WASHINGTON — Sen. Thad Cochran of Mississippi and eight of his Republican colleagues asked the U.S. comptroller general on June 13th for a legal opinion on whether President Barack Obama violated federal law in freeing five Taliban militants to win the release of captured Army Sgt. Bowe Bergdahl.
Their letter escalated a debate about whether Obama had sufficient powers as commander in chief to make the prisoner swap, but it’s unlikely that the move will have any effect beyond heating up partisan rhetorical warfare.
The issue renews attention to a running constitutional debate over the separation of powers – whether the president violated a law or Congress enacted an unconstitutional statute, a former top Bush administration official said.
In a letter to Gene Dodaro, head of the Government Accountability Office, the Republican senators sought an opinion on whether the Pentagon made expenditures to carry out the prisoner swap that violated the Consolidated Appropriations Act for fiscal year 2014.
Section 1035 of the National Defense Authorization Act for fiscal 2014 requires the defense secretary to notify Congress at least 30 days before releasing any prisoners at the U.S. Naval Station in Guantenamo Bay, Cuba, where the Taliban had been held, to their country of origin or any foreign country. The Taliban were turned over to the government of Qatar, which acted as an intermediary in the negotiations.
Further, the Antideficiency Act bars the executive branch from incurring financial obligations for which Congress hasn’t appropriated money.
“In addition to the national security implications associated with President Obama’s release of these Taliban fighters, the legal and constitutional issues need to be addressed,” said Cochran, vice chairman of the Senate Appropriations Committee’s subcommittee on defense. “We simply can’t have the president ignoring duly enacted laws that he himself has signed.”
The letter seeks Dodaro’s opinon on what, if any, recourse is available “regarding how the laws of the land are interpreted and enforced,” he said.
Cochran was joined in signing the letter by every Republican member of the defense subcommittee, including Sen. Mitch McConnell of Kentucky. Others who signed include Sens. Richard Shelby of Alabama, Lamar Alexander of Tennessee, Susan Collins of Maine, Lisa Murkowski of Alaska, Lindsey Graham of South Carolina, Dan Coats of Indiana and Roy Blunt of Missouri.
Jack Goldsmith, a Harvard University law professor who served in the Justice Department’s Office of Legal Counsel during the Bush administration, wrote recently on his blog that the question of whether Obama violated any laws “all depends on the validity of the President’s constitutional argument.”
“If the statute impinged on an exclusive presidential power, the president properly disregarded it and did not violate it.. We have not yet (and likely will not see) the Executive branch’s analysis of the constitutional question, assuming there was one,” wrote Goldsmith, who specializes in national security law.