President Barack Obama’s decision to release five senior Taliban leaders in exchange for the return of American serviceman Bowe Bergdahl has sparked a firestorm of criticism, from current and retired troops, from political commentators and from members of Congress. On the merits, it must have been a difficult decision. On the one hand, the five men we released from the prison at Guantanamo Bay are high-level Taliban figures, and it is reasonable to fear that they will return to active militancy in Afghanistan. On the other hand, our democratic society rightly places an extraordinarily high value on the lives of our own personnel.

Whatever the merits of the release, it also has been argued that the president violated the law when he ordered the Taliban five released. He has, but the law he has disregarded is unconstitutional.

That the president violated the plain terms of the law is, as the critics maintain, clear. Section 1035 spells out the factors to be considered in determining whether to release detainees, including such things as the security situation in the country to which detainees might be sent, evidence about whether previous detainees sent to that country have returned to active hostilities and any evidence that the detainee has cooperated with U.S. investigators. Nowhere on the list of factors is the one apparently relied on by the administration in Bergdahl’s case: that releasing these five Taliban leaders would enable a captured American to return home.

So not only does section 1035 not authorize the president to release detainees under these circumstances, it specifically requires the administration to notify Congress of its intent to release detainees and to explain its reasons for that release — requirements the administration clearly failed to meet, since congressional leaders learned about the release two days after the five men had been transferred to Qatar.

Some administration figures have tried to argue that Congress could not have intended to limit the president’s power so dramatically. They insist that Congress must have meant to allow the president enough flexibility to protect American forces abroad and that, in the same spirit, the 30-day notification requirement should be understood as a recommendation, to be followed when possible.

But this defense is totally unpersuasive. Since even before assuming office, Obama has made plain his desire to close the prison at Guantanamo Bay, and just as the president has been clear about his determination to see that facility closed, the Congress has been determined to see that it remain open and the detainees held there be kept there.

The applicable sections of the National Defense Authorization Act, however, are unconstitutional efforts by Congress to restrict the executive powers conferred on the president by Article II of the Constitution, which provides that “The President shall be Commander in Chief of the Army and Navy of the United States … and he shall have Power to grant Reprieves and Pardons for Offenses against the United States.”

When President Obama signed the act into law last year, he also issued a “signing statement” — the sort of thing for which then-Sen. Obama lambasted President George W. Bush, but which as president, Obama has discovered to be necessary and appropriate.

In that statement, Obama pointed to section 1035, suggested that it might unconstitutionally limit the executive power, and explained that his administration would interpret the statute in a way that avoids any constitutional conflict.

If section 1035 is meant to prohibit the president from releasing Guantanamo detainees who, in his judgment, ought to be set free, it is clearly unconstitutional.

If we think of the Guantanamo detainees as being held because the military thinks they are too dangerous to release (which is how the Bush administration understood the detentions), then the president’s power as commander-in-chief of the military clearly entails the right for him to make the ultimate decision about when any individuals should be held or released.

If, alternatively, we think of the detainees as having been judicially convicted in some way of engaging in unlawful hostilities against the United States (as the Obama administration tends to argue), then the president’s power to grant reprieves and pardons permits him to release them.

Conversely, any efforts by the Congress to specify by name the persons who are to be held by the executive would be an unconstitutional bill of attainder, in violation of Article I, section 9.

The decision to make the prisoner exchange may or may not have been unwise, but it was certainly within the president’s constitutional authority to make it.

Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.


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