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relentless scorn upon the Bush administration for arguing that the president's constitutional commander-in-chief powers superseded statutes that might limit his discretion.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:
In some cases, the Administration has used this principle [i.e., the principle of inherent president powers] not only to conclude that a statute was unconstitutional, as such, but also as a justification for adopting extremely strained interpretations of statutory constraints so as to avoid allegedly serious constitutional questions.
Barron and Lederman added that the OLC's approach was constitutionally problematic in and of itself because, they argued, it fell far short of the president's constitutional duties to uphold the law:
"It is a very interesting and important question whether and when such statutory creativity is consistent with the President’s constitutional obligation to faithfully execute the law." See Posting of Marty Lederman to Balkinization, http://balkin.blogspot.com/2006/07/chalk-on-spikes-what-is-proper-role-of.html (July 4, 2006, 11:28 EST) …
In a separate blog post, Lederman also mocked the notion that the Bush administration's interpretation of Congress's intent actually reflected reality:
[A]s far as I'm aware no one in Congress has been persuaded by the Administration's statutory argument: It was dead on arrival. As Senators Graham and Specter, among others, have explained, they were present at the negotiation and enactment of the AUMF, and they guarantee that neither they nor their colleagues intended to authorize the sort of circumvention of FISA that the Administration has been engaged in for the past five years. (Attorney General Gonzales's testimony, in response to Graham's explanation to this effect, was basically that Congress unknowingly authorized a major restructuring of a central framework statute, and that actual legislative intent is irrelevant. You can imagine how well that notion went over in Congress.)
Although the Bergdahl-terrorist swap came to light only a few days ago, it is safe to say that criticism of the Obama administration's assertions of executive power have been, let's say, rather muted. David Barron is not going to comment anytime soon, but for good reason: He's now a judge on the U.S. Court of Appeals to the First Circuit, after serving in Obama's OLC (where he authored controversial memos defending the president's use of drones to kill an American terrorist recruiter).
Meanwhile, Barron's co-author, Marty Lederman (who also was appointed to Obama's OLC) has proffered a few comments in support of the administration, on his blog.
(To be clear, Lederman urges that he's not actually defending the administration, but rather just analyzing the administration's analysis. It's worth noting that when other professors attempted similar "non-defenses" in the Bush years, Lederman was less than impressed by such distinctions.)
It is easy to pick on Lederman for his distinctly different approaches to the Bush and Obama administrations, if only because he at least he had the courage to stick his neck out both times: first criticizing the Bush administration, and then defending the Obama administration. (Harold Koh, of Yale and then the Obama State Department, is another.) Critics can judge for themselves whether the substance (and tone) of Lederman's Bush-era condemnations are plausibly consistent with his Obama-era "explanations."
But far less impressive are those who campaigned loudly against the Bush administration generally--and John Yoo personally--only to disappear when the Obama administration pushed the boundaries of unilateral presidential action far beyond anything ventured by the Bush administration. Other than professor Jonathan Turley, it seems that Bush and Yoo's loudest liberal critics have gone silent.
In light of the Obama administration's latest actions and arguments, Yoo would be justified in asking the famous question, "Which office do I go to to get my reputation back?"
For the rest of us, the question is whether Bush's critics now agree with the constitutional arguments they once mocked, or whether they still disagree but aren't brave enough to say it before President Obama leaves office.