DOD response to GAO Concerning Legality of Berdahl Swap

August 23rd, 2014

I previously noted that the GAO found that the release of the detainees from Guantanamo violated the plain text of the NDAA, and violated the Anti-Deficiency Act. The DOD has now released their formal response to the GAO questions, via Lawfare.

In short, they argue that there is no consequence for failing to provide notice, and failing to provide notice doesn’t make the release unlawful:

The fact that the Secretary did not provide notice 30 days before the transfer as described in section 1035(d) does not alter that conclusion. Section 1035(d) states that the Secretary “shall notify the appropriate committees of Congress of a determination . . . under subsection . . . (b) not later than 30 days before” a covered transfer, but section 1035(d) specifies no consequence for the failure to make that notification. Thus, while section 1035(d) imposes a legal requirement that the Secretary provide Congress with notice 30 days before making certain transfers, neither it nor any other provision of section 1035 (or the FY 2014 NDAA) states that a transfer that is otherwise authorized by section 1035(b) is rendered unlawful by the absence of the notification.

They base this on the “plain text” of the 2014 NDAA:

The language of the transfer restriction in the prior version of the National Defense Authorization Act, the NDAA for Fiscal Year 2013 (“FY 2013 NDAA”), Pub. L. 112-239, 126 Stat. 1914, supports this plain language reading of the FY 2014 NDAA. The FY 2013 transfer restriction stated that, subject to a limited exception, the Secretary could not use any funds available to the Department of Defense to make a transfer “unless the Secretary submit[ted] to Congress” a certification containing specified findings “not later than 30 days before the transfer.” FY 2013 NDAA, section 1028(a) (1). Unlike the language in section 1035 of the FY 2014 NDAA, the FY 2013 language expressly conditioned the lawfulness of a transfer on the Secretary’s notifying Congress 30 days in advance of the transfer. Congress’s deliberate decision not to use that language in the FY 2014 NDAA strongly suggests that the FY 2014 NDAA—as its plain text indicates—does not condition the lawfulness of the transfer itself on the provision of notice.

This is quite different from Secretary Hagel’s initial efforts to rely on the inherent Article II powers of the President, and also different from the NSC’s explanation that Congress did not mean for the statute to apply under these circumstances. This seems to be a third explanation, though equally weak. It is not surprising that the GAO found this explanation unpersuasive.

The memo offers two additional rationales, based on “statutory interpretation or under separation of powers principles.”

The first seems to fall back on a John Yoo style constitutional avoidance argument–if the statute applied in this manner, it would violate the separation of powers, so we interpreted it in a way that wold not raise these difficulties:

First, section 1035(d) might be construed as having been inapplicable to this particular transfer. The transfer was necessary to secure the release of a captive U.S. soldier, and the Administration had determined that providing notice as specified in the statute could jeopardize negotiations to secure the soldier’s release and endanger the soldier’s life. In those circumstances, providing notice would have interfered with the Executive’s performance of two related functions that the Constitution assigns to the President: protecting the lives of Americans abroad and protecting U.S. service members. Such interference would “significantly alter the balance between Congress and the President,” and could even raise constitutional concerns; and courts have required a “clear statement” from Congress before they will interpret a statute to have such an effect. Armstrong v. Bush, 924 F.2d 282, 289 D.C. Cir. (1991). Congress may not have spoken with sufficient clarity in section 1035(d) because the notice requirement does not in its terms apply to a time-sensitive prisoner exchange designed to save the life of a U.S. soldier. Cf. Bond v. United States, 134 S. Ct. 2077, 2090-93 (2014).

The second rational also offers a separation of powers-style analysis:

Second, if section 1035(d) were construed as applicable to the transfer, the statute would be unconstitutional as applied because requiring 30 days’ notice of the transfer would have violated the constitutionally-mandated separation of powers. Compliance with a 30 days’ notice requirement in these circumstances would have “prevent[ed] the Executive Branch from accomplishing its constitutionally assigned functions,” Morrison v. Olson, 487 U.S. 654, 695 (1988), without being “justified by an overriding need” to promote legitimate objectives of Congress, Nixon v. Administrator of General Servs., 433 U.S. 425, 443 (1977). As just discussed, the Administration had determined that providing notice as specified in the statute would undermine the Executive’s efforts to protect the life of a U.S. soldier. Congress’s desire to have 30 days to weigh in on the determination that the Secretary had already made, in accordance with criteria specified by Congress, that the transfer did not pose the risks that Congress was seeking to avoid, was not a sufficiently weighty interest to justify this frustration of the Executive’s ability to carry out these constitutionally assigned functions. Thus, even though, as a general matter, Congress had authority under its constitutional powers related to war and the military to enact section 1035(d), that provision would have been unconstitutional to the extent it applied to the unique circumstances of this transfer. And, just as section 1035(d) would be unconstitutional to the extent it was construed as applicable to the transfer, the broader reading of section 8111 would likewise be unconstitutional as applied to that transfer, because it would attempt to impose through the spending power the same unconstitutional requirement that section 1035(d) would attempt to impose directly.

For the reasons Jack Goldsmith offered here, the constitutional avoidance approach is difficult to square where the text is unambiguous–even though they found a way to make unambiguous text support their case.

As an asides, does anyone know if there is any way a private cause of action under the false claims act, pursuant to a violation of the Anti-Deficiency Act (Glenn Reynolds hinted at this) . I understand the GAO’s finding of a violation of the ADA has basically no effect.