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Bergdahl could face discipline if proven guilty of dereliction of duty

Obama never consulted with Congress on Taliban prisoners: Boehner

- The Washington Times - Tuesday, June 3, 2014

The Pentagon said Tuesday that Sgt. Bowe Bergdahl may still face disciplinary action if he is found to have walked away from his post in 2009, as Obama administration officials sought to answer increasingly pointed questions about the deal that saw the U.S. release five Taliban warriors in exchange for getting the sergeant back.

House Speaker John A. Boehner said President Obama may have illegally sidestepped Congress to release the five Taliban fighters from Guantanamo Bay, elevating the legal dispute to the level of a major constitutional clash between the branches of government.

But Mr. Obama, traveling in Poland, told reporters he saw an opportunity and had to take it — regardless of the questions surrounding Sgt. Bergdahl's capture or the complexities of the congressional notification process.

"The process was truncated because we wanted to make sure that we did not miss that window," he said, dismissing questions about whether the sergeant deserted his post. "Regardless of the circumstances, whatever those circumstances may turn out to be, we still get an American soldier back if he's held in captivity. Period. Full stop. We don't condition that."

Back in Washington, however, the explanations failed to assuage Republicans and even many Democrats, who questioned both the wisdom of the five-for-one deal and the mixed signals from the White House over its legal obligations. The White House apparently gave at least one Democratic leader a day-early heads-up but kept most lawmakers, including Mr. Boehner, in the dark until just minutes before the Saturday announcement.

"I haven't had a conversation with the White House on this issue in 1½ years. Now if that's keeping us in the loop, then, you know, this administration is more arrogant than I thought they were," said Sen. Saxby Chambliss, the top Republican on the Senate Select Committee on Intelligence.

Seemingly acknowledging its failure to comply with the law, a top national security aide to Mr. Obama called Sen. Dianne Feinstein, California Democrat and chairwoman of the intelligence committee, Monday night to say it was an "oversight" that they failed to notify her of the trade.

"I just think these are important things," Mrs. Feinstein said of the notification issue. "I think it is important, if you can, to have a team — legislative [and] executive — that is supportive of something that is unusual, and this is unusual."

The Pentagon announced that Sgt. Bergdahl is in American hands and starting the process of "reintegration," beginning with a full medical check.

Army Secretary John McHugh said there was no timetable on his recovery but said once the sergeant is healthy enough, the Army will conduct an investigation into the circumstances of his capture.

Some of his comrades have said he deserted his post, spurring questions about whether the efforts made to bring him home — including both the price of five Taliban fighters and the American troops that may have been lost in the search for the sergeant — were worth it.

Freedom of movement

Gen. Martin E. Dempsey, chairman of the Joint Chiefs of Staff, defended the decision to make the deal.

"This was likely the last, best opportunity to free him. As for the circumstances of his capture, when he is able to provide them, we'll learn the facts," the general said. "Like any American, he is innocent until proven guilty. Our Army's leaders will not look away from misconduct if it occurred."

Sgt. Bergdahl disappeared from night guard duty at a remote outpost roughly two hours south of the Afghan city of Sharana on June 30, 2009. Comrades said they found his gear — save for his compass — neatly stacked, which they took to be a signal that he had left of his own accord.

Some of those comrades say American lives were lost in the ensuing search for Sgt. Bergdahl. But eventually the Pentagon stopped attempted rescue missions, judging the risk to special operations forces too great for someone they believed to be a "deserter," The Washington Times reported on Tuesday.

The five Taliban fighters have been shipped to Qatar, where Reuters reported they have freedom of movement within the country. That enraged some Republicans, who said it showed the White House failed to win assurances the five won't return to the battlefield.

Negotiating with terrorists

For his part, Mr. Boehner said negotiating with the Taliban has set a bad precedent that will mean it's "open season" on American diplomats and troops, making them targets for kidnapping.

"One of their greatest protections — knowing that the United States does not negotiate with terrorists — has been compromised," the speaker said.

Mr. Boehner said the administration will have to explain more of its decision-making and will have to defend its decision to duck the 2014 defense policy law, which requires 30 days' notice before the president can release a detainee from Guantanamo Bay and also requires said notification to certify the military has taken steps to make sure the persons won't return to the battlefield.

A Republican aide said the administration raised the possibility of a prisoner swap in highly classified briefings in late 2011 and again in early 2012, but that suggestion met with stiff resistance from members of Congress.

Lawmakers said that was the last they heard of a deal and said even White House Press Secretary Jay Carney said in June last year that the administration "would not make any decisions about transfer of any detainees without consulting with Congress and without doing so in accordance with U.S. law."

This week, however, the White House has sent mixed signals about whether it complied with the law. While acknowledging to some members of Congress that it was remiss in not notifying them, officials have publicly said they did give notice in the form of a signing statement on the defense policy bill, in which they claimed the right to act speedily if conditions required it.

The White House argues Sgt. Bergdahl's health was so precarious that they had to strike quickly.

Administration officials "determined that the notification requirement should be construed not to apply to this unique set of circumstances," since providing the legal notice in the statute "could endanger the soldier's life," National Security Council spokeswoman Caitlin Hayden said in the statement.

Sen. Carl Levin, chairman of the Armed Services Committee, said when Mr. Obama issued a signing statement late last year laying out how he interpreted the 2014 defense policy law, Congress should have considered that sufficient notice that the president was seeking to transfer detainees from Guantanamo.

"What this president did when [he] signed that statement last December was specifically say that in the area of detainees, he might have to move quickly without this kind of notice. He put us on warning," Mr. Levin said. "Does that change the law? No. But does that assert that he has authority under the Constitution? Yes."

But Sen. Joe Manchin III, West Virginia Democrat, challenged the explanation that the president's signing statement had alerted lawmakers to a possible detainee release.

"I do not accept that as a notice when you are going to be releasing people [from Guantanamo Bay]. It's hard to explain that in West Virginia — very hard to explain," he said.

The White House appears to have given Senate Majority Leader Harry Reid, Nevada Democrat, a one-day advance notice but left Republicans in the dark until just about the time the deal was made public.

Mr. Reid told reporters he'd been notified of the exchange on Friday, while a House GOP aide said Mr. Boehner's office was notified a little before noon on Saturday. The White House officially alerted reporters just before 12:30 that afternoon.

⦁ Guy Taylor and David Sherfinski contributed to this article

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