Republicans have reacted harshly to the Obama administration's decision to swap five top former Taliban commanders for Sgt. Bowe Bergdahl, who was the sole American prisoner of war in Afghanistan. When it comes to the legality of the decision to do so, they have a point.
"The President also clearly violated laws which require him to notify Congress thirty days before any transfer of terrorists from Guantanamo Bay and to explain how the threat posed by such terrorists has been substantially mitigated," House Armed Services Committee Chair Buck McKeon and his Senate counterpart, ranking member James Inhofe said in a statement shortly after Bergdahl's release had been announced. "Our joy at Sergeant Berghdal’s release is tempered by the fact that President Obama chose to ignore the law, not to mention sound policy, to achieve it."
The Obama administration announced over the weekend that Berghdahl, who had been captured by the Taliban in 2009, would be traded for five former senior Taliban commanders currently held at Gitmo, who will be transferred to the government of Qatar. The circumstances of Bergdahl's capture remain mysterious, with members of his old unit accusing him of desertion.
The law governing transfers of Guantanamo Bay detainees however, is not mysterious. A 2013 defense bill makes it clear that the administration "shall notify the appropriate committees of Congress" not later "than 30 days before the transfer or release" of a detainee. The administration has acknowledged that they did not inform Congress of the decision within the time period, and the decision to move on the exchange may have been motivated by concerns about Bergdahl's health.
Georgetown law professor Marty Lederman writes that "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."
The fact that the law doesn't address "a time-sensitive prisoner-exchange negotiation of this sort," Harvard Law professor Jack Goldsmith argues, doesn't mean Obama was within the law when he approved the transfer. "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," Goldsmith writes.
Maybe passing that requirement without an exception was dumb, but it's what Congress passed, and it's the law Obama signed.
The only way the transfer was legal, Goldsmith writes, is if the Obama administration was acting under his constitutional powers as commander in chief. Obama hinted that he might do so in his 2013 signing statement accompanying passage of the defense bill, stating that "In the event that the restrictions on the transfer of Guantanamo detainees in sections 1034 and 1035 operate in a manner that violates constitutional separation of powers principles, my Administration will implement them in a manner that avoids the constitutional conflict." Section 1035 imposes the 30-day notification requirement. Even then, Goldsmith writes, "[i]t’s actually quite a hard legal issue, with few real precedents."
Disregarding parts of laws passed by Congress was once a key part of Obama's bill of grievances against George W. Bush.
"What George Bush has been trying to do as part of his effort to try and accumulate more power in the presidency is, he's been saying 'Well I can basically change what Congress has passed by attaching a letter saying 'I don't agree with this part,' or, 'I don't agree with that part. I'm going to choose to interpret it this way or that way.' That's not part of his power," Obama said at a campaign appearance in 2008. "Congress's job is to pass legislation. The president can veto it, or he can sign it."
The wisdom of the swap is a different question. With the war in Afghanistan winding down and a full withdrawal set for 2016, the U.S. might not have been able to legally hold the five detainees. Ken Gude of the Center For American Progress defends the decision, writing that "When put in the proper perspective, obtaining the release of the sole U.S. prisoner in Afghanistan is a masterstroke and worthy of congratulations," because the detainees would been released anyway, and had Bergdahl still be in Taliban custody the U.S. would have had little to negotiate with.
Regardless of Bergdahl's actions or the potential threat posed by the men being transferred, one could argue that leaving Bergdahl behind was simply not an option. One could also argue that the harm caused by the Obama administration's failure to notify Congress as required is minimal compared to leaving Bergdahl in Taliban custody.
When it comes to the legality of the Gitmo transfers however, the president's Republican critics are correct. The Bergdahl exchange appears to be a situation in which Obama did exactly what he promised he wouldn't -- used a signing statement to disregard a part of a law Congress passed by saying "I don't agree with that part."