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A new report published on Thursday by the Government Accountability Office (GAO) says that the Department of Defense broke the law when President Obama negotiated the release of American POW Bowe Bergdahl from Afghanistan in June, which he secured by releasing five Taliban prisoners from Guantanamo Bay.
The GAO report cites section 1035(d) of the 2014 National Defense Authorization Act (NDAA), which says the president "shall notify" Congress "not later than 30 days before the transfer or release" of any Guantanamo Bay inmate. But Obama didn't notify Congress before he freed the prisoners. Moreover, the GAO notes, another statute prevents Obama from using funds to transfer prisoners from Guantanamo if the transfer doesn't comply with 1035. The president obviously spent money flying those prisoners out of Gitmo. Hence the conclusion that Obama broke the law.
But it may be more complicated than that, based on conversations with constitutional law experts from before Thursday's report was released. The core issue, they argued, is constitutional, rather than the statutory issues raised by the GAO. And the GAO report explicitly doesn't weigh in on those constitutional issues. "We do not offer any opinion on the constitutionality of section 1035," the report says. "It is not our role or our practice to determine the constitutionality of duly enacted statutes."
So the GAO report will likely be a big deal politically, but without addressing that constitutional piece, does not settle thing legally. The Bergdahl question comes down to where the president's constitutional authority as commander-in-chief ends and Congress's jurisdiction begins. And it's not a question we're likely to get a definitive answer to anytime soon: given the way that the relevant law works in this area, the Supreme Court will never hear a case about it.
President Obama's case — and the strange way he made it
The Obama administration's central legal argument is, basically, that Congress didn't intend for the law to apply to prisoner exchanges. "The 30-day notice would interfere with the Executive's performance of two related functions that the Constitution assigns to the President ," the administration said in a statement outlining its legal opinion. "[So] 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."
This comes down to separation of powers. Article II of the US Constitution, the main source of the president's power, defines the president as "commander in chief" of the armed forces, which gives him or her the exclusive ability to direct the US military during wartime. The administration is implying that the Bergdahl prisoner exchange was a military operation during wartime, which means requiring Obama to notify Congress about it would infringe on his constitutional authority.
Part of the administration's defense is that, when Obama signed the NDAA, he appended a signing statement saying that Section 1035 would "in certain circumstances ... violate constitutional separation of power principles." A signing statement is a "written commentary on a bill that is being signed into law," often used by presidents to instruct their staff on how to implement confusing legislation. Since the George H.W. Bush administration, presidents have used them, dubiously, to declare certain portions of legislation they've signed unconstitutional. This is, suffice to say, controversial and legally ambiguous, especially when presidents use it declare their intention to disregard certain parts of a law.
Obama's signing statement walks the line on that. It raises constitutional arguments "in a sort of indirect way," David Golove, a law professor at New York University told me. It does not, in other words, state the explicit legal case for ignoring that part of the law.
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The legal guidance the Obama administration released after the Bergdahl controversy began clarified this issue. The administration isn't saying the 30 day notification is unconstitutional. Rather, they're saying the signing statement interprets the law as not covering cases that might be constitutionally problematic. Say, a prisoner exchange.
"The president has certain powers under Article II [and so] the White House therefore interprets the statute as not intruding on those prerogatives," NYU professor and Just Security editor Ryan Goodman told me. "If Congress wanted to do that, it would have done that explicitly," he said. "The signing statement is now being pulled out as ‘see, the president is saying that he was interpreting the statute'...not that the president was saying that even though some parts of this are unconstitutional, I'm signing it."
The problems with the president's case
Goodman called the White House position "a stretch." "Congress seems to have contemplated all sorts of exceptions," he said, so "it’s very difficult to read in an implied section." Moreover, the Bergdahl case "was something that was known on the Hill." Since Congress knew about Bowe Bergdahl's captivity, and didn't write an exception allowing Obama to trade Guantanamo prisoner in exchange for POW release, they probably didn't intend one.
Other influential legal scholars share this view. "I don't think it accurate or useful to say that the statute doesn't address the Bergdahl situation, since it imposes a requirement without exception," Harvard Law professor and former Bush Office of Legal Council chief Jack Goldsmith wrote.
"It’s not a ridiculous argument, but it’s weak," University of Chicago's Eric Posner told me. "There are explicit exceptions to rules like this [elsewhere in the NDAA], so if you’ve got a bunch of provisions of the same statute, and some of them create exceptions where time is of the essence and others don’t...we tend to infer that Congress doesn’t intend to create an exception."
Some legal experts do see merit in the administration's case, if only a little. "I have an inability to convince myself that it isn't true," Golove said of administration's argument that Congress had left them an implicit loophole. Golove said that it's "pretty typical" for the executive to make these kind of implied power arguments, as Obama did when arguing that he could disregard the War Powers Resolution's requirement to withdraw from Libya when Congress wouldn't approve the war. "If you assume" that Bergdahl's life really was at risk in a way Congress couldn't have anticipated (we don't know if that's true), "it’s at least plausible to imagine there’s an unexpressed exception" to the NDAA.
Major General Charles Dunlap, the former deputy judge advocate general of the Air Force who now teaches at Duke University, agrees. "That is a colorable argument, meaning it’s not ridiculous," he said. "I don’t think Congress was thinking about a prisoner exchange in the context of armed combat."
So while there's a real debate here among experts, it does seem like the Administration is at best pushing the limits with this argument. But the deeper you get into the constitutional law surrounding Article II, the murkier things get — and, according to legal scholars, that's more favorable to the administration.
Is Congress breaking the law?
Despite Eric Posner's dim opinion of the congressional intent argument, he suggested "the president actually has a pretty good constitutional argument." You could say that "under the commander in chief power, the president has discretion about how to conduct military operations and Congress cannot control that discretion with statutes."
Posner is proposing that it doesn't matter what Congress intended. The entire idea of a 30 day notification requirement for releasing inmates from Guantanamo is an unconstitutional infringement on Obama's warmaking powers. If that's true, then Obama isn't the one breaking the law — it's Congress.
Broadly speaking, constitutional scholars all agreed there are limits on Congress' ability to tell presidents what to do during wartime. The classic example, according to Posner, is Congress passing a law setting military strategy during a war. Because the Constitution explicitly puts the president in charge of commanding the army, "there's kind of a consensus that if Congress tried to control troop movements [during wartime], that would itself be unconstitutional." The question is where those limits end.
The Bush Administration famously used a sweeping interpretation of this argument to justify almost everything it did in the war on terrorism. That includes torturing Guantanamo Bay inmates despite laws explicitly banning the torture of detainees.
However, no legal expert I spoke to thought the Bush-era principles could justify the Bergdahl deal. Ryan Goodman said that "the broad full-throated authority has been generally repudiated since the Bush administration" — including Guantanamo Supreme Court cases like Hamdan v. Rumsfeld. Count the Obama administration as one of the most important repudiators. "I think," Goodman said, "that this White House is committed, almost as part of its identity, to not embracing the strong Article II interpretation of its predecessor."
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But there might be a more moderate, defensible version of the Article II argument that could justify the release of the five Guantanamo inmates for Bergdahl. Essentially, the argument is that prisoner exchanges are more like troop deployments than torture: an essential military operation rather than an extreme behavior Congress can regulate.
"It's very possible to make the argument that, whatever you think about torture and detention, the exchange of prisoners during wartime is a core executive function and Congress is not allowed to interfere with it," Posner said. This very narrow interpretation of Article II would hold that the NDAA's 30 day notification is unconstitutional only in the cases where it restricts the president's discretion to swap prisoners. It wouldn't, for example, allow him to override the other parts of the NDAA making it really hard for Obama to free Guantanamo inmates.
Is this interpretation of Article II correct? There's precious little Supreme Court precedent, and legal experts didn't think there's an obviously right answer. " "It's actually quite a hard legal issue, with few real precedents," Goldsmith wrote. "With the Constitution, everything is completely up in the air," Golove told me.
The basic divide between the lawyers I spoke to, then, wasn't as much over whether Posner's argument was correct. There's just no way to resolve that, and hence the question of whether Obama was acting legally in making the Bergdahl deal.
Rather, it's over whether it'd be a good thing if the president and the Supreme Court adopted this slightly broader view of Article II. General Dunlap, for instance, thought Congress clearly shouldn't be able to regulate prisoner exchanges. "There are three branches of government, and each has an appropriate role in the warmaking process," he told me.
Goodman, by contrast, worries that any narrow Article II argument could bleed over into Bush-era expansive claims. "If you leave that on the table," he said, future presidents might use it in different ways.
It's a classic legal balancing question: should you err on the side of giving the president freedom to command the military during wartime or on the side of reining in the imperial president? Different people will give you different answers to that question. But, at least given current law, there doesn't appear to be a correct answer on the constitutional issue.
So was Obama breaking the law by failing to notify Congress about the deal to free Bowe Bergdahl? The truth of the matter is we have no idea. And we'll never find out.
The Supreme Court will never take the case
There is one thing that every scholar I spoke to for this piece agreed on: there won't be any kind of court case over the Bergdahl swap. Obama will be able to do what he wants, legal or not, and no one will be able to stop him.
The key issue is something called "standing." In order to sue the president in a case like this, someone needs to show "individualized harm:" something bad has to happen to you.
For instance, one of the most important Article II cases happened after Harry Truman seized a Youngstown steel mill during the Korean War to keep it running in face of an impending strike. The mill owners had standing to sue because they were harmed by losing their property. They won, and Youngstown Sheet & Tube Co. v. Sawyer remains one of the most famous limits on the president's warmaking powers.
But releasing inmates from Guantanamo doesn't harm a specific person in the same obvious way as seizing their property does. "You could argue that the public is somehow injured," Posner said, "but that's not sufficient for standing." In other words, there's no one in an obvious position to sue.
Congress, also, won't do anything to clarify the legal issues about its intent or Article II. The Bergdahl exchange is hopelessly political. Democrats would line up with Obama, and no legislation would make it through the Senate — to say nothing of getting enough votes in both houses to override a presidential veto.
So was what Obama did illegal? It seems like, given the law, the only person who gets to decide is President Obama.
