Charlie Savage reports on the House Armed Service Committee Report concerning the swap of the “Taliban Five” from Guatanamo Bay, in exchange for Bowe Bergdahl. Recall that the National Defense Authorization Act required the President to notify Congress 30 days before the release of certain detainees from Guantanamo. The President ignored this prohibition. Here is how the article opens:
After months of secret talks in early 2014 on a potential deal to swap five Taliban detainees at Guantánamo Bay, Cuba, for a captive American soldier, Sgt. Bowe Bergdahl, an agreement seemed near that May. But the chief American negotiator sent an email to the Pentagon warning that any leak could scuttle it.
“There is great concern all around about possible leaks,” the negotiator, Stephen W. Preston, then the general counsel of the Pentagon, wrote, according to an email cited by a new report. “This concern is exacerbated by the prospect of notification to our overseers” in Congress.
Imagine that. Notifying our “overseers” in Congress. The report also referred to the Obama Administration’s legal arguments as “evasive legal gymnastics.”
The Republican report also addresses legal arguments by the Obama administration that its violation of the statute was lawful because the statute was an unconstitutional constraint on President Obama’s commander-in-chief powers, at least when applied to a prisoner exchange deal in which any delay or leak could have endangered a captive American soldier’s life.
The report rejected those arguments as “evasive legal gymnastics.” The constitutional debate is important because of the precedent set by the transfer. Former advisers to Mr. Obama have argued that he has executive power to override other parts of the congressional transfer restrictions in order to close the Guantánamo prison before he leaves office in January 2017.
The Democrats in their dissenting report objected to the majority’s conclusion that the detainees were released to make it easier to fulfill the President’s goal of closing Guantanamo.
“As gravely disappointed as we may be over the administration’s failure to comply with a statutory notice requirement, the majority’s nakedly partisan effort to indict the administration and to second guess its decisions, in hindsight, while simultaneously expressing relief that the benefit of Sergeant Bergdahl’s safe return was in fact achieved, is as unfair as it is wrong,” it said.
None of the internal emails cited by the majority report corroborate that claim. In their dissenting report, the Democratic committee members agreed that it was lamentable that the executive branch had not obeyed the 30-day notice law. But they strongly objected to the Republican members’ broader conclusions, which it dismissed as “accusatory speculation.”
The report, which will be released tomorrow, should make fodder for my next book, A Constitutional History of the United States (2009-2016):
The committee’s 98-page report cites numerous internal Pentagon emails and closed-door testimony by military officials. It provides many new details about the diplomatic efforts to reach the deal, including the pace of meetings and trips by Mr. Preston to negotiate the security arrangements, like monitoring and travel restrictions, that Qatar would impose on the former detainees.
Update: The report has been released here. Here are the four findings:
Finding I: The transfer of the Taliban five violated several laws, including the National Defense Authorization Act for Fiscal Year 2014. The constitutional arguments offered to justify the Department of Defense’s failure to provide the legally-required notification to the Committee 03 days in advance are incomplete and unconvincing. The violation of law also threatens constitutional separation of powers.
Finding II: The Committee was misled about the extent and scope of efforts to arrange the Taliban Five transfer before it took place. The Department of Defense’s failure to communicate complete and accurate information severely harmed its relationship with the Committee, and threatens to upend a longstanding history and tradition of cooperation and comity.
Finding III: Senior officials within the Department of Defense best equipped to assess national security risks associated with the detainee transfer were largely excluded from the Taliban Five efforts. This greatly increased the chance that the transfer would have dangerous consequences.
Finding IV: The Department of Defense has failed to tke sufficient precautions to ensure the ongoing national security risks posed by the Taliban 5 are mitigated, consistent with the Memorandum of Understanding with Qatar.