THE UNITED STATES’ PRISONER SWAP WITH RUSSIA: DO PRESIDENTS HAVE EXCLUSIVE POWER OVER INTERNATIONAL PRISONER EXCHANGES?
Author: Katherine Shearer, Senior Editor
Introduction
In August 2024, the United States and Russia completed their biggest prisoner swap in post-Soviet history.[i] President Biden’s agreement brought home three Americans who were detained in Russia: Evan Gershkovich, Paul Whelan, and Alsu Kurmasheva.[ii]
Although President Biden is being hailed for the return of these Americans, there are criticisms that have come to light.[iii] One criticism of the exchange is that the United States released dangerous prisoners convicted of espionage, assassinations, and other heinous crimes against both the United States and other countries, despite the United States not being in a direct conflict with Russia.[iv] Twenty-four prisoners were exchanged, and eight were sent to Russia.[v] Should the president have the power to exchange prisoners with some of the United States’ most contentious enemies? This question brings up another: Does the president even have the power to do this? To answer that antecedent question, we look to the Constitution.
The President’s Power in the Constitution
The Constitution is silent when it comes to exchanging prisoners of war. Nevertheless, the Commander in Chief Clause in Article II, Section II is used to justify presidents entering into prisoner swap deals during conflict.[vi] The clause states:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.[vii]
Although the Commander in Chief Clause does not explicitly allow the president to engage in prisoner swaps, this clause has given the president incidental powers over wartime detainees.[viii] However, this power may only be applicable when Congress has declared armed conflict.[ix] Critics of Biden’s prisoner swap question whether presidential authority over prisoner exchanges pursuant to the Commander in Chief Clause is part of the preclusive core of presidential powers, wielded exclusively by the president alone, and they argue that Congress must be involved.[x]
Yet, these critics are misguided since the Commander in Chief Clause allows the president to act unilaterally for operations that occur during conflict.[xi] Therefore, so the logic goes, if the United States was in any state of conflict, whether or not with Russia, the president has unilateral power over a prisoner swap.[xii]
Exclusive or Concurrent Executive Power?
In the United States Constitution, powers between Congress and the president can be either concurrent or exclusive.[xiii] Concurrent powers do not preclude the exercise of a power by the other entity.[xiv] In contrast, an exclusive power means that it is at the core of the particular entity’s power, and is both not subject to additional authorization and typically provides a large scope of discretion.[xv]
The issue of concurrent powers over prisoner exchanges between Congress and the president was addressed in Hamdi v. Rumsfeld, where the Supreme Court discussed a broad, exclusive core to the president’s war power that cannot be limited by Congress.[xvi] In Hamdi, the Court considered whether the president had the exclusive power to detain a suspected war criminal after Congress passed the Authorization for Use of Military Force (“AUMF”).[xvii] The AUMF gave authorization for the President to use “all necessary and appropriate force,” and the Court held that although the AUMF did not give the president a “blank check” to do as he wishes, it satisfied the statutory requirement that a detention be “pursuant to an Act of Congress.”[xviii]
Therefore, adhering to the ruling in Hamdi, it would seem that the president can act on his own concerning war prisoners when the United States is engaged in any conflict.[xix] However, critics may argue that without the express authorization of wartime by Congress, the president cannot act on his own.
Separation of Powers Concerns
As previously stated, the Constitution is silent when it comes to prisoner swaps—that goes for both the president and for Congress.[xx] Those in favor of President Biden’s prisoner swap have argued that since there is no constitutional provision nor Supreme Court decision in favor of either branch exchanging non-wartime prisoners, the power to conduct prisoner swaps continues to lie exclusively with the president.[xxi] After all, the only cases on the matter, though involving enemy combatants, settle the issue under the president’s exclusive power.[xxii] The amount of time it would necessarily take for a 535-membered and two-house Congress to agree on a prisoner exchange militates against involving them in the executive-like process of a prisoner negotiation and exchange.[xxiii]
However, opponents against President Biden’s prisoner swap argue that this power is concurrent and shared with Congress.[xxiv] Specifically, they contend that Congress must declare a Congressional authorization to give the president the authority to engage in prisoner swaps.[xxv] For example, the Court in Hamdi held that the president was able to detain prisoners due to the AUMF where Congress granted the president the authority.[xxvi] Therefore, opponents may argue that since there was no explicit declaration of war or conflict against Russia, the president was not able to solely negotiate in the prisoner swap.
Conclusion
Whether the Supreme Court would say that the president alone has the authority to exchange prisoners with a country that the United States is not at war with is an open question. However, the Supreme Court would likely find that as long as the United States is in armed conflict with any nation, the president has exclusive power over prisoner swaps. Since the United States was in conflict during Biden’s exchange with Russia—namely, the United States has been in armed conflict against the Islamic State by undertaking airstrikes in Iraq and Syria[xxvii]—President Biden likely had exclusive control over prisoner swaps under the Commander in Chief Clause based on Hamdi’s rationale. Therefore, President Biden’s prisoner swap was likely constitutional due to the United States being in armed conflict with other nations.[xxviii]
[i] Eric Tucker, Dasha Litvnova & Matthew Lee, 3 Newly Freed Americans are Back on US Soil After A Landmark Prisoner Exchange, AP NEWS (Aug. 2, 2024), https://apnews.com/article/russia-gershkovich-whelan-d803e266cb4e60135ec5d668d684529f.
[ii] Id.
[iii] Matt Spetalnick & Andrea Shalal, Prisoner Swap a Legacy Boost for Biden but Critics See Risks, REUTERS (Aug. 2, 2024), https://www.reuters.com/world/prisoner-swap-legacy-boost-biden-critics-see-risks-2024-08-01/.
[iv] Id.
[v] Id.
[vi] Spetalnick & Shalal, supra note iv.
[vii] U.S. Const. art. 2 § 2, cl. 2.
[viii] Steven M. Maffucci, Comment, Leave No Soldier Behind? The Legality of the Bowe Bergdahl Prisoner Swap, 63 BUFF. L. REV. 1325 (2015).
[ix] Id.
[x] Id.
[xi] Zach Beauchamp, A new report says Obama’s Bowe Berghdahl prisoner swap was illegal. Here’s what it missed, VOX (Aug. 21, 2014), https://www.vox.com/2014/6/9/5786834/obama-law-bergdahl.
[xii] Id.
[xiii] Maffucci, supra note viii.
[xiv] Jared Cole, Historical Gloss and Congressional Power: Control over Access to National Security Secrets, 99 VA. L. REV. 1855 (2013).
[xv] Id.
[xvi] Id.; Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
[xvii] Hamdi, 542 U.S. at 509.
[xviii] Id. at 546.
[xix] Maffucci, supra note viii.
[xx] Quinn Kshsay, Article, In Your House, I Long to Be: Congress, Commander-in-Chief, and the Power to Conduct Prisoner Exchanges, 6 NAT’L. SEC. L.J. 98, 114-15 (2018).
[xxi] Id.
[xxii] Boumedine v. Bush, 553 U.S. 723 (2008); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
[xxiii] Kshsay, supra note xx, at 118.
[xxiv] Napolitano, supra note xxv.
[xxv] Id.
[xxvi] Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
[xxvii] United States of America, RULAC GENEVA ACADEMY, (Aug. 14, 2022), https://www.rulac.org/browse/countries/united-states-of-america.
[xxviii] Maffucci, supra note viii.