Peter had a couple of questions yesterday in response to my post about the legality of the process by which President Obama brough Bowe Bergdahl back to the United States. First he asks:

If Congress required the President to report on any release of prisoners, and if, as appears to be the case, the President made no effort to do so, didn’t the President, um, break the law?

Yes, I think he violated a statute. And he did not have the Constitution on his side. The law here requires 30 days advance notice. If an operation requires stealth and speed, I think the President can have recourse to his Commander-in-Chief power. Even then, though, I would expect him to at least notify congressional leadership or the gang of eight, who have privileged access on intelligence matters. It doesn’t look like he did either here. 

In this case, of course, the negotiations went on for years. It is not clear to me why Obama could not have notified Congress. He need not even have said he was releasing the Gitmo detainees for Bergdahl, only that he might be turning the five prisoners over to the Taliban. I don’t see how that would have interfered with his Commander-in-Chief power. 

As for Peter’s second question:

If [the president broke the law], don’t members of Congress themselves have standing to do something about it? Couldn’t any of our 435 representatives and 100 senators file suit?

The problem is that reporting requirements are not enforceable in court. Members of Congress do not have standing to bring lawsuits against the executive, except in unusual circumstances. This is not one of them. In order for Congress to respond to the president, they’d have to pass a funding cutoff for any prisoner transfers out of Gitmo. It’s not the most satisfying response, but it’s what they’ve got available to them.