President Obama is under scrutiny for his decision to swap five Taliban figures held at Guantanamo Bay for Sergeant Bowe Bergdahl, a U.S. soldier captured in Afghanistan and held as a prisoner of war. Contra critics of the swap, it does not constitute "negotiating with terrorists" (these were figures in the Afghan government when the war in which they were captured began). Nor do I think that it creates new incentive for terrorists to capture American soldiers (that incentive already existed). My guess is that this swap was wise on the merits, given that the end of the Afghan War will trigger a requirement to release all Taliban held at Guantanamo Bay.
What's alarming is the unlawful way that the Obama administration carried out the swap. The law requires 30 days' notice to Congress before a Gitmo detainee is transferred or released. The White House has now brazenly flouted that requirement. And the precedent being set by Team Obama is problematic in the same ways as the executive-branch power grabs that happened during the Bush Administration. In fact, Senator Obama was a critic of the logic he has now shamelessly adopted. He decried signing statements, for example, but cites a signing statement of his own as if it is a defense against violating the plain text of what he signed.
The illegality of the Obama Administration's actions is underscored by the way their story keeps changing. The White House began by hinting that the 30-day notification requirement is unconstitutional. But it is unwilling to press that claim. Its current position is that Congress didn't intend the law to say what it says.
The extreme vision of executive power that results can be seen in the 450-word statement that the National Security Council released to reporters through a spokesperson:
... 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 radical claim: A statute can be ignored so long as the secretary of defense determines that violating it is necessary to protect Americans abroad or U.S. soldiers.
Yet almost anything could be "determined" to endanger Americans abroad.
Former Secretary of Defense Donald Rumsfeld must be wondering how the Obama administration can continue to insist that Bush-era "enhanced interrogation" was illegal. The Bush administration certainly "determined" that its torture of prisoners was necessary to protect American military and civilian personnel abroad. I'm beginning to wonder if Obama now thinks that whether the president can crush a child's testicles depends in part on why he believes he needs to do it.
Should Obama defenders return to the questionable argument that the 30-day notification requirement is unconstitutional, they'll run into the fact that it falls under Congress's Article I power to "make Rules for the Government and Regulation of the land and naval forces," as Ilya Somin explains at The Volokh Conspiracy:
The five Taliban prisoners were in military custody at Guantanamo. Regulations governing the treatment and release of prisoners by the military are at the very core of Congress’ power under this clause. When the president acts in his capacity as commander-in-chief ... he must obey congressional laws enacted under this power, no less than any other military leader. As liberal Democrats correctly pointed out during the Bush administration, it was illegal for the president to order the use of coercive interrogation methods against prisoners in violation of congressionally enacted statutes barring such torture. The same constitutional rule applies here.
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 .... 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.
He concluded that the intent of Congress was clear:
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.
And again, who signed that law imposing the 30-day reporting requirement in the first place? Obama did. "If the president truly believed that the bill was unconstitutional, he had a duty to veto the bill pursuant to his oath to uphold and defend the Constitution," a commenter at The Volokh Conspiracy points out. "President Obama didn't veto the bill, and instead made it the law of the land. Having done so, he cannot now complain that the law he is ultimately responsible for is unconstitutional and doesn't need to be followed .... A country where the laws apply to the people but not to the president, even when the laws are specifically directed towards the executive branch, is not governed by the rule of law."
This is hardly the most egregious abuse of executive power America has seen in the War on Terrorism. Yet the fact that the rule of law has already been eroded so much is all the more reason to zealously conserve what's left, rather than excusing any abuse that doesn't approach the worst of what we've witnessed. Impeachment would be a wild, irresponsible overreaction to Obama's unlawful prisoner swap. But neither can Congress afford to let the executive branch defy it with impunity, so some lesser step to remove the incentive for future lawlessness would be welcome.