Of all the objections to the deal that won the release of Sgt. Bowe Bergdahl, the most potent is the irrefutable claim that the Obama administration violated a law requiring 30 days’ notice to Congress before a prisoner can be transferred from the detention facility at Guantanamo Bay. The administration failed to comply with that requirement of the National Defense Authorization Act when it released five Taliban detainees in exchange for Bergdahl.
The lack of notice might seem a legal nicety that would be of little interest to the general public. But a USA Today poll suggests otherwise. Asked if the president should be required to inform Congress “on decisions like these,” 64% of respondents said yes and only 30% no. (There seems to be a partisan tilt in the responses: 87% of Republicans favored notifying Congress, compared with 44% of Democrats.)
Much has been made — legitimately — about the fact that President Obama signed the legislation requiring him to notify Congress of Guantanamo transfers and then issued a George W. Bush-style signing statement casting doubt on that provision’s constitutionality. The Times editorial board said that Obama should have vetoed the bill if he had constitutional qualms.
Legality aside, was it really impossible for Obama to give a heads-up to key congressional committees — if not the statutory 30 days then at least some prior notice? Obama has argued that the administration had to move quickly because Bergdahl’s health was precarious. According to congressional sources who spoke to the Associated Press, the administration also was worried that the Taliban might kill Bergdahl if news of the deal leaked.
Even if true, it doesn’t follow that Congress couldn’t be trusted with the information about the deal. Members have kept mum about other secrets, including details of the Central Intelligence Agency’s interrogation program and the National Security Agency’s surveillance activities. Republicans rightly have ridiculed the notion that congressional leaders couldn’t be trusted with information about an operation that was apparently known to 80 or 90 people in the executive branch.
On Wednesday, Secretary of Defense Chuck Hagel defended the Bergdahl deal in an appearance before the House Armed Services Committee. But he also conceded that the administration “could have done a better job” of keeping Congress informed.
That’s a huge understatement.
Follow Michael McGough on Twitter @MichaelMcGough3