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February 12, 2016

Constitutionality Debate Over Guantanamo Provision Sets Up House-Senate Fight

HAILEY, Idaho: A sign showing support for Sgt. Bowe Bergdahl sits along Main Street on June 2. Bergdahl was released from captivity on May 31 in exchange for the freedom of five Taliban prisoners being held at Guantanamo Bay, Cuba. (Scott Olson/Getty Images)

A sign showing support for Bergdahl sits along Main Street in Hailey, Idaho, on June 2. He was released from captivity on May 31 in exchange for the freedom of five Taliban prisoners being held at Guantanamo Bay, Cuba. (Scott Olson/Getty Images)

The American Civil Liberties Union and a national security law professor say that when the GOP-controlled House added an amendment to the annual defense spending bill to prevent overseas prisoner transfers from the Guantanamo Bay Naval Base — a response to the prisoner exchange for Sgt. Bowe Bergdahl — it endorsed language that was unconstitutional. The amendment was offered by a tea party-aligned lawmaker who has vowed to fight unconstitutional laws.

It’s not true that the Guantanamo provision is unconstitutional, though, answer a pair of GOP aides, as a Senate panel prepares to vote on its own take on the fiscal 2015 defense spending bill Tuesday morning.

The amendment was added last month during floor debate by Rep. Tom Cotton, R-Ark., by a mostly party line vote of 230-184. Under the provision, the executive branch couldn’t transfer any Gitmo prisoners to another country.

The adoption of the amendment reflected anger, particularly on the right, over the exchange of five Taliban prisoners held at Guantanamo for Bergdahl, with lawmakers citing a lack of notification from President Barack Obama required by a previous defense authorization bill.

The constitutionality of the amendment wasn’t debated much on the House floor, but it came up elsewhere beforehand. The amendment amounts to a bill of attainder, according to the ACLU in a letter to lawmakers on June 19.

The Cotton amendment would bar the use of all funds under the bill for any overseas transfers of detainees held at Guantanamo.  When combined with the existing ban on transfers to the United States, as well as the government’s position that overseas transfers require expenditure of DOD funds, the effect of the Cotton amendment would be a complete ban on transfers of detainees out of Guantanamo — in violation of the Constitution.

Steve Vladeck, an American University law professor and senior editor of the Journal of National Security Law & Policy, wrote, also on June 19, that the Cotton amendment was “obviously unconstitutional.”

He wrote that it came into conflict with the Constitution’s Suspension Clause: “It’s not a remotely close question whether this amendment, if enacted, would be constitutional as applied to such cases. It wouldn’t be.”

Cotton’s office did not respond to numerous requests for comment. He has come under fire for advancing allegedly unconstitutional proposals before. On his website, he has vowed to fight unconstitutional laws. He is running for a Senate seat in the fall.

But other Republicans who backed the amendment don’t see the amendment as a constitutional problem.

“We are unpersuaded by arguments that the provision is unconstitutional,” said Claude Chafin, a spokesman for House Armed Services Chairman Howard P. “Buck” McKeon, R-Calif., via e-mail. “Congressional authority over the purse is broad. Given the Presidential disregard for NDAA [National Defense Authorization Act] provisions that merely required notification; the Chairman believes that the Cotton provision provides an important pause to detainee transfers until we are able to better understand the circumstances of the Bergdahl and other transfers.”

Added a second GOP aide, under condition of anonymity: “The amendment does not change existing law, therefore it is not unconstitutional. It simply prohibits funds for transfers or releases, and funding decisions are solely the responsibility of the legislative branch under the Constitution.”

The chief Democratic Senate appropriator, Richard J. Durbin of Illinois, is a longtime critic of the Guantanamo prison. That means he is likely to stake a very different position on the issue of Gitmo transfers when his Appropriations subcommittee takes up the annual spending measure Tuesday — but the debate might spill onto the Senate floor eventually, and then perhaps to House-Senate negotiations over the legislation.

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