President Obama's Prisoner Exchange Raises Legal Questions

Earlier this week, the Obama Administration brokered a secret prisoner exchange that sent five high ranking Taliban officials to Qatar in exchange for American POW, Sgt. Bowe Bergdahl.  News of the release unleashed a firestorm of arguments for and against the decision predictably divided upon party lines, but political rhetoric and posturing aside, the Sgt. Bergdahl exchange presents potentially interesting legal ramifications.

President Obama Defends Prisoner Exchange

Amid criticism for exchanging five Guantanamo prisoners with known influence in the Taliban for one American soldier whose loyalty has been questioned by former members of his platoon, President Obama gave an impassioned speech to defend his prisoner exchange deal and promise the American public that he would take any action to ensure the safety of Americans.

While the President may be correct in his moral or tactical justification, legal scholars are left to wonder whether the President’s deal violated the 2013 National Defense Authorization Act – specifically Section 1035 which requires the Secretary of Defense to file notification of the transfer of American held prisoners 30 days in advance of the action.  In the eyes of many members of the legal community, the President’s agreement, which transferred five Taliban prisoners to freedom in Qatar without 30 day notice, is illegal.

Obama Administration Offers Legal Justification

In response to concerns over the legality of the secret prisoner exchange deal, the Administration released a statement with legal justification of its action on two fronts: 1) the notice requirement is unconstitutional in that it exceeds Congressional authority to influence the executive branch’s decision making authority regarding foreign enemies in American prisons, and 2) the law did not apply in this case as it was a tactical decision, which the President is entitled to make during combat. 

At the time President Obama signed the National Defense Authorization Act, he noted his objections to its constitutionality by issuing a “signing statement” outlining his disagreements.  The President felt that the notice requirement “fundamentally maintained unwarranted restrictions on the executive branch’s authority to transfer detainees to a foreign country,” which “hinders the Executive’s ability to carry out its military, national security, and foreign relations activities and would, under certain circumstances, violate constitutional separation of powers principals.”  Pointing out that in certain circumstances, he would need to make quick decisions regarding American held detainees, President Obama noted that he would interpret and implement the provisions of the law in such a way that will avoid constitutional conflict. 

President Obama’s second justification requires less constitutional analysis, and instead argues that the law simply does not apply to the recent prisoner exchange.  The Administration noted that the deal required immediate attention or Sgt. Bergdahl’s release would have been impossible, and, because his duty is to “protect US soldiers,” Congressional interference would not be appropriate in this case.  Stating “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,” the President’s legal team distinguished his deal from prisoner releases that Congress must approve.

Questions over Legality of Obama’s Prisoner Exchange Remain

The Administration’s justification addresses attacks on the legality of the President’s prisoner exchange agreement, however, some issues remain:

  1. Presidential signing statements have unresolved legal authority, but it is without question that a president does not have line item veto power.  When President Obama signed the National Defense Authorization Act into law, all of the law was in full effect.  Protesting to a portion of it does not give any president authority to ignore certain provisions – even if he finds them unconstitutional.
  2. Congress has constitutional authority under Article 1 Section 8 to “make rules for the Government and Regulation of the land and naval forces.”  Congress has in the past used this authority to prevent presidents from torturing foreign POW’s, and limit the type of weapon that a president can use.  Passing a law that regulates when a president can transfer American held detainees seems within the constitutional authority of Congress.
  3. Brokering a prisoner exchange may not be akin to other tactical decisions.  President Obama’s determination that his prisoner exchange was a decision under his authority to protect American soldiers and therefore not within Congress’s intent, is questionable.  Congress may have added a notice requirement specifically to prevent the release of five members of the Taliban who may pose a future threat to America.  Further, the President looking into Congressional intent, rather than following the letter of the law, opens a potentially dangerous can of worms of expansive executive authority.

The Administration has offered pointed legal justifications for its prisoner exchange deal, but serious questions remain about the strength of the President’s legal position and the overall constitutionality of his agreement with the Taliban.

 

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