President Barack Obama’s weekend deal to free the lone remaining American prisoner of war from the Afghanistan conflict, Bowe Bergdahl, has ignited controversy on two fronts.
Some fellow soldiers who served with Bergdahl have questioned whether he willingly deserted his unit. And Republican lawmakers have levied claims the Obama administration’s swap of five prisoners held at Guantanamo Bay for Bergdahl was illegal, since it did not feature a timely notification of Congress.
On Saturday, a senior Obama administration official acknowledged the law was not followed. Obama did not follow a requirement in the 2013 version of the National Defence Authorization Act that states Congress must be notified of releases from Guantanamo Bay “not later than 30 days before the transfer or release of the individual.”
As such, California Rep. Buck McKeon, the chairman of the House Armed Services Committee, and Oklahoma Sen. James Inhofe, the ranking member of the Senate Armed Services Committee, accused Obama of ignoring the law.
Obama signed the NDAA into law last year. But when he did, he added a “signing statement” offering himself “flexibility” in certain cases.
In the signing statement, Obama said he could override the notification requirement because it served as an unconstitutional infringement on his powers as commander in chief and violated the separation of powers clause in the U.S. Constitution.
“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,” Obama said. “Of course, even in the absence of any statutory restrictions, my Administration would transfer a detainee only if the threat the detainee may pose can be sufficiently mitigated and only when consistent with our humane treatment policy.”
In Bergdahl’s case, the Obama administration argued the circumstances were unique and required Obama to take immediate action. U.S. Secretary of Defence Chuck Hagel said Sunday the move was perhaps necessary to save Bergdahl’s life.
It’s worth noting the shift from then-Sen. Obama’s denouncement of former President George W. Bush’s prevalent use of “signing statements” to Obama’s application of the practice.
“I believe in the Constitution and I will obey the Constitution of the United States,” Obama said as a presidential candidate in 2008. “We’re not going to use signing statements as a way of doing an end-run around Congress.”
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