Right-wing media figures incorrectly described President Obama's signing statement attached to a law involving what type of Congressional notification is required before Guantanamo detainees are freed, avoiding the substantive question of whether or not a Commander-in-Chief had the responsibility and authority to rescue Sgt. Bowe Bergdahl, a captured American soldier. In fact, signing statements are a common practice of the modern presidency, the President has used these pronouncements far less frequently than his predecessors, and bipartisan legal experts are validating the administration's legal arguments.
President Negotiated A Prisoner Swap In Accordance With Long-Standing U.S. Military Policy Not To Leave Soldiers Behind
New York Times: U.S. Government Negotiated For Release Of Captured American Soldier. On May 31, the Obama administration negotiated the release of army Sgt. Bowe Bergdahl, who had been held in captivity by the Taliban forces in Afghanistan for almost five years. As the Times reported, Bergdahl was released in exchange for five Taliban prisoners who had been detained at Guantanamo Bay, who will now be sent to Qatar:
The lone American prisoner of war from the Afghan conflict, captured by insurgents nearly five years ago, has been released to American forces in exchange for five Taliban detainees held at Guantánamo Bay, Cuba, Obama administration officials said Saturday.
The soldier, Sgt. Bowe Bergdahl, 28, was handed over to American Special Operations troops inside Afghanistan near the Pakistan border about 10:30 a.m. Saturday in a tense but uneventful exchange with 18 Taliban officials, American officials said. Moments later, Sergeant Bergdahl was whisked away by the helicopter-borne commandos, American officials said. He was described in good physical condition.
The five Taliban detainees at Guantánamo, including two senior militant commanders said to be linked to operations that killed American and allied troops as well as implicated in murdering thousands of Shiites in Afghanistan, were flown from Cuba in the custody of officials from Qatar, who will accompany them back to that Persian Gulf state. They will be subject to security restrictions there, including a one-year travel ban. [New York Times, 5/31/14]
Washington Post: President Obama's Earlier Signing Statement Claimed The Detainee Notification Act Could Not Delay A Time-Sensitive Prisoner Exchange. As the Washington Post explained, Congress was not notified 30 days prior to the swap, a stipulation of the National Defense Authorization Act. In a signing statement issued for the law, the administration earlier advised Congress it believed that the notification provision, which requires the defense secretary to “notify relevant congressional committees at least 30 days before transferring anyone from Guantanamo Bay,” was “potentially unconstitutional” because it could interfere with the executive branch's “flexibility ... to act swiftly in conducting negotiations” :
Current law, signed by Obama in December, stipulates that the defense secretary must notify relevant congressional committees at least 30 days before transferring anyone from Guantanamo Bay and provide assurances that those released would not be in a position to again threaten the United States or its interests.
Obama did not send such a notice to Capitol Hill until Monday -- two days after the detainees were sent to Qatar, where they will live for at least the next year, in circumstances that neither the administration nor the emirate has explained publicly.
That Obama should ignore the notification provision, which was part of the 2014 National Defense Authorization Act, is not entirely a surprise.
In the signing statement with the law, Obama declared that he thought the requirement was potentially unconstitutional.
“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,” Obama said.
In the case of Bergdahl's release, administration officials have argued, life-or-death circumstances required fast action. [Washington Post, 6/2/14]
New York Times: Military Officials Agree U.S. Should Prioritize Return Of American Prisoners. The Times highlighted military officials explaining the importance of the U.S.'s long-standing commitment to the idea that no man or woman should ever be left behind. The General formerly in charge of military operations in Afghanistan called this absolute principle “more important than a paycheck or a medal” :
Mr. Obama on Tuesday dismissed questions about whether Sergeant Bergdahl deserved special efforts. “The United States has always had a pretty sacred rule, and that is: We don't leave our men or women in uniform behind,” Mr. Obama told reporters in Warsaw during the first stop on his four-day European trip.
Asked about the circumstances of the capture of Sergeant Bergdahl by the Taliban, Mr. Obama said that no one had yet debriefed him -- but he said that nothing changes the responsibility to try to recover him.
“Regardless of circumstances, whatever those circumstances may turn out to be, we still get an American prisoner back,” he said. “Period. Full stop. We don't condition that.”
How important is this ethos?
“It's more important than a paycheck or a medal,” said Gen. James N. Mattis, who from 2010 to 2013 led the military's Central Command, which oversees operations in Afghanistan. General Mattis said a horseshoe from the Bergdahl family home in Idaho hung outside his command's operations center.
[O]n Tuesday, Gen. Martin E. Dempsey, the chairman of the Joint Chiefs of Staff, and John M. McHugh, the secretary of the Army, said the military would determine whether he had violated rules by leaving his post nearly five years ago.
“The questions about this particular soldier's conduct are separate from our effort to recover ANY U.S. service member in enemy captivity,” General Dempsey wrote on his Facebook page. “When he is able to provide them, we'll learn the facts,” the general said of Sergeant Bergdahl. “Like any American, he is innocent until proven guilty.”
“The Warrior Ethos is more than words, and we should never leave a comrade behind,” Mr. McHugh said in a statement. “As Chairman Dempsey indicated, the Army will then review this in a comprehensive, coordinated effort that will include speaking with Sergeant Bergdahl to better learn from him the circumstances of his disappearance and captivity.” [The New York Times, 6/3/14]
Right-Wing Media Bypass U.S. Tradition Of Not Abandoning Captured Soldiers And Misrepresent Legal Effect Of Signing Statement
Fox Contributor Allen West: The “Intent, Purpose, History, And Usage” Of Signing Statements Have Implications For An “Impeachable Offense.” Former Republican congressman and current Fox contributor Allen West claimed the signing statement had “implications for the president's impeachment” and his negotiations for the prisoner exchange “represents high crimes and misdemeanors” :
Now before all the detractors go apoplectic here, let me tell you about Article 2 signing statements, their intent, purpose, history, and usage, and the implications for the president's impeachment.
President Obama used an Article 2 signing statement to deem unconstitutional a measure HE had signed into law contained in the National Defense Authorization Act (NDAA). The law stated that he must advise Congress within 30 days about any plans to transfer detainees from GITMO. Obama basically stated that this was “unconstitutional” and that his unilateral action fell within his purview. Once again Obama used selective discretion as to what law he feels he must adhere to -- in this case it has severe ramifications for our national security.
Why would the United States acquiesce to the demands of a non-state, non-uniform terrorist organization -- the Taliban? The Taliban is our enemy and it is not a nation-state with whom we should enter into negotiations. There are some 141 detainees at GITMO. The five released were senior Taliban officials, basically members of Mullah Omar's inner circle. If we wanted to release detainees in exchange for Bergdahl, there were many others to choose from. Why these?
Ladies and gentlemen, I submit that Barack Hussein Obama's unilateral negotiations with terrorists and the ensuing release of their key leadership without consult -- mandated by law -- with the U.S. Congress represents high crimes and misdemeanors, an impeachable offense.
So I call upon the leadership of the U.S. House of Representatives; Speaker John Boehner, Majority Leader Eric Cantor, Minority Leader Nancy Pelosi to draft articles of impeachment as no one is above the law in America. The failure to do so speaks volumes. [AllenBWest.com, 6/3/14]
George Will: The President Believes “He Had The Power” To Negotiate For Bergdahl's Release “Because He Gave It To Himself.” On the June 4 edition of Special Report, Fox contributor George Will urged others to “leave aside the wisdom” of rescuing an American soldier and focus on the signing statement, arguing that “the president's position is that he had the power because he gave it to himself” :
WILL: At the bottom of all this, Bret, the question of whether the president had the power to do this in the first place. Leave aside the wisdom of what he did. The president's position is that he had the power because he gave it to himself in a signing statement on an appropriations bill.
In this case the president was obligated by law to notify Congress thirty days before any such exchange, and he did not do it. [Fox News, Special Report With Bret Baier, 6/4/14]
Fox Correspondent: Obama “Essentially Gave Himself A Loophole” By Issuing A Signing Statement. On the June 4 edition of The O'Reilly Factor, Fox News' chief political correspondent Carl Cameron claimed that Obama undertook prisoner swap negotiations pursuant to “a signing statement attached to [the National Defense Authorization Act] where he essentially gave himself a loophole with that thirty-day required window to notify Congress that there was a prisoner swap.” [Fox News, The O'Reilly Factor, 6/4/14]
Signing Statements Are Long-Standing Practice Of Executive Branch To Raise Constitutional Concerns But Are Legally Meaningless
Center For Constitutional Rights' Dixon: Signing Statement Does Not Give The President Any Authority -- It “Is Essentially A Presidential Press Release.” According to Center for Constitutional Rights Senior Staff Attorney J. Wells Dixon, Obama's signing statement was unremarkable and possibly even immaterial because “it's an open question whether the law even applies to a situation like this.” More important, said Dixon, is the substantive action the president took as a result of the signing statement -- freeing an American solider from the Taliban:
DIXON: I think it's an open question whether this law actually prevented or would have prevented the president from transferring these men absent prior notice. I think it's an open question whether the law even applies to a situation like this. There's nothing in the statute itself that would suggest that it was intended to limit the president's authority to act in situation involving exigent circumstances or where there were significant foreign relations consequences. So I think he was perhaps well within his authority to do that.
But -- and I think you see hints of that or suggestions of that in the signing statement and as well in some of the veto threats that have been issued by the White House in connection with upcoming legislation to renew potentially those restrictions.
RACHEL MADDOW: So just to be clear, though, you're not saying that the signing statement gives the president authority to do this even though the law says otherwise.
DIXON: No, the signing statement is essentially a presidential press release. But it is important because it does provide a window into what the president's thinking, into some of the legal issues and some of the areas of potential conflict among the different branches of government. But as I said at the outset, I don't know that this law, that this notification requirement, was ever meant to apply in a situation like the prisoner transfer that -- and exchange that occurred recently.
MADDOW: Well, Congress certainly means for it to apply against emptying out Guantanamo and closing the prison. I mean, that's why they inserted that language, is that they want the president to be constrained by law from being able to do what he wants to do, which is send prisoners back to their home countries or third countries whenever it can be safely arranged. They clearly want to stop him from doing that. You're saying he should ignore Congress and that law in doing so.
DIXON: What I'm saying is they may want to frustrate his ability to close the prison for political reasons, but I don't think that there is an effort on the part of Congress to actually prevent a prisoner exchange. I mean, what would the Republicans do? Would they have left Sergeant Bergdahl in Afghanistan in the hands of the Taliban? [MSNBC, The Rachel Maddow Show, 6/2/14]
Congressional Research Service: The “Examination Of Substantive Executive Action Taken” Is More Important Than The Issuance Of A Signing Statement. As the Congressional Research Service explained, the practice of signing statements is common in modern presidencies, and “no constitutional or legal deficiencies adhere to the issuance of such statements in and of themselves.” CRS went on to note that Obama's use of signing statements has been marked by restraint in comparison to his predecessors -- particularly George W. Bush, who “challenged more than 1,000 distinct provisions of law” through signing statements, a “qualitative difference” from his peers:
While the history of presidential issuance of signing statements dates to the early 19th century, the practice has become the source of significant controversy in the modern era as Presidents have increasingly employed the statements to assert constitutional and legal objections to congressional enactments. President Reagan initiated this practice in earnest, transforming the signing statement into a mechanism for the assertion of presidential authority and intent. President Reagan issued 250 signing statements, 86 of which (34%) contained provisions objecting to one or more of the statutory provisions signed into law.
President George H. W. Bush continued this practice, issuing 228 signing statements, 107 of which (47%) raised objections. President Clinton's conception of presidential power proved to be largely consonant with that of the preceding two administrations. In turn, President Clinton made aggressive use of the signing statement, issuing 381 statements, 70 of which (18%) raised constitutional or legal objections. President George W. Bush continued this practice, issuing 161 signing statements, 127 of which (79%) contain some type of challenge or objection. The significant rise in the proportion of constitutional objections made by President George W. Bush was compounded by the fact that his statements were typified by multiple objections, resulting in more than 1,000 challenges to distinct provisions of law. Although President Barack Obama has continued to use presidential signing statements, the Obama Administration has used the interpretive tools with less frequency than previous administrations--issuing 20 signing statements, of which 10 (50%) contain constitutional challenges to an enacted statutory provision.
However, in analyzing the constitutional basis for, and legal effect of, presidential signing statements, it becomes apparent that no constitutional or legal deficiencies adhere to the issuance of such statements in and of themselves. Rather, it appears that the appropriate focus of inquiry in this context is on the assertions of presidential authority contained therein, coupled with an examination of substantive executive action taken or forborne with regard to the provisions of law implicated in a presidential signing statement. [Congressional Research Service, 1/4/12]
The President's Policy On Signing Statements Was Well-Known Prior To The Prisoner Exchange That Brought Bergdahl Home
President Barack Obama: "I Will Act With Caution And Restraint, Based Only On Interpretations Of The Constitution That Are Well-Founded." According to a memo released in 2009, Obama announced he would use signing statements “to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities” :
For nearly two centuries, Presidents have issued statements addressing constitutional or other legal questions upon signing bills into law (signing statements). Particularly since omnibus bills have become prevalent, signing statements have often been used to ensure that concerns about the constitutionality of discrete statutory provisions do not require a veto of the entire bill.
In recent years, there has been considerable public discussion and criticism of the use of signing statements to raise constitutional objections to statutory provisions. There is no doubt that the practice of issuing such statements can be abused.
Constitutional signing statements should not be used to suggest that the President will disregard statutory requirements on the basis of policy disagreements. At the same time, such signing statements serve a legitimate function in our system, at least when based on well-founded constitutional objections. In appropriately limited circumstances, they represent an exercise of the President's constitutional obligation to take care that the laws be faithfully executed, and they promote a healthy dialogue between the executive branch and the Congress.
With these considerations in mind and based upon advice of the Department of Justice, I will issue signing statements to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities. In issuing signing statements, I shall adhere to the following principles:
1. The executive branch will take appropriate and timely steps, whenever practicable, to inform the Congress of its constitutional concerns about pending legislation. Such communication should facilitate the efforts of the executive branch and the Congress to work together to address these concerns during the legislative process, thus minimizing the number of occasions on which I am presented with an enrolled bill that may require a signing statement.
2. Because legislation enacted by the Congress comes with a presumption of constitutionality, I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional. In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded.
3. To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection.
4. I will announce in signing statements that I will construe a statutory provision in a manner that avoids a constitutional problem only if that construction is a legitimate one. [The White House, 3/9/09]
New York Times' Charlie Savage: Obama Promised To Use “Restraint” When Issuing Signing Statements. As reported by Charlie Savage, who won a Pulitzer Prize in 2007 for reporting on Bush II's use of signing statements, Obama set out to not abandon the practice, but rather to not approach the same “expansive view of executive power” promoted by the Bush administration:
Since the 19th century, presidents have occasionally signed bills while calling a provision unconstitutional. But the practice was rare until President Ronald Reagan. He and his successors, including Bill Clinton, began issuing signing statements much more frequently and challenging far more provisions.
The practice peaked under Mr. Bush, who challenged nearly 1,200 provisions of bills over eight years -- about twice the number challenged by all previous presidents combined, according to data compiled by Christopher Kelley, a Miami University of Ohio professor.
Mr. Obama has attached signing statements to 5 of the 42 bills he has signed, focusing on 19 specific provisions. He also challenged, without listing them, “numerous provisions” in a budget bill requiring officials to obtain permission from a Congressional committee before spending money. It contained dozens of such requirements.
In the presidential campaign, the Republican nominee, Senator John McCain of Arizona, promised never to issue a signing statement. By contrast, Mr. Obama said it was a legitimate way “to protect a president's constitutional prerogatives” when used with greater restraint than Mr. Bush.
“Restraint,” Mr. Obama and his campaign said then, included not issuing “signing statements that undermine the legislative intent” or “nullify or undermine Congressional instructions as enacted into law.”
But in March, when he issued a presidential memorandum on signing statements, Mr. Obama defined restraint as citing only “interpretations of the Constitution that are well founded,” a subtle shift that provides greater leeway.
Still, unlike Mr. Bush, Mr. Obama has not mentioned the Unitary Executive Theory, an expansive view of executive power that conflicts with Supreme Court precedent. His only invocation of his commander-in-chief authority was limited, taking aim at a requirement that he get permission from a military subordinate before taking an action.
“He has not pushed the envelope as far as the Bush administration in making the kind of claims that Bush made,” said Phillip Cooper, a Portland State University professor who studies signing statements. “But he is still using it in ways that were controversial before George W. Bush came to office.” [New York Times, 8/9/09]
Law Professor Kevin Evans: “A Signing Statement Is Written Commentary” That The President Never Completely Disavowed. According to Evans, Obama's use of signing statements is infrequent, and is in keeping with his general campaign promise not to use such statements in the same way George W. Bush had. As Evans points out, “the lack of frequency with which the administration issues them leaves Obama nowhere close to Bush in terms of the number of provisions challenged over a similar timeframe” :
A signing statement is written commentary on a bill that is being signed into law. The scholarly literature has shown that these statements can serve a wide range of purposes (praise, criticism, credit claiming, legislative appeals, etc.). Most controversially, presidents offer their opinion about the constitutionality of various provisions of law and allude to non-enforcement (or altered enforcement in order to avoid constitutional conflicts). President George W. Bush made the constitutional challenges within signing statements (in)famous by citing problems with approximately 1,200 provisions of legislation; double the amount of all the previous presidents combined. Those challenges can be found within Bush's 112 first-term statements and his 50 second-term statements.
The Obama administration has only issued 22 statements during his first term. While these statements are chock-full of constitutional challenges (Obama's most recent NDAA signing statement challenges more than 20 sections of law on constitutional grounds), the lack of frequency with which the administration issues them leaves Obama nowhere close to Bush in terms of the number of provisions challenged over a similar timeframe.
President Bush's use of signing statements to challenge provisions of law was unprecedented in nature. Charlie Savage's Pulitzer Prize winning coverage of signing statements in The Boston Globe and challenges from legislators helped to raise the public profile of signing statements to all new heights. As a result, these statements became an important symbol of abused power for many observers. When President Obama came into office he vowed to continue the practice with “caution and restraint, based only on interpretations of the Constitution that are well founded.” Nonetheless, not everyone saw his actions as being in accordance with those principles. With every new signing statement came another New York Times article; the signing statement was no longer the quiet and obscure tool of unilateral power that it once was.
Another example [of his views on the use of signing statements] comes from President Obama's response to Charlie Savage's executive power survey in December of 2007. Here the message is a bit mixed, but ultimately the reader is left with the impression that Obama will use signing statements, but that he will not use them in the same manner as the Bush administration. Obama asserts, “No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.” [Miller Center, 6/4/13]
Bipartisan Legal Experts Defend Decision Not To Notify Congress And Wait 30 Days Before Freeing Bergdahl
Wall Street Journal: Bipartisan National Security Experts Say Any President Would Have Considered The Notification Requirement “Advisory.” Supreme Court correspondent Jess Bravin pointed out that current lawmakers' objections that they were not notified is typical in a situation like this, as “Congress and the White House interpret their powers broadly enough to regularly prompt complaints from the other.” However, despite certain congresspersons' complaints, a range of experts he interviewed found the administration's assertion that they had the constitutional authority to quickly engage in the prisoner exchange convincing:
“There's no question that Congress has the power generally to govern military conduct. On the other hand, prisoner exchanges are such a fundamental, long-standing part of the laws of war that are carried out by the commander in chief,” said Stephen Vladeck, a law professor at American University and co-editor of the national-security blog JustSecurity.org. “I think that any president--this president, President Bush, President Rand Paul--would say it's within his power.”
The intersection of legislative and executive powers has seen constitutional collisions throughout U.S. history. While the Constitution gives Congress power to appropriate funds for the military and “make rules concerning captures on land and water,” it also appoints the president as “commander in chief of the Army and Navy.” Congress and the White House interpret their powers broadly enough to regularly prompt complaints from the other.
William H. Taft IV, who was a senior Defense and State Department official in several Republican administrations, said the president was on firm legal ground. The congressional-notification requirements “impinge on the president's constitutional role as commander in chief and should be treated as advisory only,” Mr. Taft said. “They are no more binding on the president than a requirement for notification of the Congress in advance of other military actions in an ongoing war, which is what we are in.” [The Wall Street Journal, 6/4/14]
Harvard Law Professor Jack Goldsmith: “Disregard[ing] A Statute On Constitutional Grounds” Is Not The Same As “Violating The Statute.” Adding to other legal experts' explanations that strict adherence to the notification requirement is a separate issue from the issuance of a signing statement, law professor and former Republican Assistant Attorney General Goldsmith pointed out there is nothing illegal about a president disregarding a provision of a statute that “impinged on an exclusive presidential power” :
When the President “disregards” a statute on constitutional grounds he is not “violating” the statute if his constitutional argument is sound. CNN legal analyst Jeffrey Toobin stated today that President Obama “clearly broke the law” when he acted contrary to Section 8011, the notice requirement on transfers. “The law is on the books, and he didn't follow it,” Toobin added. The last statement is true but it does not follow that the President violated the law. It all depends on the validity of the President's constitutional argument. If the statute impinged on an exclusive presidential power, the president properly disregarded it and did not violate it. We have not yet (and likely will not see) the Executive branch's analysis of the constitutional question, assuming there was one. But, to repeat, presidential disregard of a statute is not a violation of the statute if the statute is contrary to Article II.
Someone pointed me to the complete transcript of the interview with Toobin, and two points are of note. First, Jeffrey Corn, who was also part of the interview, made the point that “the Constitution vests the president with the exclusive authority as commander-in-chief,” and that a law “that intrudes upon that authority, that detracts from his ability to perform his command function, is a law that candidly he shouldn't comply with.” And second, Toobin, after noting that the President broke the law, acknowledged that “it may be that he was justified. It may be that the law is in fact unconstitutional.” Toobin should have made clear that non-compliance with an unconstitutional law is not breaking the law. But in any event, he is certainly right about this:
“I think, as with most situations like this, it is somewhat a legal issue, but it's mostly a political issue. There's not going to be any lawsuit about this. Congress can't sue the president for violating this aspect of the law. Congress will take action. They will hold hearings. They will express their outrage.” [Lawfare Blog, 6/2/14]
Ohio State University Professor Peter M. Shane: A Constitutional Argument Is Unnecessary Because “There's A Perfectly Conventional Legal Defense.” Professor Shane noted that not only was the president's failure to notify congress 30 days before the completion of the deal not “an impeachment-worthy offense,” the Republicans currently criticizing the President “would have accepted this memo without question if Obama had been a Republican and his legal advice came directly from Bush lawyers.” Furthermore, it is arguable that Congress already gave the Commander-in-Chief the authority to disregard the 30-day notification requirement under the 2001 Authorization for the Use of Military Force in Afghanistan and the Hostage Act:
[H]e has a sound legal argument for the Bergdahl exchange that does not rely on aggressive constitutional interpretation.
Here's what a workmanlike defense would look like. First, history shows--and, on this point, the Bybee memo really is helpful--that presidential control of enemy detainees is what the Supreme Court has called a “fundamental and accepted ... incident to war.” It therefore should be deemed a form of authority granted to the president by the 2001 Authorization for the Use of Military Force in Afghanistan. Further, the so-called Hostage Act empowers the president to “use such means, not amounting to acts of war and not otherwise prohibited by law, as he may think necessary and proper to obtain or effectuate the release” of an American citizen “unjustifiably deprived of his liberty by or under the authority of any foreign government.” The Taliban is not literally a “foreign government,” but it would be odd to read the act to preclude presidential action short of war against insurgents who are unjustifiably holding an American against his will.
Faced with these two plausible sources of statutory authority to offer an exchange of enemy detainees for the release of Bergdahl, the president would have to consider the implications of a 30-day notice requirement also imposed by statute that would make the exercise of his other powers impracticable. Faced with that quandary, it would be an utterly conventional legal argument to say that the 30-day notice requirement was not intended, by implication, to repeal any authority the president would otherwise have to sanction the transfer of enemy detainees to secure the release of an American soldier held against his will. In other words, his AUMF and Hostage Act authorities remain intact, even after the National Defense Authorization Act. The president needs no audacious claims for executive power to justify his action. Congress already gave him the authority he needed. [Slate, 6/6/14]
Georgetown Law Professor Marty Lederman: “It's Difficult To Imagine That Congress Would Have Intended To Insist Upon Such A 30-Day Delay” In A Time-Sensitive Soldier Rescue Of This Type. Former Democratic Deputy Assistant Attorney General Lederman was one of the first to accurately explain the variety of ways the prisoner exchange could comport with the law. The statutory argument, in particular, he found compelling:
From a legal perspective, one question is whether the Secretary of Defense complied with the 30-day notice/certification requirement of Section 1035 of the 2014 NDAA (and if not, on what grounds). Secretary Hagel's statement suggests that he did comply with the substantive requirements of Section 1035, but that he notified Congress today, not 30 days ago. It's difficult to imagine that Congress would have intended to insist upon such a 30-day delay if the legislators had actually contemplated a time-sensitive prisoner-exchange negotiation of this sort; but the statute does not on its face address such a rare (and likely unanticipated) case. Note that the President wrote this in his signing statement: “Section 1035 does not . . . 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.” Perhaps he had the prospect of a Bergdahl negotiation in mind....
The Administration appears to be arguing (i) that it complied with most of the statutory framework, including the substantive certification, and with the spirit of the law; (ii) that this is the sort of case in which Congress likely would not have required a 30-day waiting period if it had contemplated a case in which such delay would compromise the likelihood of rescuing a U.S. soldier; and (iii) that to the extent the Administration did disregard the letter of the law, the Constitution authorizes the President to do so. [JustSecurity.org, 6/3/14]