The Wall Street Journal had a fine editorial Monday on President Obama’s reckless decision to negotiate with the Taliban and release from Guantanamo Bay five of its most senior, most capable, most implacably anti-American jihadists for an American army sergeant who, according to accounts from his fellow soldiers, went AWOL in 2009. I addressed the swap in a Corner post over the weekend and in a column yesterday.
Faithless Execution, my book on presidential lawlessness and the Constitution’s ultimate response to it, impeachment, has just been released. I’ve thus been repeatedly asked about the president’s violation of a federal statute in carrying out the exchange and whether this rises to the level of a “high crime and misdemeanor,” the constitutional standard for impeachable offenses that is prominently discussed in my book. This line of inquiry misses the point. There surely is an impeachable offense in this irresponsible deal, but it involves the commander-in-chief’s dereliction of duty, not his failure to comply with dubious statutory terms.
The National Defense Authorization Act states that the president must give Congress 30 days’ notice before transferring war prisoners out of Gitmo, along with an explanation of steps taken to mitigate any potential threat the release poses to the United States. The administration concedes that the president did not comply with this law in releasing the Taliban commanders. The Journal’s editors pooh-pooh the allegation of some Republican lawmakers that this makes the exchange illegal; they argue, to the contrary, that the law is an “unconstitutional” constraint on the president’s “wartime decision-making.” The editors have a point, though one that is undercut by the president himself.
Article II of the Constitution gives the president significant unilateral authority over the conduct of foreign affairs. As commander-in-chief, moreover, the president has traditionally had near plenary authority over the capture and disposition of enemy combatants in wartime. Congress has salient constitutional powers, too. As the Journal points out, Congress could properly have used “its comparably strong power of the purse” to deny the president funding for objectionable prisoner transfers. Instead, with the 30-day notice prescription, it purported to legislate direct limitations on the president’s prerogatives. The president’s commander-in-chief prerogatives may be frustrated by Congress’s exercise of its competing spending power, but Congress may not legislate away the president’s Article II powers—i.e., the Constitution may not be amended by a mere statute. The Journal is right on that score.
The problem in this instance, however, is two-fold. First, there is the now-familiar hypocrisy point. Throughout the Bush administration, when the president relied on his constitutional authority to override congressional restrictions on his wartime surveillance authority and control over enemy combatants, the Left, including then-Senator Obama and many of the lawyers now working in his administration, screamed bloody murder. Some even suggested that he should be impeached for violating the FISA statute. President Obama, of course, is now doing the same thing he and his allies previously condemned. As I contend in Faithless Execution, he is doing it far more sweepingly and systematically than Bush, whose statutory violations occurred in the context of his incontestable war powers and were strongly supported by judicial precedents.