Is the NDAA Notification Requirement Unconstitutional?

If Obama is right about the NDAA, he should start releasing far more prisoners from Guantánamo. A firestorm has erupted over the Obama administration’s release of five Guantánamo captives in exchange for the Taliban’s release of American soldier Bowe Bergdahl. Putting aside all the rest of the strategic, moral, and practical arguments, I want to focus on the legal side. Many of Obama’s critics say that his move violated the NDAA notification requirement, signed by Obama (who issued a signing statement suggesting he thought it was unconstitutional). The requirement mandates that the president inform Congress of Guantánamo releases.

Now, as an aside, I don’t think signing statements are valid as line-item vetoes. If part of a law is unconstitutional, the president shouldn’t sign the law if he wants to abide by the Constitution.

But was the president correct that the notification requirement violates the Constitution? I think he was. I do not think Congress has the authority to restrict the executive branch’s authority to release war captives.

See here for some of the relevant arguments on both sides by Ilya Somin and Michael Ramsey.

Here’s my argument. A lot of the disagreement pertains to controversy over the meaning of Congress’s constitutional authority to “make Rules for the Government and Regulation of the land and naval Forces.” Everyone agrees there are limits to this authority: Congress can’t micromanage every tactic undertaken at battle. Most everyone agrees there is substance strength to this authority: Congress can ban torture and establish certain rules for military tribunals.* (Of course, during the Bush administration many conservative theorists argued that Congress had almost no role in regulating detentions and military trials at all, but that’s another story.)

It seems clear to me that the president has the plenary authority to release war captives, people captured by the executive branch itself. It would be perverse indeed if the president could set up a military prison at Guantanamo, round up prisoners in the theaters of operation of his choice (as legitimized generally by AUMF and other authority) and stick them in that prison, but then couldn’t release them.

Of course, most of the hundreds of Guantánamo detainees were released by executive prerogative. Most of the tens of thousands of war captives in the Iraq war were also released that way.

But here’s what makes it all the more obvious to me: The president has, except in cases of impeachment, plenary pardon authority. He can release anyone, except in cases of impeachment, from any federal detention at any time and for any reason.

It would be twisted indeed if this power did not apply to the captives the president himself is most directly responsible for detaining as part of a war. The implication would be that if somehow he decided to transfer these prisoners to civil judicial hearings, or if Congress decided to to so, and a grand jury indicted the detainees, and a jury of citizens convicted the detainees, and the detainees lost all their appeals and habeas corpus pleas, then at that point, somehow, the president could pardon and release the prisoners as casually as a turkey in a Thanksgiving White House celebration, but when he was most directly responsible for the detention authority, he could not.

In short, if the president can release any non-impeachment related federal prisoner, even one convicted by a jury, surely he can release his own military war captives. There is nothing I see in the Constitution that allows Congress more authority to stop prisoner releases at Guantánamo than at Rikers.

Another implication of calling the president’s activities unlawful is to defend the Obama administration in having failed to release Guantánamo inmates in general. He and his defenders have claimed that the president’s hands are tied—that Congress won’t let him do what he promised.

Most of Obama’s detractors would probably agree with that, and indeed would not fault Obama for failing to release detainees nearly as frequently as Bush did. They are fine with the result: the continuing detention of many people at Guantánamo, including many who were cleared for release.

Now, I have consistently argued that this argument is bunk. Obama is morally and legally responsible for the continuing detention of people at Guantánamo, full stop. Anyone who wants to criticize him for this, using legal arguments, can’t also criticize him for supposedly breaking the law in releasing the five inmates.

On the other hand, Obama has shown the president can release who he wants, within his authority. And so those who actually care about his campaign promises to uphold human rights finally can point to the president’s own actions, and demand that he fulfill his promise by, at a very minimum, immediately releasing those cleared for release.

In short, the president is inconsistent, as is anyone who faults him for not unilaterally releasing Guantánamo prisoners while somehow blaming him for breaking the law here. To the contrary, his unilateral actions to release prisoners from Guantánamo should be repeated.

* If someone wants to know why Congress should be allowed to restrict interrogation procedures but not releases, well, maybe the Constitution has at least something of a presumption against certain awesome exercises of authority, such that checks and balances favor less government coercion rather than more in many contexts. We see this in a lot of areas. Either Congress or the president (except facing a supermajority) can kill most bills. Either the judiciary or president can release many detainees judicially authorized detentions. Checks and balances in many respects are meant to decrease government power, not enhance it, and releasing prisoners and not torturing them are both things that checks and balances should logically favor in any system supposedly bent toward protecting liberty at all.

Anthony Gregory is a former Research Fellow at the Independent Institute and author of the Independent books American Surveillance and The Power of Habeas Corpus in America.
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