Constitution Check: Did the President act illegally in exchanging Taliban detainees for Sgt. Bowe Bergdahl?

Lyle Denniston looks at an on-going dispute between President Barack Obama and some members of Congress over releasing Guantanamo Bay detainees, with or without the lawmakers’ permission.



“By executing this transfer, the President clearly violated laws which require him to notify Congress 30 days before any transfer of terrorists from Guantanamo Bay and to explain how the threat posed by such terrorists has been substantially mitigated. Our joy at Sergeant Bergdahl’s release is tempered by the fact that President Obama chose to ignore the laws, not to mention sound policy, to achieve it.”

– Joint statement on May 31 by Representative Howard P. McKeon, California Republican, who is chairman of the House Armed Services Committee, and Senator James Imhofe, Oklahoma Republican, who is the senior GOP member of the Senate Armed Services Committee.

“Due to a near-term opportunity to save Sergeant Bergdahl’s life, we moved as quickly as possible. The administration determined that given these unique and exigent circumstances, such a transfer should go forward notwithstanding the notice [to Congress] requirement.”

– Quotation in a Washington Post article on June 1, attributed to an unidentified “senior Obama Administration official.” The article also said that the official had “acknowledged that the law was not followed.”


It is a constitutional reality, one that has been true for decades, that Congress may try very hard to be an equal partner to the President in managing U.S. military and diplomatic policy, but it never quite achieves that aim. President Obama is hardly the first occupant of the White House to choose to act alone, without taking Congress into his confidence until after the fact, when the situation seems to the White House to demand immediate and unilateral action.

Although the Founders may not have intended it this way, the legislative branch is almost always at a disadvantage when it comes to matters of national security. Congress cannot act as quickly as the President can, the lawmakers do not have as much information as the President routinely does, and they do not have the diplomatic staff on the ground that can handle sensitive negotiations, in secrecy if necessary.

Alexander Hamilton, the Founding Father most in favor of a strong Executive, wrote in Federalist Paper No. 70: “Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against attacks.”

And the Supreme Court made clear, in the Civil War-era decision in the Prize Cases, that the President may act alone to repel an invasion or internal insurrection. The court declared in that 1863 decision: “If a war be made by invasion…, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority.”

In modern times, Chief Executives have interpreted quite expansively those basic endorsements of the President’s power to protect the nation’s security. And Congress has often responded by trying to put some limits on that authority. The record is far from clear that those efforts at restraint are as effective as the lawmakers have hoped.

Since the terrorist attacks on America on September 11, 2001, Presidents and Congress have been engaging in a constitutional struggle over how this country is to react. President Obama intensified that struggle when he moved, early in his presidency, to try to close the military detention facility at Guantanamo Bay.

Congress has attempted, each year, to curtail the President’s options on detainee policy. And central to those efforts have been provisions that required the White House to notify Congress whenever the government planned the release of any detainee from Guantanamo, and also requiring full justification of any such transfer before it occurred.

When President Obama signed into law the latest version of those attempts at restraint, he made clear that he was signing under protest and he put Congress on notice that he would not necessarily feel bound by the restrictions. “In the event that the restrictions on the transfer of Guntanamo detainees…operate in a matter that violates constitutional separation of powers principles,” he said, “my Administration will implement them in a manner that avoids the constitutional conflict.” That is as close as a President can come to saying that he will not regard such legislative restraints as binding even those he has signed them into law.

It is not known whether, at the time he made that statement late last December, the Administration was already negotiating diplomatically over the release of Sergeant Bowe Bergdahl by the Taliban, who have held him captive more than four years. But the presence as detainees at Guantanamo Bay of several former Taliban leaders would certainly turn out to have been a bargaining factor when such negotiations did get underway, with the government of the Mideast government of Qatar acting as the go-between.

With the exchange worked out, Congress was then told – too late to do anything other than protest. The deal was done, and the public statements by government officials (identified or not by the media) made it clear that the legislative restrictions had not stood in the way when the President chose to act.

Of course, no politician would attempt to unscramble this exchange, because it obviously did result in the return of the only American soldier still held captive in Afghanistan. But that only increased the frustration among lawmakers. Moreover, the constitutional instruments available to Congress to punish the government for failing to obey the legislative restrictions – cutting off funds for such exchanges, or impeaching the President – are such extreme measures that they are not at all realistic.

In such fast-moving ventures in the dangerous modern world, the constitutional scales are tilted heavily in favor of the White House – rightly or wrongly.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 56 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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