I previously commented on the legality of the President relying on a signing statement to justify the transfer of 5 detainees from Guantanamo for the American POW. I noted, based on early reports, that “We seem to be in Youngstown Zone 3, where the President is acting in direct defiance of the clear will of Congress.”
New reporting suggests that indeed the President’s powers were at its lowest ebb, and Congress told him, repeatedly, not to make this trade, and he did so anyway.
Tony Blinken, President Obama’s deputy national security adviser, apologized to Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) Monday evening for the administration’s failure to alert Congress in advance.
“I had a call from the White House last night, from Tony Blinken, apologizing for it,” Feinstein told reporters Tuesday.
“He apologized and said it was an oversight,” she added.
But the “oversight” excuse is not resonating with lawmakers on Capitol Hill. Critics claim the White House didn’t tell Congress for one reason: The administration knew legislators would have torpedoed the agreement had they been told.
Feinstein said leaders of the House and Senate Intelligence panels were almost unanimously against a prisoner trade when it came up in 2011.
She said the chairmen and ranking Republicans of the “connected committees” spent a lot of time three years ago reviewing the possibility of a prisoner swap and came out firmly opposed to releasing senior militants from the prison camp at Guantanamo Bay, Cuba.
“There were very strong views, and they were virtually unanimous against the trade,” she said.
The administration even acknowledged they’ve been talking about this for 5 years to no usccess.
White House chief of staff Denis McDonough said Monday that Congress knew well in advance that the president might release detainees from Guantanamo in exchange for Bergdahl.
“We’ve been consulting with members of Congress about this effort, including the potential transfer of five Gitmo detainees, for years,” he said. “So this should not have been a surprise to any of the members of Congress who’ve been … commenting about it.”
And for 5 years, Congress has made clear they opposed this trade. And they made that opposition manifest in a law requiring 30 days notice before such a transfer is made. And the President signed it!
Even Harry Reid suggested that only a few top leaders were notified the day before:
Reid said the administration informed him of the prisoner exchange on Friday, a day before it happened, while House Minority Leader Nancy Pelosi (D-Calif.), Senate Republican Leader Mitch McConnell (Ky.) and Speaker John Boehner (Ohio) said they were not told until Saturday, the day the news became public.
Boehner accused the White House of keeping it secret to avoid blowback from lawmakers who were apprehensive about releasing Taliban militants from American custody.
“More than two years ago, members of Congress were briefed on the possibility of such an exchange, and the chairmen at the time and I raised serious questions to the administration,” the Speaker said in a statement.
Several Democratic senators expressed unease about the trade, which could put the senior Taliban commanders back on the battlefield after a year, before U.S. troops withdraw from Afghanistan.
“It’s very disturbing. The whole thing is very disturbing,” said Sen. Joe Manchin (D-W.Va.), who added the administration should have notified Congress in advance.
In Youngstown, I often ask my students if the members of Congress had ever thought about POTUS seizing the steel mills before he did, and hte answer was almost certainly know. Here, Congress is on record opposing this very trade, and POTUS did it anyway.
This is Youngstown Zone 3 Plus. I don’t know if we will ever again find such a clear instance where Congress passes a statute limiting Presidential power, Congress tells the President don’t do a very specific thing, many times, President signs the law, and the President does it anyway.