Secretary of Defense, Complying with Statute, Gives 30 Days Notice Before Release of 6 Prisoners from Guantanamo

July 16th, 2014

When the United States traded Bowe Bergdahl for 6 Guantanamo detainees, it viewed as an “oversight” it’s failure to give Congress 30 days notice, then cited Article II inherent power as a rationale for not complying with the statute, then (through some creative lawyering) explained that the statute, as applied under these circumstances, should be interpreted differently (disregard) to avoid constitutional problems. I discuss these chains of event in “Congressional Intransigence and Executive Power.”

Charlie Savage reports in the Times that the Secretary of Defense, in compliance with the statute, has given 30 days notice prior to the transfer of six “low-level” detainees to Uruguay.

“Defense Secretary Chuck Hagel has secretly notified Congress that the military intends to transfer six low-level Guantánamo Bay detainees to Uruguay as early as next month, according to people with knowledge of the communication. All six have been approved for transfer for more than four years. Mr. Hagel’s formal determination that the transfer would be in the national security interest of the United States breaks a bureaucratic paralysis over a deal that has been waiting for his approval since March, but stalled amid the political uproar over a prisoner exchange deal that secured the release of Sgt. Bowe Bergdahl from insurgents in the Afghanistan war. The six detainees bound for Uruguay include a Syrian man who has brought a high-profile court challenge to the Pentagon’s procedures for forcibly feeding detainees who are on a hunger strike. His transfer would most likely render that lawsuit moot, although there are several similar challenges.

One point I make in my article, is that failing to comply with the law frustrates future cooperation. I think this was evident in the Bergdahl swap. There was bipartisan opposition to the release, and Republicans voted to prohibit *all* transfers of detainees.

By giving lawmakers a congressionally mandated notice of at least 30 days before any transfer, Mr. Hagel signaled a return to normal order for Guantánamo prisoner releases. In the Bergdahl deal, the Obama administration did not give notice before transferring five high-level Taliban detainees to Qatar. Some lawmakers in both parties said that was illegal. The Obama administration insisted that providing no notice in that case was lawful, citing the risk to Sergeant Bergdahl’s life posed by any delay after the deal was struck. Before the controversy, the Senate Armed Services Committee had reached a bipartisan deal clearing the way to transfer some detainees to a prison on domestic soil, allowing the Guantánamo prison to be closed. After the Bergdahl exchange, the Republican-led House voted, largely along party lines, for a proposal to prohibit the transfer of any detainee for any purpose.”

But now that the Chief Executive is complying with the law, there can be a return to normalcy (whatever that is here).