The Bergdahl Dispute Is A Constitutional Issue More than A Partisan One

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.


  1. I side with those who say it was driven by Obama’s obsession to close Gitmo.
    What better way to start than to remove five of the worst of he worst?

    He knew if he went to Congess that his own party would push back because of the November Senate elections.

    His narcissism knows no bounds. His legacy trumped control of he Senate.

    As usual, it’s all about Obama. Troop safety, senate seats, deserter or not; nothing matters but Obama.

    The American people are getting what they deserve for electing this ego driven neophyte.

  2. Shelly,

    I think you’ve gotten the debate off to a rollicking start! Let’s see if others chime in…..

  3. I am sympathetic to the Administration’s concerns that letting Congress know would have jeopardized ongoing negotiations with the Taliban–both those directly related to the release of Sgt. (or Pfc., as he apparently prefers to be addressed) Bergdahl and those more generally as regards the future of Afghanistan. Congressional staffs might as well be 535 sieves for all the OPSEC that can be expected out of Capital Hill.

    But the language of the 2014 NDAA (H.R. 3304, section 1035) does not require the entire Congress to be notified, but only certain Committees: Armed Services, Foreign Relations/Affairs, Appropriations, and the Select Committees on Intelligence. Perhaps Appropriations needn’t be on that list (although given that NDAA likely originated there, its hardly surprising that they are present). Maybe Armed Services could also be struck, and even Foreign Relations/Affairs. But isn’t the whole point of having Select Committees on Intelligence precisely to share this sort of sensitive information with Congress while also not risking leaks? I get not wanting to share information with the entire floor. But an Administration that is unwilling to trust the Select Committees on Intelligence seems to have overstepped its bounds in tone and demeanor, if not in a purely legalistic sense.

    Nor was this secrecy strictly necessary. The negotiations had been ongoing for a while. While the exact details may not have been known, the Select Committees on Intelligence could have been informed that negotiations were ongoing and that a transfer could occur at some point in the future, leaving the complete details to be fleshed out later. Had the Administration done this, I don’t think it would be in the position it is in now. Yes, Obama might get flak for not having cut Armed Services, Appropriations, and Foreign Affairs in on the action as he was technically supposed to do, but I think Joe Sixpack isn’t going to appreciate intra-Congress politics (and in all honesty these committees probably shouldn’t have been on that list to begin with). If Congress had been notified, even if not all the requisite committees were, this front-page political issue would never have been.

  4. Max,
    Your argument re: the relatively limited notification requirement under the 2014 national defense authorization is exactly the point members of Congress made during the 1986 Iran-contra hearings. Under existing legislation, Reagan was required to notify the two congressional intelligence committees in timely fashion before undertaking a covert operation. Needless to say, this didn’t happen then. While North defended the necessity for keeping covert operations secret, ultimately the failure to bring some members of Congress aboard significantly eroded Reagan’s public and professional standing when the operation was revealed. It remains to be seen whether, and to what degree, we will see a reprise of that loss of political support with Obama in the aftermath of the Bergdahl deal. I suspect the repercussions won’t be quite as extreme, but some damage is likely to occur.

    Addendum re: political fallout – see this:

  5. If the Select Committees had been notified, they would have gone ballistic. Especially the Senate Select Committee on Intelligence. Why?

    Because, its chair, Diane Feinstein is very smart and very political. She would have pushed back with everything she had. Read on…

    People who get elected to the US Senate, or House, care first and foremost about their jobs. Lincoln said “The first business of a politician is getting elected.” By deductive reasoning, the second business of a politician is getting re-elected.

    But, there is a third part; the gavels. The first vote each session of Congress determines who holds ALL the gavels. It is one party or the other. In the House, it is purgatory to lose control and have the other party run EVERYTHING. Bigger staffs, bigger offices, even better parking places.

    In the Senate, it is closer. It used to be a lot better to be in the minority, but Harry Reid just blew 200 years of tradition out the window for the minority by changing the rules to allow 51 votes to carry major issues. Procedural rules used to allow for the need for 60 votes to pass major issues. No more.

    Thus, the third and most relevant issue for Diane and other senior Senators on the Democratic side of the Senate; their precious Chairmanships. If the Republicans regain control of the Senate in the coming November election, the Chairmanships, and all the perks that go with them (staff, subpoena power, size and location of offices, parking places, even the control of what legislation is placed on the floor of the Senate) go bye bye. Harry Reid will become a footnote in history.

    Obama, in the few weeks he actually spent time in the US Senate, knows all of this. He knew that his own party would push back about a trade of five four star generals for a buck private deserter. But, as I have maintained, it is all about Obama and his legacy. He wants Gitmo closed and this was the first major step and he was going to take it. (To use his favorite punctuation)”PERIOD”.

  6. @Shelly, I disagree. While in hindsight this may not have been a political winner, I think that the Obama administration genuinely thought that this story would play as a positive human interest story akin to killing bin Laden, rescuing Captain Phillips, etc. With this in mind, I don’t think that Diane Feinstein would have vehemently objected to the trade, and even if she had done so, neither she nor the Republicans on Intelligence would have gone public with the information.

    Furthermore, this isn’t going to tip the balance of the mid-term elections. If there’s one thing I’ve learned from Prof. Dickinson’s blog, it’s that events like this have little to no effect on election outcomes. Whether the Democrats lose control of the Senate (or, more realistically, how much they lose it by) is not going to be affected by Sgt. Bergdahl’s escapades.

    I also am not sure I would characterize the five freed Taliban as “five star generals”. They’ve been out of the game for ten years now. It’s not related to the issue at hand, but I think they are more of a liability in Guantanamo then they are free in Qatar. Every intelligence agency in the world has reg-flagged these individuals; if they decide to engage in acts of terror against the United States it is only a matter of time before they get caught again… only this time, around, MQ-9s don’t take prisoners.

  7. We will never know whether Feinstein would have backed the deal b/c she wasn’t consulted – which is the key issue under discussion here. It likely turns on what the nature of the deal being discussed was – we know she resisted some version of an earlier swap, but the details of that proposed transaction are sketchy. For what it is worth, she walking back her criticism now:

    At this point, I tend to think Max is correct re: the likely minimal electoral implications of the swap – I suspect not many votes will change on account of this controversy alone. But much depends on whether the story has legs. So far polling data suggests a mild partisan split in the reaction to the trade, with independents tending to lean against it. But it’s hard to tell how strongly those preferences are held.

  8. The numbers may not move too much, but the intensity has moved the needle. People who are angry, vote.

    Between Benghazi, the VA and now The Swap, I think Democrats will be hard pressed to find support among the military, active or retired.

    But, what do I know? The moment of truth will come all too soon for many present officeholders. Let’s look on November 5 and see what happened.

  9. A couple of quick points:

    Regarding the polling, I think public opinion may ultimately be affected by Bergdahl’s own actions, rather than legal issues. Current polling is shaped by the assumption that he was a deserter. If that story changes, then opinion may change as well.

    Regarding Obama’s failure to inform Congress, I’m skeptical about the secrecy argument. He could have told the eight leaders and needn’t have waited until the deal was completely finalized before cluing them in. Rather, I suspect that the problem is the growing assumption of Congressional dysfunction. This is especially true of anything associated with Guantanamo, where Democrats also contribute to the obstruction. This deal had a short time frame, and to consult Congress would not only have meant delays but inaction. Feinstein and others had already objected to a more ambitious version of the deal back in 2011 as not ambitious enough. While we don’t know that that deal ultimately failed because of those objections, Congressional insistence on renegotiating this deal probably would have killed it. Hence, the administration decided to act unilaterally and hope that success would ease the blow. This, of course, points to an even larger constitutional issue. Congressional obstruction of the president and, more recently, presidential avoidance of Congress are working themselves into the system.

  10. There really is only one remedy for the continued violations of the Constitution by Holder and Obama. It is the dreaded “I” word. Useless without a chance of conviction. Harry Reid stands between that and continued violations.

    What happens next November may well put an end to this Imperial Presidency where he acts more like a King than a President.

    If the Republicans can avoid handing the Senate back to the Democrats in November, I am predicting a rough go for Obama and Holder in the last two years of their reign.

  11. Scott – I think your analysis re: the roots of Obama’s reluctance to consult Congress are spot on. It is likely that had he done so, Feinstein (and this is a point Shelly made also) may have torpedoed the plan for its failure to think big in terms of getting more Taliban buy in for diplomatic talks. But sometimes getting this type of negative response from Congress via consultation is valuable, as it alerts the President to the likely bad political repercussions should he move ahead unilaterally. And we are seeing those repercussions right now, with polls indicating fairly strong opposition to the prisoner swap. Sometimes delay, and inaction, is the right choice for the President, frustrating as the option can be. Whether that type of delay and obstruction is growing more prevalent, as you suggest, is an open question. Certainly, when it comes to legislative productivity, there is some research (see Sarah Binder’s latest Brookings paper) indicating gridlock is on the rise.

  12. Matt:

    My point was not considering the Taliban; I think an overall deal with them is impossible. We just have to kill them all.

    My point was the control of the US Senate. Diane knows that if Obama loses the Senate, her gavel goes with it. She is shrewd and knows that the Senate is close to a tipping point in November. This President just doesn’t seem to understand, or, more likely, give a rat’s ***.

    I don’t remember when we have had a President who had such awful relations with the Congress, both sides.

  13. MD – Thanks. Just to be clear, I’m not saying that avoiding Congress is a good thing. It’s dysfunction growing out of dysfunction.

  14. Shelly,

    I don’t dispute that Feinstein wants to retain her seat, and see Dem’s retain majority control of the Senate. I’d be disappointed otherwise – that’s her job, after all. (I disagree, by the way, with the idea that Obama doesn’t care about retaining Democratic Senate control – after all, his legacy is at stake! If Republicans retake the Senate, and hold the House, they come that much closer to weakening Obamacare.) But her desire to hold her seat is not in conflict with her desire to do what’s right, as she sees it, vis a vis the Taliban. Political control and making good policy are not necessarily contradictory goals.

  15. Matt:

    All true. I was just pointing out that the first consideration of every politician is to keep their job; only an extraordinary one will put America before their seat.

    Diane would have pushed back hard; she likes being Chair of Intel. I speculate she’d resign her seat if the control of the Senate went Republican in November. She’s old and super rich. Being in the minority will not appeal to her. Many others as well, I’d guess.

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