Updated 7:45 p.m. | The chairman of the House Armed Services Committee said Monday there will be hearings on whether the Obama administration broke the law in trading five Guantánamo Bay detainees for Army Sgt. Bowe Bergdahl, who’d been held by the Taliban for five years.
“My perception is he broke the law by not informing Congress 30 days before,” Rep. Howard “Buck” McKeon, R-Calif., said in an appearance on MSNBC, referring to a 2013 law that requires the administration to notify Congress before detainees from the detention camp are released.
“We will be holding hearings. I’m sorry that this is being portrayed as a Republican issue. Democrats also voted for this law. It was important for our national security.” he said. “This is not a partisan issue.
“We passed a law last year,” he said. “It passed overwhelmingly on the floor and through the Senate and the president signed it. And although he said now he had a disclaimer along with it that he apparently didn’t support the law, he did sign it.” White House National Security Adviser Susan E. Rice said Sunday that because officials were concerned about Bergdahl’s health, there wasn’t time to notify Congress.
“It was determined that it was necessary and appropriate not to adhere to the 30-day notification requirement, because it would have potentially meant that the opportunity to get Sgt. Bergdahl would have been lost,” she said.
The law McKeon refers to is the fiscal 2014 National Defense Authorization Act, which, in addition to the 30-day notification requirement, requires the administration to determine that one: the risk posed by the detainee will be substantially mitigated, and two: that the transfer is in the national security interests of the United States.
Those questions will probably be more interesting — and more difficult to answer — than whether the administration broke the law by transferring detainees.
The language from the defense authorization law is clear: the administration cannot transfer a detainee without congressional notification 30 days prior.
As aides from the Armed Services Committee pointed out Monday, the Defense Department called the committee on May 31 to notify them that a prisoner exchange was underway, and while the committee received a congressional notification on Monday, that was after the transfer, not 30 days in advance of it, as required by law.
On Monday, support for an investigation into the matter seemed to be growing.
Aides to Speaker John A. Boehner told CQ Roll Call that the Ohio Republican was supportive of hearings into the prisoner exchange, and a number of Republican Senators were urging Senate Armed Services Chairman Carl Levin, D-Mich., to hold hearings of his own.
Sen. Kelly Ayotte, R-N.H., said in a letter to Levin that the administration’s decision to negotiate sets "a precedent that could encourage our enemies to capture more Americans in order to gain concessions from our government.”
Sen. Lindsey Graham, R-S.C., has also questioned the prisoner swap and is seeking a hearing before the Senate Armed Services Committee.