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The Taliban Swap and ‘High Crimes and Misdemeanors’



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The Wall Street Journal had a fine editorial Monday on President Obama’s reckless decision to negotiate with the Taliban and release from Guantanamo Bay five of its most senior, most capable, most implacably anti-American jihadists for an American army sergeant who, according to accounts from his fellow soldiers, went AWOL in 2009. I addressed the swap in a Corner post over the weekend and in a column yesterday.

Faithless Execution, my book on presidential lawlessness and the Constitution’s ultimate response to it, impeachment, has just been released. I’ve thus been repeatedly asked about the president’s violation of a federal statute in carrying out the exchange and whether this rises to the level of a “high crime and misdemeanor,” the constitutional standard for impeachable offenses that is prominently discussed in my book. This line of inquiry misses the point. There surely is an impeachable offense in this irresponsible deal, but it involves the commander-in-chief’s dereliction of duty, not his failure to comply with dubious statutory terms.

The National Defense Authorization Act states that the president must give Congress 30 days’ notice before transferring war prisoners out of Gitmo, along with an explanation of steps taken to mitigate any potential threat the release poses to the United States. The administration concedes that the president did not comply with this law in releasing the Taliban commanders. The Journal’s editors pooh-pooh the allegation of some Republican lawmakers that this makes the exchange illegal; they argue, to the contrary, that the law is an “unconstitutional” constraint on the president’s “wartime decision-making.” The editors have a point, though one that is undercut by the president himself.

Article II of the Constitution gives the president significant unilateral authority over the conduct of foreign affairs. As commander-in-chief, moreover, the president has traditionally had near plenary authority over the capture and disposition of enemy combatants in wartime. Congress has salient constitutional powers, too. As the Journal points out, Congress could properly have used “its comparably strong power of the purse” to deny the president funding for objectionable prisoner transfers. Instead, with the 30-day notice prescription, it purported to legislate direct limitations on the president’s prerogatives. The president’s commander-in-chief prerogatives may be frustrated by Congress’s exercise of its competing spending power, but Congress may not legislate away the president’s Article II powers—i.e., the Constitution may not be amended by a mere statute. The Journal is right on that score.

The problem in this instance, however, is two-fold. First, there is the now-familiar hypocrisy point. Throughout the Bush administration, when the president relied on his constitutional authority to override congressional restrictions on his wartime surveillance authority and control over enemy combatants, the Left, including then-Senator Obama and many of the lawyers now working in his administration, screamed bloody murder. Some even suggested that he should be impeached for violating the FISA statute. President Obama, of course, is now doing the same thing he and his allies previously condemned. As I contend in Faithless Execution, he is doing it far more sweepingly and systematically than Bush, whose statutory violations occurred in the context of his incontestable war powers and were strongly supported by judicial precedents.

Of course, on the straight legal question, hypocrisy is beside the point: If the statutory restrictions in the NDAA are unconstitutional, President Obama is within his rights to ignore them. The fact that doing so demonstrates the mendacity of his complaints about Bush says much about his character but it is legally irrelevant.

Perhaps because he knows this, though, the president is soft-selling his constitutional authority to ignore laws that improperly restrict his powers to transfer wartime detainees to other countries. The Journal emphasizes that the president asserted his constitutional objection in a fleeting statement back when he signed the NDAA. The editors have to go back to the signing statement because the administration has been reluctant, in the specific context of the Taliban release, to declare that Obama—in Bush/Cheney style—is relying on Article II war powers to ignore statutes. Administration officials instead blather about some purported presidential power to waive Congress’s restrictions if the president unilaterally perceives exigent circumstances. That is, as with Obamacare, the immigration laws, and other enactments, Obama is claiming the despotic power to amend, rewrite and ignore the NDAA at his whim.

To my mind, the dispute is nearly irrelevant. The vital point here is that the president has returned five senior commanders to the Taliban and Haqqani network while those violent jihadist organizations are still conducting offensive attacks against American troops, who are still in harm’s way and still conducting combat operations pursuant to a congressional authorization of military force.

These terrorists were not exchanged in connection with a final peace settlement in which it would be appropriate to exchange detainees—after all, if there is no more war, even unlawful enemy combatant prisoners must be released unless they can be charged with crimes.

While the president is obviously abandoning the war effort, it has not been fully abandoned yet. The Taliban and Haqqani have not surrendered or settled; they are still working hard to kill our troops. It is thus mind-bogglingly irresponsible for the commander-in-chief to replenish their upper ranks. The reason the laws of war permit enemy combatants to be detained until the conclusion of hostilities is humane: when enemy forces are depleted, they have a greater incentive to surrender, bringing a swifter, less bloody conclusion to the war. By giving the enemy back its most effective commanders, Obama, by contrast, endangers our forces, potentially extends the war, and otherwise makes it far more likely that the war will end on terms injurious to American interests.

As I demonstrate in Faithless Execution, high crimes and misdemeanors are not primarily statutory offenses. They are the political wrongs of high public officials—the president, in particular—in whom great public trust is reposed. When the commander-in-chief replenishes the enemy at a time when (a) the enemy is still attacking our forces and (b) the commander-in-chief has hamstrung our forces with unconscionable combat rules-of-engagement that compromise their ability to defend themselves, that is a profound dereliction of duty.

That’s what we ought to be outraged about. The chitter-chatter about a 30-day notice requirement is a sideshow. Yes, the president has once again violated a statute. And as I said in yesterday’s column, he undoubtedly did so in order to get the swap done before public and congressional protest could mount. But in the greater scheme of things, that’s a footnote to the real travesty.


Tags: Bowe Bergdahl


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