Tuesday, June 3, 2014

The Constitutional problems with the Bergdahl-Taliban swap

By Donald Sensing

Selling out the Constitution for a bad prisoner swap

Section 1028 of the 2013 defense appropriations law prohibits any funds to be used “to transfer any individual detained at Guantanamo to the custody or control of any other foreign country” unless the secretary of defense certifies to Congress, “not later than 30 days before the transfer,” that the receiving country will detain the individual appropriately and “has taken or agreed to take such actions as the Secretary of Defense determines are necessary to ensure that the individual cannot engage or re-engage in any terrorist activity.”
This the administration did not do. The law does confer upon the executive authority to make such a release outside these time limits if the transfer “is in the national security interests of the United States.” However, the administration has not made such a claim.

As well,
... the administration suggests that Section 1028 is itself unconstitutional. When signing the law, Mr. Obama issued a statement opposing Section 1028 because he believed it infringed on his power as commander in chief.
That is not an empty argument and a case can probably be made for it. But I think it fails here for two reasons. As the linked article points out, "the president’s power over the military is not exclusive."
Equally important, Congress has the exclusive power of the purse. In passing the 2013 defense appropriations bill, this is exactly what Congress did: It forbade any tax dollars from being used to free Gitmo detainees without prior notice and certification to Congress.
Congress is delegated substantial powers over military matters in Article 1, Section 8 of the Constitution, where the delegated powers of Congress are delineated. The power specifically under scrutiny here is this:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
Clearly (to me anyway), the statute that sets conditions upon which Gitmo detainees - who are certainly examples of "Captures" no matter how else you define their status - may be released is firmly within the delegated powers of the Congress.

Presumably, the president could slip through the statute's loophole by explaining exactly how the immediate release, outside statutory time limits, was in the national interest. If he did then the Constitutional violation would be obviated as well, since it was Congress that created the loophole. But he has not done so nor do I think he will try.

For I explained last August why the law does not matter to Obama.

Update: Always good to see that The Volokh Conspiracy takes the same tack as I do:
The five Taliban prisoners were in military custody at Guantanamo. Regulations governing the treatment and release of prisoners by the military are at the very core of Congress’ power under this clause. 
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