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July 7, 2015

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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  1. Robert Price Rifkin

    July 14, 2014
    4:50 p.m.


    Maybe It’s Time to Limit Presidential Terms

    Being president of the United States is a lot like
    being the neighborhood used car salesman. You may be very good at what you do;
    you may have graduated from the Senate or the State house with all kinds of
    experience and knowledge and friends; you may be wildly popular at the time of
    the election. I talk about this on my political weblog

    But it’s that rare president who manages to keep the
    allegiance of the voters after the first 365 days in office. There’s something
    inherently rotten in the set up. Let’s face it, even the most accomplished of
    men and women seem to be no match for the kind of work that demands the right decision
    one hundred per cent of the time. They don’t call it the World’s Toughest Job
    for no reason. It’s not just tough, it’s incomprehensibly impossible to pull
    off with any real measure of success.

    Name the two or three best presidents in the last
    fifty years, then look closely at their records and their poll numbers. Reagan
    suffered in office, Bush suffered in office, Clinton suffered in office–they
    all did; they all had wide swings in popularity and long, drawn-out, awful
    periods of challenge they just didn’t seem up to. Iran-Contra, Monicagate,
    Iraq. Yet all of these presidents were around for eight years, two terms, an
    eternity in political years. And maybe that’s the problem.

    We let our Chief Execs hangs around long past their
    sell-by dates and that’s no one’s fault but our own, because we could change the
    law that lets them do that. It wouldn’t be an easy process but maybe its time
    to consider the efficacy of just such a sweeping modification to our

    Four years in the kind of high-pressure cooker that
    is the White House is more than enough for any reasonable, solid citizen. You
    can only ask so much of your public servants and four years is about right. If
    you have any doubts about that, take a look at the second terms of even our
    most accomplished presidents. Second terms are infamous for the toll they take
    on our leaders, the psychological and emotional tax. In the recent past, there
    no longer seems to be any such thing as a successful second act in the
    president business. It’s just a fact.

    Maybe it’s time to give out those mandatory fifth
    year vacations. We’d all probably feel refreshed. That is, if we can figure out
    a way to stop those three year presidential campaigns…

  2. Anonymous

    July 7, 2015
    9:12 a.m.

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    July 7, 2015
    9:43 a.m.

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