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

President Obama has sent officials to Capitol Hill several times to try to calm concerns about the Bowe Bergdahl swap. But Congress is still mad 鈥 and not just Republicans. Here's why.

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Jonathan Ernst/Reuters
Sen. John McCain (R) of Arizona talks to reporters after a closed-door Senate Armed Services Committee briefing on the Bergdahl prisoner swap at the Capitol in Washington Tuesday.

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

Nothing new has come from this week鈥檚 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鈥檚 failure to notify Congress 30 days in advance of any prisoner release from Guant谩namo prison, as required by law.

The reasons for the anger 鈥 vociferously relayed by Republicans and shared by some Democrats 鈥 range from irritation over the president鈥檚 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鈥檚 main reasons for existing is to provide oversight of the executive branch, including over military matters. 鈥淭hey can鈥檛 provide oversight unless they are properly informed,鈥 says Betty Koed, the Senate鈥檚 associate historian.

With sensitive military matters, the White House typically gives advance notice to the 鈥渂ig eight鈥 鈥 the Republican and Democrat leaders of the House and Senate and of the intelligence committees. It didn鈥檛 do that this time for several reasons, according to administration officials:

  • The president鈥檚 constitutional power as commander in chief meant he didn鈥檛 have to.
  • Sergeant Bergdahl鈥檚 health was deteriorating quickly.
  • Leaks from Congress would have endangered Bergdahl鈥檚 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: 鈥淲e鈥檝e been notified before when lives are at stake, and that鈥檚 why we don鈥檛 leak.鈥

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: 鈥淚 don鈥檛 know, except it鈥檚 interesting that some 90 members of the administration knew about it, but not one member of Congress.鈥

Acting alone on Guant谩namo Bay. Before he took office, President Obama promised to shut down the Guant谩namo 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 鈥 hence the 30-days鈥 notice provision in the Defense Authorization Act of 2014. 聽

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

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

On the other hand, the No. 2 Democrat in the Senate, Dick Durbin, also of Illinois, holds the opposite view. 鈥淚 think we should close Guant谩namo, and so does the president,鈥 he said after last week鈥檚 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. 鈥淚'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,鈥 said Secretary of State John Kerry, speaking on CNN鈥檚 鈥淪tate of the Union鈥 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 Guant谩namo. He points to media reports that a handful of prisoners are being newly considered for release.

鈥淯ntil 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 Guant谩namo Bay should be off the table,鈥 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 鈥渟erious constitutional arguments can be raised鈥 about the 30-day law. But the administration, he said, is not treating this issue with appropriate seriousness. 鈥淚ndeed, one of the most troubling aspects of this is the cavalier [way] with which this administration just ignores statutes.鈥

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