Note to Cheney: Bush Administration Lawyers Would Have Allowed the Bergdahl Exchange

The law, lawyers, and the court.
June 5 2014 4:41 PM

The Non-Constitutional Non-Crisis

The Guantánamo prisoner exchange is the furthest thing from a constitutional problem.

Jay Bybee.
Jay Bybee, the judge who unwittingly gave Obama cover.

Photo courtesy of U.S. Federal Government.

President Obama, the Ashcroft Justice Department is on the phone with good news and bad news. The good news is that they have a memo entirely excusing your nonobservance of the statutory notification requirements for transferring the Guantánamo Five to Qatar. The bad news is that the memo was written by Jay Bybee, the federal appellate judge now best-known for signing off on the so-called Torture Memos.

Republican critics have been quick to condemn the transfer of five Guantánamo detainees for Sgt. Bowe Bergdahl as a violation of Section 1035 of the most recent National Defense Authorization Act. That is the section that authorizes the secretary of defense to transfer Guantánamo detainees to other countries. The secretary, however, must first make certain determinations regarding the security implications of any transfer. He must also give relevant congressional committees at least 30 days’ notice. Congress got no such notice when the White House swapped Bergdahl for the Guantánamo Five this past weekend.

Is this an impeachment-worthy offense, as some have suggested? No, and irony kicks in here—twice. Irony No. 1: The White House has legal cover from a source that in any other setting might be anathema to it: a 2002 memo written by Jay Bybee, best known as the man who signed off on the “Torture Memos.” The Republicans attacking Obama, including Vice President Cheney, would have accepted this memo without question if Obama had been a Republican and his legal advice came directly from Bush lawyers. Irony No. 2: There’s a perfectly conventional legal defense available to the administration if it thinks less about the Constitution and more about statutory interpretation.

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In March 2002 then-Assistant Attorney General Bybee, as representative of the “president’s law firm,” the Justice Department’s Office of Legal Counsel, sent a memo to the Defense Department’s general counsel that would entirely excuse the statutory violation for which Obama is responsible. According to that memo, presidents enjoy constitutionally unlimited control over the transfer of “captured terrorists to the control and custody of foreign nations.”

The problem in applying this memo to the Guantánamo Five is that its underlying premises on the interpretation of presidential authority are hugely, almost laughably overblown. According to the 2002 OLC, the Commander-in-Chief Clause confers on the president all those military powers “not expressly delegated by the Constitution to Congress that have traditionally been exercised by commanders-in-chief of armed forces.” Without any citation to legal authority, the memo then asserts: “[T]he Framers understood the Commander­-in-Chief power to include all powers related to the conduct of war, with the exception only of those few powers that were expressly carved out and delegated to Congress.”

Those “few powers” to which the memo refers dismissively include the explicit power to raise and support the Army and Navy, to “make rules for the government and regulation of the land and naval forces,” and to “make Rules concerning Captures on Land and Water.” Everything else goes to the president. The constitutional language seems broad enough to include congressional authority over enemy detainees. The OLC memo, however, explicitly hands the power over those detainees to the president as well.

“We believe,” the memo declares, that Congress’s power does “not [extend] to issues such as the rules of engagement and treatment concerning enemy combatants.” According to the 2002 memo, Congress’s rulemaking power over captures thus pertains only to property, not people. Congress’s authority to make regulations for the military is limited “to the discipline of U.S. troops.” Insofar as there is actually a legal argument behind these assertions, it is mainly that, because Congress had, as of 2002, not attempted to regulate the transfer of enemy detainees to other countries, Congress’s silence allegedly confirms its understanding that it has no power to limit the president in his efforts to do so alone.

Perhaps most amazing of all, the OLC’s aggressive view of the Commander-in-Chief Clause is largely superfluous to the memo’s bottom line. The 2002 OLC thought presidents had unilateral power to determine the treatment of wartime detainees as soon as the Framers vested the president with “executive power.” In other words, according to Bybee and company, presidents would have power to control the movement of enemy detainees even if no Commander-in-Chief Clause existed. According to the memo, our “constitutional structure requires that any ambiguity in the allocation of a power that is executive in nature must be resolved in favor of the executive branch.”

If any or all of this analysis is right, then it is worth noting that President Obama’s case for transfer authority is far less charged than the issue confronted by the OLC in 2002. In the present case, Obama arranged a transfer to facilitate the release of a captured soldier. In 2002 the question was the permissibility of transfer to facilitate so-called enhanced interrogation (now often known as “torture”). The 2002 OLC famously got around that problem on the premise that Taliban fighters were not protected either by the Geneva Conventions or by the Torture Convention of 1949. Those premises have since been rejected, but Obama doesn’t need them for legal cover. He is not transferring the Guantánamo Five for interrogation purposes, and he 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.

In exchanging the Guantánamo Five for Bergdahl, the president got significant value for the release of five Taliban fighters whose departure from Guantánamo was all but certain anyway with the impending U.S. withdrawal from Afghanistan. He could still do the American people an additional service by putting on the record some coherent legal justification for the action he took that is more nuanced and more respectful of Congress than the Bybee memo that happens to cover his defense anyhow.

Update, June 6, 2014: In fairness to the Bush Justice Department, the Bybee OLC opinion to which I refer in this essay was formally disavowed during the Bush administration’s last week in office. In an oddly styled Jan. 15, 2009, “Memorandum for the Files,” Steven G. Bradbury, who was principal deputy assistant attorney general for the OLC and its acting head since 2005, repudiated a number of opinions regarding enemy detainees based on what the 2009 memo described as too cramped a view of congressional power: “The President certainly has significant constitutional powers in this area, but the assertion in these [earlier] opinions that Congress has no authority under the Constitution to address these matters by statute does not reflect the current views of OLC and has been overtaken by subsequent decisions of the Supreme Court and by legislation passed by Congress and supported by the President.” So far the Obama administration’s most formal expression of its legal views appears in a June 3, 2014, statement by Deputy Assistant to the President Caitlin Hayden, who serves as a spokeswoman for the National Security Council.  Her statement asserts that Congress would not have intended the 30-day notice requirement to be binding in the unique circumstances in which 30 days’ delay could have endangered Bergdahl’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.” Hayden’s statement makes no reference to other sources of statutory authority that could buttress the administration’s position.

Peter M. Shane teaches constitutional law at Ohio State University and is author of Madison’s Nightmare: How Executive Power Threatens American Democracy.

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