The Administration’s explanation for why it was lawful not to wait 30 days to complete the Bergdahl exchange

National Security Council Caitlin Hayden just issued this statement concerning “why it was lawful for the Administration to proceed with the [Bergdahl] transfer notwithstanding the notice

requirement in Section 1035(d) of the FY14 NDAA.”  It turns out the Administration was, indeed, relying on a statutory argument, namely, that “Congress did not intend that the Administration

would be barred from taking the action it did in these circumstances”:

First, there is no question that the Secretary made the determinations required to transfer the detainees under Section 1035(b)of the FY 2014 NDAA.  Section 1035(b) states that the Secretary

of Defense may transfer an individual detained at Guantanamo to a foreign country if the Secretary determines (1) that actions have or will be taken that substantially mitigate the risk

that the individual will engage in activity that threatens the United States or U.S. persons or interests and (2) that the transfer is in the national security interest of the United States.

  The Secretary made those determinations.

With respect to the separate 30-day notification requirement in Section 1035(d), the Administration determined that the notification requirement should be construed not to apply to this

unique set of circumstances, in which the transfer would secure the release of a captive U.S. soldier and the Secretary of Defense, acting on behalf ofthe President, has determined that

providing notice as specified in the statute could endanger the soldier’s life.

In these circumstances, delaying the transfer in order to provide the 30-day notice would interfere with the Executive’s performance of two related functions that the Constitution assigns to

the President: protecting the lives of Americans abroad and protecting U.S. soldiers.  Because such interference would significantly alter the balance between Congress and the President,

and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these

circumstances.

The President also has repeatedly expressed concerns regarding this notice requirement.  For example, the President’s FY14 NDAA signing statement indicated that “Section 1035 does not,

however, eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles.  The executive branch

must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.” To the extent that the

notice provision would apply in these unique circumstances, it would trigger the very separation of powers concerns that the President raised in his signing statement.

In these unique circumstances, in which the Secretary of Defense made the determinations required by Section 1035(b) and in light of the Secretary’s assessment that providing notice as

specified in Section 1035(d) could endanger the soldier’s life, the Secretary of Defense’s failure to provide 30 days’ notice under Section 1035(d) was lawful.

Marty Lederman (Bluesky - X) is Executive Editor at Just Security. He is a professor at the Georgetown University Law Center. He served as Deputy Assistant Attorney General at the Office of

Legal Counsel from 2021-2023 and 2009-2010, and as an Attorney Advisor at the Office of Legal Counsel from 1994-2002.

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