Republicans have settled on an important limiting principle for preventing presidential power grabs: If Obama does it, it's probably illegal.
Having initially trashed President Barack Obama for not doing everything possible to free Army Sgt. Bowe Bergdahl, who had been in the custody of the Taliban until late last week, Republicans quickly transitioned to condemning him for taking action last week. Some objected to the trade of five former Taliban in exchange for Bergdahl, while others objected to the administration's failure to notify Congress within 30 days of the transfer as required by a law (designed to make it more difficult to close the detention camp at Guantanamo Bay). Sen. Lindsey Graham, R-S.C., even raised the possibility of impeachment if Obama did so again.
Some of the objections to the president disregarding the law's requirement come from surprising places. Former Vice President Dick Cheney seemed to agree with conservative radio host Laura Ingraham that the White House was "flouting settled American law.”
"The latest one of course is this debate over whether he should have notified the Congress. The statute was pretty clear," Cheney said in an exchange posted by former Bush administration attorney Jack Goldsmith. "What we’ve always done is say that we think it is unconstitutional but at the same time work with the Congress to avoid a major confrontation over it and still go ahead and do what we needed to do[.]" Similarly, Bush-era justice department official John Yoo, who once suggested that it could be legal for the president to order a child's testicles crushed, wondered whether the transfer was legal.
"Bush-era justice department official John Yoo, who once suggested that it could be legal for the president to order a child's testicles crushed, wondered whether the [Bergdahl] transfer was legal."'
The Obama administration said that it did not notify Congress as the law required because it was worried about Bergdahl's health. Senators were told in a briefing earlier this week -- those that didn't leave the briefing to denounce the administration for the transfer -- that the Taliban was threatening to kill Bergdahl. In his signing statement on the 2013 defense bill, Obama wrote 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."
Using a signing statement to disregard part of a law passed by Congress the president believes is unconstitutional is something Obama promised not to do as a presidential candidate. But it’s something Republicans should recognize, because it’s the result of a decades-long ideological project they’ve pursued. Indeed, The Wall Street Journal editorial page was among the conservative outlets who acknowledged that "the President has the power as Commander in Chief to undertake the swap without telling Congress." Legal rationales approved under the Bush administration would justify Obama's decision, so Cheney’s coyness and Yoo’s bafflement don’t make much sense.
Goldsmith notes that "The modern use of signing statements that invoke the Commander-in-Chief power to disregard congressional regulation of military operations -- and especially congressional notification requirements" coincided with Cheney's appointment as secretary of defense during the first Bush administration.
During the Bush administration, according to a 2012 Congressional Research Service report, the Bush administration issued 161 signing statements, almost 80% of which "contain some type of constitutional challenge or objection." Among them was a declaration that the president could override a recently passed law against torture. At the time the report was published, Obama had issued far fewer statements -- 20 -- about half of which contained "challenges to an enacted statutory provision."
Cheney, alongside his chief of staff David Addington, was the architect of that legal approach. "Cheney and Addington have laid down -- they've buried a lot of little nuggets all around the federal bureaucracy that give this president and future presidents a tool that they can use to disregard portions of laws that they don't like, or to interpret those laws so narrowly as to defeat Congress's intended purpose," reporter Barton Gellman told NPR in 2008, describing the pair's approach to signing statements.
Even during the Bush administration itself, Bush attorneys asserted complete authority over the handling of detainees. Jay Bybee, a former Justice Department official and one of the legal architects behind the Bush-era torture program, wrote in a memo in 2002 (first noticed by Peter Shane at Slate) that "The treatment of captured enemy soldiers" is "an area in which the President appears to enjoy exclusive authority." Yoo himself was less confused as to the authority of the president in handling detainees in a 2003 memo that "Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."
Yoo and Bybee, of course, were defending the president's authority to do things like send detainees to countries where they would get their genitals slashed during "interrogation." Lawyers gifted enough at twisting language to justify torture as lawful could likely find a way to determine that Obama's attempts to retrieve an American POW constitute a dictatorial power grab by comparison. But the moral case would likely prove more difficult.
As for Obama's actions with the Bergdahl transfer, they clearly disregard part of a law in a manner Obama promised never to do. One could argue that Obama's decision not to notify Congress was justified to save Bergdahl's life, but you would have to contend with similar justifications offered for torture and the trading of arms for hostages with Iran. If nothing else, the larger consequences of the lack of congressional notification seem far less dire.
Nevertheless, Obama's actions do serve the purposes of a larger conservative ideological project, decades in the making. There can be little doubt that once Republicans return to the White House, they will take up that sword again -- no matter how many pious defenses of the rule of law they offer now.