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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.