Did Obama break the law in freeing Gitmo Taliban?

Rick Moran
Amid the celebrating over the release of Sgt. Bowe Bergdahl, Republicans are asking serious questions about the back end of the deal; 5 high level Taliban commanders, all of whom are accused of killing Americans as well as thousands of Shiites in Afghanistan.

At issue, the law governing the release of prisoners from Guantanamo. Congress must be given 30 days notice before any prisoners are released. The administration claims that Bergdahl's life was in danger and that "exigent" circumstances required they act quickly.

Senior Republicans on the armed services committees also criticized the deal, saying it will only encourage terrorist groups to seize more Americans.

Washington Post:

Top Republicans on the Senate and House armed services committees went so far as to accuse President Obama of having broken the law, which requires the administration to notify Congress before any transfers from Guantanamo are carried out.

“Trading five senior Taliban leaders from detention in Guantanamo Bay for Bergdahl’s release may have consequences for the rest of our forces and all Americans. Our terrorist adversaries now have a strong incentive to capture Americans. That incentive will put our forces in Afghanistan and around the world at even greater risk,” House Armed Services Committee Chairman Howard P. McKeon (R-Calif.) and the ranking Republican on the Senate Armed Services Committee, James M. Inhofe (Okla.), said in a joint statement.

Lawmakers were not notified of the Guantanamo detainees’ transfer until after it occurred.

The law requires the defense secretary to notify relevant congressional committees at least 30 days before making any transfers of prisoners, to explain the reason and to provide assurances that those released would not be in a position to reengage in activities that could threaten the United States or its interests.

Before the current law was enacted at the end of last year, the conditions were even more stringent. However, the administration and some Democrats had pressed for them to be loosened, in part to give them more flexibility to negotiate for Bergdahl’s release.

A senior administration official, agreeing to speak on the condition of anonymity to explain the timing of the congressional notification, acknowledged that the law was not followed. When he signed the law last year, Obama issued a signing statement contending that the notification requirement was an unconstitutional infringement on his powers as commander in chief and that he therefore could override it.

“Due to a near-term opportunity to save Sergeant Bergdahl’s life, we moved as quickly as possible,” the official said. “The administration determined that given these unique and exigent circumstances, such a transfer should go forward notwithstanding the notice requirement.”

Sen. John McCain (R-Ariz.) said that the detainees transferred from Guantanamo to Qatar, where they are to stay for at least a year, “are hardened terrorists who have the blood of Americans and countless Afghans on their hands. I am eager to learn what precise steps are being taken to ensure that these vicious and violent Taliban extremists never return to the fight against the United States and our partners or engage in any activities that can threaten the prospects for peace and security in Afghanistan.”

That the administration violated the law in releasing the Taliban in exchange for Bergdahl is serious but not as dangerous as the signal we are sending to the Taliban and other terrorist groups like the Haqqani Network.

Beyond this individual instance, some raised the larger question of whether it is sound policy for the United States to have, in the words of House Intelligence Committee Chairman Mike Rogers (R-Mich.), “negotiated with terrorists.”

Rogers said the action marked a “fundamental shift in U.S. policy.”

As Editor Lifson points out in his blog, this has all the earmarks of a political stunt by the president, with precious little thought given to the consequences of this policy down the road. As we draw down our forces, the prospect of individual Americans being seized manifestly increases. Our men and women are not going to be bottled up at bases in Afghanistan. The opportunity to kidnap our soldiers if they leave those bases will be too tempting to pass up.

Maybe this is how Obama plans to empty Guantanamo. Sarcasm aside, what do you think the odds are that more of our people will be taken?

(Also see "American POW Held by Taliban Freed in Prisoner Swap")

Amid the celebrating over the release of Sgt. Bowe Bergdahl, Republicans are asking serious questions about the back end of the deal; 5 high level Taliban commanders, all of whom are accused of killing Americans as well as thousands of Shiites in Afghanistan.

At issue, the law governing the release of prisoners from Guantanamo. Congress must be given 30 days notice before any prisoners are released. The administration claims that Bergdahl's life was in danger and that "exigent" circumstances required they act quickly.

Senior Republicans on the armed services committees also criticized the deal, saying it will only encourage terrorist groups to seize more Americans.

Washington Post:

Top Republicans on the Senate and House armed services committees went so far as to accuse President Obama of having broken the law, which requires the administration to notify Congress before any transfers from Guantanamo are carried out.

“Trading five senior Taliban leaders from detention in Guantanamo Bay for Bergdahl’s release may have consequences for the rest of our forces and all Americans. Our terrorist adversaries now have a strong incentive to capture Americans. That incentive will put our forces in Afghanistan and around the world at even greater risk,” House Armed Services Committee Chairman Howard P. McKeon (R-Calif.) and the ranking Republican on the Senate Armed Services Committee, James M. Inhofe (Okla.), said in a joint statement.

Lawmakers were not notified of the Guantanamo detainees’ transfer until after it occurred.

The law requires the defense secretary to notify relevant congressional committees at least 30 days before making any transfers of prisoners, to explain the reason and to provide assurances that those released would not be in a position to reengage in activities that could threaten the United States or its interests.

Before the current law was enacted at the end of last year, the conditions were even more stringent. However, the administration and some Democrats had pressed for them to be loosened, in part to give them more flexibility to negotiate for Bergdahl’s release.

A senior administration official, agreeing to speak on the condition of anonymity to explain the timing of the congressional notification, acknowledged that the law was not followed. When he signed the law last year, Obama issued a signing statement contending that the notification requirement was an unconstitutional infringement on his powers as commander in chief and that he therefore could override it.

“Due to a near-term opportunity to save Sergeant Bergdahl’s life, we moved as quickly as possible,” the official said. “The administration determined that given these unique and exigent circumstances, such a transfer should go forward notwithstanding the notice requirement.”

Sen. John McCain (R-Ariz.) said that the detainees transferred from Guantanamo to Qatar, where they are to stay for at least a year, “are hardened terrorists who have the blood of Americans and countless Afghans on their hands. I am eager to learn what precise steps are being taken to ensure that these vicious and violent Taliban extremists never return to the fight against the United States and our partners or engage in any activities that can threaten the prospects for peace and security in Afghanistan.”

That the administration violated the law in releasing the Taliban in exchange for Bergdahl is serious but not as dangerous as the signal we are sending to the Taliban and other terrorist groups like the Haqqani Network.

Beyond this individual instance, some raised the larger question of whether it is sound policy for the United States to have, in the words of House Intelligence Committee Chairman Mike Rogers (R-Mich.), “negotiated with terrorists.”

Rogers said the action marked a “fundamental shift in U.S. policy.”

As Editor Lifson points out in his blog, this has all the earmarks of a political stunt by the president, with precious little thought given to the consequences of this policy down the road. As we draw down our forces, the prospect of individual Americans being seized manifestly increases. Our men and women are not going to be bottled up at bases in Afghanistan. The opportunity to kidnap our soldiers if they leave those bases will be too tempting to pass up.

Maybe this is how Obama plans to empty Guantanamo. Sarcasm aside, what do you think the odds are that more of our people will be taken?

(Also see "American POW Held by Taliban Freed in Prisoner Swap")