- The Washington Times - Wednesday, June 11, 2014

Senior defense officials told Congress on Wednesday that President Obama got legal approval from the Justice Department to skirt Congress and release five former Taliban commanders from Guantanamo in a prisoner trade for Army Sgt. Bowe Bergdahl.

In the first extended public defense of Mr. Obama’s legal reasoning for sidestepping a law that required him to give Congress 30 days’ notice before releasing detainees, Defense Department General Counsel Stephen Preston said Mr. Obama acted based on his powers as commander in chief.

“The administration sought the guidance from the Department of Justice on the applicability and impact of the 30-day notice requirement,” said Mr. Preston.

He said Justice Department officials concluded that “extraordinary circumstances” surrounding Sgt. Bergdahl’s captivity in Afghanistan meant Mr. Obama had the authority to make the prisoner swap without telling Congress.

Mr. Preston said the Justice Department didn’t issue a formal ruling but gave its approval in an email exchange. He said he wasn’t sure whether the legal reasoning could be released to Congress or the public.

Mr. Preston testified to the House Armed Services Committee alongside Secretary of Defense Chuck Hagel.

SEE ALSO: Bowe Bergdahl washed out of Coast Guard before joining Army

In sometimes hostile questioning from committee Republicans, Mr. Hagel said he backed the decision to make the exchange.

“I would never sign off on any decision that I did not feel was in the best interests of this country,” Mr. Hagel told lawmakers. “Nor would the president of the United States, who made the final decision with the full support of his national security team.”

The move to release the five former Taliban commanders from Guantanamo Bay, Cuba, to the Persian Gulf nation of Qatar has outraged many members of Congress, particularly Republicans, who argue that the administration put political pressure to close Guantanamo above potential security risks.

“As secretary of defense, I have the authority and responsibility to determine whether detainees at Guantanamo Bay can be transferred to the custody of another country,” Mr. Hagel said. “I take that responsibility damn seriously — damn seriously — as seriously as any responsibility I have.”

Even lawmakers who agreed with the exchange said the president was wrong to ignore the 30-day notification requirement, which Congress passed on a bipartisan basis specifically to keep Mr. Obama from making releases such as the Taliban prisoner swap without consent on Capitol Hill.

“The law is the law,” said Rep. Adam Smith of Washington state, the ranking Democrat on the Armed Services Committee. “The way you challenge constitutionality is you go to court and you figure out whether or not the courts say it’s constitutional or not. And until the courts rule on that, it is the law.”

Mr. Hagel said Mr. Obama felt compelled to act in part because of several congressional resolutions urging him “to do everything he could to get Sgt. Bergdahl released from captivity.”

Mr. Preston, meanwhile, struggled to explain the government’s legal stance as he was repeatedly cut off by committee Chairman Howard P. “Buck” McKeon, California Republican.

“We solicited legal guidance on the legal issues that would apply in application in this extraordinary set of circumstances in which the president was seeking to repatriate a service member who was in captivity and in peril, whether in these extraordinary circumstances …,” Mr. Preston said before Mr. McKeon cut him off.

“So if the circumstances are extraordinary, you don’t have to follow the law?” Mr. McKeon asked.

“No,” Mr. Preston replied. “The way I would put it is that the Constitution vests in the president certain authorities and responsibilities, to include protecting … protecting Americans abroad and protecting service members in particular.

“To the extent that the application of the 30-day notice in this application would interfere with or undermine the president’s efforts to seek — to secure the recovery of this service member, then in the exercise of his constitutional authority, the statutory notice …,” Mr. Preston said.

He was unable to finish before Mr. McKeon interjected again: “That was your interpretation.”

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