The surprise release of Sgt. Bowe Bergdahl this past weekend has become the dominant story of this week's news cycle, but while there is significant disagreement about the merits of the prisoner swap that led to Bergdahl's release, everyone seems to agree on one thing: this is a great opportunity to attack President Obama over signing statements. Republicans fret that the President violated the law by failing to give Congress 30 days notice for the transfer of Gitmo detainees, while liberals wonder why Obama doesn't just ignore the law and release the rest of the prisoners at Guantánamo Bay.
The Bowe Bergdahl prisoner exchange is genuinely a complicated issue to hash out, on a number of levels. That complexity has led to the weird spectacle of administration opponents expressing gratitude at Sgt. Bergdahl's return, while in the next breath explaining why he should have been left to die. It has also led to the weird spectacle of critics accusing the President of negotiating with terrorists, and Secretary of Defense Chuck Hagel insisting that because the government of Qatar acted as intermediary, there was no negotiation. The politically unsaleable truth is that we did negotiate with the Taliban, but that, for purposes of that negotiation, they weren't really terrorists. They were an enemy force holding a U.S. prisoner of war.
There is also legitimate angst about the circumstances surrounding Bergdahl's capture, versus the cost to return him home. There is intense debate over allegations that Bergdahl was captured while AWOL, or even deserting, and bitterness about the lives lost trying to recover him. The White House, with the exception of National Security Advisor Susan Rice, has been cautious about glorifying Bergdahl's service. During Saturday's announcement of Bergdahl's release, President Obama conspicuously praised everyone but Bowe Bergdahl for their courage and sacrifice, but Rice, in an appearance on ABC's This Week, said that Bergdahl "served with honor and distinction."
At Monday's White House daily briefing, outgoing Press Secretary Jay Carney was asked, repeatedly, if the White House stood by Rice's assessment, and Carney essentially responded "Squirrel!"
As Carney said, though, the circumstances surrounding Bergdahl's capture are irrelevant to evaluating this exchange. He is entitled to presumption of innocence and due process, and if there is any music for him to face, he should face it here. The promise that we make to servicemembers never to leave them behind isn't, and shouldn't, be superseded by this sort of value judgment. What sort of precedent would we set if we could break that promise, provided we could come up with a sufficient rationale for writing them off?
Then, there's the matter of the five Gitmo detainees who were traded for Bergdahl, and whom critics are convinced will reenter the fight. It's one thing to release terrorists back to the battlefield in exchange for nothing, but quite another to be a black president. Reoublicans say the President violated the National Defense Authorization Act by failing to give Congress 30 days notice of the prisoner transfer, while the administration says that under these circumstances, that law violated the U.S. Constitution's separation of powers, as the President noted in a signing statement:
Section 1035 does not, however, eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles. The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.
... In the event that the restrictions on the transfer of Guantanamo detainees in sections 1034 and 1035 operate in a manner that violates constitutional separation of powers principles, my Administration will implement them in a manner that avoids the constitutional conflict.
At Monday's briefing, CNN's Joe Johns asked Carney to square that signing statement with President Obama's general resistance to signing statements as a candidate for president, when he criticized then-President George W. Bush's overuse of them. That criticism of Bush has become a favorite target for right-wing accusations of hypocrisy, but Carney took the opportunity to set the record straight. He pointed out that "it’s often misreported that he somehow took a position against all signing statements,"and that then-Senator Obama "made clear that there were times when it would be appropriate, but that the authority to issue signing statements should not be overused or abused," such as when there are "constitutional issues involved in a particular legislation."
In statements as a candidate, and in a memorandum about signing statements when he first took office, President Obama has always been clear about the circumstances under which he would use signing statements, and his right-wing critics have failed to explain where he gets them wrong, or how he has deviated from them.
But the Bergdahl release has resurrected an attack from the anti-Gitmo left, the notion that, if the President can use a signing statement to justify the release of these five prisoners, then he can do so for all of the Gitmo detainees. If the President can "ignore the law" in this case, then why not do the same for the rest of the detainees? MSNBC's Chris Hayes asked that very question, on behalf of anti-Gitmo activists, on his All In program Monday night, but the premise of that question relies on the same fundamental misunderstanding about signing statements that the right relies on. They're both asserting that the President is using the signing statement to ignore the law. Here is what President Obama said about using signing statements in 2007, at a Montana town hall campaign event:
When Hayes played that clip last night, he cut it off when Obama said "we're not going to use signing statements," but the rest of that sentence is "as a way of doing an end-run around Congress."
The President's NDAA signing statement doesn't do that, it seeks to preserve the will of Congress, with a very narrow, well-defined exception. The test of that exception isn't settled by the signing statement, it is settled by the U.S. Constitution, and if it is challenged, by the Supreme Court. No one has said that the Bergdahl swap would not withstand such a challenge, but a wholesale release of Gitmo detainees likely would not.
By contrast, for example, then-President George W. Bush's signing statement on the Detainee Treatment Act of 2005 was significantly more broad than President Obama's:
The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.
If there is a problem with President Obama's and Bush's signing statements, it's that they helped to make sure that they were never put to the test. You can bet good money, though, that if President Obama tried to stretch his signing statement into a full closure of Gitmo, Republicans and many Democrats would not return that favor.