(Above: Rep. Bradley Byrne (R-AL01) questions Defense Secretary Chuck Hagel and DOD General Counsel Stephen Preston)
In a Congressional hearing that lasted over 5 hours, Defense Secretary Chuck Hagel conceded Wednesday that the Obama Administration mishandled parts of the Taliban prisoner exchange that brought Army Sgt. Bowe Bergdahl back into U.S. custody. Specifically, Hagel regretted the Administration’s decision to keep Congress in the dark until after the exchange was made.
“We didn’t handle some of this right,” Hagel admitted to the House Armed Services Committee. “We could have done a better job of keeping you informed.”
Rep. Bradley Byrne of Alabama’s 1st Congressional District further pressed Secretary Hagel on the issue, asking if he at any point personally recommended to the White House that they notify Congress prior to the trade.
“I didn’t particularly like it, a lot of people didn’t, but we felt in the interest of not risking (Bowe Bergdahl’s safety) and the opportunity to get him back… this was the smartest way to do it,” Hagel replied. “No formal recommendation was made by me. At the end we discussed it and all came out in the same place — that the risk (of informing Congress) was just too great and we didn’t want to take the risk.”
Byrne then turned his attention to Stephen Preston, General Counsel for the Department of Defense, to discuss what he described as the “Constitutional issue” with the exchange. By not informing Congress ahead of time, President Obama ignored a law that he signed specifically stating that the President must notify Congress 30-days prior to the release of any Guantanamo Bay prisoners.
“Is it the position of the Obama Administration that after the President of the United States signs a law… he can… say ‘I don’t have to comply with a particular provision of that law, without having to go to court first?” Byrne asked Preston.
“The president may act in the exercise of his Constitutional authority as he understands it and as circumstances demand without necessarily going to court,” Preston responded.
Byrne’s line of questioning then took a surprising turn that clearly caught Preston and Hagel off guard. The freshman congressman compared the Obama Administration’s reasoning behind ignoring the law to the famous argument that then-President Richard Nixon made in the aftermath of Watergate, that “when the president does it, that means that it is not illegal.”
“How is that different from the position that people in the Nixon Administration took during Watergate that if the president does it, it’s legal?” Byrne quipped. “How is that different?”
“I wouldn’t even know where to begin to answer that,” Preston replied.
“Start at the beginning,” said Byrne. “Can a President of the United States decide he can do whatever he wants to do because he’s got some Constitutional protection, despite a clear provision of the law to the contrary? Can he do that?”
Preston called it the President’s “Constitutional duty and authority” to recover any service member in peril, and said that Obama was confronted with unique circumstances that demanded action.
Following the hearing, Byrne expressed concerns that the transfer will put American service members at greater risk.
“I went into the hearing with serious concerns that our military members serving in the Middle East, and Americans the world over, are in greater danger today due to the release of these Taliban officials,” Byrne said. “Secretary Hagel’s testimony did little to ease my concerns, and actually only raised more questions about the security of Americans abroad.
“Of particular concern to me, Secretary Hagel failed to provide a compelling reason why the law was not followed in regard to notifying Congress 30-days prior to the release of any Guantanamo Bay prisoners. The idea that the President can unilaterally decide that a law does not apply to him should be alarming to all Americans.”
Byrne said that the House Armed Services Committee, of which he is a member, will continue investigating the prisoner exchange in an effort to ensure that a similar arrangement does not take place in the future.
“This investigation is not over,” he said. “We will continue to demand answers about this secret deal from the Obama administration to ensure a future transfer of this nature does not happen again.”
Follow Cliff on Twitter @Cliff_Sims
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