Monday, September 1, 2014

Even Binding on the GAO 

Various media outlets are reporting that the Obama Administration violated federal law when it swapped five Taliban prisoners for Army sergeant Bowe Bergdahl, whom the Taliban had held captive for five years.  (See here and here, for instance.) These stories uniformly cite a report by the non-partisan General Accounting Office, an arm of Congress, prepared at the request of the several U.S. Senators. This report asserts that the swap violated two different statutes. First, the report concludes that the swap violated the National Defense Authorization Act for 2014, which provides that the President must notify Congress 30 days in advance before releasing any prisoner from Guantanamo Bay. Second, the report concludes that the expenditure of money necessary to effectuate the transfer violated the "Antideficiency Act," which prohibits the expenditure of funds that exceeds Congressional authorization.

The GAO report is incomplete to say the least.  Federal law includes more than just statutes duly enacted by Congress.  The paramount Federal law is the U.S. Constitution, which declares itself the supreme law of the land.  Article II of the Constitution vests the Executive power in the President and also provides that the President is "Commander-in-Chief of the Army and Navy of the United States." As previously explained on this blog, this provision grants the President power over what Joseph Story called "the direction of war" once Congress has initiated such hostilities.  Congress has authorized hostilities against individuals and organizations that planned and perpetrated the 9-11 attacks, included those, like the Taliban, who aided and/or harbored the perpetrators.  (See here, elaborating on the September 18, 2001 "Authorization to Use Military Force"). Having authorized the use of military force against our enemies, Congress cannot interfere with the President's exercise of the powers as Commander-in-Chief, any more than Congress can interfere with the President's authority to nominate a judge once it has created the judgeship by statute.

There is a strong argument that the detention and release of prisoners falls squarely within what Story called "the direction of war."  The conduct of military operations often results in the capture and subsequent detention, sometimes for the duration of the conflict, of those who surrender.  Direction of battlefield operations requires continuous decision making about whether to detain such prisoners, how and whether to collect intelligence from such prisoners, and which prisoners to release and when.  Such decisions are bound up with other tactical decisions, such as whether to conduct raids to capture additional prisoners, whether to enter temporary truces during which wounded prisoners are exchanged, and whether to release prisoners for the purpose of planting false intelligence with the enemy. The detention and treatment of prisoners can have strategic implications as well; an enemy might decline to surrender unless it receives adequate assurances that its captured soldiers will be released in a timely fashion.  Finally, successful negotiations with adversaries, again pursuant to the President's Article II powers, often depends upon preventing leaks so as to ensure the utmost secrecy.   Requiring the President always to notify Congress 30 days before releasing one or more such prisoners could in some cases unconstitutionally infringe on Article II of the Constitution.

If in fact the detention and release of prisoners falls within the President's authority to "direct war" and negotiate with adversaries, then President Obama was free to ignore, as unconstitutional, legislative constraints on the exercise of that power. In the same way, for instance, President George W. Bush was free to ignore legislation that purported to require the military to obtain a judicial warrant before gathering military intelligence from phone conversations between Americans and suspected members of Al Qaeda located in other countries. Presidents, like courts, are duty-bound to decline to enforce legislation they believe to be unconstitutional, regardless of whether courts have agreed or will agree with the President. (See here). Indeed, when he signed the National Defense Authorization Act for 2014, President Obama issued a signing statement contending that the notification requirement could in some cases infringe upon the President's Article II authority by depriving the President of the "flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers."  As previously explained on this blog, such statements are an entirely legitimate means by which the President may publicly contest legislation he or she believes to be unconstitutional.

The GAO report did not examine whether the statutory provisions it invoked infringed upon Article II of the Constitution.   Instead, the report reiterated the GAO's apparent practice of declining to opine on the constitutionality of duly enacted statutes.  The GAO also asserted that statutes passed by Congress and signed by the President are "entitled to a heavy presumption of in favor of constitutionality."

GAO's failure to consider the constitutional dimensions of the question was unfortunate and weakens the persuasiveness of the report's conclusion that the Administration "broke the law," given that unconstitutional statutes are not "law" in the first place. Moreover, the report's invocation of a presumption of constitutionality is misplaced. Such a presumption might make sense in the judicial context, when judges evaluate the constitutionality of legislation passed by Congress and defended in court by the President.  Where, however, Congress and a sitting President disagree about the constitutionality of legislation that purports to constrain the President, the application of such a presumption is unwarranted.  As Justice Scalia once explained, in such cases there is simply  no rationale for according the constitutional views of one branch of government greater deference than those of the other. See Morrison v. Olson, 487 U.S. 687, 704-705  (Scalia, J. dissenting).  As James Madison explained in Federalist 49: "The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers." (quoted in id.)  Thus, "[a]s one of the interested and coordinate parties to the underlying constitutional dispute, Congress, no more than the President, is entitled to the benefit of the doubt."  Morrison, 487 U.S. at 705 (Scalia, J. dissenting).    By ignoring James Madison and Justice Scalia and invoking this misplaced "heavy presumption," the GAO avoided the sort of analysis that may have clarified and helped resolve the constitutional dispute between Congress and the President.

Hopefully GAO will discard its practice of disregarding the Constitution when opining on the legality of executive branch actions.