Since the deal securing Sgt. Bowe Bergdahl’s release was announced, a few Republicans have made noise about the illegality of the Obama Administration’s efforts. That’s not their only gripe about the transaction — click here to see a brief rundown of their other complaints — but it is the one I’m most interested in.

Allegations that the administration’s efforts amount to a violation of federal law — specifically the National Defense Authorization Act for Fiscal Year 2014 — hinge on the requirement in that legislation that the administration give Congress 30 days notice prior to the release or transfer of inmates held at Guantanamo Bay. The administration did not do so, arguing that following the requirements could have jeopardized Bergdahl’s return, either because his health at the time was deteriorating dangerously or because the opportunity to make the trade itself might collapse. Instead, members of Congress were informed after Bergdahl was in U.S. custody and on the same day as the Guantanamo detainees flew to Qatar. Section 1035(d) of the Defense Authorization Act requires the Secretary of Defense to submit a certification to Congress at least 30 days before using Department of Defense funds to transfer detainees from Guantanamo to another nation’s custody. The certification must include information on the country to which detainees are to be transferred and certain assurances that they will continue to be monitored. 

Sgt. Bowe Bergdahl


Sgt. Bowe Bergdahl, of Hailey, Idaho, was freed on Saturday after being held nearly five years by the Taliban.

Before going on, let me make one thing abundantly clear: I am very happy that Bowe Bergdahl has been released by the Taliban and is heading home. The fact that he was imprisoned so long is both a tragedy and a shame. Kudos to the members of the Idaho congressional delegation and, especially, Bergdahl’s parents for keeping the pressure on the executive branch to do something about his release.

Although details are still trickling out, the essence of the story is this: after being held by members of the Taliban and affiliated organizations for nearly five years, Bergdahl was released on Saturday, May 31. In exchange for Bergdahl’s release, five enemy combatants being held at the Guantanamo Bay prison were handed off to Qatari government officials.

So far, the administration’s critics have largely been viewed as political opportunists and naysayers, even as the administration has agreed that they violated statutes governing such activities.One can speculate endlessly about the motives of these critics, but one thing is clear: the point they are making, insofar as they are focusing on the law, has merit. Not only was the action itself illegal, but the administration’s decision to act in defiance of federal law is symptomatic of behavior that has gone on throughout the Obama years and virtually the entirety of the administration of Obama’s predecessor, George W. Bush. We must be able to appreciate the outcome of the administration’s actions in this case — as stated above, I certainly do — and still recognize why the way the situation worked out was problematic.

Indeed, it is this kind of situation where we most need to be aware. After all, a kindler, gentler expression of the imperial presidency is still an imperial presidency.

Schlesinger, Imperial PresidencyIn justifying that statement, however, it might be worth revisiting the concept of the imperial presidency. The title of a 1973 volume by Arthur Schlesinger, Jr., the famed historian and JFK advisor, the imperial presidency refers to the pattern of executive overreach and aggrandizement of power that characterized the 1960s and early 1970s. While Schlesinger primarily holds Richard Nixon accountable for this development, subsequent research has shown the trends were developing even earlier than that.

Following Nixon’s impeachment, Congress reasserted itself and took a range of steps to rebalance the separation of powers system, but the results of this were inconsistent and only temporary. Andrew Rudalevige, in his masterful The New Imperial Presidency: Renewing Presidential Power after Watergate, has shown how the same phenomena Schlesinger indentified in the Nixon era returned to characterize the 21st century presidency under George W. Bush, patterns that have continued and in some ways increased under President Obama.

Interestingly enough, defenders of the administration’s choice to violate the NDAA have pointed at an assertion made by President Obama in the signing statement he released upon signing the bill into law. In it, Obama complained about “burdensome restrictions” by Congress that had thwarted his ability to transfer detainees out of Guantanamo Bay. He also claimed that the bill he was signing into law did not give the executive enough flexibility in making agreements with other nations concerning the circumstances surrounding detainee transfers. Indeed, Obama went so far as to suggest that this aspect of the legislation was unconstitutional in its violation of the separation of powers principle.

Of course, Obama has all the right in the world to believe that, and it could well be that he is correct. But here’s the thing: it doesn’t matter. The president cannot decide what is and isn’t constitutional — we have an entire judicial system for that. Moreover, he can’t issue a signing statement — which has no more legal authority than a press release — and then use that statement to justify subsequent illegal action. This was true for George W. Bush, as it was true for the presidents who came before him, and for Obama and those who will come after. Even if the requirements were “burdensome” and even if they simply amounted to partisan obstructionism, the law is the law. And Obama had a fully constitutional tool at his disposal if he felt so strongly: the veto. But instead, he signed the bill into law, announced his opposition to key parts, and just over five months later, broke it. As happy as we are that Sgt. Bergdahl is no longer in the clutches of the Taliban, the fact remains: federal law was willingly and knowingly violated.

If this were simply an isolated incident, perhaps that would be different; there is a heroic dimension to the entire narrative. However, that is not the case; this is simply the latest example in a chain of events showing that the imperial presidency is alive and well. Given the popularity of the outcome — and the fact that the folks in Congress making the biggest scene about the administration’s actions condemn him for virtually everything else he does — it is unlikely to become a major scandal outside of talk radio and cable news. Nor for that matter is it likely to even become an opportunity for critics of the imperial presidency as a concept (rather than a partisan weapon) to push back against the continued expansion of the presidency. Whether it should be either, however, is another matter.

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The views and opinions expressed here are those of the writer and do not necessarily reflect those of Boise State University or the School of Public Service.

  • Does a Court Jester Congress have any bearing on the Imperial Presidency argument?

  • turn to stone

  • TS

    The constitution? The courts?

    This reminds me of a scene from Dr. Strangelove. The President is horrified that rogue commander Colonel Ripper was attacking Russia on his own authority. “It is the policy of the united states never to attack first,” says the President. “Well,” says a general, “it appears that Colonel Ripper just invalidated that policy.”

    In this case, in military matters, the President kinda does have a lot to say about what is and is not constitutional. The courts defy Presidents at there peril.

  • Chris Mecham

    Surely Congress knows that they are the parties responsible for creating a political environment where an Emperor-President is needed and even welcomed. Reasserting their power once in awhile, for show, simply won’t do. Neither will refusing to work with the opposition either out of refusal or outright trickery. I’ll take a benevolent dictator over being held hostage by the Tea Party any day.