Wednesday, June 04, 2014


I think the administration's claim that it did not break the law when it failed to give 30 days notice to Congress because of an implied emergency exception is pretty lame. Obama pretty clearly broke the law by not giving notice. Personally, I think the 30 day notice rule is pretty stupid and all goes back to members of Congress' unbelievable cowardice when it comes to Guantanamo detainees. But it was the law, Obama ignored it, and neither the signing statement nor any post-hoc implied exception changes that fact.

There doesn't seem to be any penalty provision in that portion of the statute, so there's no clear legal consequence to the administration's violation (other than the political fallout). But it is a clear violation.

ADDENDUM: Charlie Piece directed my attention to this NRO piece by Andrew McCarthy. Andrew claims that Obama "is now doing the same thing" as President Bush when Bush authorized approximately 500 wiretaps in violation of the Foreign Intelligence Surveillance Act of 1978 (FISA). Just as people called for Bush to be impeached for those violations of the law, McCarthy argues that is is "hypocrisy" to call for Bush's impeachment then and not for Obama's now in light that he did not give Congress the legally required 30 days notice of the transfer of Gitmo detainees in the Bergdahl swap.

Andrew is missing a pretty key point to the FISA-Bush impeachment argument. Violations of FISA are a felony. Each violation is punishable by up to five years in prison and a fine of up to $10,000. (See 50 U.S.C. '1809(c)). Bush committed approximately 500 felonies in authorizing his warrantless wiretap program, which, if prosecuted, he would be facing a possibility of 2,500 years in prison and $5,000,000 in fines. He also arguably violated the Fourth Amendment of the Constitution each time as well. Committing hundreds of felonies and constitutional violations would quite clearly meet the standard of "high crimes and misdemeanors" that is required for impeachment.

Obama, on the other hand, violated a statute that was not a criminal statute. As noted above, there is no penalty provision in the statute that imposed the reporting requirement. So while he broke the law, it is not clear that there is any "crime" that would subject him to prosecution, much less a "high crime or misdemeanor." Congress, in its wisdom, passed a law requiring the President give it 30 days notice of any Gitmo transfers. But apparently, Congress wasn't wise enough to make any rules about what happens if the President doesn't do it. While Obama broke a law, there is no basis for prosecution, and that is entirely Congress' fault.

As a practical matter, a "high crime and misdemeanor" means whatever Congress decides it means. So if they had the votes, Congress could rule that Obama's actions were impeachable. But let's face it, they don't have the votes, just as the pro-impeachment liberals didn't have the votes to impeach Bush when the FISA thing came out. But political realities aside, it is not hypocrisy to believe that Bush's violations of FISA were impeachable offenses, but Obama's failure to give Congress 30 days notice in the Bergdahl swap is not. The two violations of the law are pretty different.