The ongoing dispute regarding the Taliban-Sgt. Bowe Bergdahl prisoner exchange is not only, or even primarily, a partisan fight. It is a constitutional argument, but one that will be decided (if at all!) not by a legal process, but by a political one – just as the Framers intended.
In this earlier post, I argued that the motivation for President Obama’s decision to swap the five Taliban prisoners for Bergdahl’s release was probably not dissimilar to the reason why President Ronald Reagan agreed to trade arms for hostages: both were driven by humanitarian concerns for the safety of those in captivity, and for their families. Consistent with my claim, in his public statements since initially announcing the release of Sgt. Bowe Bergdahl, the President has continued to defend the decision in humanitarian terms, arguing that America does not leave its soldiers behind. Some have questioned whether that credo is worth the cost, particularly when applied to a possible deserter. But even if one accepts the President’s explanation, critics maintain that the President was legally obligated to inform Congress before moving any Taliban out of Guantanamo Bay prison as part of the exchange. Many have dismissed this criticism, arguing that it is motivated purely by partisan politics. But even some Democratic legislators have argued that the President should have consulted with them before the prisoner swap took place. Indeed, members of his own administration, including Secretary of State Hillary Clinton and CIA director Leon Panetta were reportedly resisting the prisoner swap as discussed in an earlier incarnation. Clearly, the divide over the Bergdahl swap is not simply a partisan one.
Obama and his aides have responded to Congressional criticism by arguing that this was a time sensitive issue, and that they could not jeopardize Bergdahl’s safety by consulting with Congress – and presumably risk having the negotiations exposed through leaks – as the deal was imminent. In the words of national security adviser Susan Rice, “What we put the highest premium on was the safety of Sgt. Bergdahl. This was held closely within the administration. We could not take any risk with losing the opportunity to bring him back safely.” In another parallel to the Iran-contra affair, Rice’s defense echoes the argument Lt. Colonel Oliver North made in his testimony before the joint congressional committee investigating the Iranian arms-for-hostage deal. When asked to defend the failure to consult with Congress regarding the Iranian arms swap and the funneling of residual funds to the Nicaraguan contras, North replied, “I think it is important… that we somehow arrive at some kind of understanding right here and now as to what a covert operation is. If we could [find] a way to … talk about covert operations to the American people without it getting into the hands of our adversaries, I’m sure we would do that. But we haven’t found the way to do it.” In further testimony North made it clear that he and his immediate supervisor, national security adviser Admiral John Poindexter, kept their dealings with Iran secret from Congress because they feared that once Congress was officially informed of the initiative, members would leak their knowledge to the public, thus undermining the effort to get hostages released.
Members of Congress did not react very favorably to North’s defense then, and they are not likely to buy Rice’s explanation today. As co-chair of the joint Congressional committee investigating the Iran affair, Representative Lee Hamilton pushed back against North’s defense of hiding covert operations from Congress, citing Congress’ need to exercise its constitutional oversight duties. In Hamilton’s words, directed to North: “You and I agree that covert actions pose very special problems for a democracy. It is, as you said, a dangerous world, and we must be able to conduct covert actions….But it is contrary to all that we know about democracy to have no checks and balances on them. We’ve established a lawful procedure to handle covert operations. It’s not perfect by any means, but it works reasonably well.” Hamilton went on to criticize North’s attitude toward Congress’ constitutional role: “I do not see how your attitude can be reconciled with the Constitution of the United States…The Constitution grants foreign policymaking powers to both the President and Congress and our foreign policy cannot succeed unless they work together.”
To be clear, as I said in my earlier post, the policy significance of the Bergdahl swap is likely not nearly as important as were the issues at the heart of the Iran-contra affair. But the current dispute centers on the very same constitutional debate regarding the relative roles of the President and Congress in foreign policy – a debate woven into the very fabric of the American political system of shared powers. How do we reconcile a president’s constitutional duty to act, as Alexander (not Lee) Hamilton put it in Federalist 70, with “secrecy, and dispatch” versus Congress’ right to hold the President accountable and to deliberate regarding his (someday her) actions?
At its heart, although the Bergdahl dispute is really an argument over the meaning of the Constitution, it cannot be resolved by efforts by constitutional scholars to parse the meaning of that document, or the meaning of laws based on it. Indeed, legal experts have already shown that they are hopelessly divided on the merits of the case. Rather, the dispute will play out in the court of public opinion, as mediated by partisans, pundits and the occasional political scientist. Already the early polling suggests that a strong plurality (43% to 34%) of the public believe the exchange was “the wrong thing to do”. Pointedly, however, more than 20% of those polled have no opinion on the affair, so opinions remain fluid.
My own view, as I expressed in my earlier post, is that Obama’s humanitarian concerns may have blinded him to the underlying constitutional and institutional objections regarding how the exchange was conducted, much as Reagan’s concern for the welfare of the hostages blinded him during the Iran-contra affair to the implications of negotiating with terrorists. But no matter how this latest brouhaha plays out, it will not resolve the fundamental Constitutional tension that lies at the root of these disputes. In the oft-quoted words of political scientist Edwin Corwin, the Constitution “is an invitation to struggle for the privilege of directing American foreign policy.” As we watch that struggle play out in the coming days and weeks, we should remind ourselves that this is precisely how the Framers expected these disputes to be resolved.
1:42 Update: CBS released the results of a second poll on the Bergdahl controversy and the results were similar to those of the USA poll I cited above: 45% disapproved of the transaction, compared to 37% who approved, but fully 18% of respondents expressed no opinion on the swap, suggesting that attitudes on the topic have not yet hardened.