The President Must Obey the Law

by Dave Schuler on June 4, 2014

In my earlier post on the subject of the prisoner swap for Taliban prisoner Bowe Bergdahl, I said that I thought it was a difficult call and one I was glad I did not need to make. This morning Ruth Marcus:

Don’t count me among those who pronounce with certitude on the wisdom — or folly — of the Bergdahl deal. It was an agonizingly hard call, one that requires more knowledge than is publicly available about the dangerousness of the five Taliban officials and the United States’ ability to keep tabs on them once released.

and Kathleen Parker:

The United States does negotiate with terrorists; the president will circumvent laws as circumstances require; Republicans and Democrats will be summarily outraged as party affiliations seem to require.

We might also add that processes will be “truncated,” as President Obama described the exchange, and these are “hard choices,” as Hillary Clinton put it, cleverly employing the title of her new book.

Which is to say, war is tricky and we have no idea what we’re willing to do until the ball is in our court.

both writing in the Washington Post echo my thoughts. Ms. Marcus’s instinct is to oppose the swap; Ms. Parker’s to support it.

When I wrote I did not take notice of the law requiring that the president give Congress 30 days notice before releasing prisoners from Guantanamo. Although I’m still of mixed mind on the swap itself, I think that the president should have conformed to the law and notified Congress. That’s not a partisan position or even a political judgment. Both Congressional Democrats and Republicans have said much the same thing and the Democrats saying this are not merely those fighting tough re-election campaigns. Painting it as a purely partisan position is in fact the partisan and political position.

The president’s supporters have defended the president’s position using the same logic as used by the Bush Administration to condone torture and in some cases quoting from those statements. I think the Congress has the stronger legal position based on these two clauses in Article I, Section 8 of the U. S. Constitution. Among Congress’s enumerated powers are the powers:

11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

and

14: To make Rules for the Government and Regulation of the land and naval Forces;

The Congress has acted under its enumerated powers. In violating the law, it is the president who has threatened the separation of powers. The key point here is that the president doesn’t just get to do whatever he wants. The president must obey the law and is bound by it just like the rest of us.

The Supreme Court has recently affirmed and re-affirmed that Congress cannot resort to the courts to compel the president to follow or enforce the law—impeachment is Congress’s only recourse. The president is coming far too close for my taste to giving Congressional Republicans the pretext they’ve sought for some time.

{ 23 comments… read them below or add one }

... June 4, 2014 at 7:59 am

As I’ve read more, I think the ‘swap’ aspect was cover for releasing the Taliban members, which seems designed to prove good intentions for a negotiated settlement with the Taliban. A negotiated settlement is probably the best that can be achieved given that we are giving up on Afghanistan (a policy I largely support at this point in time) though I’m not sure this release is the best way to go about that, and the Administration’s crowing wouldn’t be justified if Bergdahl were Captain America instead of the deserter he appears to be.

It is interesting that the President never has to obey the law, however. Someday, there’s likely to be consequences. I imagine they will happen when a Congress decides to stand up to a President, and the President responds by having the Congress shot.

steve June 4, 2014 at 8:02 am

I dont know why he did not inform them of the final deal. They had publicly announced that they were actively negotiating this. Congress knew that a swap was going to be part of the deal if one was reached. I have to assume he knew they would not agree to the swap and the administration had good reason to believe there would not be another chance. I think that put them in a moral vs legal bind. What is the morally correct thing to do vs the legal. If so, the Obama has to be willing to take the consequences.

Reminds me of a South African physician I worked with. Working under apartheid at an ER a family brought in a dying (black) kid to his whites only ER. He treated the kid and successfully saved his life. He was fired. Charges were brought. He left the country and came ot the US.

I think there is no doubt that the safest political course was to just accept the refusal by the Republican Congress to not make the swap. If and when the kid died, he could have just blamed them. He could have blamed them for the kid not being released. But, maybe everything shouldnt be politics.

Steve

PD Shaw June 4, 2014 at 8:06 am

This is the quote from the Chris Matthews show that shocked me. Asked about Senator Feinstein’s statement that the POTUS broke the law:

Col. MORRIS DAVIS, former chief prosecutor at Guantanamo Bay: Well, I think she’s wrong. I mean, you go back to the Bush administration and Jay Bybee’s memo in 2002 where he said that Congress trying to put any constraints on the president’s authority as commander-in-chief is unconstitutional. He was talking about enhanced interrogation and the torture statute, but the same rationale applies here.

And the president issued a signing statement when he signed this 30-day notification provision. And he said he was signing the bill but he felt it was an unconstitutional infringement on his authority as commander-in-chief. So I understand her objection, but I think the president is right in this case that he had the constitutional authority to do this.

I don’t think people like Col. Davis appear on this type of show without a helping hand from a supporter of the Administration, but the Administration needs to be asked questions about its legal position in the coming days. But the focus should go beyond the law and to what considerations and judgments the President will use to ignore laws.

CStanley June 4, 2014 at 9:05 am

Steve, that’s all fair enough but it seems to me that your colleague’s moral dilemma was a lot more clear cut than this situation. In my mind I leave room for the possibility that Obama truly thought this was the morally correct thing to do, but alongside that is the possibility that he had political motivations. Frankly most of his past behavior supports the latter conclusion, but I won’t pretend to know at for certain.

It’s also disingenuous to assert that the opposition to the deal was from Republicans. It came from, and is now coming from, all quarters.

CStanley June 4, 2014 at 9:07 am

@PD Shaw- it’s long been obvious to me that people use arguments of principle and procedure as cudgels to take up and discard at their convenience, this is the latest evidence of that.

PD Shaw June 4, 2014 at 9:47 am

@steve (from previous thread): “So you would have just left him? Presume he is guilty? 5 guys with zero intel worth. 5 guys who wont be fighting against us since we will be gone.”

My concerns aren’t really about Bergdahl, but the five guys. The main problem with Bergdahl is the politics of the Administration initially boosting him as a hero via Rice and doing the photo op with the parents. Effective policy requires effective politics. This includes consultation with Congress and active support of the defense and intelligence bureaucracies.

I largely agree with your comments about Bergdahl in the previous thread, but you have a tendency towards false-choice narratives, forming an action bias. If we don’t do this deal, then there is no deal ever. But we’ve been in some form of negotiations for years and there is no evidence that a deal couldn’t be made at a later date.

My main issue is not intelligence, we detain people to prevent them from killing our troops. But why are we releasing five committed military leaders who appear likely to return to efforts to kill Americans, while we get one guy, who almost certainly will never go to Afghanistan again. What’s the deal with 5:1?

jan June 4, 2014 at 10:20 am

“The Congress has acted under its enumerated powers. In violating the law, it is the president who has threatened the separation of powers. The key point here is that the president doesn’t just get to do whatever he wants. “

It was once attributed to Nixon in saying, “If a president does something, it’s legal.” IOW, the thinking was that the power of the president was not to be disputed or overridden. This apparently is how our current president sees his position in the WH as well. Ironically, the comparisons between both GWB and Nixon only seem to grow.

“I think there is no doubt that the safest political course was to just accept the refusal by the Republican Congress to not make the swap.”

Steve,

You continue to ascribe “Congress” as being in the hands of the Republicans. This is only a half truth, as of 3+ years ago. Today, only the House has a Republican majority, and the Senate has been under the very firm grip of the democratic leadership — Harry Reid. Even in this divided Congress, however, there was bipartisan agreement voicing hesitation/concerns about releasing these 5 high-level Taliban prisoners from Gitmo. Consequently, not approving this deal would have been a consensus reflection of another arm of governmental power, outside of Obama’s. This all goes back to the tempering aspects of constructing the Separation of Powers clause in the Constitution, which apparently you don’t seem to think is necessary under the present administration.

... June 4, 2014 at 11:15 am

My main issue is not intelligence, we detain people to prevent them from killing our troops

My understanding is that at least a couple of the detainees could be classified as war criminals. They weren’t simply some soldiers captured on the field of battle, and detaining them was about far more than some notional intelligence value.

What’s the deal with 5:1?

I read in an article yesterday (Time? Or maybe the NYTs?) that there were no negotiations at all. The Taliban simply said, “Release these five people, or forget it.” That allegedly came from an Administration source.

So looking at it as releasing five high level members of the enemy for a Private First Class (the promotion to Sergeant came later) makes little or no sense, as such. Now all anyone has to do is abduct some random US military member to get people of high value released from US custody. They don’t need a general for a general, but a PVC for several generals, or higher.

I really think that getting Bergdahl back was cover for releasing the five, and that the purpose of the deal is to make the Taliban like us. (Like the purpose of allowing the overthrow of the Egyptian government was to get the Muslim Brotherhood to like us, and killing Qaddafi and opposing Assad is to get the AQ types to like us.) The Administration playing this up as a demonstration of their awesome negotiating skills and playing up Bergdahl as a hero are solely an attempt to change the topic of discussion.

Also, there was internal opposition from within the Administration to this deal when it was first proposed a couple of years or so back. The internal opposition lost its will, apparently, when a Republican replaced a Democrat as SecDef. So much for opposition to this deal being solely partisan. (Seriously, who could POSSIBLY object to releasing the five highest level Taliban detainees other than because they hate Obama?)

[I]t seems to me that your colleague’s moral dilemma was a lot more clear cut than this situation.

LOL, you noticed that too!

steve June 4, 2014 at 1:44 pm

PD- We are leaving. How are they going to kill us if we are not there? But, you are probably right that I have an action bias. It looks to me like we are leaving, that we will lose whatever minimal leverage we had, and I am not so sure that the Geneva Conventions dont require us to release most of these guys anyway once we leave. These guys dont look like terrorists in the narrow (more properly defined I believe) sense to me.

“My understanding is that at least a couple of the detainees could be classified as war criminals.”

War criminals because during the civil war they killed civilians. I am not sure we are innocent on that account, though I suppose you can claim intent counts. They were trying to take over the country and we have been trying to…..keep Karzai in power? Turn them into Sweden?

Steve

jan June 4, 2014 at 2:48 pm

“I really think that getting Bergdahl back was cover for releasing the five, and that the purpose of the deal is to make the Taliban like us. “

Ice,

There are also assumptions abounding that such a sudden, unilateral move by Obama was to take the VA off the front page. Yes, Bergdahl’s plight has been on the government’s books for over five years. But, apparently nothing has been under discussion, for some time, with the Congress, which is why there was such enormous bipartisan surprise, as well as dismay, when this baffling exchange came down less than a week ago. Also, the excuses given by Chuck Hagel and the government, that Bergdahl’s deteriorating health was a critical factor seems wrong, as descriptions of his physical condition are that “he’s fine.” This mischaracterization, coupled with Rice’s statement about Bergdahl’s conduct being “honorable” (intensely refuted by all his army comrades), and Obama saying that he had consulted with Congress all along (also denied by leaders in Congress) makes one wonder what is actually true in this story.

BTW, the VA problems have only been expanding, as the news about them has been on hold because of the newly inserted Bergdahl developments. However, it’s now being acknowledged that every state is uncovering problems dealing with VA waiting times and quality of care.

Steve,

As I read your posts it reminds me of parents of addicts who enable their children because they don’t want to think ill of them. Almost in every case, you are quick to cite the best case scenario for this administration’s actions, policy outcomes, and general reasons for implementing the agenda and decisions he does. The bottom line, it seems, is to make a moral equivalence type of comparison with presidents you don’t like, which then makes this president’s motives more palatable and understandable. I actually don’t recall this kind of rationalization being carried on so long and so vociferously, for other president’s performances, as it has gone on for Obama.

michael reynolds June 4, 2014 at 3:25 pm

Actually, since we are leaving Afghanistan we have an obligation to return POWs. That is also the law. So one way or the other, Taliban at Gitmo are going home. We got something in exchange for something we had to give up anyway.

... June 4, 2014 at 3:41 pm

Funny to argue that the President was obligated to break the law because he was obligated to follow the law.

But then Reynolds has argued that no one in the executive branch has to do anything Congress says because some of the people in Congress are mean to the President. So there’s that.

PD Shaw June 4, 2014 at 3:42 pm

@Elispes, that the U.N. wants two of these guys as war criminals for the murder of thousands of Shiites is one of the factors that made more hostile to the deal.

The 5:1 ratio wouldn’t irk me as much if there were some limiting principle subsumed in it. If its simply that we are willing to pay any cost to bring home a member of the American military, then we basically set ourselves publicly as chumps.

Lincoln supported principled exchanges of prisoners, and when the principle was dishonored (black soldiers don’t count), he was willing to stop prisoner exchanges even though he knew it meant that Union soldiers would die in the interim.

PD Shaw June 4, 2014 at 3:57 pm

@steve, I think the right to detain captured Taliban until military operations end is clear. I think it becomes murky after that point because the AUMF is not over; we will still be fighting associated powers in Yeman, for example. Have we ruled out drone attacks in Afghanistan? It’s probably more important what the POTUS thinks the withdrawal means, and he may conclude that he has to put them on trial or release them. Two of these guy appear to have an invitation to the Hague, which we declined for them.

If the POTUS believes he must release Taliban prisoners, I would prefer he release them to the Aghan government, and let them decide the cost and benefits of pardon of their citizens.

PD Shaw June 4, 2014 at 4:09 pm

Last week, the U.S. decided to release Ghaleb Nassar Al Bihani from Gitmo, finding that:

“The Board found the detainee credible on his commitment to living a peaceful life. The Board also considered the detainee’s low level of training and lack of leadership position in al-Qa’ida or the Taliban. The detainee’s shift in behavior from being disruptive in detention to playing a positive and constructive role in the administration of the camp, his efforts to improve his health situation, and his efforts to improve himself through exploring non-extremist matters were also noted by the Board.”

I guess this was the kind of person we were exchanging. A young hothead that had mellowed in time.

michael reynolds June 4, 2014 at 5:07 pm

PD Shaw:

We fought the Taliban. At the time they were the government of Afghanistan. We removed them as a government and put this corrupt twat Karzai in. So I can see an argument that we should release Taliban (former government) POW’s to Karzai (existing government), as a legal point. Fair enough, we turned German POWs over to the new de-Nazified German government.

On the other hand, we exchanged POWs with the Confederacy which we denied was a legitimate government. (Much like the Taliban – especially in the matter of extravagant beards.) We had no government to turn those POWs over to, since the successor to the CSA was us. You’d probably know, but I assume they were just packed on trains and sent home. Which would also be legal in this case as well, if I’m not mistaken. We could have just flown the 5 back to the Khyber Pass and dropped them off.

(Of course the only reason Karzai wants them is so he can collect a ransom before they “escape” from his custody.)

We have also exchanged prisoners with terrorists at times, sometimes releasing them to a third party as we are doing with Qatar.

Either way, the Taliban is leaving Gitmo. So the 5 for 1 obsession is kinda silly since the alternative is not 1:1 but hundreds to one, or hundreds for nothing if Bergdahl had died. The alternatives to handing them over to the Taliban via Qatar were to hand them over to Karzai so he can hand them over to the Taliban, or drop them off anywhere in Afghanistan.

Which is the better answer for our security? To drop them off randomly, give them to Karzai, or to run them through a country with which we have friendly ties, a country I think we can all agree hosts a sizable number of CIA folks?

As for the Gitmo law, as you know, intention (legislative history) is important to the understanding and interpretation of any law. (I used to do legislative histories in an earlier life for Wilmer, Cutler). I doubt this situation formed a significant part of the legislative history of the law, which was meant to stop Mr. Obama from transferring prisoners to civil jurisdictions in the US.

But hey, let’s run it up to the Supremes and see whether they think a law passed for a different purpose trumps the powers of the Commander in Chief in dealing with soldiers.

As for impeachment? Please. Please. I beg all my Republican friends: please impeach. We enjoyed the last one so much, I’m sure we’ll love the sequel.

Ken Hoop June 4, 2014 at 6:13 pm

Why should the president obey the law when the Congress doesn’t?
Let’s start with the undeclared war in Vietnam. Let’s end with electing Rand Paul, provided he quits kowtowing to the Lobby
for shortterm gain. Rand, they’ve already got Cruz stealthing you out. Don’t play their game.

PD Shaw June 4, 2014 at 7:25 pm

@michael, I’m not someone who has given much importance to the label “terrorist” in this controversy. As you said, the Taliban was the government, and as an insurgency they stand in a different position than others.(*) Fighting an insurgency involves the principle of distinction. We assume that there are a hard core of insurgents that are intractable and must be separated from less committed groups motivated by misinformation, fear, misguided loyalty or coercion. Commanders have more culpability than grunts. In the case of a prisoner exchange in the American Civil War, a colonel was exchanged for something like 15 privates. That was probably because of a sense that the colonel was seen as worth fifteen times as much, but it also reflects the notion that the regular people fighting and dying were not as complicit in the larger issues.

(*) Though, I do believe we should marginalize such groups to the extent that it doesn’t interfere with practical considerations. Lincoln was willing to be quite self-interested and inconsistent in the status of the Confederacy.

PD Shaw June 4, 2014 at 7:45 pm

More comments:

1) One of the problems is that the Taliban and al-Qaeda are not mutually exclusive groups. This description of the five, suggests a continuum. On the one end, Nabi Omari was a member of a joint al-Qaeda/Taliban cell. On the other end, there is a former governor of the Herat providence, whose only tie to al-Qaeda appears to be allowing knowing them and allowing them to operate in his jufrisdiction. In between are people that appear to be intermediaries btw/ al-Qaeda and the Taliban.

(2) A question. If the President is required, or feels it is required to release these five prisoners on January 1, 2015, because the U.S. has withdrawn from Afghanistan, what would happen to Berghdahl?

PD Shaw June 4, 2014 at 8:43 pm

As to impeachment, I’m not sure that the Congress, particularly the House, shouldn’t become more active in either approving articles of impeachment or joint resolutions of disapproval, with the general expectation that the Senate will exercise its judgment not to remove the President. Obama should not be removed, but the legislature shouldn’t simply be cuckholded on the excuse that his previous wife screwed him over just the same. To avoid the accusation of being a racist bigot by guilt-ridden baby boomers, I am more than happy to begin with this practice with the next whitey.

michael reynolds June 4, 2014 at 10:27 pm

PD:

If the Congress wants to be an equal branch of government they have the power to make that happen tomorrow. They have all the real power. But if they exercised that power they’d also have to accept the responsibility. Power has not been taken from Congress, they’ve willingly surrendered it over the course of decades.

I’m sorry, but they can’t abdicate and then pop up at random to demand this or that fragment of the law be obeyed. They either need to step up to their Constitutional duties, or they need to be a wee bit less shocked, shocked, when they’re ignored.

Let me know when they dispense with the mummery of the debt ceiling, or when they decide to show some common decency and wean themselves off the billionaire teat, or actually lay out a budget or reach some consensus on foreign policy, or any of the other things they could do to show that they’re taking on some responsibility. Then I’ll believe they want the power that is theirs for the taking any day of the week.

Remind me: did the Congress act to stop torture carried out by American agents and soldiers? Did they demand accountability? No. Suddenly now they’re very upset that they didn’t get their 30 day notice on a POW swap. What bullshit. This isn’t, sadly, about law or principle, it’s just politics, and no one at either end of Pennsylvania Avenue takes this as anything else.

michael reynolds June 4, 2014 at 10:34 pm

Re (2) I heard a BBC report a few days ago – I was in the car so I don’t have a link – and the story was that factions within Taliban wanted to snatch Bergdahl from the faction that held him. (He was a physical asset.) His captors wanted the deal to cash in while they could.

We wanted the deal to 1) Rescue an American citizen and soldier, 2) and just possibly because they knew the GOP would take the bait and show themselves to be heartless assholes. Again. But that may have just been a happy side effect.

I’ll be interested to see the polling in a few days. I’ll bet there’s a sizable gender gap. Wait til we get a Diane Sawyer interview with Bergdahl’s mom.

michael reynolds June 5, 2014 at 9:22 am

Hah! Krauthammer is now apparently an Obama stooge as well:

Charles Krauthammer says he supports President Barack Obama’s deal to bring Army Sgt. Bowe Bergdahl home.

“Had the choice been mine I would have made the same choice,” Krauthammer told Fox News’ “Special Report” on Wednesday. “It’s a difficult decision, and I would not attack those who have done otherwise.”

Krauthammer said those in the West “put a value on the individual human life the way that the ones at the other end of the table don’t,” specifically citing an example in which Israelis had to release 1,000 terrorists in exchange for one sergeant who had been taken captive.

“These are dangerous militants, but we have long engaged in and all other countries in the West have engaged in hostage swaps where the West always comes out on the short end,” Krauthammer said.
The conservative commentator also argued that claims about whether Bergdahl had deserted are making people more critical of Obama’s decision to release the five Guantánamo detainees and Krauthammer told Fox host Bret Baier to “assume that this had been somebody who had served honorably.”

“It would still be a very difficult decision to release five commanders in return,” Krauthammer said. “But I think people would say ‘Tough call, but OK.’”

http://www.politico.com/story/2014/06/charles-krauthammer-bowe-bergdahl-deal-107471.html#ixzz33m4yXjSv

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