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Will the Administration Do Another Prisoner Swap Without Notifying Congress? Will the Administration Do Another Prisoner Swap Without Notifying Con...

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Will the Administration Do Another Prisoner Swap Without Notifying Congress?

Well, maybe.


President Obama walks with the parents of Sgt. Bowe Bergdahl.(J.H. Owen-Pool/Getty Images))

Lawmakers looking for reassurances that the Obama administration would never make another Guantanamo Bay prisoner swap without telling them first didn't exactly get what they were looking for Wednesday.

Speaking before the House Armed Services Committee, Defense Secretary Chuck Hagel said the administration would follow the 30-day requirement "unless there is an extraordinary set of circumstances."


Army Sgt. Bowe Bergdahl was released May 31 to U.S. special operations forces in exchange for the release of five Taliban members from the U.S. facility at Guantanamo Bay. After leaving his base in Afghanistan in 2009, Bergdahl was held for nearly five years.

During an occasionally contentious hearing, lawmakers pressed Hagel and Stephen Preston, the Defense Department's general counsel, on why Congress wasn't notified 30 days beforehand as required under the 2014 National Defense Authorization Act.

"The reason I think they weren't informed is, because when you originally brought it up [in 2011] … you had real pushback from Congress, … and so this time you decided you would bypass Congress," Chairman Buck McKeon said.


Lawmakers on both sides of the aisle have questioned—and outright criticized—the administration's decision to move forward with Bergdahl's release without informing Congress, with McKeon estimating that 80 to 90 people knew about the swap before it happened.

Democrat Rep. Adam Smith of Washington defended the administration's decision to release five members of the Taliban to the Qatari government, saying "the president is not pursuing this out of some nakedly political goal [to close Guantanamo.]"

But Smith, who frequently defends the administration, did object to the fact it did not give 30 days' notice. "It is wrong … that you didn't take the top leadership in Congress and talk about it," Smith said. "The law is the law. The way you challenge constitutionally is, you go to court."

For its part, the administration argued that it had spoken with the Justice Department before the swap about whether it could circumvent the 30-day notification requirement because of the "extraordinary circumstances" and short timeline of the Bergdahl swap.


"The Justice Department … told the president he had the constitutional authority to do that," Preston said.

But Hagel acknowledged that the administration's decisions weren't perfect.

"In hindsight … can we do better? … Yes, we could have done this better. But I also said that we thought we had one shot here [to recapture Bergdahl]," Hagel said.