King Obama’s curiously timed deal to release senior Taliban officials violated federal law

The prisoner exchange between the Obama administration and the Taliban, in which the United States released five senior Islamist detainees who had been held at the U.S. Naval Base Guantanamo Bay for an American soldier held captive by the Taliban since 2009, has sparked criticism from Republicans.

Some Republicans have slammed the administration for negotiating with terrorists, which, they say, puts Americans at risk. Outside of the foreign policy and national security implications — the merits of which are already being debated by talking heads and pundits on cable news networks — Republicans have also noted that President Barack Obama has, once again, broken the law:

Top Republicans on the Senate and House armed services committees went so far as to accuse President Obama of having broken the law, which requires the administration to notify Congress before any transfers from Guantanamo are carried out.
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The law requires the defense secretary to notify relevant congressional committees at least 30 days before making any transfers of prisoners, to explain the reason and to provide assurances that those released would not be in a position to reengage in activities that could threaten the United States or its interests.

Before the current law was enacted at the end of last year, the conditions were even more stringent. However, the administration and some Democrats had pressed for them to be loosened, in part to give them more flexibility to negotiate for Bergdahl’s release.

President Obama, however, believes that this law — a provision of the National Defense Authorization Act of 2013 that prohibits the use of funds for the transfer or release of prisoners at Gitmo — is unconstitutional because he believes that it violates the separation of powers. In fact, he issued a signing statement making his objection clear when he signed the measure into law.

That, however, doesn’t matter, as Timothy Sandefur explains:

President Obama’s decision to free five Taliban from the Guantanamo Bay prison* in exchange for soldier Bowe Bergdahl was illegal. Full stop. The White House’s contention that the law barring such release was unconstitutional is without merit.
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The Constitution tells us how a bill becomes a law, and no other method is constitutionally acceptable. Thus Congress cannot give the President power to change the substance of legislation once it’s passed Congress, because that would be giving him a role in the legislative process that the Constitution denies him. For the President to sign a bill with a signing statement that changes provisions of that law—as opposed to explaining how he interprets it—is not a signing statement; it’s a line-item veto, which is unconstitutional.

In his signing statement in 2013, Pres. Obama said of this provision that he “continue[d] to oppose this provision,” because it “substitutes the Congress’s blanket political determination for careful and fact-based determinations” for which he is responsible. As a policy matter, he explained, it was his opinion that executive officials should have the power to decide whether to prosecute terrorists in federal court. Thus  “Removing that tool from the executive branch undermines our national security,” and, “[m]oreover, this provision would, under certain circumstances, violate constitutional separation of powers principles.”
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Pres. Obama chose to sign that bill, thereby making it “the supreme law of the land.”

To put it simply, if President Obama felt that a provision of the National Defense Authorization Act of 2013 violated the separation of powers, he should have sent it back to Congress to address his concerns. The reason he didn’t send it back may be because it passed by a veto-proof margin.

President Obama has again ignored a law passed by a duly elected members of a co-equal branch of the federal government — with rather good timing, too, as his administration has been hammered with yet another scandal. Congressional Republicans, of course, have several lines of recourse, but they’re leery of a political showdown with the administration in an election year, which is why they’ll quickly pivot back to the VA scandal and the new onerous EPA regulations.


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