Was Bergdahl Deal Part Of Obama’s Effort To Break Congressional Restrictions On Detainee Release At Gitmo?
Two weeks ago, the President sent Congress, and specifically the Republican-controlled House, a Statement of Administration Policy, in which Obama outlined key deficiencies the President held would force him to veto the entire 2015 version of the bill.
The policy statement asserted:
“The bill’s continuation of unwarranted restrictions regarding detainees held at the detention facility at Guantanamo Bay, Cuba, undermines our national security.”Part of the restrictions current law imposes on Obama is a requirement that Gitmo detainee transfers or releases have to be discussed with Congress at least 30 days prior to their occurring and certifications have to be provided to Congress regarding justifications the Executive is asserting as reasons the transfers are in the interests of the United States and that they do not threaten the security of the United States—for example by releasing detainees who pose a high risk of “recidivism”, or a return to terrorist activity.
In the case of the prisoner exchange that obtained US Army Sgt. Bowe Bergdahl, in exchange for five Taliban detainees at Gitmo, the Executive appears not have followed the law. The President said today “the process was truncated” because, Obama said, there was a narrow window of time in which to secure the release of Sgt. Bowe, which did not allow him to inform Congress of his plan.
However, one provision in the law states that waivers to the Congressional requirements can be granted if, among other things, the Executive determines that:
“the transfer is in the national security interests of the United States.”Given the President’s contention, that the Congressional restrictions are themselves undermining “our national security”, then naturally acting to oppose these measures, as Obama has done in the case of Bergdahl and the five Taliban, serves to satisfy the requirement that any legal waivers of the Congressional oversight power be in the “national security interests of the United States.”
At this point, Obama seems to be challenging Congress to move beyond a war of semantics with him to actually taking concrete steps to oppose Obama's rejection of Congressional power and authority to restrict him regarding Gitmo. That would suggest beginning an investigation into the Bergdahl matter (the GOP is already calling for this), with an eye towards establishing whether or not President Obama should be impeached.
The GOP needs a new focal point for its anti-Obama campaigns, as both Obamacare and Benghazi have faded as issues over the past two months, and Republicans would love a pre-impeachment investigation to drag on through the summer and into the fall, leading up to the midterm elections. If the GOP can win control of the US Senate, the chances are high the Republicans would move to impeach President Obama, something the GOP base has been demanding for years.
Thus, at the bottom of all the questions about the Bergdahl deal, is the same old Washington DC political war. Whether or not Obama was right, constitutionally, and with respect to natinal security, to push back against Congress and to assert his power to act unilaterally on Gitmo releases, the matter will be litigated as a mainly political issue—in the 2014 campaign and possibly in the 2015 fallout of that campaign.