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An Administration that Lies Through Its Teeth, Part III

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The question whether the President could lawfully release five Taliban commanders without notifying Congress continues to roil legal academia.  In previous posts, here and here, I have chimed in, and have noted the views of others, including Prof. John Yoo of Berkeley and Prof. David Pozen of Columbia, who support my view that the President acted unlawfully.  Taking the other side in two compelling notes in the comments section to the former post, is my wife, former Scalia clerk and Associate White House Counsel, now Adjunct Professor of Law at Georgetown, Lee Liberman Otis.  Lee notes in particular the very broad Constitutional powers the President is given as commander-in-chief.

Today, another quite apt attorney, Visiting Professor Louis Fisher of the College of William and Mary Marshall-Wythe Law School, also argues that the President acted unlawfully (and hypocritically).  As he notes in his National Law Journal article:

In 2009, the Office of Legal Counsel found [Bush White House claims about the President's commander-in-chief powers] inconsistent with constitutional text. Because Article 1 grants significant war powers to Congress, legal opinions that categorically preclude Congress from enacting legislation concerning the detention, interrogation, prosecution and transfer of enemy combatants "are not sustainable," the office found. The office shared its analysis with the U.S. attorney general, the White House counsel, the legal adviser to the National Security Council, the principal deputy general counsel of the Department of Defense and several offices within the Justice Department.

Five years later, the Obama administration decided it could send five senior members of the Afghan Taliban from Guantánamo to Qatar in exchange for Sgt. Bowe Bergdahl, held by the Taliban. The administration said it did not have to comply with a statute requiring the administration to give Congress 30 days notice before transferring detainees. Before making the transfer, the Defense Department sought guidance from the Justice Department, but no one in the DOJ, including the Office of Legal Counsel, has issued a legal memo to justify these transfers.

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