Why It Matters That Obama Didn’t Follow The Law In The Bergdahl Release Deal
Conor Friedersdorf explains why the fact that the President failed to comply with the law requiring notice to Congress before transferring prisoners out of Guantanamo Bay:
What’s alarming is the unlawful way that the Obama administration carried out the swap. The law requires 30 days’ notice to Congress before a Gitmo detainee is transferred or released. The White House has now brazenly flouted that requirement. And the precedent being set by Team Obama is problematic in the same ways as the executive-branch power grabs that happened during the Bush Administration. In fact, Senator Obama was a critic of the logic he has now shamelessly adopted. He decried signing statements, for example, but cites a signing statement of his own as if it is a defense against violating the plain text of what he signed.
The illegality of the Obama Administration’s actions is underscored by the way their story keeps changing. The White House began by hinting that the 30-day notification requirement is unconstitutional. But it is unwilling to press that claim. Its current position is that Congress didn’t intend the law to say what it says.
If the president truly believed that the bill was unconstitutional, he had a duty to veto the bill pursuant to his oath to uphold and defend the Constitution,” a commenter at The Volokh Conspiracy points out. “President Obama didn’t veto the bill, and instead made it the law of the land. Having done so, he cannot now complain that the law he is ultimately responsible for is unconstitutional and doesn’t need to be followed …. A country where the laws apply to the people but not to the president, even when the laws are specifically directed towards the executive branch, is not governed by the rule of law.”
This is hardly the most egregious abuse of executive power America has seen in the War on Terrorism. Yet the fact that the rule of law has already been eroded so much is all the more reason to zealously conserve what’s left, rather than excusing any abuse that doesn’t approach the worst of what we’ve witnessed. Impeachment would be a wild, irresponsible overreaction to Obama’s unlawful prisoner swap. But neither can Congress afford to let the executive branch defy it with impunity, so some lesser step to remove the incentive for future lawlessness would be welcome.
In making note of the Administration’s evolving justification for evading the notice requirement that is clearly set forth in the law, Friedersdorf makes note of a statement from the National Security Council to the press, which I’ve embedded below, that takes the argument to an entirely new level:
With respect to the separate 30-day notification requirement in Section 1035(d), the Administration determined that the notification requirement should be construed not to apply to this unique set of circumstances, in which the transfer would secure the release of a captive U.S. soldier and the Secretary of Defense, acting on behalf of the President, has determined that providing notice as specified in the statute could endanger the soldier’s life.
In these circumstances, delaying the transfer in order to provide the 30-day notice would interfere with the Executive’s performance of two related functions that the Constitution assigns to the President: protecting the lives of Americans abroad and protecting U.S. soldiers. Because such interference would significantly alter the balance between Congress and the President, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances.
The President also has repeatedly expressed concerns regarding this notice requirement. For example, the President’s FY14 NDAA signing statement indicated that “Section 1035 does not, however, eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles. 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.” To the extent that the notice provision would apply in these unique circumstances, it would trigger the very separation of powers concerns that the President raised in his signing statement.
In other words, the President is asserting for himself the authority to determine that Congress doesn’t really mean what the law it passed, and he signed into law, clearly say in plain language. And, as Freidersdorf put it, the Administration can ignore a law as long as the Secretary of Defense determines that it is “necessary to protect Americans abroad or U.S. soldiers.” That’s about as open ended a justification as you can get, and one that would’ve made Bush Administration officials like John Yoo and Donald Rumsfeld quite proud. After all, they determined that torture was necessary to protect the homeland and the troops, so it’s really hard to see what the difference between Bush and Obama is when it comes to the issue of Executive Power. Once again, in other words, we see that the differences between Barack Obama and George W. Bush are far less than the supporters of either one of them would like to admit.
This would still be a problem, by the way, even if there weren’t serious questions about how Bowe Bergdahl went missing. Even if he were a decorated soldier with a spotless record, there is quite simply no justification for ignoring the requirements of the law in a situation like this. Even if we accept the Administration’s contention that there is evidence that Bergdahl’s health was deteriorating, or that he was otherwise in danger, thus necessitating an effort to get him released, there was obviously enough time for the White House to follow the proper notification procedures. Indeed, even if they had just called up the Chairs and Ranking Members of the appropriate committees and the Majority and Minority Leadership in both Houses and told them what was going on last week I’m betting that they wouldn’t be dealing with half the political headaches that they are going to be dealing with going forward. It wouldn’t have been strict compliance with the law, but it would have been something and it probably would’ve been enough for most people. Instead, they went ahead and did this, and now they’ll have to deal with the political consequences. Quite frankly, they deserve it.
Even if we accept the argument that this law was a bad law for some reason, or that it was in fact an unconstitutional infringement of the President’s powers and Commander in Chief, as unconvincing as that argument might be, the willful decision to ignore the law and then engage in legal and factual legerdemain to try to justify that after the fact. We live in a nation of laws, and those laws apply as equally to the President of the United States as they do to anyone else. Unless and until the law is repealed or a court has declared it unconstitutional, then it is still the law and it ought to be followed, and there ought to be consequences of some kind when it is deliberately and blatantly ignored in the manner that the Obama Administration has done here.
Friedersdorf is right that ignoring the law with impunity like this is something that Congress can’t ignore. There certainly ought to be hearings, and I’m sure people like Senator Dianne Feinstein are already looking into that possibility. Perhaps there need to be changes to the law to reign in an overly assertive Executive. Most importantly, though, the American people need to wake up to the reality of what The Cult Of The Presidency has created and demand that the people who they elect to that office act differently in the future. Because if they don’t then this will just keep happening over and over again.
Here’s the text of the NSC’s statement to the press: