National Constitution Center podcast on the legality of the Bergdahl exchange [Updated with a reply to Eric Posner]

June 12, 2014

In this National Constitution Center podcast, University of Chicago law professor Eric Posner and I debate the legal and constitutional issues surrounding President Obama’s decision to exchange five high-ranking Taliban commanders for captured US soldier Bowe Bergdahl. Posner and I agree that the exchange violated a provision of the National Defense Authorization Act of 2014 that forbids such exchanges unless Congress gets 30 days advance notice. But Posner argues that the provision is an unconstitutional restriction on the president’s war powers, whereas I believe it is a permissible exercise of Congress’ power to “make Rules for the Government and Regulation of the land and naval Forces.” We also disagree about the broader lessons of history regarding the desirability of legislative constraints on presidential war powers. NCC President and George Washington law professor Jeffrey Rosen moderated and asked some excellent questions.

UPDATE: Eric Posner continues the debate here:

Ilya tells a story in which we learn over history that certain policies (torture, surveillance, prisoner exchanges, military interventions) are unwise or presumptively unwise. Congress incorporates this understanding into law. The president, because he is motivated by short-term political considerations, violates the law. This is why Congress should be given the power to control executive action. My view is nearly the opposite. To take one of many examples, I believe that Congress’ policy toward Guantanamo Bay reflects short-term political considerations. Or consider the debt limit conflict….

Ilya seems quite certain that the prisoner exchange was unwise as a matter of policy. Based on what? Prisoner exchanges (including exchanges with “terrorists”) have been routine throughout history. I believe that abandoning Bergdahl to his fate with the Taliban would have been a blow to national prestige and, I suspect, morale in the military. What would have been the political reaction if the Taliban had executed Bergdahl and then it leaked out that Obama had turned down an offer to make an exchange?

I do not in fact claim that Congress always correctly interprets the lessons of history or that it always manages to incorporate them into law. However, I think this is true of the specific cases of torture and prisoner exchanges with terrorist organizations, where (as I explained in the podcast) there is a long history of evidence suggesting that such policies generally cause more harm than good. I did not claim that all surveillance or all military interventions are unwise or even “presumptively unwise.” However, I think it is dangerous for the executive to engage in such massive surveillance as has occurred in recent years, and also for it to wage war without congressional authorization.

Whether or not Congress is generally less short-sighted than the president, it is likely to be so in those cases where there is a broad enough political consensus to enact legislation limiting presidential discretion over wartime policy, an area where Congress usually defers to the president to a great extent.

I explain my reasons for believing that the Bergdahl exchange was harmful in this post. Much historical evidence indicates that prisoner exchanges with terrorist organizations cost more lives (especially more civilian lives) than they save.

I am skeptical of Eric’s claim that refusing the deal would have damaged “national prestige” or military morale. Members of the military understand – often better than civilians – that some casualties are a necessary price for accomplishing the mission, which in this case includes forestalling future terrorism. In fact, much of the military reaction to the deal has been negative. And our national prestige is hardly enhanced by making lopsided deals with terrorists.

As for the claim that there might have been a negative political reaction “if the Taliban had executed Bergdahl and then it leaked out that Obama had turned down an offer to make an exchange,” I am skeptical that it would have been any more negative than the reaction that has actually occurred. At the very least, the president could have mitigated any negative reaction by emphasizing that it is wrong to make deals with terrorists that endanger civilians. It would not be easy for the GOP (which is usually more hawkish on the War on Terror than the Democrats) to attack that line.

UPDATE #2: I should note that the issue of the lessons of history came up in the context of Eric’s argument that we should not base our analysis of the constitutional limits on executive power in wartime on originalist methodology because much has changed since the 1780s, and in his view history proves that we are better off with very broad executive discretion in this area, largely unconstrained by Congress. I think that, even if we adopt such a “living constitution” approach to the issue (which I view with greater skepticism than Eric), the historical evidence actually cuts the other way.

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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