Let us forget for a moment that Sgt. Bowe Bergdahl was anything but a hero. Let us focus on the White House, and how it has handled this event.
(Doesn’t it seem that they love scandals? Have they been watching too much ABC’s primetime television?)
Around three years ago the White House was in discussions with Congress on whether or not a trade of five Taliban fighters for one US soldier should be done. Those discussions ended with a definitive no from the Congress, they did not think that it was wise, due to safety concerns for the rest of the troops in Afghanistan, which came from fears associated with the “we don’t negotiate with terrorists” figment that runs through our national ideology.
That being said, Pres. Obama signed the National Defense Authorization Act this last December, which included Section 1035 (on pages 180-182 of the PDF), which gives the conditions under which detainees of Guantanamo Bay, Cuba may be transferred or released.
To paraphrase subsections (a) through (c), the reasons for release are if a court or tribunal has determined that they should be released, or if there is little chance of them becoming a security risk in the future, or if “the transfer is in the national security interest of the United States.”
Subsection (d) is the notification requirement; “The Secretary of Defense shall notify the appropriate committees of Congress of a determination…under subsection (a) or (b) not later than 30 days before the transfer or release of the individual under such subsection.”
We all know that subsection (d) was not followed, the soonest any member of Congress, Harry Reid, heard of the exchange was the day before, or even the same day, so there goes the 30 day requirement. As for the other subsections, it is hard to say, because the administration hasn’t given a full account to Congress as subsection (d) requires.
Even if the administration had notified Congress in enough time, the argument that the releases were justified under the law would be a stretch. Of course the government says that everything is about national security, but is it in our national security interests to have one US soldier released from captivity in exchange for five Taliban leaders?
In general, when swapping captives it is normal to have the swapped to be of relatively the same importance. Of course every life is important, but in each given circumstance there are degrees of importance, and in this we were the losers. Having released leaders back to the enemy, even if they have to wait a year to get back to Afghanistan, is definitely going to hurt our allies in the Afghan government, which doesn’t seem to be in our national security interests.
Given this, the administration broke the law that Obama signed.
My esteemed senator, Carl Levin, said that Congress was given notice with the signing statement that Obama added onto the law, but signing statements are nothing when it comes to the law, because only Congress can create laws. So I’m sorry Mr. Levin, but that doesn’t count.
The administrations argument says that the constitution supersedes the law, and the law was unconstitutional, so not abiding by the law was actually within the law. The basis for this is found in president’s signing statement, he wrote:
Section 1035 does not, however, eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles. The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. Of course, even in the absence of any statutory restrictions, my Administration would transfer a detainee only if the threat the detainee may pose can be sufficiently mitigated and only when consistent with our humane treatment policy. Section 1035 nevertheless represents an improvement over current law and is a welcome step toward closing the facility.
First of all, why do presidents sign laws that they believe are unconstitutional? Secondly, he talks of negotiations with foreign countries, but the last time I checked the Taliban was not a foreign country recognized by any entity in the world. Finally, waiting a year to get back to Afghanistan doesn’t mitigate “the threat the detainee may pose.”
Given all this, there is something wrong with this action of this administration.
It simply doesn’t pass the smell test.