White House Knew Bergdahl Swap Would Go Through a Day Before It Happened

A top Senate Democrat says there was no time for the Obama administration to notify Congress 30 days in advance of the trade.

National Journal
June 10, 2014, 7:40 a.m.

One reas­on the Obama ad­min­is­tra­tion may have not aler­ted Con­gress 30 days in ad­vance of the Sgt. Bowe Ber­g­dal swap: It made the de­cision right be­fore it took place.

“They knew a day ahead of time that the trans­fer was go­ing to take place. They knew an hour ahead of time where it was go­ing to take place,” the Sen­ate’s No. 2 Demo­crat, Dick Durbin, told a small group of re­port­ers Tues­day.

Pres­id­ent Obama has said that the swap re­quired quick ac­tion: “We had to act fast in a del­ic­ate situ­ation that re­quired no pub­li­city,” Obama said Fri­day on NBC Nightly News.

The ad­min­is­tra­tion has also ar­gued that it put Con­gress “on no­tice” back in Decem­ber 2013, via a sign­ing state­ment from Obama re­lat­ing spe­cific­ally to a re­quire­ment that the ad­min­is­tra­tion no­ti­fy Con­gress 30 days in ad­vance of re­leas­ing any pris­on­ers from Guantanamo Bay. Ad­di­tion­ally, ad­min­is­tra­tion of­fi­cials point out that they had pre­vi­ously briefed law­makers on the idea of swap­ping these five Taliban lead­ers.

Durbin says it was “im­possible” for the pres­id­ent to strike the deal and then wait 30 days, say­ing it could have “en­dangered the man’s life” by wait­ing.

“So we have a pro­vi­sion in the law about 30-day no­ti­fic­a­tion which doesn’t square with real­ity. Could he, could any­one have con­tac­ted Con­gress soon­er? Per­haps,” Durbin said. “But this no­tion of 30 days, I can’t be­lieve any­body’s ar­guing, ‘Well as soon as we knew there was a trans­fer we had to wait for Con­gress to think it over for 30 days.’ That is not in the best in­terests.”

But that ar­gu­ment doesn’t sat­is­fy every­one on Cap­it­ol Hill. A num­ber of law­makers, par­tic­u­larly Re­pub­lic­ans, emerged from a closed Sen­ate Armed Ser­vices Com­mit­tee brief­ing Tues­day still crit­ic­al of the ad­min­is­tra­tion’s de­cision to make the swap without more of a heads-up to Con­gress.

Demo­crat­ic Sen. Tim Kaine of Vir­gin­ia said the 30-day no­tice is­sue is one out­stand­ing prob­lem for him. “I’m still troubled by wheth­er the ad­min­is­tra­tion met the 30-day re­quire­ment and I’m dig­ging in­to that fur­ther,” he said.

Sen­ate Armed Ser­vices Chair­man Carl Lev­in said ad­min­is­tra­tion of­fi­cials presen­ted some ad­di­tion­al in­form­a­tion that was not in­cluded in last week’s all-sen­at­ors closed brief­ing. On Tues­day, ad­min­is­tra­tion of­fi­cials fo­cused more on “the leg­al reas­on” for why the 30-day no­tice was not needed, namely point­ing to Art­icle II of the Con­sti­tu­tion, which spe­cifies the pres­id­ent’s role as com­mand­er-in-chief.

Lev­in later said that of­fi­cials knew of the de­tailed loc­a­tion “a few hours” be­fore the swap and that the deal had come to­geth­er in just “a mat­ter of days.”

This story was up­dated at 12:15 with fur­ther com­ment from Sen. Lev­in.

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