Constitutional Law

White House says notice law didn’t apply in 'unique circumstances' of detainee swap


The White House is offering an explanation for President Obama’s decision to authorize a detainee swap freeing Sgt. Bowe Bergdahl without notice to Congress.

A federal law requires the secretary of defense to give Congress 30 days’ notice before transferring Guantanamo Bay detainees. But a statement released by National Security Council spokeswoman Caitlin Hayden said administration lawyers had interpreted the law to allow an exception in the “unique circumstances” of Bergdahl’s rescue, the New York Times reports.

“Given the credible reports regarding the risk of grave harm to Sgt. Bergdahl and the rapidly unfolding events surrounding his recovery, it was lawful for the administration to proceed with the transfer notwithstanding the notice requirement,” the statement said.

Failing to read an exception into the law, the statement said, would raise constitutional concerns because it interferes with “the executive’s performance of two related functions that the Constitution assigns to the president: protecting the lives of Americans abroad and protecting U.S. soldiers.”

In December, Obama issued a signing statement about the law, saying it could violate constitutional separation-of-powers principles in certain circumstances.

“Section 1035 of this Act gives the Administration additional flexibility to transfer detainees abroad by easing rigid restrictions that have hindered negotiations with foreign countries and interfered with executive branch determinations about how and where to transfer detainees,” the statement read in part. “Section 1035 does not, however, 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. Of course, even in the absence of any statutory restrictions, my Administration would transfer a detainee only if the threat the detainee may pose can be sufficiently mitigated and only when consistent with our humane treatment policy.”

Anonymous officials told the Times that the administration feared advance disclosure of the prisoner trade would interfere with talks. The Wall Street Journal (susb. req.) offers another reason for quick action: a secret video taken in December that shows an “alarming” worsening of Bergdahl’s health.

The Times points out another possible reason for lack of notice: Some members of Congress were critical of the proposed swap in 2011 and early 2012.

Updated at 9:35 a.m. to add a link to the signing statement and to quote from it.

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