The Bergdahl prisoner exchange and the problem of defining emergencies

In defending the legality of its decision to exchange five prisoners held at Guantanamo Bay to gain Sgt. Bowe Bergdahl’s release from the Taliban, the Obama administration has to contend with the problem that the 2014 National Defense Authorization Act (NDAA) requires 30 days’ notice be given to Congress before prisoners are transferred from Guantanamo. No such notice was provided. That leaves the administration with a few ways to justify its actions: (1) it can argue the statutory provision is unconstitutional and can simply be ignored; (2) it can argue that the provision should not apply to the specific circumstances involved in the Bergdahl transfer; or (3) it can concede that the transfer violated the NDAA and seek retroactive approval from Congress (as President Abraham Lincoln did in the early days of the Civil War, when he sought retroactive approval for unilateral actions he took with Congress out of session).

The Obama administration has gone with option two — though I’d argue it is hard to distinguish this from option one as it amounts to the same thing: The Obama administration is claiming the authority to unilaterally set aside statutory limits on executive power.

{mosads}On June 3, the administration publicly released a statement by National Security Council (NSC) spokesperson Caitlin Hayden. Hayden explained that the president has responsibilities under the Constitution to “[protect] the lives of Americans abroad and [protect] U.S. soldiers.” In her view, the president was not setting aside the NDAA notice requirements — rather, Congress must not have intended to prevent the president from transferring prisoners from Guantanamo in emergency circumstances.

This is not a tenable position. As Harvard Law Professor Jack Goldsmith observes, the statutory notice requirements in the NDAA are “crystal clear.” If Congress had meant to provide an emergency exception, it could have done so.

I don’t think the administration really believes Congress intended to allow the president to transfer prisoners during an emergency without providing the required 30 days’ notice. The real argument here centers on two points: (1) does the president have authority, during an emergency, to set aside statutory or even constitutional limits on executive power in order to take necessary unilateral action and (2) if the answer to (1) is “yes,” then did an emergency exist with regard to the prisoner transfer?

It is clear that at least some emergency presidential power exists. During the debate at the Constitutional Convention of 1787, the framers agreed that, although Congress would possess power to declare war, the president would retain implied “power to repel sudden attacks.” They understood that, if the United States was attacked and the president (who, unlike Congress, would always be “on duty” under the Constitution, with no recess) did not have time to consult with Congress, the president could take necessary action to defend the nation militarily.

Fortunately, circumstances have rarely required such dramatic action. The one major exception was the Civil War. With Congress out of session in early 1861, Lincoln took a number of unilateral actions that he believed necessary to put down the rebellion, including ordering a blockade of southern ports (typically seen as an act of war), suspending habeas corpus so that suspected rebels could be detained by the military without access to civilian courts, and calling for volunteers to the military. The Constitution assigns the power to take such actions to Congress. Lincoln sent a message to Congress on July 4, 1861 in which he explained that “[t]hese measures, whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity, trusting then, as now, that Congress would readily ratify them.”

Lincoln’s messaged did at least two essential things. First, he acknowledged the rule of law and the need for presidential actions to be legitimized. He rejected the idea that presidents could simply set aside the Constitution or other laws. Second, he asked for (and got) retroactive congressional approval of his actions, further helping to make clear that presidents do not enjoy absolute power to take unilateral action.

If President Obama’s actions in unilaterally ordering the transfer of prisoners from Guantanamo can be justified, he must fit his actions into Lincoln’s framework. He must show that there was a real emergency. Too often in our history, presidents have used contrived emergencies as a pretext for action — Polk in Mexico, McKinley in Cuba, Johnson in the Gulf of Tonkin, George W. Bush in the Iraq war of 2003. Obama must also show that, like Lincoln, he understands that the president is subject to the rule of law. Relying on a presidential signing statement as authority to set aside the NDAA notice requirements is not good enough. It is essential for the administration to fully explain its claimed legal justifications for the transfer and to make its case to Congress and the public by explaining why emergency circumstances required unilateral action.

Edelson is an assistant professor of government in American University’s School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.