregard cannot extend to closing GTMO. If it the administration fails to provide such assurances, Congress can assume that the administration is considering the possibility and Congress can accordingly ramp up the political heat significantly in response. I would take the following exchange between Senator Cotton and Defense Secretary Carter (from Carter’s confirmation hearing) as an example of evasiveness that should invite closer scrutiny.
Sen. Cotton: Can you assure us that in the future, Congress will always receive advance notification, as required by law, for future releases of Guantanamo prisoners?
Mr. Carter: I can assure you we will always abide by the law. Absolutely, sir.
The reason this is a suspicion-inviting non-answer is that the administration claims to have abided by the law (in Article II) in ignoring the transfer restrictions in the Bergdahl context.
Above all, Congress can exercise enormous leverage through its authorization and appropriations powers. To the extent that the administration does not give Congress clear and satisfactory answers to the questions above, Congress – controlled in both Houses by Republicans – can wield significant power through the annual defense authorization act and through appropriations. I am not talking about more legal restrictions, either directly or tied to appropriations. I am talking about not giving DOD some of the important goodies it might want. That is hard ball, of course, and it comes in a national security context. The point is simply that if Congress feels strongly enough about the issue, it has plenty of options.