Tuesday, October 27, 2015

Constitutionality of Congressional Restrictions on Guantanamo Prisoner Transfers

Deborah Pearlstein

Cross-posted at Opinio Juris

Harold Koh has an interesting post over at Just Security thinking through what options would remain available to President Obama to close Guantanamo if Congress once again imposes restrictions on the transfer of prisoners off the base.  Congress has imposed a range of such restrictions in annual legislation since 2009, invariably prohibiting the transfer of prisoners to the United States.  As Koh notes, Congress has accomplished this on each occasion not by imposing an outright ban, but through its capacious Spending Clause power under Article I of the Constitution.  Congress famously holds the purse strings for all U.S. government spending, and it has prohibited the expenditure of any funds for the purpose of such transfers.  Are these restrictions an unconstitutional infringement by Congress on the President’s own powers under Article II (as Commander in Chief, etc.)? Koh stops short of answering directly, but he does say this (quoting President Obama’s recent veto statement and past signing statement):
“[M]ost likely, the President’s action would stand even if challenged, as Prosecutor-in-Chief to ‘determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests,’ and as Diplomat-in-Chief and Commander-in-Chief to decide and arrange through negotiations ‘when and where to transfer them consistent with our national security and our humane treatment policy.’”

Koh is surely right there must be some limits to Congress’ power to act through spending restrictions, as with all constitutional power; legislation will be held unconstitutional if it violates Bill of Rights prohibitions, for example.  Particularly to the extent the legislative restrictions impinge on the President’s prosecutorial powers (although only to that extent - it seems clear the administration still contemplates criminally prosecuting only a fraction of the remaining detainees), the President has a constitutional case to make that the Constitution gives him, and only him, not only the power but the duty to execute the laws that are established.  Koh might also have added that the weight of history, such as it is, is on the President’s side. As I’ve written in detail elsewhere, in all of the major wars of the 20th and 21st centuries in which U.S. detention operations are now concluded – World Wars I and II, Korea and Vietnam, the 1991 and 2003 Iraq Wars – conflicts during which the United States held hundreds of thousands of prisoners in total, the imprisonment of enemies held pursuant to wartime authorities has always come to an end, and the resolution of these detentions has always been handled by the executive branch.  Indeed, Congress has not imposed anything like the current restrictions on the exchange, transfer or release of prisoners, during or after the period of armed conflict in any of the previous conflicts over the past century.  

Nonetheless, I remain deeply skeptical of the strength of the constitutional argument that the President has sufficient Article II power to succeed in demonstrating that the spending restrictions are an unconstitutional infringement on presidential power.  Here’s one reason: the months-old Supreme Court decision Koh interestingly doesn’t cite, Zivotofskyv. Kerryin which the Court for the first time in its history actually recognizes a presidential power that is preclusive of congressional efforts to regulate it. (It is of course one constitutional thing to say the President has an Article II power, it is quite another to say he holds the power exclusively, even if Congress legislates to the contrary – what Justice Jackson’s famous Youngstown Sheet & Tube opinion called the President’s power at its “lowest ebb.”)

While recognizing a very narrow preclusive presidential power that prohibits Congress from contradicting a position the President has previously taken on the political recognition of a foreign government, the Zivotofsky Court calls into fatal question its 1936 discussion in United States v. Curtiss-Wright, the part that describes the President as the “sole organ” of the nation when it comes to matters implicating foreign relations. In Zivotofsky, both the majority and the dissent wrote to condemn Curtiss-Wright and to underscore its marginal effect.

Here’s the majority: 
“In support of his submission that the President has broad, undefined powers over foreign affairs, the Secretary quotes [Curtiss-Wright], which described the President as ‘the sole organ of the federal government in the field of international relations.’ This Court declines to acknowledge that unbounded power…. This description of the President’s exclusive power was not necessary to the holding of Curtiss-Wright—which, after all, dealt with congressionally authorized action, not a unilateral Presidential determination. Indeed, Curtiss-Wright did not hold that the President is free from Congress’ lawmaking power in the field of international relations. The President does have a unique role in communicating with foreign governments, as then-Congressman John Marshall acknowledged. But whether the realm is foreign or domestic, it is still the Legislative Branch, not the Executive Branch, that makes the law. In a world that is ever more compressed and interdependent, it is essential the congressional role in foreign affairs be understood and respected. For it is Congress that makes laws, and in countless ways its laws will and should shape the Nation’s course. The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue.”

Here’s Chief Justice Roberts in dissent: 
“[A]s the majority rightly acknowledges, Curtiss-Wright did not involve a claim that the Executive could contravene a statute; it held only that he could act pursuant to a legislative delegation. The expansive language in Curtiss-Wright casting the President as the ‘sole organ’ of the Nation in foreign affairs certainly has attraction for members of the Executive Branch. The Solicitor General invokes the case no fewer than ten times in his brief. But our precedents have never accepted such a sweeping understanding of executive power…. If the President’s so-called general foreign relations authority does not permit him to countermand a State’s lawful action, it surely does not authorize him to disregard an express statutory directive enacted by Congress, which—unlike the States—has extensive foreign relations powers of its own.”

I’ll hazard a guess that Curtiss-Wright is cited in every one of the Justice Department Office of Legal Counsel (OLC) opinions Koh mentions in his blog piece as recognizing a congressional infringement on the President’s constitutional power (almost all involving the President’s power to recognize and/or otherwise engage with foreign governments). But if Zivotofsky means anything, it is that we are now living in a post-Curtiss Wright world. Does this mean OLC can no longer legitimately cite the case as authoritative precedent? It will have to depend of course why/for what proposition the case is cited. But if Curtiss-Wright mattered at all in the legal reasoning of past OLC opinions, we might safely assume the newly official opprobrium in which Curtiss-Wright is held should at least somewhat alter the calculation.

One could go on about reasons to be skeptical of the strength of the President’s constitutional claim to preclusive authority in the prisoner release context: preclusive power of any kind is, as the Court and scholars agree, exceedingly rare; the Constitution manifestly contemplates a shared power arrangement over military affairs between the President and Congress; the argument that the President has the power to decide “when and where to transfer [prisoners] consistent with our national security and our humane treatment policy” seems hard to distinguish, in constitutional terms, from an argument that the President has the power to decide “when and where to transfer [prisoners] consistent with our national security and [any] treatment policy.”  

But the importance of these arguments may be precisely why Koh avoids directly making the constitutional case.  Rather, Koh’s bottom line claim seems to be that whether or not circumventing Congress’ transfer restrictions is unconstitutional, the President is likely to get away with it. Indeed, there was widespread agreement (from the GAO and others) that the Administration failed in the Bergdahl trade (in which American Taliban-held prisoner Bowe Bergdahl was recovered in exchange for the release of several Guantanamo prisoners) comply with Congress’ requirement that it be given 30 days notice before the transfer of any Guantanamo prisoner; yet seemingly no adverse consequences for the President have flowed.  In these terms, the question Koh poses, then, is not really about constitutionality but about competing views of presidential policy.  Which does the Preisdent think is more important? The strategic importance of closing Guantanamo on his watch? Or the structural, historical importance of holding the line on the expansion of presidential power in the United States?   

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