Will the Administration Do Another Prisoner Swap Without Notifying Congress?

Well, maybe.

President Barack Obama walks with the parents of Sgt. Bowe Bergdahl, Jani Bergdahl (L) and Bob Bergdahl (R) back to the Oval Office after making a statement regarding the release of Sgt. Bergdahl from captivity.
National Journal
Jordain Carney
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Jordain Carney
June 11, 2014, 9:43 a.m.

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.

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