As soon as news arrived about the U.S. trading detainees at Guantanamo Bay for an American soldier held by the Taliban, there were questions about the deal and whether it was legal, as Republicans in Congress charged that President Obama had broken the law in making the trade.
Let's look at a few bullet points about the deal that freed Sgt. Bowe Bergdahl:
1. Did President Obama break the law?
Section 1035 of the National Defense Authorization Act of 2014 says clearly that the Pentagon 'shall notify' the Congress about a release from Guantanamo Bay, 'not later than 30 days before the transfer or release of the individual.' Obviously that didn't happen. But the White House argues the Obama Administration does not have to follow that section of the defense law, saying quick action was needed to bring home a U.S. soldier, and that telling Congress before it was to happen could have endangered the operation. One thing that is missing is a line that says 'none of the funds' given to the military can be used to get around that provision.
2. WH: Signing Statements trumps legal language
The White House says the 30-day notice provision does not apply in this case, because officials believe it wrongly ties the hands of the President. In a "signing statemnt" attached to the defense bill when it was signed into law in December of 2013, the President said he would not follow Section 1035: "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," the explanation said. Read the signing statement at the White House website.
3. Battle of the Signing Statements
The fact that the Obama Administration uses signing statements to say which part of a law it will ignore does raise some chuckles in Washington, D.C., since Democrats - including then Sen. Obama - railed against signing statements by President George W. Bush. Here is video of Candidate Obama pledging not to use signing statements, but once in office, he has embraced them like every other President in the last 35 years. This was from the campaign trail in 2008
What this boils down to is my old axiom about politics in Washington - what is okay for your guy to do in the White House sometimes isn't okay for the other party to do when they are in the White House, and vice versa. If you want an example of where President Bush set out how he would not follow what the Congress did in a defense bill - in other words, not following the law - you can find that with the Defense Authorization Act of 2002.
4. Republicans pounce on prisoner swap
Whether you think the swap of Taliban prisoners at Guantanamo Bay for Sgt. Bergdahl was legitimate, there is also the question of the people who were released, and whether they might find their way back to the battlefield against the U.S. "The security assurances the United States has been given regarding these terrorists is feeble at best, and I fear it is only a matter of time before they resume their terrorist activities. These men are not soldiers; they are dangerous terrorists and President Obama should be treating them as such," said Sen. Saxby Chambliss (R-GA).
5. The political fallout from the Bergdahl swap
There won't be as many voices condemning the Obama Administration for a series of reasons - the House of Representatives is off this week, so lawmakers won't be in D.C. to focus their ire on the White House. Also, President Obama is going to Europe this week, which will likely mean a news focus on Ukraine, the G-7 and the D-Day observances on Friday in France. That will leave the effort squarely on the shoulders of GOP members in the U.S. Senate, where Republicans seem likely to slam the move by President Obama, while Democrats have stood with the President so far.
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