Bowe Bergdahl swap: why Obama can't get Congress onboard

The more that the Obama administration tries to reassure Congress about the swap of captured Sgt. Bowe Bergdahl for five Taliban prisoners at Guantánamo Bay, the less satisfied lawmakers are.

Nothing new has come from this week’s round of classified briefings by administration officials on the Hill, members of Congress complain. What the briefings have done, though, is to stoke outrage, particularly over the administration’s failure to notify Congress 30 days in advance of any prisoner release from Guantánamo prison, as required by law.

The reasons for the anger – vociferously relayed by Republicans and shared by some Democrats – range from irritation over the president’s attitude toward Congress, to more serious concerns about national security.

Here are four reasons why the controversy on Capitol Hill is not abating:

Congressional oversight overruled. One of Congress’s main reasons for existing is to provide oversight of the executive branch, including over military matters. “They can’t provide oversight unless they are properly informed,” says Betty Koed, the Senate’s associate historian.

With sensitive military matters, the White House typically gives advance notice to the “big eight” – the Republican and Democrat leaders of the House and Senate and of the intelligence committees. It didn’t do that this time for several reasons, according to administration officials:

• The president’s constitutional power as commander in chief meant he didn’t have to.
• Sergeant Bergdahl’s health was deteriorating quickly.
• Leaks from Congress would have endangered Bergdahl’s life.

Lawmakers from both parties scoffed at those concerns, especially the one about leaks. House Speaker John Boehner (R) of Ohio said on Tuesday he had been kept up to date on the plan to kill Osama bin Laden for months. His lips were sealed. Sen. Dianne Feinstein (D) of California, chairwoman of the Senate intelligence committee, expressed a similar view: “We’ve been notified before when lives are at stake, and that’s why we don’t leak.”

Had the White House given advance notice, say some key Republicans, they would not have agreed to the terms. When asked whether expected pushback might be a reason why the White House said nothing, Sen. John McCain (R) of Arizona replied: “I don’t know, except it’s interesting that some 90 members of the administration knew about it, but not one member of Congress.”

Acting alone on Guantánamo Bay. Before he took office, President Obama promised to shut down the Guantánamo Bay prison where terrorist suspects are being held indefinitely. The United Nations had also concluded it should be closed.

But many in Congress do not agree and have blocked the president from closing the prison, built during the George W. Bush administration. Lawmakers worry about released terrorists getting back in the fight and harming Americans – hence the 30-days’ notice provision in the Defense Authorization Act of 2014.  

The failure to inform brought the Guantanamo question roaring into the foreground, and opened wide again the divisions over the prison.

“I think Congress should really tighten up on any transfers out of Gitmo,” said Sen. Mark Kirk (R) of Illinois, using shorthand for the prison. “Gitmo in my view should be a black hole of terrorism that you go to and you never come out of,” he said last week.

On the other hand, the No. 2 Democrat in the Senate, Dick Durbin, also of Illinois, holds the opposite view. “I think we should close Guantánamo, and so does the president,” he said after last week’s classified briefing for senators by administration officials.

Unilaterally endangering national security. Republicans, and again, a few Democrats, have raised a hue and cry about the danger of five hardcore Taliban being released to Qatar. The Qataris, who negotiated the May 31 exchange, have promised to impose a travel ban on the men and to monitor them for a year.

But the administration downplays the danger, saying the US, too, is closely watching the men. “I'm not telling you that they don't have some ability at some point to go back and get involved, but they also have an ability to get killed doing that,” said Secretary of State John Kerry, speaking on CNN’s “State of the Union” on Sunday.

Republicans, and some Democrats, are not convinced. This week, Sen. Ted Cruz, (R) of Texas plans to introduce legislation that calls for a six-month pause on any more detainee releases from Guantánamo. He points to media reports that a handful of prisoners are being newly considered for release.

“Until President Obama can make his case and convince the American public that this swap was in our national interest, prudence dictates that all further transfers and releases from Guantánamo Bay should be off the table,” he said on the Senate floor Monday.

Insulting Congress. Beyond all of these serious reasons is the matter of insult. In a scrum with reporters Tuesday, Senator Cruz conceded that “serious constitutional arguments can be raised” about the 30-day law. But the administration, he said, is not treating this issue with appropriate seriousness. “Indeed, one of the most troubling aspects of this is the cavalier [way] with which this administration just ignores statutes.”