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The Bergdahl Exchange [Fifth UPDATE (with clarification)]

This is truly wonderful news.

The five Taliban detainees transferred to Qatar apparently are:

Abdul Haq Wasiq (ISN 004)

Mullah Norullah Noori (ISN 006)

Mullah Mohammad Fazl (ISN 007)

Khirullah Said Wali Khairkhwa (ISN 579)

Mohammad Nabi Omari (ISN 832)

Here is an earlier story from Charlie Savage about the exchange negotiations.

With this exchange, it is likely the case that there are few, if any, Taliban forces remaining as detainees at Guantánamo. (I’ll update this speculation if and when I see any more authoritative statements or reporting on this question.)

From a legal perspective, one question is whether the Secretary of Defense complied with the 30-day notice/certification requirement of Section 1035 of the 2014 NDAA (and if not, on what grounds). Secretary Hagel’s statement suggests that he did comply with the substantive requirements of Section 1035, but that he notified Congress today, not 30 days ago. It’s difficult to imagine that Congress would have intended to insist upon such a 30-day delay if the legislators had actually contemplated a time-sensitive prisoner-exchange negotiation of this sort; but the statute does not on its face address such a rare (and likely unanticipated) case. Note that the President wrote this in his signing statement: “Section 1035 does not . . . eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles. The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.” Perhaps he had the prospect of a Bergdahl negotiation in mind . . . .

UPDATE: The most recent version of the NYTimes story now reports an “administration official” as saying: “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 requirement of the NDAA.”

Second UPDATE: Representative Howard P. “Buck” McKeon, Chairman of the House Armed Services Committee, and Senator James Inhofe, Ranking Member of the Senate Armed Services Committee, issued a statement in which they wrote: “In executing this transfer, the President also clearly violated laws which require him to notify Congress thirty 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 Berghdal’s release is tempered by the fact that President Obama chose to ignore the law, not to mention sound policy, to achieve it.” McKeon and Inhofe did not address whether the Secretary should have waited 30 days if it meant seriously compromising the secret negotiations.

Third UPDATE: As far as I know, although the Administration has invoked the President’s “constitutional responsibilities” to protect U.S. persons abroad, it has not yet asserted a constitutional prerogative to disregard the statute. Instead, Administration officials’ statements–in particular, National Security Adviser Rice’s interview on CNN this morning (see excerpt below)–appear to imply some combination of the notion that Congress would not have intended to insist upon the 30-day waiting period where an American service member’s life was at stake, and the suggestion that the Administration did everything it could to comply with the substance and spirit of the statute consistent with the need to save Sergeant Bergdahl, including anticipatorily briefing Congress earlier of the prospect of such an exchange, and also briefing Congress yesterday before the detainees were transferred to custody of Qatar. Perhaps we will learn more of the Administration’s rationale when Secretary Hagel’s notification to Congress is made public. In the meantime, this incident sounds reminiscent of the situation in Saigon in the Spring of 1975, when the Ford Administration controversially insisted that Congress did not intend statutory restrictions on the involvement of U.S. armed forces in “combat activities” and “hostilities” in Southeast Asia to cover efforts to rescue U.S. nationals. (See text at note 537.)

Fourth UPDATE:  In this media Q&A, Secretary Hagel does, indeed, appear to invoke an Article II authority to disregard the 30-day waiting period:  In response to a question about “why you decided to notify Congress only the day of [the exchange] and not do the 30-day notification, and if you think you are indeed in violation of that law,” the Secretary responded:  “We believe that the president of the United States is commander in chief, has the power and authority to make the decision that he did under Article II of the Constitution.”

CLARIFICATION: Some observers have read this post–particularly the updates–as a defense of a possible statutory or constitutional argument by the Administration.  I do not, however, mean here to be endorsing those arguments.  (Obviously, for instance, I am deeply skeptical of the argument that Congress may not regulate the Commander-in-Chief’s conduct of war.)  For now, I’m merely trying to unpack those possible arguments and offer some context.  In sum:  The Administration appears to be arguing (i) that it complied with most of the statutory framework, including the substantive certification, and with the spirit of the law; (ii) that this is the sort of case in which Congress likely would not have required a 30-day waiting period if it had contemplated a case in which such delay would compromise the likelihood of rescuing a U.S. soldier; and (iii) that to the extent the Administration did disregard the letter of the law, the Constitution authorizes the President to do so.]

Fifth UPDATE (June 3):  Turns out the Administration is relying upon a statutory argument, after all — that “Congress did not intend that the Administration would be barred from taking the action it did in these circumstances” — rather than on a constitutional override theory.

Excerpt from Candy Crowley interview with Susan Rice on CNN’s State of the Union (June 1, 2014):

CROWLEY: Was there a particular reason why now? Is it simply because you got the deal? Secretary Hagel alluded to health problems, that Bergdahl’s life was in jeopardy. Was there some heightened feeling about this, or why now?

RICE: Well, certainly, after almost five years in captivity, our concern was increasing with every passing day. But we also had indications that indeed his health was growing more fragile. He had lost a good bit of weight, and we were very concerned that time was not something we could play with, that we needed to act when we had the opportunity. And that’s what we did.

CROWLEY: Why didn’t you notify Congress?

RICE: For that very reason, Candy. First of all, this opportunity…

(CROSSTALK)

CROWLEY: Which, under the law, it says you should.

RICE: This opportunity is one that has been briefed to Congress when we had past potential to have this kind of arrangement. So, it wasn’t unknown to Congress. The Department of Defense consulted with the Department of Justice. And given the acute urgency of the health condition of Sergeant Bergdahl, and given the president’s constitutional responsibilities, it was determined that it was necessary and appropriate not to adhere to the 30-day notification requirement, because it would have potentially meant that the opportunity to get Sergeant Bergdahl would have been lost and, therefore…

(CROSSTALK)

CROWLEY: Well, why not? Is there no one in Congress you can trust with the information, or call up the chairmen of the Intelligence Committees, on the chairwoman on the Senate side, and say, I want you to know this is happening, we have to act now?

RICE: Well, we did do that. In fact, we had briefed Congress in the past about this potential…

CROWLEY: In the past, but when you knew you were going?

RICE: And when we — when the deal was done and Sergeant Bergdahl was in U.S. custody is when we began making notifications to Congress.

CROWLEY: But the deal had already been made, and the prisoners in Guantanamo Bay were already on route to a plane to go to…

(CROSSTALK)

RICE: No. Actually, Congress began to be notified when Sergeant Bergdahl was in American hands, which was actually before the prisoners had left Guantanamo.

CROWLEY: But not telling a couple of folks up on Capitol Hill, might that in hindsight not have been a good idea?

RICE: Candy, what we put the highest premium on was the safety of Sergeant Bergdahl. This was held very closely within the administration. We could not take any risk with this losing the opportunity to bring him back safely.

CROWLEY: Did you — so there was a conscious decision to break the law, as you know it, dealing with the detainees and the release of them?

RICE: Candy, no. As I said earlier, the Department of Defense consulted with the Department of Justice. And it is our view that it was appropriate and necessary to do this in order to bring Sergeant Bergdahl back safely.

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About the Author

is a Professor at the Georgetown University Law Center.