Congress Clearly Contemplated Prisoner Exchanges as Part of NDAA Notification Requirements–and so did the White House

Some think the following is the Obama administration’s main argument for bypassing Congress in transferring the 5 Taliban detainees from Guantanamo: Congress did not contemplate prisoner exchanges in drafting the notification provision of the NDAA. Major General Charlie Dunlap, for example, stated, “That is a colorable argument, meaning it’s not ridiculous,” he said. “I don’t think Congress was thinking about a prisoner exchange in the context of armed combat.” But this proposition can’t be correct, and surely that’s not the administration’s (best) argument.

It is a matter of public record that the US has been negotiating a potential exchange of Taliban detainees at Guantanamo for Sgt. Bergdahl as part of talks that began in 2010. The Taliban may have initially asked for a list of 20 detainees to be released, which then narrowed to the five.

Since at least November 2011, Congress has legislated against a background in which administration officials discussed with congressional members (also here) not just prisoner exchanges with Guantanamo detainees—but the proposal to swap the very 5 Taliban detainees for Sgt. Bergdahl.

In December 2011 and January 2012, Senators Feinstein and Chambliss opposed the idea in classified letters sent to Secretary Clinton and President Obama. According to press reports at the time, the administration was “poised” in early January 2012 to carry out the transfer to Qatar. According to Michael Hastings’ excellent reporting, the White House “had worked up talking points about Bowe, and was ready to go public about the exchange.” The deal faltered at the last moment because the Taliban rejected conditions “created by the Obama administration to comply with legal restrictions imposed by Congress,” which stipulated that the detainees could not leave Qatar following their release from Guantanamo. In late January, then-CIA Director David Petraeus briefed (here; here; here) the Senate Intelligence Committee on the threat assessment regarding the proposed transfer of the five Taliban members to Qatar.

According to Hastings, “tensions came to a boil in January [2012], when administration officials went to Capitol Hill to brief a handful of senators on the possibility of a prisoner exchange” (see also Josh Rogin’s report). That particular meeting culminated in a “sharp exchange” between Senator John McCain and then-Senator John Kerry, in which McCain exclaimed, “They’re the five biggest murderers in world history!” (As an aside: Hastings reported that McCain “reluctantly came around on the prisoner exchange, according to those present at the meeting.”).

In May 2012, Representative Duncan Hunter made public his opposition to the exchange and his office explained his understanding that his involvement in drafting the procedural requirements of the NDAA at the time would affect such negotiations. CNN reported:

“If there’s a chance to release an American prisoner, then that’s something that needs to be taken seriously, but there are options and resources beyond detainee release,” Hunter said. …

He placed an amendment in the just-approved House defense authorization bill that extends the amount of time the administration must give notice to Congress before any release from 30 days to 90 days, Hunter’s spokesman, Joe Kasper, told CNN. The amendment further requires that a full history of the detainee be provided along with an assessment of the likelihood the detainee would return to the field of battle.

“The congressman understands the situation. He’s served in both Iraq and Afghanistan, as a Marine, and anytime there are reports of Marines and soldiers facing difficult or dangerous situations, he fully understands what it means and what’s involved,” Kasper said.

Opposition on the Hill to the proposed exchange continued through 2013 and during the passage of the NDAA.

Not only did Members of Congress, therefore, clearly contemplate the scenario of the prisoner exchange, the Obama administration also clearly took the position that it would comply with the consultation provision of the NDAA before making any such prisoner exchange. In other words, the administration has acknowledged that the NDAA provision applied to these kinds of Executive Branch actions.

In a letter in February 2012, Secretary Clinton reportedly “acknowledg[ed] that a 30-day forewarning was necessary for any prisoner exchange and promising future consultation with Congress.”

In August 2012, CNN reported: “The officials stress that the exchange, should it take place, would be implemented in accordance with U.S. law, which requires consultations with Congress before any detainees are transferred from Guantanamo.”

And in the months before Congress passed the 2014 NDAA, the White House stated that it would follow the law in consulting with Congress before making the transfer of the 5 Taliban members. Asked specifically about the potential exchange, White House spokesperson Jay Carney stated on June 21 2013:

“As we have long said, however, we would not make any decisions about transfer of any detainees without consulting with Congress and without doing so in accordance with U.S. law.”

The New York Times reported on the administration’s commitment to consulting Congress before any prisoner exchange:

“An administration official said that kind of consultation with lawmakers would be a prerequisite to a deal, if any ultimately emerges.

‘If we were going to make this decision, which we have not yet decided to do, we would consult with Congress, as we always do on these issues,’ the administration official said. ‘We are not looking to quickly do something that they wouldn’t be aware of, and for which there wouldn’t be proper oversight.’”

Fast forward to June 2014. If the White House is precluded from claiming that the prisoner exchange was not contemplated by Congress in passing the NDAA procedural requirements, what is the best argument on their side? I hope to take up that issue in a separate post at Just Security. The basic point, however, is that it must be something more specific or unique—such as an argument that Congress did not contemplate a special scenario in which the 30 day notification to Congress could itself destroy the negotiations or a scenario in which the notification would directly endanger Sgt. Bergdahl’s life. 

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About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.