Congress Knew the White House Had Considered a Prisoner Swap

The administration floated an exchange for Bergdahl in 2011, and lawmakers pushed back. This time, Obama opted to ask forgiveness instead of permission.

House Intelligence Chairman Mike Rogers (R-MI) (R) and House Intelligence ranking member U.S. Rep. Dutch Ruppersberger (D-MD) speak to the media at a news conference on Capitol Hill, March 25, 2014 in Washington, DC.
National Journal
Sara Sorcher
June 3, 2014, 1:24 p.m.

Why didn’t the White House no­ti­fy Con­gress be­fore swap­ping ter­ror­ist sus­pects for Sgt. Bowe Ber­g­dahl? Per­haps be­cause Pres­id­ent Obama knew he’d find res­ist­ance.

He already had once be­fore, ac­cord­ing to an aide to Mike Ro­gers, chair­man of the House In­tel­li­gence Com­mit­tee. In 2011, the ad­min­is­tra­tion floated the pos­sib­il­ity of ex­chan­ging pris­on­ers for the Amer­ic­an POW from the war in Afgh­anistan but then backed off after law­makers from both parties raised ques­tions about the im­pact of the swap on the safety of oth­er U.S. per­son­nel, among oth­er is­sues.

So when Obama de­cided to swap five Taliban ter­ror­ist sus­pects be­ing held at Guantanamo for the cap­tive sol­dier, only a hand­ful of law­makers were told in ad­vance — and then only in the barest de­tail.

Sen­ate Ma­jor­ity Lead­er Harry Re­id was among that small group. The staff dir­ect­or for James In­hofe, the top Re­pub­lic­an on the Sen­ate Armed Ser­vices Com­mit­tee, also re­ceived a call shortly be­fore Obama’s press con­fer­ence on Sat­urday to an­nounce the ex­change. “Ba­sic­ally, they were giv­ing us no­ti­fic­a­tion to tune in­to the press con­fer­ence,” an In­hofe aide said, speak­ing un­der con­di­tion of an­onym­ity be­cause of the sens­it­iv­ity about the timeline. “There were no de­tails provided in that phone call.”

The next day, Sen­ate Armed Ser­vices re­ceived the of­fi­cial no­ti­fic­a­tion — a doc­u­ment ex­plain­ing that the ex­change had already taken place. That too con­tained few de­tails, the aide said, and the com­mit­tee is still chas­ing down the an­swers.

Mem­bers of the House also were left in the dark. Ro­gers was no­ti­fied “after the fact…. Whenev­er the swap happened, he was no­ti­fied sev­er­al hours later,” his aide said. House Armed Ser­vices Com­mit­tee Chair­man Buck McK­eon, too, was caught flat-footed by the an­nounce­ment. “We got a call mid-week, around Wed­nes­day, to the staff dir­ect­or say­ing, ‘Something may hap­pen, some­time soon, stay near your phone,’ ” a McK­eon aide said. “But there was no in­dic­a­tion of what that was, or even the gen­er­al sub­ject mat­ter.”

A few hours after Ber­g­dahl was re­covered, the staff dir­ect­or got an­oth­er call ex­plain­ing what happened. “What was sup­posed to be 30 days ahead, did not come un­til after the fact,” the McK­eon aide said.

Mem­bers of Con­gress al­ways knew it was pos­sible Obama would do this without of­fer­ing any warn­ing, law­makers and aides note, cit­ing the sign­ing state­ment Obama at­tached to the Na­tion­al De­fense Au­thor­iz­a­tion Act for Fisc­al Year 2014. It stated the pres­id­ent in­ten­ded to act swiftly in ne­go­ti­ations with for­eign coun­tries about de­tain­ee trans­fers, im­ply­ing that the 30-day no­tice re­quire­ment would be ig­nored.

“Giv­en that no­tice, mem­bers of Con­gress should not be sur­prised that he ac­ted as he did in the cir­cum­stances that ex­is­ted,” said Sen­ate Armed Ser­vices Com­mit­tee Chair­man Carl Lev­in, who plans to hold a clas­si­fied brief­ing with ad­min­is­tra­tion mem­bers next Tues­day.

Fur­ther, some con­gres­sion­al lead­ers knew the ad­min­is­tra­tion had already thought through such a swap. They had been briefed by seni­or ad­min­is­tra­tion of­fi­cials from the State and De­fense de­part­ments as well as the CIA and Na­tion­al Se­cur­ity Coun­cil in late 2011 and early 2012 about a pos­sible ex­change for Ber­g­dahl, ac­cord­ing to a House in­tel­li­gence com­mit­tee aide. In those meet­ings, Am­bas­sad­or Marc Gross­man and Denis Mc­Donough, who now serves as Obama’s chief of staff, led the dis­cus­sion. 

Law­makers pressed those of­fi­cials for an­swers to ques­tions about how an ex­change might af­fect the timeline for pulling out of Afgh­anistan and wheth­er the swap might en­cour­age ter­ror­ist groups to at­tempt to snatch U.S. per­son­nel.

After the second meet­ing between law­makers and these seni­or ad­min­is­tra­tion of­fi­cials, the White House de­cided against more brief­ings, say­ing the pro­spects of the ex­change had di­min­ished, ac­cord­ing to the com­mit­tee aide. 

The White House might be ac­know­ledging the dam­age it has done to already poor re­la­tions with Con­gress by go­ing for­ward with an ex­change without bring­ing those mem­bers of Con­gress back in­to the loop.

Sen. Di­anne Fein­stein, who chairs the Sen­ate In­tel­li­gence Com­mit­tee, said that Deputy Na­tion­al Se­cur­ity Ad­viser Tony Blinken called her Monday night to say he was sorry law­makers were not no­ti­fied soon­er. “He apo­lo­gized for it and said it was an over­sight,” Fein­stein said.

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