Was the Swap Legal? The National Defense Authorization Act for Fiscal Year 2014 (NDAA) makes clear that the secretary of defense must notify appropriate committees of Congress no less than 30 days before the transfer of a Guantanamo detainee. See Sec. 1035 (d). When Psaki, the State Department spokeswoman, discussed the possibility of a swap for Bergdahl in a press conference in June 2013, she said the White House would “make any such decisions in consultation with Congress and according to U.S. law.” Sen. Dianne Feinstein, the chairwoman of the Senate Intelligence Committee, said conversations with appropriate congressional members about a potential swap were held 18 months ago, but, she told the New York Times, “there were very strong views, and they were virtually unanimous against the trade.” This time, Feinstein and other appropriate congressional leaders did not get notification about transfer of the detainees — which was necessary to complete the deal — until it was already taking place. And so some Republican leaders have accused the Obama administration of violating the notification law. But that’s not entirely clear. In a statement released when he signed the NDAA on Dec. 26, Obama foreshadowed his arguments for not needing to notify Congress in some cases. Obama, Dec. 26, 2013: 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. In a statement released on June 3, Caitlin Hayden, the National Security Council spokeswoman, argued that it was lawful within the president’s executive powers for the swap to move forward without congressional notification because of a “unique set of circumstances” — namely that Bergdahl’s deteriorating health was such that a delay could “endanger the soldier’s life” (a claim that some have disputed). That same day, during a press conference while traveling in Poland, Obama was asked whether he had broken the law regarding the 30-day advance notice. Obama, June 3: We have consulted with Congress for quite some time about the possibility that we might need to execute a prisoner exchange in order to recover Sergeant Bergdahl. We saw an opportunity. We were concerned about Sergeant Bergdahl’s health. We had the cooperation of the Qataris to execute an exchange, and we seized that opportunity. And the process was truncated because we wanted to make sure that we did not miss that window. Whether the White House’s interpretation is correct remains a matter of debate in the legal community. – Robert Farley, with Eugene Kiely factcheck.org/2014/06/sorting-murky-issues-on-the-pow-swap/
Posted on: Sun, 08 Jun 2014 01:59:55 +0000
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