From 2005 through 2008, legal scholars and Democratic politicians heaped relentless scorn upon the Bush administration for arguing that the president's constitutional commander-in-chief powers superseded statutes that might limit his discretion. And so it is quite interesting to watch the Obama administration and its defenders scramble to justify its own decision to override statutory limits on the transfer of Gitmo detainees after the Bergdahl-terrorist swap.
Defense Secretary Hagel did not hesitate to base the administration's actions in the president's constitutional powers: "We believe that the president of the United States is commander in chief, has the power and authority to make the decision that he did under Article II of the Constitution."
But yesterday, the administration ventured a slightly more subtle approach. Rather than directly declaring the detainee-transfer statute unconstitutional, the NSC explained that President Obama had simply "interpreted" the statute as not applying to this particular detainee transfer:
With respect to the separate 30-day notification requirement in Section 1035(d), the Administration determined that the notification requirement should be construed not to apply to this unique set of circumstances, in which the transfer would secure the release of a captive U.S. soldier and the Secretary of Defense, acting on behalf ofthe President, has determined that providing notice as specified in the statute could endanger the soldier’s life.
In these circumstances, delaying the transfer in order to provide the 30-day notice would interfere 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. Because such interference would significantly alter the balance between Congress and the President, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances.
This "interpretation" of congressional intent strains credulity, for reasons already explained by professor Jack Goldsmith. (Goldsmith, you may recall, received much praise for his criticism of the Bush administration's constitutional arguments, after his stint in the Justice Department's Office of Legal Counsel.)
But even more noteworthy is the fact that this analysis simply repeats the approach of the Bush administration's famous memos on prisoner interrogation (or, as they're often called, the "torture memos"). In 2003, the Bush administration's Office of Legal Counsel prepared a memorandum concluding that statutes banning "torture" should be interpreted as not limiting the president's discretion to authorize the use of severe methods of interrogation in times of war.
Like the Obama NSC's statement, the Bush OLC memo (at pp. 11-14) concluded that applying generally applicable statutes in that particular context would disrupt the proper balance of constitutional power between the president and Congress. And furthermore, the Bush OLC suggested, there was no evidence that Congress actually intended its generally applicable statute to limit the president in this context.
Therefore, to "avoid" the "constitutional difficulty" that would arise from applying the statute against the president's orders, the Bush OLC concluded that the statute must be "construe[d] ... not to apply to the President's detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority."
Unsurprisingly, legal scholars criticized this reasoning vehemently. In a widely-read series of Harvard Law Review articles, professors David Barron and Marty Lederman criticized the administration for using this method of statutory interpretation to "avoid" the constitutional issue: