• How President Obama Broke His Own Law

    Bowe Bergdahl Swap For Five Taliban Terrorists Was Clearly Illegal

    President Obama did it again.

    He violated a law that he signed.

    Sadly, Republicans in Congress will issue out some empty-threat filled press releases and tough sounding statements, yet they will do nothing to punish President Obama.

    It is pretty clear that President Obama has violated the law and it is even clearer that the opposition party in Congress is going to do nothing more than some foot stomping and whimpering in response.

    A national debate is being conducted of the Obama Administration trading five captured terrorists in Guantanamo Bay for Sgt. Bowe Bergdahl.  If you read the law, a law signed by President Obama himself, then it is clear that President Obama broke the law with this deal.

    The legislation, the National Defense Authorization Act for FY 2014, did face some opposition in the Senate, but was eventually passed on December 19, 2013 by a 84-15 vote.  The President signed this bill into law on December 26, 2013 and it became P.L. 113-66.

    The law states the following:

    Sec. 1035. Transfers to Foreign Countries of Individuals Detained at Guantanamo to the individuals country of origin, or any other foreign country, if —

    (1) the Secretary (of Defense) determines … that the individual is no longer a threat to the national security of the United States; or

    (2) such transfer or release outside the United States is to effectuate an order affecting disposition of the individual by a court or competent tribunal of the United States having jurisdiction.

    These five highly valued detainees clearly pose a threat to national security.  This provision of law was clearly violated.

    News reports indicate that the White House was so excited to bring an American home from Afghanistan, they ignored the possibility that the soldier may have abandoned his post and the known danger that these five Taliban terrorists pose to the future safety of American soldiers abroad.

    According to Time, the Obama Administration’s steamrolled concerns from the Pentagon’s opposition to releasing these dangerous detainees.

    But officials in the Pentagon and intelligence communities had successfully fought off release of the five men in the past, officials tell TIME. “This was out of the norm,” says one official familiar with the debate over the dangers of releasing the five Taliban officials. “There was never the conversation.” Obama’s move was an ultimate victory for those at the White House and the State Department who had previously argued the military should “suck it up and salute,” says the official familiar with the debate.

    Politics trumped national security as these White House officials hoped to turn around the approval ratings of the President.  These out of touch elitists never considered the possibility that this guy was more GI Jane Fonda than GI Joe American hero.

    The Daily Mail reports that guys who served with Bergdahl don’t hold him in high regard.

    What the White House didn’t count on was a cadre of Bergdahl’s former platoon-mates coming forward and describing him as a dishonorable soldier beyond redemption.

    When this legislation was taken up in the House, the Obama Administration sent a Statement of Administration Policy (SAP) to Congress on June 11, 2013 that presented a clear veto threat then stated:

    Detainee Matters:  The Administration strongly objects to sections 1032, 1033, 1034, and 1035,  which unwisely and inappropriately interfere with the Executive Branch’s ability to manage detainees in a time of armed conflict. The President has repeatedly objected to the inclusion of these and similar provisions in prior versions of this law and has reiterated his call on Congress to lift the restrictions, most recently in his address to the Nation at the National Defense University.

    The Obama Administration wanted to remove “restrictions” on their power to trade prisoners of war to the Taliban and they didn’t care if those same individuals sat in a third country for a year then were deployed back to Afghanistan. The Taliban is still a declared enemy of the United States and we are giving back leaders of our enemy while Americans are still deployed to fight them.

    President Obama has already stated that he is not ending the war in Afghanistan and will be keeping just under ten thousand troops deployed. These individuals who still should be in Guantanamo Bay may face Americans in Afghanistan before the end of Obama’s term in office. That may not be illegal, but it is horrifying

    Furthermore, President Obama needs a lesson in the separation of powers.  Congress, not the President, makes the laws.  Congress clearly chose to ignore the veto threat by the President because they knew he would not follow through with his threat.  Congress chose to pass the law with restrictions and the President signed the law.

    Congress also may have foreseen that the Obama Administration would do something as out of touch as to send leaders of our enemies back to the battlefield.


    The signing statement by the President from December 26, 2013 stated:

    For the past several years, the Congress has enacted unwarranted and burdensome restrictions that have impeded my ability to transfer detainees from Guantanamo. Earlier this year I again called upon the Congress to lift these restrictions and, in this bill, the Congress has taken a positive step in that direction. Section 1035 of this Act gives the Administration additional flexibility to transfer detainees abroad by easing rigid restrictions that have hindered negotiations with foreign countries and interfered with executive branch determinations about how and where to transfer detainees. Section 1035 does not, however, eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles. The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. Of course, even in the absence of any statutory restrictions, my Administration would transfer a detainee only if the threat the detainee may pose can be sufficiently mitigated and only when consistent with our humane treatment policy. Section 1035 nevertheless represents an improvement over current law and is a welcome step toward closing the facility.

    So, the President did complain about limitations on his power, yet he chose to sign the bill into law.  The end of the signing statement argued that he would ignore the clear letter of the law if it violates his interpretation of the separation of powers.

    In the event that the restrictions on the transfer of Guantanamo detainees in sections 1034 and 1035 operate in a manner that violates constitutional separation of powers principles, my Administration will implement them in a manner that avoids the constitutional conflict.

    Another provision of the law mandated that Congress be notified at least thirty days before the transfer of any detainees from Guantanamo Bay.  This notification never happened and this is another example of the law being violated.

    It is inexcusable that the President would sign legislation into law then ignore it.  If he thought the letter of the law was unconstitutional, then he should have vetoed the bill and sent it back to Congress.  Yet the arrogance of the Administration with regard to willful violations of the law seems to have no bounds, because Congress has no fortitude to fight back.

    This is also a great example of why we have a separation of powers — sometimes it protects the President against dumb decisions that are not well thought out.

    Cloakroom Confidential

    Cloakroom Confidential was a longtime Capitol Hill staffer and insider who has contacts in the House and Senate at the highest levels.

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