At Volokh Conspiracy, Ilya Somin has a thoughtful response to my defense of the President’s action: More on the legality of Obama’s decision to exchange five high-ranking Taliban terrorists without giving Congress advance notice.
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. 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.
I think we mostly agree, and only disagree on where to draw a difficult line. For my part, I agree that Congress can regulate military actions pursuant to general rules, such as limiting the type of weapons that can be used anywhere. Professor Somin appears to agree (though perhaps I’m putting words in his mouth) that Congress cannot make specific tactical decisions, such as “defend Hill X, but not Hill Y” (which was the principal claim I made in my prior article on the subject). So the only question is whether the congressional intervention here is sufficiently general.
Without being definitive, my view remains that the President’s argument is fairly strong. The statute in question, Section 1035(d) of the National Defense Authorization Act for Fiscal Year 2014, is not a general rule about treatment of prisoners of war; it is a specific rule about prisoners held at Guantanamo — that is, a specific set of prisoners in a specific armed conflict. But I concede that the line is difficult to draw.
Also, at Just Security, Marty Lederman reports that the Administration’s position is styled an interpretation of the statute rather than an outright rejection. From an NSC spokesperson:
With respect to the separate 30-day notification requirement in Section 1035(d), the Administration determined that 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 ofthe 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.
That may be styled a statutory argument, but without the constitutional concerns behind it, I don’t see how it is plausible. The statute is not at all ambiguous: it clearly requires the 30-day notice in all circumstances. At Lawfare, Jack Goldsmith notes:
Perhaps Congress might have thought differently were this case before it, who knows. But the NDAA is sprinkled with exceptions, and Congress included no exception to Section 1035’s notice requirement. So 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.
The President wants to read “except where the President has reason to think the notice is a bad idea” into the statute, but it defeats the whole purpose of the statute to allow the President to create exceptions as he sees fit and speculate that Congress would have agreed with him. (On the other hand, I think the specific circumstances further illustrate the constitutional concerns, and if the statute is unconstitutional in the circumstances the President is justified in not following it).
Thanks to Professor Lederman for the pointer to the administration’s position. (He has further commentary here.) He also notes his two-part work with David Barron on congressional control of presidential military powers: here and here (which I highly recommend, although I do not agree with all of it). He adds:
Section III-D-1 [of the first article] rejects the view (implicit in [Professor Somin]’s posts) that Congress automatically prevails if it is acting pursuant to one of its Article I powers. (We think the question is not as formalistic as that — hence the 300 or so pages over two articles!)
On the other hand, section IV [of the first article] — and much of the companion, historical piece [that is, the second article], — calls into question [your] idea that tactical decisions are for the President alone.It’s complicated!
I agree with the last view.
UPDATE: Timothy Sandefur also has a thoughtful response disagreeing with my earlier post: The President’s power over prisoner exchange is not unlimited. (To be clear, I don’t think the President’s power over prisoners of war is “unlimited” but I think it has to be constrained by general “rules for the Government and Regulation of the land and naval Forces” and rather than specific tactical directions to the President. Where to locate the line between those two is a matter of some difficulty).
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.