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Prisoner exchange and the law

Prisoner exchange and the law

Last updated on: June 2, 2014 at 9:39 am by Gene Veith

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Prisoner exchange and the law 2014-06-02T09:39:49-04:00 Gene Veith

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The Obama administration negotiated the release of Army Sgt. Bowe Bergdahl, who had been held captive in Afghanistan for nearly five years, in exchange for five senior Taliban leaders being held in Guantanamo. He was reportedly the last POW being held. The problem is, the law requires the administration to consult with Congress when releasing prisoners from the Guantanamo prison, which the administration did not do. Officials from the executive branch acknowledge that they did not follow the law.

UPDATE: To add another level of controversy, Sgt. Bergdahl was evidently a deserter.

From Bergdahl release arrangement could threaten the safety of Americans, Republicans say – The Washington Post:

Amid jubilation Saturday over the release of U.S. Army Sgt. Bowe Bergdahl from captivity by the Taliban, senior Republicans on Capitol Hill said they were troubled by the means by which it was accomplished, which was a deal to release five Afghan detainees from the military prison in Guantanamo Bay, Cuba.

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.

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