In my first two posts (here and here) I’ve described how intransigent (and unjustifiable) political opposition has made it virtually impossible for the President to relocate the final few dozen detainees at Guantánamo to a facility in the United States — a move that would be the final necessary step to make good on his commitment to close the GTMO facility.

In a recent editorial, Greg Craig and Cliff Sloan argue that the President should simply “use his exclusive authority as commander in chief to move the limited number of detainees who cannot be transferred to foreign countries to secure institutions in the United States.”

Craig and Sloan, during their stints in government, made extraordinary efforts to do what is necessary to realize the closure of Guantánamo. Therefore they are understandably — and justifiably — frustrated by the political cynicism that fuels the opposition to closure; and I agree with them wholeheartedly that the statutory prohibitions that stand in the way of that result are unjustifiable, bordering on the irrational.

Quite frankly, however, I’d be very surprised if officials within the Administration are giving serious consideration to their proposal that the President should should assert an alleged constitutional prerogative to disregard the NDAA restrictions, for two compelling reasons.

First, imagine what such “disregard” of the statute would consist of here — the steps that would be required in order to effect such an Executive action, and what the inevitable fallout would be. To close GTMO would require hundreds, if not thousands, of DOD and other employees and officials to, among other things, build or retrofit a domestic facility to house the GTMO detainees (which would likely require entering into many contractual relationships with parties who are aware of the statutory restrictions); transport the several dozen detainees to that facility; implement all of the countless and costly administrative steps necessary to administer a detention facility for years on end; etc. — all in the teeth of a law that prohibits the expenditure of any funds to do such things, and a criminal statute, the Anti-Deficiency Act, that makes it unlawful to expend unappropriated funds or to make an obligation to do so.

To be sure, the prospect of any actual ADA prosecutions in a hypothetical case such as this — where the President would presumably have concluded that the expenditures were lawful and constitutionally privileged — is almost inconceivable and would, in fact, raise serious due process questions. Even so, it’s not hard to imagine that at least some of those DOD employees and officials would be deeply reluctant to comply with orders to spend unappropriated funds in the shadow of theoretical criminal culpability, or in rare cases possibly even threaten noncompliance with orders they believe to be unlawful. At the very least, the entire complex operation would take place under a deep shadow of uncertainty and doubt.

And in the meantime, the reaction in Congress would be . . . well, I don’t really need to tell you what the reaction would be. Suffice it to say the Republican-controlled chambers would not sit by idly if a Democratic President ordered a relocation, and would almost certainly take many steps to make governance even more impossible than it is today, along many dimensions. Indeed, GOP Senators already have put a hold on DOD nominations, merely because of the rumor of such executive disregard of the GTMO relocation limits.

I find it difficult to imagine the President choosing to issue the requisite orders to relocate the detainees to the United States in light of such inevitable practical obstacles and resistance, especially in light of the constitutional precedent he would be setting.

Second, there’s very little to be said for the merits of the constitutional argument and, what’s more, invoking it here would present the same dangers, and threaten to establish the same troubling precedents, as when President Bush claimed the constitutional authority to disregard laws such as the Torture Act, and FISA, and the Uniform Code of Military Justice. For that reason, too, I’m very skeptical that the President would take the steps Craig and Sloan propose. (Contrary to the facile analogies of the President’s critics, such a move here would be nothing like the Administration’s Deferred Action for Parents (DAPA) immigration initiative, in which the Department of Homeland Security has deferred removal of certain classes of aliens. As I explained last year, in implementing DAPA, the President and Secretary of DHS are not invoking a “unilateral” Article II authority at all, let alone an asserted preclusive power to override or disregard statutes. DAPA relies upon an assertion of statutory authority; it does not contradict what Congress has prescribed or any statutory prohibition; and neither the President nor the Secretary nor OLC has said anything to suggest that Congress could not, by statute, require a different enforcement scheme — to the contrary, they have specifically acknowledged that Congress could legislate limits on the removal discretion that the agency would be obliged to follow. By contrast, the Craig/Sloan proposal is that the President should forthrightly assert the constitutional authority to disregard statutory limits with respect to GTMO.)

Craig and Sloan, like Harold Koh, correctly note that Congress cannot, at least as a general matter, “use its appropriations power to achieve goals otherwise beyond its constitutional authority.”  (See generally Part IV of this OLC opinion.)  But prohibiting the transfer of the GTMO detainees to the United States is not a goal that the legislature would be constitutionally prohibited from achieving directly, wholly apart from Congress’s power of the purse.

Craig and Sloan cite Hamilton’s admonition in Federalist No. 74 that “[o]f all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.” Hamilton was right. But in that and related Federalist papers, he was explaining why the Constitution does not create a plural executive; he was not disclaiming the power of the legislature to enact laws cabining the discretion of the President’s “single hand.” To the contrary, although Hamilton surely believed that the legislature presumptively ought to afford the Commander in Chief substantial discretion to prosecute a war (just as it ought to do so here — see my previous posts), he also stressed the institutional characteristics of the legislature that can at times result in important constraints on the “sole” Executive: “The differences of opinion, and the jarrings of parties in that department of the government [the Congress], though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses.” (Federalist 70; see generally pages 797-799 of this article.)

Craig and Sloan also assert that Congress “cannot direct the conduct of military campaigns” — a notion that derives from the famous dictum in Chief Justice Chase’s partial dissent in Ex parte Milligan (1866) that Congress may not “interfere[] with the [President’s] command of the forces and the conduct of [military] campaigns.” It has become commonplace, in the century and a half since Chase wrote that sentence, for many — in the Executive branch and without — to assume there is some such “directing the conduct of campaigns” limit on Congress’s exercise of its war powers. And yet, in the recent Hamdan case, even as it quoted the Chase dictum, the Supreme Court also held that the President “may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers,” and sustained one such limit (the prescriptions for military trials of enemy forces in the UCMJ) that President Bush had transgressed in order to prosecute the conflict against al Qaeda in the manner he thought most effective. To be sure, and as I’ve written earlier (see pages 762-66), the Supreme Court precedents do not definitively resolve the constitutional question, because in almost all of those cases the government did not argue that the Commander in Chief should be entitled to disregard a statute because it unduly impinged on his constitutional authority. The precedents do, however, “provide substantial reason to question the undifferentiated notion that tactical matters [in] the ‘command of campaigns’ are flatly beyond congressional control.”

More significantly, as demonstrated in a pair of articles I co-wrote in 2008, throughout our history Congress has enacted countless laws, and the Senate has ratified many treaties, that have “interfered,” often dramatically, with the President’s preferred method of “conduct[ing] campaigns.” (Many of these laws, moreover — including some involving the handling of prisoners — have concerned the Executive’s treatment of particular enemies in particular wars. Indeed, the Court’s unanimous holdings in the landmark cases of Little v. Barreme and Ex parte Milligan itself (see pages 1007-08) were that the Commander in Chief had transgressed such particularized, conflict-specific statutes.)

Not only has the Court never declared any such law unconstitutional, but until the Korean War the Executive itself had almost always accepted the validity of such limits, and successfully prosecuted wars in compliance with them. And even in the post-1950 period, when the “Commander-in-Chief preclusive authority” argument began to gain traction among some adherents (and Presidents), Executives have not objected to the vast majority of such limits on their war-making decisions.

That is why it was so disconcerting, and dangerous, when President Bush asserted the alleged constitutional authority to disregard many statutes and treaties in this very conflict with al Qaeda, from the Torture Act to FISA to the UCMJ. Not surprisingly, Craig and Sloan agree that Bush’s broad claim of a preclusive Commander-in-Chief prerogative was “an extravagant assertion with which we disagree.” They surely would not contend, for example, that the legislature cannot impose detailed regulations governing the way in which enemy prisoners are to be treated — for that would call into question not only the Torture Act and provisions of the UCMJ, but also large swaths of the Third and Fourth Geneva Conventions of 1949 (which were, of course, approved by the Senate, rather than enacted by the full Congress). (For his part, Ben Wittes suggests that it’s a close question whether Congress even has an affirmative Article I power to regulate the treatment of wartime prisoners. It’s not — which is why both the Continental Congress and the Article I Congress have been enacting such statutes since the first days of the Republic, and why the Bush OLC itself expressly repudiated John Yoo’s views to the contrary.  More on Wittes’s argument in the footnote below.*)

Therefore, Craig and Sloan are compelled to construct, and rely upon, a narrower, more cabined variant of the Commander-in-Chief prerogative argument—namely, that “the president has exclusive authority to determine the facilities in which military detainees are held.” Congress may “broadly regulate the treatment of prisoners of war,” Craig and Sloan concede, “but it cannot direct specific facilities in which specific detainees must be held and tried.”

Craig and Sloan don’t offer an explanation, however, for why Article II might be read to establish such a detention-facilities-specific preclusive power and, quite frankly, I don’t see the case for such a new rule. Would the Constitution permit Congress to enact a law forbidding the President to transfer of detainees to “specific” nations with a history of torture? To forbid the CIA from holding al Qaeda prisoners at CIA “black sites”? Of course it would.

But if those laws would be constitutional, then so are the noxious restrictions in NDAA sections 1031 and 1032. Indeed, section 1031 would not actually prohibit housing the detainees in any “specific” facility, or even “direct the conduct of [the] military campaign”; instead, it would more broadly prevent DOD from bringing the GTMO detainees to the United States altogether. And if Congress may prohibit the President from moving foreign detainees to other places, I think it follows, almost a fortiori, that Congress can prohibit the entry into the United States of aliens who are members of enemy forces. (Recall, as well, that Congress has very broad authority — the “immigration” power — to prohibit even nonenemy aliens from entering the United States, including in cases where the President opposes such exclusions.)

Which is not to say that such a law is wise, or useful, or good for our national security. This one is certainly nothing of the sort. But that doesn’t make it unconstitutional.

Part One

Part Two


* Ben’s uncertainty about whether Congress has the Article I authority to regulate the treatment of war prisoners appears to be premised on his assumption that the “authorities are actually divided on the question” of whether the Captures Clause of Article I refers to captured persons as well as property. That depends, I suppose, on what one means by “authorities.” In cases ranging from Brown v. United States in 1814 (Marshall, C.J.) to Hamdan v. Rumsfeld in 2006, the Supreme Court has always assumed that the clause empowers Congress to regulate the treatment of prisoners; and as far as I know there’s no case law to the contrary. In contrast to this judicial precedent, Ben cites Professor Ingrid Wuerth’s 2009 article, in which she demonstrated that framing-era understandings of the term “captures” were hardly uniform or settled. But even Professor Wuerth acknowledges that plenty of authorities, both before and at the time of the founding and the framing, used the term “captures” to refer to persons as well as property. Much more to the point, whatever one’s view of the original meaning of “Captures,” Congress has plenty of other authorities (e.g., the Rules Clause; the Declare War Clause; the Necessary and Proper Clause; its “immigration” power to control who can enter the United States) that are more than sufficient to support the GTMO provisions of the NDAA. That would explain why Congress has enacted numerous statutes, from 1776 to the present day, regulating the treatment of war prisoners (as did the Continental Congress during the Revolutionary War, much to Commander in Chief Washington’s dismay). And presumably that explains why neither Craig and Sloan, nor Professor Wuerth, questions Congress’s affirmative authority to enact such legislation. To be sure, John Yoo is an “authority” on the other side; but I doubt that’s what Ben had in mind. The only potential constitutional question, then, as Craig and Sloan acknowledge, is not whether Congress has the requisite Article I authority, but whether and to what extent Article II imposes limits on that congressional authority.