Congress to Defense Officials: If You Had Time to Check Legality of Bergdahl Swap, You Had Time to Tell Us

The Obama administration consulted with the Justice Department but did not inform Congress before the swap.

Secretary of Defense Chuck Hagel
National Journal
June 11, 2014, 10:02 a.m.

The dis­pute over the Obama ad­min­is­tra­tion’s de­cision not to no­ti­fy Con­gress about the Taliban pris­on­er swap hinges in large part on the days be­fore the ex­change was fi­nal­ized.

In a House Armed Ser­vices Com­mit­tee hear­ing on Wed­nes­day, Chair­man Buck McK­eon grilled De­fense Sec­ret­ary Chuck Hagel about the timeline of the swap in which Army Sgt. Bowe Ber­g­dahl was traded for five high-rank­ing Taliban de­tain­ees held at Guantanamo Bay.

“After the ex­change was set in mo­tion, only 96 hours passed be­fore Ser­geant Ber­g­dahl was in our hands,” Hagel told the com­mit­tee. “Throughout this peri­od, there was great un­cer­tainty about wheth­er the deal would go for­ward.”

Hagel said de­fense of­fi­cials checked in with the Justice De­part­ment about the leg­al­ity of the swap be­fore it happened. Both de­part­ments de­cided it was in­deed leg­al, a de­cision that some have dis­puted since news of the swap broke.

Steph­en Pre­ston, the De­fense De­part­ment’s gen­er­al coun­sel, said he could not give the com­mit­tee the spe­cif­ic time that of­fi­cials con­sul­ted with the Justice De­part­ment about the swap’s leg­al­ity. He did say that de­fense of­fi­cials re­ceived the leg­al green light for the ex­change be­fore the swap agree­ment was fi­nal­ized with Qatari of­fi­cials.

The White House is re­quired by law to no­ti­fy Con­gress 30 days be­fore a pris­on­er swap oc­curs.

McK­eon said that if the ad­min­is­tra­tion had time to talk to people out­side of the pres­id­ent’s na­tion­al se­cur­ity team, he said, then the White House had enough time to no­ti­fy Con­gress be­fore the deal took place. “There was plenty of time,” he said. “You had time to talk to the De­part­ment of Justice. Eighty or ninety people were in­formed and knew about this. But Con­gress was not in­formed.”

McK­eon said that the se­cret­ive nature of the deal sug­gests an at­tempt by the White House to act first and ask for for­give­ness later. “You had real push-back from Con­gress,” he said of the first time the ad­min­is­tra­tion ap­proached Con­gress with the idea for a pris­on­er swap to bring Ber­g­dahl home, in Novem­ber 2011. “They didn’t want those five guys re­leased.”

Both Hagel and Pre­ston said that the de­cision to trans­fer Ber­g­dahl was not made un­til May 12, when “se­cur­ity as­sur­ances” were in place. The deal was only fi­nal­ized days be­fore the swap took place on May 31, said Pre­ston, so there was no chance to no­ti­fy Con­gress in ad­vance.

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