Whether President Obama broke the law by failing to comply with the National Defense Authorization Act’s requirement of 30 days’ notice to Congress when he swapped those five Taliban terrorists imprisoned at Guantanamo for Sgt. Bowe Bergdahl is a more complicated question than many might imagine.
To be sure, there was no advance notice to Congress. But Mr. Obama could argue that the law is unconstitutional in that it unduly infringes on the president’s constitutional powers as commander-in-chief.
What intrigues us, however, are the rather curious justifications offered up by the administration in a series of after-the-fact attempts at explaining away the non-compliance.
The White House initially spoke of an urgent need to close a deal with the Taliban that was more than a year in the making because of fears Sgt. Bergdahl was in failing health and would have been killed if news of an impending exchange had been leaked.
Thus, National Security Council spokeswoman Caitlin Hayden said:
Given the credible reports regarding the risks of great harm to Sgt. Bergdahl and the rapidly unfolding events surrounding his recovery, it was lawful for the administration to proceed with the transfer notwithstanding the notice requirement.
Meanwhile, Secretary of Defense Chuck Hagel said the reason for not informing Congress was that “it was our judgment based on the information that we had that his life, his health were in peril…. Can you imagine if we would have waited or taken the chance of leaks over a 30-day period?”
And while White House officials, seeking to tamp down the growing controversy, held a classified briefing with senators about the president’s decision to bypass Congress, several of the attendees said afterward that they had not seen convincing evidence that Sgt. Bergdahl’s health had recently deteriorated or that his life was in immediate danger.
Democratic Senator Diane Feinstein, who chairs the Senate Select Intelligence Committee and is normally a dependable administration ally, was quoted as saying that she had not been provided with any evidence that there was a “credible threat” to Sgt. Bergdahl’s life.
The administration’s argument, of course, fails to pass the test of logic. Why would the Taliban, fervently wishing to win the release of five of their senior members, jeopardize the only leverage it had to accomplish that goal?
Further fueling congressional anger is the revelation that several dozen administration officials knew of the deal even though no member of Congress was told.
“It strikes me as unfortunate that they could have 80 to 90 people in the administration aware of what was happening and not be able to trust a single Republican or Democrat in the House or the Senate,” said Representative Greg Walden (R-OR).
Along these lines, it is interesting that as congressional anger mounts by the day, Secretary Hagel has apparently become the designated fall guy. When President Obama appeared in the Rose Garden with Sgt. Bergdahl’s parents, he was happy to take the credit for their son’s release. A short while later, Mr. Hagel told the BBC that he, along with other senior officials including the secretary of defense, the secretary of state, the chairman of the Joint Chiefs of Staff, the director of national intelligence, and the attorney general had all agreed on the swap.
But Representative Buck McKeon (R-CA) said administration officials told him and several of his colleagues that it was Secretary Hagel who made the final call.
“It was the president of the United States [who] came out [in the Rose Garden] with the Bergdahls and took all the credit and now that there’s been a little pushback he’s moving away from it and it’s Secretary Hagel?” asked Rep. McKeon.
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