Congress: Obama Went Behind Our Backs on Bergdahl and There’s Almost Nothing We Can Do About It

Angry as many Republicans and some Democrats are about the violation of the 30-day rule, Congress is acknowledging that they can’t enforce it.

U.S. President Barack Obama speaks during an East Room event at the White House June 9, 2014 in Washington, DC. President Obama signed a presidential memorandum on 'reducing the burden of student loan debt.'
National Journal
Elahe Izad and Sarah Mimms
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Elahe Izad Sarah Mimms
June 11, 2014, 1 a.m.

To con­gres­sion­al crit­ics, Pres­id­ent Obama ap­pears to have cir­cum­ven­ted fed­er­al law by not in­form­ing Con­gress 30 days in ad­vance of re­leas­ing five Taliban pris­on­ers from Guantanamo Bay. That’s surely a re­cipe for Re­pub­lic­an out­rage, enough to fuel calls for law­suits, im­peach­ment, or new le­gis­la­tion.

But in terms of re­spond­ing to the pres­id­ent’s ac­tions, or pre­vent­ing the ad­min­is­tra­tion from act­ing sim­il­arly in the fu­ture, there isn’t much Con­gress can do. And Re­pub­lic­ans know it.

“I guess we have to go through the at­tor­ney gen­er­al, who does he work for?” Re­pub­lic­an Rep. Jeff Miller quipped Monday as he ex­ited a closed brief­ing on the mat­ter. “It’s un­for­tu­nate. This is a very im­port­ant ques­tion that has to get answered: the con­sti­tu­tion­al­ity of the [Na­tion­al De­fense Au­thor­iz­a­tion Act], and I’m very hope­ful that we will pro­ceed through and get it cla­ri­fied and answered be­cause this is a total shift in the way the United States does busi­ness.”

Re­pub­lic­an Sen. Chuck Grass­ley like­wise noted the fu­til­ity of the situ­ation this week. “There’s noth­ing we can do about the fact that he didn’t no­ti­fy us and vi­ol­ate the law. There’s a lot that we can do to get an un­der­stand­ing of how the pres­id­ent ar­rived at that con­clu­sion, like the con­sti­tu­tion­al­ity, the leg­al­ity.”

The spe­cif­ic leg­al is­sue here is a pro­vi­sion in the NDAA that Pres­id­ent Obama signed in­to law in Decem­ber 2013, which stated the ad­min­is­tra­tion must no­ti­fy Con­gress 30 days be­fore re­leas­ing Guantanamo Bay pris­on­ers. At the time, Obama is­sued a sign­ing state­ment call­ing out that spe­cif­ic re­quire­ment, em­phas­iz­ing the flex­ib­il­ity the ex­ec­ut­ive branch has “to act swiftly in con­duct­ing ne­go­ti­ations with for­eign coun­tries re­gard­ing the cir­cum­stances of de­tain­ee trans­fers.”

Even still, Re­pub­lic­ans be­lieve Obama clearly vi­ol­ated the law. 

And the an­swers Con­gress is get­ting so far from the White House aren’t sat­is­fact­ory, many mem­bers say. “At what point are the Amer­ic­an people be­ing dis­respec­ted by the fail­ure to give us in­form­a­tion, be­fore or after [the pris­on­er swap]?” Rep. Brad­ley Byrne, R-Ala., asked after a clas­si­fied brief­ing with ad­min­is­tra­tion of­fi­cials on Monday. “I mean they clearly vi­ol­ated the law by not do­ing it be­fore and [they] did not ar­tic­u­late a leg­al reas­on why they had to do that.”

Byrne, who sits on the House Armed Ser­vices Com­mit­tee, noted that the House would hold hear­ings in­to the mat­ter, but ad­ded that even in the con­text of a hear­ing, mem­bers rarely get the an­swers they’re look­ing for. Asked if there’s any­thing else Con­gress can do about the situ­ation, Byrne said bluntly: “Noth­ing.”

There is one thing that House mem­bers could do: Be­gin the pro­cess of re­mov­ing Obama from the pres­id­ency. But Re­pub­lic­an Rep. Michele Bach­mann of Min­nesota said that while there are many out­side of Wash­ing­ton bring­ing up im­peach­ment, she isn’t call­ing for such an ac­tion.

Why not? It’s an ac­know­ledge­ment of a polit­ic­al real­ity.

“Even if the House would be suc­cess­ful in im­peach­ing the pres­id­ent, the power of re­mov­al lies with the United States Sen­ate and with Harry Re­id lead­ing that cham­ber, I don’t fore­see any scen­ario whereby Harry Re­id would lead an ef­fort to re­move” the pres­id­ent, Bach­mann said. “So there wouldn’t be a fi­nal res­ult if we im­peached.”

Some law­makers are us­ing the in­cid­ent to push bills they say will ad­dress an un­der­ly­ing con­cern. Re­pub­lic­an Sen. Ted Cruz poin­ted to his pro­pos­al to freeze all trans­fers from Guantanamo Bay for six months as one re­sponse. Sen. Kelly Ayotte, R-N.H., agreed that fur­ther re­stric­tions on trans­fer­ring de­tain­ees could help al­le­vi­ate the prob­lem.

“The top pri­or­ity here is pre­vent­ing the fur­ther re­lease of ter­ror­ists,” Cruz said this week.

But the 30-day rule re­mains an is­sue for many mem­bers, in­clud­ing Demo­crats like Sen­ate In­tel­li­gence Com­mit­tee Chair­wo­man Di­anne Fein­stein of Cali­for­nia and Sen. Joe Manchin, D-W.Va.

Sen. John Mc­Cain, R-Ar­iz., who has been a vo­cal crit­ic of the Ber­g­dahl swap, said Tues­day he wasn’t aware of any­thing Con­gress could do to en­force the 30-day rule. “I don’t know.”¦ If the pres­id­ent wants to dis­obey the law, then what hap­pens in these things, when they break the trust, then they pay prices in oth­er areas,” he said, but did not elab­or­ate.

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