Obama and the Bergdahl Release

Posted on June 2, 2014 by


President Obama, unfortunately, does not seem all that interested in obeying the law. The list of overt illegality continues to grow and diversify. Beyond immigration and the Affordable Care Act, the President now flouts the law as it relates to military matters.

The Obama Administration, through intermediaries, negotiated the release of Bowe Bergdahl, an American prisoner of war in Afghanistan. The release, however, has generated as much controversy as rejoicing. Here are the highlights:

Republicans and military authorities are criticizing the President because the exchange was costly. For Bergdahl, the U.S. gave up five senior Taliban leaders who were being held in Guantanamo Bay. Not only are the five potentially valuable resources for the Taliban, but Obama’s willingness to negotiate the release has the potential to endanger current soldiers and American citizens abroad. Terrorists may now be more likely to kidnap and capture with the hope of extracting concessions from the U.S.

Bergdahl’s release has also raised more questions about his initial capture, and it has caused resentment among former fellow soldiers. Some of them claim Bergdahl was only captured because he deserted from his post. There are even rumblings of a potential court-martial once he is medically fit. Bergdahl’s actions and opinions before his capture, as documented here, have done nothing to diminish the controversy.

For my purposes, and not to minimize the things above, Obama’s actions deserve legal scrutiny. Congress passed, and the President signed, a law that requires the Secretary of Defense to notify Congress at least 30 days before any kinds of prisoner transfers take place. Here, Congress was notified after the exchange occurred. The Washington Post claims, based on an administration source, the decision to ignore the law was deliberate due to the matter’s pressing nature. More interestingly, President Obama did not feel bound by the law because when Congress passed it, he signed it, but noted that it was too restrictive on his powers, so he did not feel obligated to follow it.

So, the President disobeyed the law because it did not meet his timeline, but even though he disobeyed it, he never felt obligated to obey it in the first place.

Let’s be very clear on this point. If the President of the United States thought the law unconstitutionally limited his powers as Commander-in-Chief, he should have simply vetoed the legislation. In fact, by refusing to do so, he showed disdain for the Constitution itself. Why would any Chief Executive be a party to a law that he thinks conflicts with the Constitution?

When he assumed office, the President swore this oath:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

How one can square that oath with a Chief Executive who signs laws he thinks are unconstitutional, I cannot imagine. After all, as John Marshall pointed out in Marbury, the essence of protecting and defending the Constitution is to strike down actions that contradict it. Perhaps Obama thinks it is up to the Court alone to protect the document, but, his oath of office says otherwise. A conscientious President should never await the Supreme Court’s decision on a law he thinks unconstitutional. As it slides across his desk, the President cannot rely upon the Court to get it right. The prudent course is to act before the matter gets to the Court.

By signing such a law, President Obama disrespects not only the Constitution, but the binding nature of law itself. To veto it is perfectly constitutional. To sign it and disregard it is not only potentially unconstitutional, but it reveals the President’s mindset. Law is not a boundary, but a political tool that can be used to achieve political goals. By signing the law, the President gets the benefit of appearing to be deferential to Congress’s actions, but by ignoring it, he shows his lordly cynicism. President Obama cloaks himself in a legal humility, but sheds that garment to reveal naked politics. In the Obama White House, there is no rule of law, but only minor parchment speed bumps flattened beneath the wheels of progress.