The Obama administration’s dubious defense of the legality of releasing five high-ranking Taliban without giving Congress the required advance notice

June 3

The Obama administration’s recent decision to release five high-ranking Taliban commanders in exchange for captured soldier Bowe Bergdahl clearly violates a 2013 law that requires that Congress be given 30 days advance notice of such releases. While the Obama administration has previously suggested that the the 30 day notice requirement is unconstitutional, it is in fact authorized by Congress’ power to make “rules for the Government and Regulation” of the armed forces.

Today, Caitlin Hayden of the National Security Council issued a statement outlining a new legal rationale for the administration’s position (HT: Marty Lederman]. Unfortunately, it is remarkably weak:

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.

The biggest problem with this argument is that the 30 day notice requirement contains no exception for “unique” circumstances where the President or the secretary of defense believe that obeying it might endanger a soldier’s life. The National Defense Authorization Act and other national security legislation contain numerous provisions that can be waived in appropriate circumstances by the president or the secretary. There is no such waiver or exception in the 30 day notice requirement. If the president can get around the law anytime he or the secretary of defense believe that it might save a soldier’s life, then he could disregard almost any congressional restrictions on warmaking. For example, President Bush and Secretary of Defense Donald Rumsfeld surely believed that their violations of congressional statutes barring torture of prisoners would help save soldiers’ lives. It is true that the president has the duty of “protecting the lives of Americans abroad and protecting U.S. soldiers.” But in pursuing those objectives, he must stay within the bounds of laws enacted by Congress, whether they be laws restricting torture, or laws restricting the release of brutal terrorists. Candidate Obama understood that when he rightly criticized President Bush back in 2008. President Obama, however, often seems to forget.

In addition, it is far from clear that Congress really did not “intend” to apply Section 1035 to these “unique” circumstance. I suspect that many members of Congress might conclude that obeying 30 day notice requirement is particularly necessary in a “unique” case where it might have prevented a deal releasing five high-ranking terrorists who are likely to endanger numerous innocent civilians – especially when all we got in return was the release of a single soldier who might be a deserter. Both sides in this dispute can play the game of speculating about congressional intent. That’s one of the reasons why it’s much better to stick to the plain text of the law, at least in a case like this one where the text is very clear and unequivocal.

As for the the administration’s “separation of powers concerns,” it is the administration itself that is undermining the separation of powers here by disobeying a law that clearly falls within the scope of Congress’ Article I authority.

NOTE: In developing this post, I have been influenced by arguments made by legal scholars Larry Rosenthal and Deborah Pearlstein on a constitutional law professor e-mail list that I am a member of.

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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