Monday, June 2, 2014

The President Pretty Clearly Disregarded a Congressional Statute in Swapping GTMO Detainees for Bergdahl - Jack Goldsmith // Lawfare

The one for five trade of prisoner with the Taliban has sparked controversy, explored HERE in a Times `Room for Debate'.

Section 1035 of the 2014 NDAA authorizes the Defense Secretary to “transfer or release any individual detained at Guantanamo” if he makes certain certain determinations, and it further requires without exception that the Secretary “shall notify” the appropriate Committees “not later than thirty days before the transfer or release.” 

Obviously that was not done.  Did President Obama violate the law in the prisoner swap for Bowe Bergdahl?  Or did he just ignore a law that he believed unconstitutionally infringed his Article II power as commander in chief. The President did express such doubt in his signing statement.  The President's power to not execute an unconstitutional law is fairly well established as this 1994 letter by Walter Dellinger to White House Counsel Abner Mikva argues. -gwc
Lawfare › The President Pretty Clearly Disregarded a Congressional Statute in Swapping GTMO Detainees for Bergdahl:
by Jack Goldsmith
When the President “disregards” a statute on constitutional grounds he is not “violating” the statute if his constitutional argument is sound.  CNN legal analyst Jeffrey Toobin stated today that President Obama “clearly broke the law” when he acted contrary to Section 8011, the notice requirement on transfers.  “The law is on the books, and he didn’t follow it,” Toobin added.  The last statement is true but it does not follow that the President violated the law.  It all depends on the validity of the President’s constitutional argument.  If the statute impinged on an exclusive presidential power, the president properly disregarded it and did not violate it.  We have not yet (and likely will not see) the Executive branch’s analysis of the constitutional question, assuming there was one.  But, to repeat, presidential disregard of a statute is not a violation of the statute if the statute is contrary to Article II. 
There are one or two other statutes in the mix.  Goldsmith explains.

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