The Bergdahl deal — as unlawful as it was misguided

The Bowe Bergdahl deal is so highly dubious on the merits, and so bizarre in the execution, that legal issues fade into the background. But the legalities mirror the deal. From a legal standpoint, Obama’s action is highly dubious and his arguments to the contrary are bizarre.

A law passed in 2013 requires that Congress be given 30 days advance notice of the release of non-American prisoners held at Guantanamo. President Obama signed this legislation into law, but issued a “signing statement.”

The signing statement reads in relevant part:

[The legislation] 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.

Notice two things. First, as Bill Otis observes, the signing statement doesn’t claim the right not to notify Congress before releasing detainees. Instead, Obama merely demands the right to engage in swift negotiations regarding the circumstances of transfer. The president could act swiftly in conducting negotiations regarding the circumstances of detainee transfers and still comply with the congressional notification requirement before actually releasing anyone.

Second, and more fundamentally, a signing statement — whatever its words — cannot nullify the 30-day notification requirement. Signing statements may represent a sensible way to deal with legislation that, if interpreted one way is unconstitutional in the president’s view, but if interpreted in another way is not problematic. In that instance, it’s reasonable for the president, instead of vetoing the legislation, to sign it while adopting the construction that renders the law constitutional.

But there is only one way to construe a 30-day notification requirement. If the president believes a period that lengthy deprives him of the “flexibility” he needs, he should veto the law (whether the deprivation raises constitutional issues or not). He cannot lawfully sign the law and then ignore the 30-day period on the theory that it is too onerous.

Why didn’t Obama just veto the law? Because it added to his power. Previously, Congress had the power to block releases altogether. Through the legislation in question, Congress gave up that power in exchange for the notification requirement.

In other words, Obama took the five loaves of bread Congress gave him while intending all along to grab the one loaf it received in return, as soon as he felt the need to do so. But, as we have seen, the words of his signing statement, on their face, don’t negate the 30-day notice period. Perhaps Obama realized that a more explicit declaration would have been too transparently an improper use of a signing statement.

The administration’s latest legal defense of its violation the 30-day notice period is that:

[T]he 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. . .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.

But Congress’s 30 day notice requirement contains no exception for “unique circumstances.” As Ilya Somin points out, various national security legislation contains numerous provisions that can be waived in appropriate circumstances by the president or the secretary. But this law contains no such provision.

Thus, it is absurd for Team Obama to pretend to believe that Congress did not intend to bar the administration from failing to provide notification in “unique” circumstances. Congress expressed itself with extraordinary clarity here.

Somin goes on to argue, quite correctly, that “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 war making.” 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.”

For Obama, saving American lives through the use of certain harsh interrogation techniques presumably wouldn’t cut it as an exigent circumstance that trumps the law. But releasing a deserter in exchange for five leading terrorists does.

That’s American exceptionalism in the time of Obama.

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