It's been nearly four months since President Obama announced that Army Sgt. Bowe Bergdahl, the last remaining P.O.W. in Afghanistan, was returning home, touching off a fierce political controversy. It
seemed implausible that the freeing of an American prisoner of war being treated as bad news, but White House critics characterized it as a "scandal," possibly worthy of
impeachment.
For the most part, congressional Republicans undermined their own political cause from the outset. There were legitimate questions about whether the administration sidestepped the letter of the law when it failed to notify Congress 30 days in advance of the prisoner-transfer plan, but for much of the right, these questions
were less interesting than wild-eyed conspiracy theories. As Paul Waldman
put it at the time, conservatives were "so quick to jump on the train to Crazytown" that they undermined "their own legitimate arguments."
In time, GOP officials lost interest in the story -- apparently, there's going to be some new Benghazi committee? -- but those underlying concerns
haven't completely faded just yet.
The Defense Department violated the law when it didn't tell Congress before transferring five Taliban detainees from Guantánamo Bay, Cuba, to Qatar in return for the Taliban's release of captured Army Sgt. Bowe Bergdahl, the Government Accountability Office said in a legal decision made public Thursday. Pentagon officials "did not notify the relevant congressional committees at least 30 days in advance of the transfer," as required by law, GAO General Counsel Susan A. Poling said in a letter to nine Republican senators who had sought the analysis.
The GAO's findings came in response to a formal request from nine Republican senators. (The report largely mirrors an argument Adam Serwer
published for msnbc in June.)
Seizing on the opportunity, Sen. Saxby Chambliss (R-Ga.), the top Republican on the Senate Intelligence Committee,
now wants the Justice Department to appoint a special counsel.
So, do Republicans have a point? It's a little complicated.
At first blush, the controversy seems pretty straightforward. A provision in the 2014 National Defense Authorization Act (NDAA), which funds the military, said the administration has to notify Congress "not later than 30 days before the transfer or release" of any detainee at the Guantanamo Bay prison. In this case, the administration doesn't appear to have done so.
What's more, the GAO report questions whether the Pentagon also used funds to complete the prisoner swap that it wasn't authorized to spend.
But as Zack Beauchamp
explained, there's are broader questions to keep in mind.
[I]t may be more complicated than that, based on conversations with constitutional law experts from before Thursday's report was released. The core issue, they argued, is constitutional, rather than the statutory issues raised by the GAO. And the GAO report explicitly doesn't weigh in on those constitutional issues. "We do not offer any opinion on the constitutionality of section 1035," the report says. "It is not our role or our practice to determine the constitutionality of duly enacted statutes." So the GAO report will likely be a big deal politically, but without addressing that constitutional piece, does not settle thing legally. The Bergdahl question comes down to where the president's constitutional authority as commander-in-chief ends and Congress's jurisdiction begins. And it's not a question we're likely to get a definitive answer to anytime soon: given the way that the relevant law works in this area, the Supreme Court will never hear a case about it.
Beauchamp's piece digs deeper, and is certainly worth checking out.
I'd just add that when Beltway Republicans run around screaming that President Obama is an out-of-control tyrant, overseeing a lawless dictatorship, nearly all of their arguments are ridiculous and impossible to take seriously. In this case, however, there's a foundation that's at least rooted in reality -- the Pentagon may have acted outside the letter of a law.
Given that the action freed an American prisoner of war, and the White House insists it had to take advantage of a unique, time-sensitive opportunity, it seems odd to think lawmakers would literally make a federal case out of it, but these are strange political times.
