Power Wars Blog by Charlie Savage

Power Wars Documents: Violating the Notice Law for the Bergdahl Prisoner Exchange Deal

This is a set of documents related to the Obama administration’s disputed decision to transfer five higher-level Taliban detainees to Qatar as part of the prisoner exchange deal for Sgt. Bowe Bergdahl, who had been captured by the Taliban in 2009 after wandering off his outpost and was being held under horrific conditions. I discuss this controversy and these documents in Chapter 10, Section 15: “Violating the Transfer Restrictions to Save Bergdahl.”

This was the first time the Obama administration violated the statutory transfer restrictions on Guantanamo, citing (in part) his constitutional powers.

The deal was politically controversial for several reasons, but only one had a legal hook: the Obama administration had not followed one of the Guantanamo transfer restrictions requiring the defense secretary to give Congress 30 days advanced notice before any detainee departed the wartime prison. Republicans said the Obama administration had violated that law, as well as a law forbidding the expenditure of funds not appropriated by Congress. (The transfer restrictions are pegged to Congress’s power of the purse.)

The defense secretary, Chuck Hagel, told Congress that the substantive requirements of the statute had been met – he was satisified the transfer was in the national security interest of the United States, and that the risk of recidivism had been substantially mitigated. But the administration, saying that waiting once the deal was struck would have endangered Bergdahl’s life, did not adhere to the 30-day waiting period.

In its defense, the administration made a strained statutory argument – that Congress had not intended the statute to apply to prisoner exchanges – but backed it with a constitutional argument: if the statute did apply to prisoner exchanges like the Bergdahl deal, then it violated President Obama’s constitutional authority, as commander-in-chief, to protect the lives of Americans and servicemen abroad, and he could lawfully violated it.

This resulted in a back and forth with the Government Accountability Office, a congressional watchdog, in which Pentagon laid out its legal thinking. The administration also said that the Justice Department – meaning the Office of Legal Counsel, led by Karl Thomspon – agreed with it.