Obama's Bowe Bergdahl prisoner swap: Was it illegal?

President Obama is supposed to give Congress advanced warning of Guantánamo detainee transfers. In the swap that freed Bowe Bergdahl, he didn't. Why? It has to do with 'signing statements.'

By , Staff writer

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    President Obama walks with Jani Bergdahl (l.) and Bob Bergdahl (r.) to the Oval Office at the White House in Washington Saturday after speaking about the release of their son, US Army Sgt. Bowe Bergdahl.
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Well before this weekend's prisoner swap, which secured the release of Army Sgt. Bowe Bergdahl from Taliban insurgents after five years in captivity, House Republicans accused President Obama of essentially breaking the law to get his way.

The news of how the swap was carried out will only add to their list of grievances.

A federal statute states that the secretary of Defense must notify Congress 30 days before any transfer of prisoners from Guantánamo Bay. The law allows Congress to have a say on whether the detainees could be a threat to national security.

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The Bergdahl swap involved the transfer of five mid-to-high-level detainees – including a former Taliban deputy defense minister – to Qatar, yet the White House did not tell Congress what was going on until after the exchange had been made in Afghanistan Saturday.

How could Mr. Obama essentially ignore the law?

Republicans say he does this all the time. In fact, the Republican-controlled House passed a law in March that gives both the House and Senate the right to sue the president if he fails to carry out laws passed by Congress. The bill never became law because the Senate ignored it, but House Republicans argued that Obama was willfully picking and choosing what to enforce in his own Affordable Care Act, in deportations of undocumented immigrants, and in federal marijuana laws.

Every Republican in the House voted for the law, as did five Democrats.

But Obama is hardly alone in this behavior, historically. In defending the release of Bergdahl, the White House noted that Obama added a "signing statement" to the bill about the transfer of Guantánamo detainees. A signing statement is essentially an executive-branch protest against a bill, saying, "Sure, I'll sign this bill, but...." In this case, Obama claimed that executive authority vested in the Constitution gave him the right to override the law.

Obama is not the first president to add signing statements to bills. President Clinton did it, too, as did President George W. Bush. For instance, Mr. Bush added a signing statement to a bill with an amendment that outlawed torture. 

President Bush used signing statements "in an aggressive way to imply that he might not faithfully execute more than 1,000 provisions of statutes," writes James Pfiffner, a professor and presidential expert at George Mason University in Arlington, Va.

Louis Fisher, an expert on the separation of powers, judges Obama to be "sort of in the middle" of presidents who buck congressional authority, according to an article by Monitor reporter Francine Kiefer.

In the Bergdahl case, Obama administration officials argued that Bergdahl's health was failing, making intervention urgent. Moreover, they said the need to avoid any leaks about negotiations with the Taliban justified the secrecy. By Obama's calculus, it seems, the success of bringing home safely the only prisoner of war from the Afghanistan conflict outweighed any Republican claims that the swap was illegal or dangerous to the country.

But for Republicans, the act – regardless of the nobility of the motive – is likely only to confirm their claims that Obama is running an imperial presidency.

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