A Weak Case For the Unconstitutionality of the Detainee Transfer Restrictions (and a Glance at the Bigger Picture)

I noted earlier this year that the administration might be building a foundation for a constitutional argument to disregard congressional transfer restrictions as a basis for closing GTMO. Last week Harold Koh used the President’s message in connection with his NDAA veto as an occasion to add to that foundation.

Koh spends a lot of time on the President’s power to disregard an appropriations restriction. But the appropriations issue is beside the point unless the president possesses the underlying constitutional power to disregard a non-appropriations-based statutory limitation on transferring the GTMO detainees. And Koh’s assessment of this underlying exclusive presidential power ignores most of the hard issues.

Koh acknowledges the relevance of only one substantive congressional power: the Declare War Clause. But Congress’s relevant powers in binding the president to transfer restrictions extend far beyond that clause. They include (among others) the power to “make Rules concerning Captures on Land and Water,” and Congress’s power to control U.S. borders (including, but not limited to, an implied immigration power). Koh says nothing about these other congressional powers, but any Executive branch lawyer considering the issue would need to consider them.

Koh says that the transfer restrictions might violate the President’s long-asserted exclusive power to conduct diplomacy—a power I believe Zivotofsky II enhanced. This presidential power might have been relevant to what the administration described as the “unique circumstances” of transferring the Taliban 5 to Qatar in exchange for Bergdahl. But the transfer of the Taliban 5 abroad, as part of a prisoner swap, is quite different than a unilateral transfer of over a hundred detainees to the United States. Not only are additional congressional prerogatives (like border control) in play. But with the Bergdahl swap, the Executive branch was in intensive negotiations with the Taliban (through Qatar); only a procedural notice requirement, and not the substantive ban on transfer, was at issue; and the detainees were transferred to the country with which the U.S. was conducting diplomatic negotiations, and not to the United States. It would take a huge leap to extend the President’s power to conduct diplomacy to override the substantive transfer restrictions en masse, outside a genuine emergency, and without a tight nexus to an ongoing negotiation, in order to bring the detainees to the United States. Moreover, the OLC diplomatic power precedents are about congressional restrictions on the time, place, and manner of diplomatic communications, not substantive policy outcomes. So even if we imagine a negotiation with, say, Cuba (what a storm that would cause), I don't see how the power to conduct diplomacy can be leveraged to skirt substantive transfer restrictions to the United States. And Koh never explains how this argument might work.

Koh cites some other distantly related executive branch and judicial precedents. But he fails to mention precedents closest to the issue. He ignores a 2002 OLC opinion, which states that “the President has since the Founding era exercised exclusive and virtually unfettered control over the disposition of enemy soldiers and agents captured in time of war.” This opinion concerns transfers to foreign countries, not the United States. But it contains broad statements about presidential powers that are very much like the ones Koh makes and wants President Obama to exercise. The thrust of the 2002 opinion – that the Torture and Geneva Conventions are no hurdle to foreign transfers – might explain Koh’s silence about it. But the 2002 memo nonetheless raises the question whether, if Article II permits the President to disregard absolute bans on detainee transfers to the United States, it also permits him to disregard human-rights-based legal restrictions related to torture and war crimes in transferring detainees abroad. Certainly any executive branch lawyer working on a legal memorandum about disregarding the transfer restrictions would need to contemplate this possibility.

Another possible reason Koh does not discuss the 2002 opinion is that a later 2009 OLC opinion cast doubt on aspects of it related to Koh’s argument. The 2002 opinion had argued that the Constitution does not “ “specifically commit[]” the wartime prisoner transfer power to Congress. The 2009 opinion rejected this argument. It noted in particular that the Captures Clause appears “to provide separate authority for Congress to legislate with respect to the treatment and disposition of enemy combatants captured by the United States in the War on Terror.” It further noted that Brown v. United States (1814) relied on the Captures Clause to comment “favorably on Congress's authority to regulate the treatment of prisoners of war—and, indeed, actually suggested that the exercise of such congressional authority counseled against locating the authority to detain enemy prisoners solely in the general war powers of the President.” OLC went on to say that the President has constitutional authority in this area that Congress cannot “unduly constrain or inhibit.” The 2009 opinion thus does not cut strongly for or against the President ignoring the GTMO transfer restrictions en masse. But it does bring to the fore two considerations – the Captures clause and Brown – that Koh ignores and that cut against a presidential disregard.

Koh also fails to take note of the on-point discussion in Judge Kavanaugh’s concurrence in Kiyemba:

[O]ur disposition does not preclude Congress from further regulating the Executive’s transfer of wartime detainees to the custody of other nations. Congress possesses express constitutional authority to make rules concerning wartime detainees. See, e.g., U.S. CONST. art. I, § 8 (“Congress shall have Power … To … make Rules concerning Captures on Land and Water”). The constitutional text, Justice Jackson’s Youngstown opinion, and recent Supreme Court precedents indicate that the President does not possess exclusive, preclusive authority over the transfer of detainees. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring). Except perhaps in a genuine, short-term emergency, the President must comply with legislation regulating or restricting the transfer of detainees. In other words, under the relevant precedents, the President does not have power to trump legislation regarding wartime transfers in a Youngstown category-three situation. To be sure, there are weighty policy reasons why Congress may not seek to restrict the Executive’s transfer authority or to involve the Judiciary in reviewing war-related transfers. That presumably explains why Congress has not done so. But to the extent Congress wants to place judicially enforceable restrictions on Executive transfers of Guantanamo or other wartime detainees, it has that power.

Koh does not mention or discuss Hamdan, Hamdi, Youngstown, or Judge Kavanaugh’s analysis.

In short, the arguments for a comprehensive presidential disregard of the homeland transfer restrictions are much more challenging than Koh portrays. And of course there are larger questions beyond these Article II legalities. The President obviously wants to fulfill his first-week-in-Office pledge to close GTMO. Assuming he can find an executive branch lawyer to write the opinion, is he really going to exercise a very controversial presidential power to disregard transfer restrictions that have been on the books for six years, and that enjoy wide congressional support, just as he is leaving office? And if he does, will he also direct Executive branch employees to spend millions of dollars in un-appropriated funds on the creation of detention-worthy U.S. facilities? And will executive officials follow such orders despite the possibility of criminal culpability under the Anti-Deficiency Act? And will the Attorney General alleviate these concerns by issuing a formal opinion guaranteeing no ADA prosecutions? I think the answers to all of these questions are “no.” If I am wrong, it will be high constitutional and political theater like we have not yet seen in the Obama years.