Former Attorney General Michael Mukasey said Sunday President Obama broke a congressional-notification law when he released five Taliban detainees in exchange for captured Sgt. Bowe Bergdahl.
But Mukasey, the third and final head of President George W. Bush’s Justice Department, said the law itself is an unconstitutional restraint on the president’s authority as head of the armed forces under the U.S. Constitution.
“When the president signed the Defense Authorization Act last year,” host Chris Wallace asked Mukasey on Fox News Sunday, “it contained a provision that the administration must notify Congress not later than 30 days before the transfer or release of a prisoner from Guantanamo. Question: Did the president break the law, or was that requirement an unconstitutional infringement on his executive powers?”
“Yes to both,” Mukasey replied. “He broke the law, but I believe that the law itself is unconstitutional. Article II makes him the commander in chief of the armed forces. These people were in the custody of the armed forces. It gives him plenary authority to conduct foreign affairs. And to the extent that that statute purports to restrict his Article II power, I think it’s unconstitutional, and he said so at the time that he signed it.”