The Government Accountability Office has rendered a decision on the actions of the Obama Administration in swapping five Taliban leaders for Army Sgt. Bowe Bergdahl earlier this year. At the time on CNN and other forums, I noted that President Obama had again openly violated federal law which requires at least 30 days of advance notice in such a change. The GAO agreed and found that the Administration clearly violated federal law. I recently testified (here and here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. As in past cases, defenders of the President insist that any violation was done for the best of reasons, but that is a dangerous rationalization for any violation of law. Presidents always insist that they are acting with the best of motivations when they violate laws. We remain a nation of laws and presidents do not have the option of not complying when the laws are inconvenient or counterproductive. Notably, it was not just one law that President Obama violated in taking this unilateral action.
In this case, the duty to inform Congress could have been easily satisfied and it was not even necessary to violate the law in order to carry out the exchange. It seems more likely that this was done for political purposes to avoid opposition in Congress.
The GAO found the obvious violation and added that the Pentagon broke another law by using funds that were not technically available. The GAO also concluded that the Obama Administration violated the Antideficiency Act, barring spending by agencies above the amount of money that Congress has obligated.
The appropriations dimension is another example of how the Administration has circumvented the “power of the purse” which is often cited as the core congressional check on presidential power. Indeed, as I have discussed in recent testimony, the Administration has repeatedly shown that this power is becoming something of a constitutional myth (despite the fact that it is often cited as a reason not to recognize standing by members in challenging unlawful acts of a president). The law in this case was part of a Defense spending bill states that no money can be used to transfer Guantanamo prisoners to another country “except in accordance” with a law requiring that the secretary of Defense to notify key congressional committees at least 30 days before such a transfer.
In this case, the swap occurred May 31 but the committees were only notified between May 31 and June 2. The finding also puts to rest the spin put out by advocates that Congress was notified by the White House.
When some of use raised the violation of federal law as obvious at the time, many supporters of the White House insisted that there was no violation and that this was another partisan attack. However, the GAO found the violation “clear and unambiguous” and said that the Administration was dismissive of “the significance of the express language” in the law.
The report comes several months after the Obama administration released five senior Taliban members from Guantanamo Bay in exchange for Bergdahl, who had disappeared in 2009. Under the exchange terms, the five Taliban are to remain in Qatar for a year.
Lawmakers at the time complained about the security implications of releasing Taliban leaders from Guantanamo, but also about the late notification by the Pentagon that they were going forward with the swap.
In response, the Administration is saying that the law, which President Obama signed, was trumped by his inherent national security powers — an all-too-familiar argument for civil libertarians. The Administration insisted that the law “would have interfered 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. service members.” There are clearly good-faith arguments about inherent executive powers that have been made. Yet, even if you accept that the President can simply ignore such laws, misappropriating money is not part of any plausible claim of an inherent or absolute executive function. This is the type of dismissive Nixonian attitude that raises concerning about the rise of an uber-presidency in the United States.
Source: WSJ
Jill, I’m hardly a nihilist. I’m a realist and I do believe in innate human decency, but it will take a tremendous amount of upheaval to make the two sides join together.
Happypappies, once again you are not making any sense to me. Could you please clarify?
Jill, She is worried about Bergdahl’s Mother loving him even though he doesn’t acknowledge her right now because sooommmme day he will looove her ageain like a soap opera or something I guess. That’s more important than people losing their heads and lives for him wandering off the reservation
Annie, you seem like you are sounding the call of nihilism. Do I read you correctly that you feel people will never be able to pull together so we shouldn’t even bother trying or thinking about how to make that happen? How do you know this in advance?
Next you say that Obama is damned if he does, damned if he doesn’t. I’d say that is part of his job. No decision he makes will be approved by everyone. The more important point is what is the nature of the decision of this population. What will it be?
Are we going to condone Obama’s murder and torture? Well if so, why are you worried that the next murderer and torturer in office might be a Republican? That worry doesn’t make sense. Murder and torture are heinous actions no matter who engages in them. Any person, of any political party ought to oppose these things, not because a member of the “wrong” party does them, but because these actions are, in and of themselves, evil.
You seem to advocate that we fear certain actions such as murder, torture and general destruction of the rule of law, when, in the future, a Republican will engage in them. In the meantime, apparently they are acceptable because a Democrat engages in them. That is a strange ethical world view, albeit, a common one.
G.Mason
Mr Frankovitch
I would argue good sir, that there is utterly no difference of consequence between Nixon, Obama, Reagan, either Bush nor Clinton.
They have all increasingly embraced the expansion and abuse of powers.
I agree with G Mason.
I agree with his opinion about the Bill of Rights and the Progressives having to run to Canada and the Classical Liberals being Civil Libertarians.
I agree that the Judges are Fascist hacks as he said also. And I agree with his sentiment – This is why I advocate a return to stronger states rights. A much weaker Federal government and a strong Supreme Court and strong respect for the Bill of Rights.
Eric,
So if a Republican President did the same thing it would also indicate he was the wrong President. Right?
Annie,
Like I said, the issue runs along 3 different threads. One, I believe Obama was wrong on the practical balance. Two, I agree with the GAO and Prof Turley that Obama’s decision was illegal. But three, I believe the law in question is unConstitutional. How you weigh the 3 threads at the decision point is up to you.
Even though the law should have protected us from Obama’s error, I believe the founders intended for the President to have the power to make the error that Obama made. The President just shouldn’t make the error that Obama made, law or no law. That’s on Obama for his inferior judgement and on We The People for choosing the wrong person for the job.
Dredd, most of the crucial Founding Fathers were actually against slavery, even those who oddly enough, owned slaves. The only reason slavery existed was because of the crucial aspect of having all states aboard for the formation of the Republic at a dire time. It was not because they were evil racists.
What the Founders Said About Slavery
“The augmentation of slaves weakens the states; and such a trade is diabolical in itself, and disgraceful to mankind.”
— George Mason
“It were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few States which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the Union. Happy would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren!”
— James Madison, Federalist Paper No. 42
“Bigotry is the disease of ignorance, or morbid minds; enthusiasm of the free and buoyant. Education and free discussion are the antidotes of both.”
— Thomas Jefferson, Thomas Jefferson Papers, Library of Congress, Manuscript Division, 1816
“I believe a time will come when an opportunity will be offered to abolish this lamentable evil.”
— Patrick Henry, letter to Robert Pleasants, January 18, 1773
“Nothing is more certainly written in the book of fate than that these people are to be free.”
— Thomas Jefferson, Autobiography, 1821
“[The Convention] thought it wrong to admit in the Constitution the idea that there could be property in men.”
— James Madison, Records of the Convention, August 25, 1787
“There is not a man living who wishes more sincerely than I do, to see a plan adopted for the abolition of it.”
— George Washington, letter to Robert Morris, April 12, 1786
“We have seen the mere distinction of color made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man.”
— James Madison, speech at the Constitutional Convention, June 6, 1787
“Every measure of prudence, therefore, ought to be assumed for the eventual total extirpation of slavery from the United States … I have, throughout my whole life, held the practice of slavery in … abhorrence.”
— John Adams, letter to Robert Evans, June 8, 1819
“It is much to be wished that slavery may be abolished. The honour of the States, as well as justice and humanity, in my opinion, loudly call upon them to emancipate these unhappy people. To contend for our own liberty, and to deny that blessing to others, involves an inconsistency not to be excused.”
–John Jay, letter to R. Lushington, March 15, 1786
Another of my wishes is to depend as little as possible on the labour of slaves.
— James Madison, Letter to R. H. Lee, July 17, 1785 (Madison, 1865, I, page 161)
[W]e must deny the fact, that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property. In being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another, the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. In being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others, the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property.
— James Madison, Federalist, no. 54
American citizens are instrumental in carrying on a traffic in enslaved Africans, equally in violation of the laws of humanity and in defiance of those of their own country. The same just and benevolent motives which produced interdiction in force against this criminal conduct will doubtless be felt by Congress in devising further means of suppressing the evil.
— James Madison, State of the Union,1810
It is due to justice; due to humanity; due to truth; due to the sympathies of our nature; in fine, to our character as a people, both abroad and at home, that they should be considered, as much as possible, in the light of human beings, and not as mere property. As such, they are acted on by our laws, and have an interest in our laws. They may be considered as making a part, though a degraded part, of the families to which they belong.
— James Madison, Speech in the Virginia State Convention of 1829-30, on the Question of the Ratio of Representation in the two Branches of the Legislature, December 2, 1829.
Outlets for the freed blacks are alone wanted for the erasure of the blot from our Republican character.
— James Madison, Letter to General La Fayette, February 1, 1830.
[I]f slavery, as a national evil, is to be abolished, and it be just that it be done at the national expense, the amount of the expense is not a paramount consideration.
— James Madison, Letter to Robert J. Evans
In contemplating the pecuniary resources needed for the removal of such a number to so great a distance [freed slaves to Africa], my thoughts and hopes have long been turned to the rich fund presented in the western lands of the nation . . .”
— James Madison, Letter to R. R. Gurley, December 28, 1831.
When armchair generals leave their living rooms and send their kids to fight or go themselves, then they may have some credibility, until then it’s all hot air.
Like I said:
It’s a time-tested feature of the American Presidency that holders of the office are judged by what they do for people and not how they do it. Lincoln is remembered in the consciousness of the public for ending the Civil War not suspending habeas corpus. FDR is lionized for the New Deal and his leadership against fascism not the court-packing plan. And even ol’ unpopular ‘W” himself has received a popularity renaissance of sorts for his efforts to combat terrorism with hardly a mention of the dubious methods he employed. Why would the public in the last two elections be looking for anything different? Give us someone who can bring about positive change in Washington and the society it oversees was the order from the populace.
I have no problem leaving a deserter behind, and neither do the guys who served w/ him. That’s who I’ll listen to, not someone pontificating from their comfortable home.
So Eric, when the law interferes with the authority of the Commander in Chief, the law is wrong? Or is the President is wrong for following the law? So Obama is damned if he does and damned if he doesn’t. What else is new?
Daniel, I worked in Leavenworth Penitentiary, a maximum security Federal Prison. Not the Army Disciplinary barracks. Leavenworth had the baddest men on the planet. I was a hack. My wife also worked there. She was the first female case manager to work @ Leavenworth. EVERYONE who works in a maximum security prison knows the first rule, THERE ARE NO HOSTAGES. If an inmate walks up to the gate w/ a knife @ my throat and says, “Open the f@ckin’ gate!” It will not open. Because, the first time taking a hostage works, EVERYONE is then a hostage. This is very basic stuff. Those hostages terrorists had when the Bergdahl swap happened became walking dead. Pretty basic stuff.
If you want to continue discussing this you will need to take back your ludicrous “5 nobodies in Gitmo.” Otherwise, I’m done.
What Randy said at 8:53 this morning. I agree.
Congress has been nothing but contradictory and obstructionist.To put it bluntly, Boehner, Mitch McConnell, Paul Ryan and their ilk are scared shitless that Obama may succeed at something. Let them get their knickers in a twist. I don’t care.
In the meantime, we had an American soldier held captive. In the hands of an enemy that has repeatedly shown itself to be ruthless and willing to commit the most heinous crimes. I wanted the soldier home. I want them all home. And Gitmo closed and bulldozed. As long as Gitmo is open, as long as there are warrantless searches and seizures, as long as Americans are spied on, then don’t preach to me about us being a nation of laws regarding bringing a lone soldier home.
One more thing. About all the pearl clutching about possibly losing some soldiers in the search. Hello? That has happened before many times. Any idea how many were lost looking for downed fliers….like GHW Bush? Anyone see the movie Bat 21? How about the six member crew of the HH-53C “Jolly Roger 67” whose remains were not recovered until 1997? We never stopped looking for them. They were killed trying to rescue Lt. Col. Hambleton.
No soldier, sailor or airman left behind. Period.
Daniel Frankovitch
That’s OK Nick. Words and facts sometimes make us rethink our already held ideas, which means accepting we were wrong at some point.
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Your entire comment is “well said.”
But I wonder if you grasp as succinctly, as that crisp comment did, that warmongering is embedded deep within both and/or all of our conjured up political parties?
Sometimes they seem like they are in competition to see which one can get the furthest away from our better American self.
I see three distinct, though obviously inter-related, threads.
One: Rational interest. Was President Obama’s release of the 5 most dangerous Taliban leaders the practically correct decision on the complex balance of the President’s duties, responsibilities, national interest, competition with the enemy, etc?
Two: Legality. Professor Turley’s focus – was Obama’s action right on the law?
Three: Constitutionality. In the division of powers, has the Legislature overstepped its bounds by interfering with a decision that – practically right or wrong – should belong to the Executive?
I believe Obama made a feckless decision by releasing the Taliban leaders. However, the President (by which I mean the Executive with the President in charge) should hold the authority to make that decision, right or wrong.
There is and should be a double standard for Presidential powers in domestic policy and foreign policy. Competing with an enemy and prosecuting war, including a different kind of war like the War on Terror, requires a different rule set and approach than domestic governance.
The Legislature should have some checks for the Executive – eg, power of the purse, declaration of war / statutory authorization, approving treaties – and their counsel to the President should always be considered, but the micro-management of the kind at bar strikes me as the Legislature over-stepping its Constitutional authority and interfering with an Executive province.
On this issue, Professor Turley takes as his bottom line the violation of law, but that’s the difference between legality and Constitutionality. Beneath legality is the Constitutional question of whether the law that’s been violated should be a law in the first place.
I think Obama was wrong to release the Taliban leaders and I understand that the law should have protected against just such an error by the President. But I also believe the law overstepped Legislative authority and interfered with Executive authority.
The power that’s necessary for the President to make the right decision in war is also the power to the make the wrong decision in war. Conversely, limiting the President’s power to make the wrong decision also limits his power to make the right decision.
Ultimately, the solution is not rigid laws that are incompatible with the fluid competition of war. Rather, We The People need to elect – hire – the President we believe will make the right decisions for our foreign policy, especially in war, in order to win the global competition and achieve the ‘alpha of the pack’ dominance that’s necessary to secure the generational peace on our preferred terms.
Eric – it is my understanding that the release of the 5 terrorists had been sent to Congress some time earlier and turned down by them. If that is true, then not only did he not consult with Congress on the new release until the deed was done, he disobeyed the agreement of working with Congress.
Wow, really Nick?
Foley knew there were dangers in his chosen profession and the reward was worth the risk to him. That is a kind of bravery, but there is no bravery in being caught and used as a political tool. We call that a tragedy.
You have to decide if you are willing to negotiate with people to get our people back, or, if we should just let them die.
Contrary to slogans and propaganda, the US always negotiates with terrorists. The lives of Americans is seen as important enough to at least discuss terms. Sometimes the price is too high, and people like Foley pay the price, but it in no way means we refuse to try. Sometimes the price is easy, and people you have deemed ‘unworthy’ return to the US. It isn’t fair, but what is?
Life isn’t fair. Most of the time people get the shit end of the stick because they just do. How many people have we killed in drone attacks and bombings and indiscriminate military actions?
I think the President was wrong to trade for Bergdahl, but the price was easy, at least according to actual experts that looked at those 5 guys and determined they were no real threat, aside from hating the US (for locking them away without due process, or actual charges), which is not a unique trait. Ask a lot of people we bomb if they hate us, you would be surprised how many wish death on us after we kill their entire family at a wedding.
I think the price for Foley was too high. If were money, hell, print it until we run out of ink. But the person ISIL wanted was an actual scientist working towards weapons that we do not want being used (at least by people other than the US). To give her over to any group that is actively making war is madness. Foley died because ISIL wanted to punish the US for interfering in their private little war. I think the President was right to not deal on this. It is a terrible thing to know you are going to take actions that will kill a person, but sometimes decisions are hard, and sometimes innocent people die. This is the reality of the barbaric society humanity is.
You say one life was worth more than the other. I say they are both worth something. I can only hope that you or I are never in the place where we have to choose who dies. No one should ever be put into that place.
We are going to disagree on this, so I’m not going to continue this beyond this post.
Can’t we at least agree that too many people have died, for stupid reasons, and that their deaths should not be used to win political points?
I am sure that Bergdahl’s parents still LOVE him despite he not wanting to see them. I’m sure they are grateful he continues to wear his head, so when he reconciles with his parents they can plant kisses on their sons cheeks. His mother gave BIRTH to him and I’m sure she loves her son every BIT as much as Foley’s mother. I guess people don’t seem to understand that connection a parent has to their child.
Joe Wilson
… Developing and adopting our Constitution was no small task nor accomplished in a short period of time. The document has supported the freedoms we enjoy for over two centuries.
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Dood, it institutionalized racism.
That is “good,” unless you are a slave or a descendant of slaves who embarrass that fanciful meme (Symbolic Racism: A Look at the Science – 3).
Memes are just as real as the reality just outside our cognitive grip (The Universal Smedley – 3).
And just as unreal as just sayin’ …
Dredd – symbolic racism is a fraud.
Also, let the record reflect that I view all the current justices on the Supreme Court to be nothing more than repulsive fascist dishonest politicians as well as a strong need among a few for media attention or adoration from their political lean.