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In an international game of “Deal or No Deal,” who makes the call?

Prisoner of war Sergeant Bowe Bergdahl has come home, but the deal made for his return was legally questionable.

Photo by cmccain202dc (Flickr).

During this year’s commencement address at the United States Military Academy at West Point, President Obama’s remarks to the new Army officers focused on foreign policy.  The core of the President’s message was that the United States should work in partnership with other nations in foreign policy matters, but there are circumstances in which it is appropriate to act unilaterally.   With the prisoner exchange for American prisoner of war Army Sergeant Bowe Bergdahl that followed shortly thereafter, President Obama put the latter approach into practice.

On May 31, 2014, five captured members of the Taliban leadership who were being held at Naval Station Guantanamo Bay were transported to Qatar in exchange for Bergdahl’s release, who had been held prisoner by the Taliban since 2009.  The so-called “Guantanamo Five” will remain in Qatar for a year, at which time they will be free to return to Afghanistan.  There is ubiquitous agreement that securing the freedom of American prisoners of war is a triumph each time that it occurs.  There is disagreement, however, over whether the procedure in carrying out this prisoner exchange was constitutional.  While the prisoner exchange negotiations involved consulting leaders from multiple nations, the decision-making process did not involve consulting leaders in Congress.

The National Defense Authorization Act (NDAA) is legislation that is binding upon the foreign policy actions of the President.  The NDAA primarily details the annual budget for the Department of Defense, in addition to other provisions that govern how the Department of Defense conducts its national security work.  In particular, Section 1035 of the NDAA requires the Secretary of Defense to provide notice to Congress thirty days before individuals being held at Guantanamo Bay are transported to foreign countries.  Congress must then determine the impact that an exchange will have on national security before a prisoner can be transferred from Guantanamo Bay.

The Department of Defense failed to follow the procedures set forth in the Act and did not present the required documents to Congress before the Bergdahl Exchange occurred.  Whether or not this action was unconstitutional depends upon the interpretation that one takes of the Bergdahl Exchange.

The Obama Administration views the detention facility at Guantanamo Bay as a detriment to national security because of the negative impact the facility has upon the perception of the United States abroad.  The Administration believes that reducing the number of individuals being held at Guantanamo Bay through means such as prisoner exchanges will serve national security by gaining international favor.  There are many commentators, however, who consider the release of five senior members of the Taliban to be a threat to national security.  Each of these viewpoints has merit, and the notice requirement of the NDAA provides opportunity for Congress to fully discuss the merits before an action takes place.

Without a way to enforce the NDAA’s provisions, its requirements remain empty promises.

The restrictions that the NDAA imposes on the Executive Branch have little effect because enforcement of the provision is nearly impossible.  There is no mechanism within the Act to hold the Department of Defense accountable for failing to provide the requisite notice to Congress before it transports enemy combatants to foreign countries.  Congress appropriates money for the Department of Defense, and the NDAA must be signed before the Department of Defense can receive funding for its operations.  When a violation of an NDAA provision occurs, however, the money that Congress grants to the Defense Department will have already been allocated.  In effect, Congress’s power to withhold funds has little influence over the actions of the Department of Defense.

Since enforcement of the NDAA is practically impossible, the only other redress is available in court.  A lawsuit against the Department of Defense, however, would be unable to proceed.  In order to carry out such a lawsuit, a citizen would need to have standing.  Standing is a doctrine that requires that a person bringing suit have suffered an injury that is different from that which is suffered by the rest of the American people.  It would be difficult indeed for a person to claim to have suffered a unique harm as a result of the Defense Department’s defying the will of Congress.  Without any true remedy against violations of the NDAA, the restrictions that the Act places upon the Executive Branch remain nothing more than empty promises to which the Department of Defense must pay lip service to in order to receive funding.

The Constitution’s dividing line between the foreign policy powers of the Executive and Legislative Branches is nebulous.

The Bergdahl Exchange is best viewed as part of a broader constitutional debate over the allocation of foreign policy powers between the Executive and Legislative Branches.  The Constitution divides control over foreign policy between the President and the Congress, but the precise dividing point between the foreign policy powers of each is unclear.  The Constitution declares the President Commander in Chief of the Armed Forces, but this title is not defined by the Constitution.  Some claim that the Bergdahl Exchange was a valid exercise of power as Commander in Chief in the name of national security.

In a statement released on December 26, 2013, President Obama said that restrictions imposed by Congress upon executive action could be a violation of separation of powers.  The federal government, however, is not a pure system of separated powers.  Instead, it is a system of overlapping powers, which enables one branch to exert a check upon the power of another branch.  The title of Commander in Chief bestows substantial authority, but the President must nevertheless have approval from Congress in order to take action; his or her foreign policy power is not without limits.  For instance, the President has the significant power to negotiate treaties on behalf of the United States, but in order for the treaty to go into effect after being negotiated, it must have the approval of Congress.  As Commander in Chief, the President has the ability to conduct the nation’s military affairs, but Congress has the ability to rein in the president’s actions by cutting off the funds for his policies and by carrying out an oversight function to scrutinize his actions.

Having a single branch conduct foreign policy is highly conducive to the fast pace of modern international affairs.

The trend toward conducting foreign policy through the Executive Branch alone is not entirely negative and was perhaps inevitable given the increasing need for leaders to make major decisions in real time.  In situations requiring urgency, taking the time to consult Congress before making a decision could be detrimental.

In addition, there is often a need for confidentiality while carrying out foreign policy.  The ability to keep certain foreign policy matters secret allows foreign governments to make proposals in negotiations that they would not otherwise make if they knew that the terms of an offer would be known by the rest of the world.  The likelihood of sensitive information being revealed is significantly increased when the number of people with access to foreign policy information is expanded to the 535 members of Congress and their staffs.  With regard to the Bergdahl Exchange, the Qatari government required that the terms of the negotiations remain secret in order for the deal to move forward.

Involving multiple branches in foreign policy decisions could improve the quality of action taken.

Conducting the nation’s foreign policy through the involvement of both the Executive and Legislative Branches provides the benefit of drawing input from a wider array of sources than are available to the Executive Branch alone.  The investigative function of Congressional hearings allows individuals who have concerns about a controversy—or who have expertise in a particular field—to have their voices heard.  Considering all aspects of foreign policy decisions through the input of Congress would ensure that the decisions that are reached are ones that are justifiable to the American people.  Debating the merits of the Bergdahl Exchange, for instance, could have addressed some major concerns that many members of Congress have expressed, such as concerns that Bergdahl might have been deserting his post at the time he was captured.

The system of government that this nation’s founders developed was one of overlapping powers in which one branch of government was able to prevent overreaching by another branch, forming a system of checks and balances.  It was intended that no one person or branch of government would be above the law, including the President and the Department of Defense.  By deciding to go it alone in the Bergdahl Prisoner Exchange, these principles were brushed aside.

In President Obama’s speech at West Point, he emphasized the importance of strengthening international institutions such as the United Nations that facilitate cooperation with other nations.  Refusing to cooperate with Congress’s wishes, however, is inconsistent with the principle of cooperation and it serves to undercut the effectiveness of the foreign policy decisions that are made.  While the actions that were taken had the best of intentions, they violated the express statutory requirements set by Congress.

John Mace, Former Senior Staff Writer
About John Mace, Former Senior Staff Writer (19 Articles)
John served as a Senior Staff Writer for the Campbell Law Observer. He is originally from Concord, North Carolina, and graduated from the University of North Carolina at Chapel Hill in 2012 with degrees in Political Science and History and a minor in Philosophy, Politics, and Economics. John worked as an assistant for Sha Hinds-Glick with the Bar Success program at Campbell. He graduated from Campbell Law School in May 2015.
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