WASHINGTON — The White House argued on Tuesday that the “unique circumstances” presented by the opportunity to return Sgt. Bowe Bergdahl gave President Obama the authority to lawfully bypass a federal statute requiring the Pentagon to notify Congress a month before he transferred the five Taliban detainees necessary to complete the deal.
But the White House was forced by turns to defend its decision not to notify Congress and to send important aides to apologize to angry lawmakers who said they were left out of the decision.
A timeline of the negotiations with the Taliban, provided by the White House, made clear that it knew an imminent transfer was possible by mid-May, roughly two weeks before it took place. And officials familiar with the sequence of events said it was a desire to keep the talks secret for fear that any disclosure would scuttle the negotiations — and perhaps a reluctance to re-engage with Democratic and Republican members of Congress who were critical of the proposed swap in 2011 and early 2012 — that motivated the White House decision.
Arriving in Warsaw on Tuesday on the first leg of a four-day European trip, Mr. Obama also found himself on the defensive over whether Sergeant Bergdahl deserved special efforts to bring him home. “The United States has always had a pretty sacred rule, and that is, we don’t leave our men or women in uniform behind,” he said.
Denis McDonough, the White House chief of staff, traveled to Capitol Hill on Tuesday to calm Democrats at their weekly caucus lunch, a day after saying that “we didn’t have 30 days” to inform Congress about the negotiations with the Taliban.
Senator Dianne Feinstein, the chairwoman of the Senate Intelligence Committee, said she had received a call from Antony Blinken, the deputy national security adviser, on Monday night apologizing for the failure to notify Congress. The ranking Republican, Senator Saxby Chambliss of Georgia, said he had received a similar apology Monday night.
Ms. Feinstein noted that when conversations between the Obama administration and Congress about the potential swap were held 18 months ago, “there were very strong views, and they were virtually unanimous against the trade.”
The White House’s problem has its roots in a federal statute that requires the secretary of defense, before transferring a detainee from the prison at Guantánamo Bay, Cuba, to notify Congress 30 days beforehand. Defense Secretary Chuck Hagel provided that notice only as the transfer was already taking place.
Republican lawmakers have accused Mr. Obama of violating that law. On Tuesday, speaking in Poland, Mr. Obama cited exigent circumstances that made a month’s delay impractical and argued that the previous consultations with Congress, from November 2011 to January 2012, constituted the necessary consultation.
But hours before he spoke, Caitlin Hayden, the National Security Council spokeswoman, issued a 450-word statement arguing that no such notice was required at all. She wrote that the administration’s legal team had interpreted the notice law as not applying in the “unique circumstances” of the opportunity to rescue Sergeant Bergdahl, including a determination that providing the 30-day notice could have endangered his life.
“Given the credible reports regarding the risk of grave harm to Sergeant Bergdahl and the rapidly unfolding events surrounding his recovery, it was lawful for the administration to proceed with the transfer notwithstanding the notice requirement,” in the National Defense Authorization Act of 2014, she said.
Ms. Hayden’s statement interpreted the statutory requirement as containing an unwritten exception. She wrote that “we believe it is fair to conclude that Congress did not intend” to bar the executive branch from taking the action it did under those circumstances.
That interpretation has drawn fire. Jack Goldsmith, a Harvard Law School professor who was a senior Justice Department lawyer in the Bush administration, called the interpretation unconvincing, noting that elsewhere in the same act Congress imposed requirements that contained explicit exceptions.
But the administration is also arguing that its interpretation of the law is reasonable because the alternative view — that the law contains no unwritten exceptions — could render the statute unconstitutional as applied to a situation like the Bergdahl deal.
“In these circumstances, delaying the transfer in order to provide the 30-day notice would interfere with the executive’s performance of two related functions that the Constitution assigns to the president: protecting the lives of Americans abroad and protecting U.S. soldiers,” Ms. Hayden said, adding that doing so could raise “constitutional concerns.”
The implication of her statement, legal specialists said, is that if the law does not contain an exception for circumstances like the Bergdahl deal, it would infringe on the president’s commander in chief powers, suggesting he could lawfully override it anyway. To avoid that sort of conflict, it is better to interpret the statute as allowing exceptions.
Ms. Hayden’s statement was a step away from earlier signs that Mr. Obama had simply overridden the statute. On Sunday, for example, when Mr. Hagel was asked about not obeying the notice law, he told reporters, “We believe that the president of the United States is commander in chief, has the power and authority to make the decision that he did under Article II of the Constitution.”
When the Bush legal team made their frequent claims that the commander in chief could bypass statutory restrictions at his discretion, it, too, softened those claims by saying it would “construe” what appeared to be legal mandates as merely advisory or as containing unwritten exceptions to avoid the constitutional conflicts it claimed would otherwise arise.
Mr. Bush made many of those claims in signing statements. Mr. Bush used that device to advance sweeping theories of executive power and challenged about 1,200 provisions of laws — more than twice as many as all previous presidents combined — including a torture ban and oversight requirements on the Patriot Act.
During the 2008 campaign, Mr. Obama, then a senator, called Mr. Bush’s practice an “abuse,” saying that he would use the device with more restraint. At the time, he defined restraint as not issuing statements that would “nullify or undermine congressional instructions.” After he became president, Mr. Obama issued a memorandum that subtly relaxed that standard, instead defining restraint as invoking only well-founded legal theories.
In December, Mr. Obama issued a signing statement of his own about the 30-day notice statute. It said that in certain circumstances, other restrictions on transfers “would violate constitutional separation of powers principles,” and that if those circumstances arose, “my administration will implement them in a manner that avoids the constitutional conflict.”
By now acting on that claim, critics say, Mr. Obama has taken another step toward practices by his predecessor that he once criticized.
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(via NY Times)