More on the legality of Obama’s decision to exchange five high-ranking Taliban terrorists without giving Congress advance notice [updated with rejoinder to Michael Ramsey]

June 3

In a recent post, I questioned both the morality and the legality of President Obama’s decision to exchange five high-ranking Taliban for captured US soldier Bowe Bergdahl. In my view, the decision was illegal because Obama violated a 2013 law that requires the president to give Congress 30 days advance notice before releasing non-American prisoners held at Guantanamo. Although the president claims that the law was unconstitutional, I believe it is clearly authorized by the Congress’ power to ““make Rules for the Government and Regulation of the land and naval Forces,” which has historically been understood to include the authority to make rules governing the capture, treatment, and release of prisoners.

In a thoughtful post at the Originalism blog, legal scholar Michael Ramsey defends the administration against my and others’ criticism:

As I’ve argued previously, the President’s commander-in-chief power indicates control of tactical aspects of military operations. I do not think that Congress could direct the President to defend a particular outpost against all odds rather than retreat, or mandate a frontal assault upon an enemy position. (Nor could Congress require the President to give 30 days notice prior to abandoning an outpost or making an attack)…..

The decision to release or exchange prisoners of war is similar. Like the decision to attack or retreat, it is part of the immediate management of the war effort — the executive rather than legislative aspect of war. Thus I doubt Congress can use its “government and regulation” power to tell the President to exchange or not to exchange prisoners.

I remain unpersuaded. Many general rules adopted by Congress under the “Government and Regulation Clause necessarily constraint the president’s “immediate management of the war effort.” For example, Congress has adopted laws regulating the abuse, torture, and other mistreatment of prisoners – even in cases where the president might think that torturing a prisoner is tactically advantageous. Congress has adopted laws restricting the use of chemical and biological weapons – again even in cases where the president might think it would be tactically advantageous to do so. The same goes for laws restricting the release of prisoners. The president might think it is tactically advantageous to make lopsided exchanges with terrorists. But Congress might disagree, and choose to ban such deals, or – as in this case – at least subject them to scrutiny by imposing a modest reporting requirement (thereby, perhaps, also making them more difficult to carry out). If Congress can restrict the types of weapons the president has at his disposal, and the kind of treatment he can subject prisoners to, they can also restrict the release of prisoners.

Perhaps Congress would be unduly infringing on the president’s powers as commander-in-chief if it tried to make individual tactical decisions on a case-by-case basis (e.g. – appointing a committee to screen individual prisoners and decide which of them should be released, based on individualized tactical considerations). But that’s not what Congress has done here. It has imposed a general rule requiring 30 days advance notice for the release of any non-American prisoner held at Guantanamo, regardless of individual tactical circumstances. This is not like saying that the President must defend Hill X, but not Hill Y. This is like limiting the range of weapons or tactics that can be used to defend any hill, or at least any hill located in a particular part of the world. That sort of restriction is at the very heart of Congress’ power to make rules for the government and regulation of the armed forces.

UPDATE: Michael Ramsey has posted a thoughtful rejoinder to this post:

I think we mostly agree, and only disagree on where to draw a difficult line. For my part, I agree that Congress can regulate military actions pursuant to general rules, such as limiting the type of weapons that can be used anywhere. Professor Somin appears to agree (though perhaps I’m putting words in his mouth) that Congress cannot make specific tactical decisions, such as “defend Hill X, but not Hill Y” (which was the principal claim I made in my prior article on the subject). So the only question is whether the congressional intervention here is sufficiently general.

Without being definitive, my view remains that the President’s argument is fairly strong. The statute in question, Section 1035(d) of the National Defense Authorization Act for Fiscal Year 2014, is not a general rule about treatment of prisoners of war; it is a specific rule about prisoners held at Guantanamo — that is, a specific set of prisoners in a specific armed conflict. But I concede that the line is difficult to draw.

To briefly clarify my view, I am actually uncertain about the extent of Congress’ authority to regulate very specific tactical decisions such as defending Hill X vs. Hill Y. That’s why I used the term “perhaps” in my original post. That said, I think Section 1035 is pretty clearly a general rule, not a narrowly tactical one. It is true that it is limited to prisoners held in one location during one specific conflict. However, that location contains a high percentage of all the high-ranking terrorists we have captured during the War on Terror. And regulating the general conduct of a specific conflict (in this case, the War on Terror) is far removed from regulating local tactical decisions. For example, it was surely permissible for Congress to restrict the President from sending troops into, e.g., Cambodia during the Vietnam War, even if it did not pass a law forbidding the president from ever sending troops into Cambodia in any conflict.

Like Michael Ramsey, I agree that the line between general rules and narrow tactical decisions is sometimes “difficult to draw.” But I think Section 1035 is well within the “general” side of the line.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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