I'm sure folk have read about the release of Sgt. Bowe Bergdahl from Taliban custody in exchange for transferring five Taliban mutant super-terrorists (worse than Magneto!), formerly held at Gitmo, to Qatar. And likely the assorted related and unrelated right-wing outrage that has accompanied the exchange, most of it predictably misdirected, offensive, and/or irrelevant.
What is of interest is that the Obama Administration is running around openly admitting, it seems to me, that it violated the 30 day notification requirement of the National Defense Authorization Act for Fiscal Year 2014 for transferring folk out of Gitmo. (text of the law is here).
Of course, it would be rather unseemly for the President to run around openly violating duly enacted statutes of the US of A (BURN THE TAPES BARACK!), so there must be an attendant explanation, justification, legal fig leaf, thin reed, etc., lest we worry. And aha! There is! To wit:
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.
"Two related functions the Constitution assigns to the President." Neither of which, of course, are specifically listed in the Constitution. Presumably they're referring to the Commander-in-Chief clause and possibly the whole taking care that the laws be faithfully executed thing (query which way the latter cuts in this case), the former having become a handy catchall for Presidents of both parties. Standing against this rather flimsy justification (to put the best light on it), are the specifically listed powers of Congress, which include the power to "make rules concerning captures on land and water" and "make rules for the government and regulation of the land and naval forces." Seems that that is exactly what Congress did with the 30 day requirement (however stupid and counterproductive).
But apparently, the Administration really really had to:
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 of the President, has determined that providing notice as specified in the statute could endanger the soldier’s life.
I would have hoped that there was a better legal justification than those two paragraphs, but it appears not to be on offer. Maybe in a few years we will be allowed to see the OLC memo (although I'm guessing there isn't one). Anyway, not the biggest deal in the world but not ideal either.