The law that Obama violated in releasing 5 terrorists from Gitmo in exchange for Bowe Bergdahl

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kingOn Jan. 15, 2014, Obama told Senate Democrats that when Congress stands in his way, “I’ll act with or without Congress.” (AP)

On June 30, 2009, U.S. Army Pfc. Bowe Bergdahl of the 1st Battalion of the 501st Parachute Infantry Regiment, went missing from a remote military outpost in Paktika Province on Afghanistan’s border with Pakistan.

He was captured by the Taliban and imprisoned for 5 years — the only U.S. prisoner of war in the Afghan war.

On May 31, 2014, without consulting Congress as required by federal law, in exchange for the release of Bergdahl, Obama set free five prisoners from the U.S. detention camp for terrorists in Guantanamo Bay, Cuba.

The five men were the most senior Afghans held at Gitmo: Mohammad Fazl, Khairullah Khairkhwa, Mullah Norullah Noori, Mohammed Nabi, and Abdul Haq Wasiq. They were released to Qatar, where they received a hero’s welcome from the Taliban.

House Armed Services Committee chairman Rep. Buck McKeon of California and Senate Armed Services Committee ranking member Sen. Jim Inhofe of Oklahoma said Obama had “clearly violated laws which require him to notify Congress thirty days before any transfer of terrorists from Guantanamo Bay, and to explain how the threat posed by such terrorists has been substantially mitigated.” (Source: Daily Mail)

CNN legal analyst Jeffrey Toobin also said Obama “clearly broke the law. The law says 30-days’ notice. He didn’t give 30-days’ notice.” Obama’s opinion expressed in a signing statement “is not law. The law is on the books, and he didn’t follow it.” (Source: Mediaite)

So which federal law had Obama violated?

Section 1028 of the 2013 National Defense Authorization Act (NDAA) prohibits any funds to be used “to transfer any individual detained at Guantanamo to the custody or control of any other foreign country” unless the secretary of defense certifies to Congress, “not later than 30 days before the transfer,” that the receiving country will detain the individual appropriately and “has taken or agreed to take such actions as the Secretary of Defense determines are necessary to ensure that the individual cannot engage or re-engage in any terrorist activity.”

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As reported by Elizabeth Price Foley of The Washington TimesDefense Secretary Chuck Hagel did not:

  • Comply with the 30-day rule; or
  • Provide certification that the five Gitmo terrorists do not pose a future threat to the United States after transfer to Qatar.

The Obama administration justifies its noncompliance with NDAA’s Section 1028 in two ways:

  1. It cites Subsection (d) of Section 1028, which permits Congress to be bypassed if transfer out of Gitmo “is in the national security interests of the United States.” However, the administration has not articulated how, exactly, national security interests demanded the release of these five Taliban leaders.
  2. The Obama administration suggests that Section 1028 is itself unconstitutional. For that matter, last year when Obama signed the NDAA into law, he issued a statement opposing Section 1028 because he believed it infringed on his power as commander in chief. That being said, it is not up to Obama to decide whether a law is unconstitutional. That is the purview of the Supreme Court. Nor can a President simply ignore a law because he thinks it to be unconstitutional.

The fact of the matter is that while the Constitution does give the president broad power over the military as commander in chief, that power is shared by Congress through various provisions in Article I of the U.S. Constitution, including the power to:

  • “make Rules for the land and naval Forces”;
  • “raise and support Armies”; and
  • “define and punish Offenses against the Law of Nations.”

Equally important, Congress has the exclusive power of the purse. In passingthe 2013 defense appropriations bill NDAA, this is exactly what Congress did: It forbade any tax dollars from being used to free Gitmo detainees without prior notice and certification to Congress.

In 1952, in the case of Youngstown Sheet and Tube Co. v. Sawyer in which the Supreme Court ruled against President Harry Truman’s seizing of domestic steel mills for the Korean War, Justice Robert Jackson said if a president acts in defiance of Congress, his power “is at its lowest ebb” and courts must scrutinize the president’s claim of power “with caution, for what is at stake is the equilibrium established by our constitutional system.”

In the case of the Bergdahl prisoner exchange, what has inflamed public opinion goes beyond Obama’s violation of federal law to include:

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1. Bowe Bergdahl’s character:

  • He was a deserter: The soldiers who had served with Bergdahl say so, as reported by CNN. He had left behind a note in his tent saying he had become disillusioned with the Army, did not support the American mission in Afghanistan and was leaving to start a new life, as reported by the New York Times. An official Pentagon report concluded in 2010 that Bergdahl was a deserter, as reported by the Daily Mail.
  • The Taliban claimed in 2010 that Bergdahl had converted to Islam and was teaching bomb-making to its jihadists. (Source: Jihad Watch)
  • Bergdahl was anti-American and had complained about fellow soldiers, as reported for the Rolling Stone by the late Michael Hastings who died in a suspicious single-car accident on June 18, 2013.
  • According to Fox News (via The Blaze), Bergdahl had written a note expressing a desire to renounce his American citizenship.

2. Bowe Bergdahl’s father, Robert, in a White House appearance with Obama at his side, praised Allah and Islam in Arabic: “Bismillah ir-Rahman ir-Rahim (In the name of Allah, most Gracious, most Compassionate).”

3. At least 7 U.S. soldiers were killed while looking for Bowe Bergdahl (source:  The Daily Beast):

  1. Pfc Aaron Fairbairn
  2. Pfc Justin Casillas
  3. Pfc Morris Walker
  4. Staff Sergeant Clayton Bowen
  5. Staff Sergeant Kurt Curtiss
  6. Second Lieutenant Darryn Andrews
  7. Staff Sergeant Michael Murphrey

UPDATE:

Speaking in Poland yesterday (June 3), Obama said “the release of the Taliban who were being held in Guantanamo was conditioned on the Qataris keeping eyes on them and creating a structure in which we can monitor their activities. We will be keeping eyes on them.” But Reuters reports that a senior Gulf official said Qatar has moved the five men to a residential compound and will let them move freely in the country.

~StMA

This article first appeared at Corsortium of Defense Analysts.

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