Army Sgt. Bowe Bergdahl is free. His release was a unilateral horse trade by President Obama, who bought Sgt. Bergdahl’s freedom by releasing five Guantanamo terrorists to the country of Qatar. Unfortunately, the president’s decision was not only a bad deal for America, it was also a clear violation of federal law, and likely unconstitutional.
First, consider the implications of Mr. Obama’s deal. He negotiated with terrorists — never a good idea — and traded the freedom of one American soldier in exchange for five “high-risk” terrorists who will pose a continuing threat not only to our troops, but also innocent Americans. Moreover, serious questions have been raised about Sgt. Bergdahl’s loyalty to the United States.
Sgt. Bergdahl had grown disillusioned with the Army, went AWOL and disappeared into Afghanistan. Before his disappearance, he emailed his parents, expressing sympathy for the Afghans and complaining that the Army is “the biggest joke the world has to laugh at,” full of “liars, backstabbers, fools and bullies.” Sgt. Bergdahl’s father, a vocal antiwar advocate, tweeted that he was “working to free all Guantanamo prisoners,” and warning that “God will repay for the death of every Afghan child, ameen” — the Muslim equivalent of “amen.” Sadly, our president may have used his power to bring home a traitor.
As if these possibilities weren’t bad enough, Mr. Obama violated federal law. 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.”
Defense Secretary Chuck Hagel did not comply with the 30-day rule, nor provide certification that these five Gitmo terrorists do not pose a future threat to the United States after transfer to Qatar.
The Obama administration justifies its noncompliance with federal law in two ways. First, it cites Subsection (d) of Section 1028, which permits Congress to be bypassed if transfer out of Gitmo “is in the national security interests of the United States.” Unfortunately, the administration has not articulated how, exactly, national security interests demanded the release of these five Taliban leaders.
Second, 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.
Ironically, Mr. Obama’s signing statement expressed the same muscular version of presidential power that was so vehemently condemned by the political left when expressed by President George W. Bush. Unfortunately, neither Mr. Bush nor Mr. Obama were right: While the Constitution does give the president broad power as commander in chief, the president’s power over the military is not exclusive.
Congress shares power over the military through various provisions in Article I, including the power to “make Rules for the land and naval Forces”; to “raise and support Armies”and to “define and punish Offenses against the Law of Nations.” 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.
The Supreme Court, in Youngstown Sheet and Tube Co. v. Sawyer (1952), ruled that President Truman lacked power to seize domestic steel mills to ensure the availability of steel for the Korean War effort. In a famous concurrence that has come to represent the court’s thinking, Justice Robert Jackson offered a framework for assessing the constitutionality of a president’s claim of power. If a president acts in defiance of Congress, Jackson said, his power “is at its lowest ebb” and courts must scrutinize the president’s claim of power “with caution, for what is at stake is the equilibrium established by our constitutional system.”
By acting in defiance of Section 1028, Mr. Obama’s actions would be viewed by courts “with caution,” and he would be required to articulate why his power as commander in chief should trump Congress’ shared power over regulation of the military, and its exclusive power over the purse. In this particular situation, Mr. Obama would be unlikely to carry his burden of proof, and his actions would be judged unconstitutional.
As has been too often the case during Mr. Obama’s tenure in office, the president has brazenly nullified congressional power and declared the legislative branch irrelevant.
Elizabeth Price Foley is a professor of constitutional law at Florida International University.