Among the many huge problems associated with Obama’s release of five Taliban prisoners in exchange for the captive Bergdahl is the fact that in doing so Obama violated a Congressional statute that requires a president to give 30 days notice to Congress of any such release.
When that statute was originally passed and Obama signed it, he issued a signing statement claiming that “executive authority vested in the Constitution gave him the right to override the law.” So he was already planning to disregard it if at some future date that would serve his purposes.
Obama is hardly the only president who’s issued that type of signing statement, however; George Bush issued quite a few saying similar things, as did certain other presidents. It’s all been part of the continuing struggle between the legislative and executive branches over their relative power.
Democrats criticized Bush for it back then, and Republicans are criticizing Obama for it now. Critics I consider more objective (and with whom I agree) claim instead that the right thing to do in such a situation would be to veto the bill instead. Another would be to wait for the Supreme Court to make a determination about constitutionality. But in recent years, particularly since Raines vs. Byrd in 1997, the Court has strictly limited the rules about who has standing to ask the Court to consider that question, so that remedy has become more difficult to use:
The Supreme Court held that the plaintiffs lacked standing to sue, as they had not suffered any particularized injury. The courts reasoning held that individual members of Congress were subject to strict limits on their ability to sue, particularly in a dispute between different branches of government.
Aside from the legality of what Obama has done, there is also (as so often happens with Obama) the question of lying. In this instance the lies were delivered by none other than recently-retired press secretary Jay Carney, who stated the following back in June of 2013 while discussing negotiations for Bergdahl’s possible release [emphasis mine]:
Q Jay, going to back to Afghanistan, the Taliban has offered to release Bowe Bergdahl in exchange for five members of the Taliban who are currently being held at Guantanamo Bay. Is this something that the administration is considering? Is this something that the President would agree to?
MR. CARNEY: What I can tell you is that the main dialogue that we support is the dialogue between Afghans — between the Taliban and the Afghan government. However, there are some issues that we would like to discuss with the Taliban directly, and this includes the safe return of Sergeant Bergdahl, who has been gone for far too long.
We continue to call for and work toward his safe and immediate release. We cannot discuss all the details of our efforts, but there should be no doubt that on a daily basis we are continuing to pursue — using our military, intelligence and diplomatic tools — the effort to return him home safely. And our hearts are with the Bergdahl family.
With regard to the transfer of Taliban detainees from Guantanamo Bay, we have made — the United States has not made the decision to do that, though we do expect the Taliban to raise this issue in our discussion, if and when those discussions happen.
As we have long said, however, we would not make any decisions about transfer of any detainees without consulting with Congress and without doing so in accordance with U.S. law.
Q So you haven’t ruled it out?
MR. CARNEY: I’m simply saying that — first of all, you have to separate the two issues. We are focused on the return — the safe and immediate return of Sergeant Bergdahl, and we continue to use the tools at our disposal to help bring that about.
We also expect the Taliban to raise the issue of their detainees in discussions that we have with them if those discussions take place. And at this time we’ve made no decisions about the transfer of detainees. And in accordance with law, we would be consulting with Congress should we make any decisions about that. So we remain committed to the closure of Guantanamo Bay, as you know. But separate from that on these specific issues about individual detainees, that would be a process that is done in accordance with law.
So we see that the reporter asking the question of Carney linked Bergdahl’s return with the release of the five Guantanamo prisoners almost a year ago. That was the offer the Taliban in Afghanistan were making to Obama at the time. Carney’s answer then was hedgy (fancy that!): he declined to say exactly what was being done about Bergdahl or whether Obama had plans to link the two in a prisoner exchange as the Taliban had requested. But Carney was absolutely unequivocal about one thing, which was that (“as we have long said”) Congress would be informed in accordance with the law if those Taliban were going to be released.
Carney actually said it several times during the press conference. What’s more, as recently as six months ago Obama himself gave the same assurances to leading members of Congress. But Obama thought he could dispense with the need for notice, and also that he could get around objections to the release that might arise from other sources, though the use of speed.
Back when this exact swap was first discussed back in 2011 and 2012, many of Obama’s advisors (including even Leon Panetta) said it would be too risky. What changed between then and now?:
To start, President Obama won reelection. Panetta is gone, and in his place is Chuck Hagel, a Republican former senator who has been much more in sync with Obama’s views on the war on terror than his predecessors.
But current U.S. intelligence and defense officials who spoke to The Daily Beast on Monday say the process for exchanging Taliban for Bergdahl this time was rushed and closely held, in some instances leaving little room for any push back against a policy clearly favored by the White House.
“This was an example of forcing the consensus,” one U.S. military official said. “The White House knew the answer they wanted and they ended up getting it.”
The article goes on to say that Clapper, head of National Intelligence who objected to the Taliban Five’s release previously, became convinced it was okay at this point for the following reasons:
U.S. officials say that this time around there were three factors that swayed Clapper to support the deal. To start, the guarantee from the Kingdom of Qatar to monitor the detainees for a year under a loose form of house arrest. When the deal was first explored in 2011 and 2012, there was no such offer from a third party.
One senior U.S. intelligence official said the Qatar arrangement would allow the detainees to receive international visitors but would not allow them to travel for a year. “This is not a situation like returning detainees to Yemen, where there was a risk of a breakout,” one former senior Obama counterterrorism official said. “I expect the Qataris would keep them under house arrest but certainly communications with the Taliban are quite possible. After the first year there are no controls and they still will pose a danger to U.S. interests in Afghanistan.”
Another factor that changed Clapper’s view on the trade was that the five Taliban officials no longer had access to the same network of fighters that they would have had they been released several years ago. “A lot of their networks are decimated at this point,” one U.S. intelligence official said.
Finally, by the time the detainees will be allowed to leave Qatar, U.S. troops will be in the process of the final withdrawal from Afghanistan.
That’s certainly reassuring, isn’t it?
[NOTE: Speaking of lying, in 2007 Obama strongly criticized George Bush’s use of signing statements to go around the power of Congress and and swore that if he were elected he would never do such a thing.
While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability. I will not use signing statements to nullify or undermine congressional instructions as enacted into law.”
If you like your doctor, you can…
Oops, wrong topic.]