- The Washington Times - Monday, June 2, 2014

The White House Monday defended President Obama’s failure to notify Congress in advance of a prisoner swap with the Taliban, saying the administration had consulted lawmakers for years about the possibility of recovering a U.S. prisoner of war in Afghanistan.

The president’s top aides said that although the administration didn’t give Congress the required 30 days’ notice of the exchange that took place Saturday, they had told some lawmakers previously that a swap of five specific Taliban detainees was possible to gain the release of Army Sgt. Bowe Bergdahl. Some Republicans have criticized the administration for negotiating with terrorists and putting other U.S. soldiers at risk.

“This should not have been a surprise to any of the members of Congress who’ve been commenting about it,” said White House chief of staff Denis McDonough.

Republican lawmakers said the president broke the national defense authorization law that Mr. Obama signed on Dec. 26, 2013, which requires him to give Congress a month’s notice before releasing terrorism detainees from the prison at Guantanamo Bay, Cuba. But the president added a “signing statement” to the law, saying that he intended to reserve for himself the flexibility to negotiate over the release of terrorism detainees.

“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,” Mr. Obama wrote at the time.

When he ran for president in 2008, Mr. Obama criticized then-President George W. Bush for adding “signing statements” to laws, saying it was an abuse of executive authority that bypassed congressional intent.

“That’s not part of his power,” Mr. Obama said in May 2008. “But this is part of the whole theory of George Bush that he can make laws as he’s going along. I disagree with that. I taught the Constitution for ten years, I believe in the Constitution, and I will obey the Constitution of the United States. We’re not going to use signing statements as a way of doing an end run around Congress.”

White House press secretary Jay Carney said Mr. Obama never was opposed to signing statements in principle, just their overuse.

“He made clear that there were times when it would be appropriate, but that the authority to issue signing statements should not be overused or abused and that a president should exercise restraint,” he said.

Mr. Obama has used signing statements less often than Mr. Bush, issuing 27 since 2009, compared with Mr. Bush‘s 159 over eight years.

Mr. Carney said the 30-day requirement for notifying Congress “was not an option” in this case because “there was enough urgency here to ensure that Sergeant Bergdahl was safely recovered.” He said Sgt. Bergdahl‘s deteriorating health was a concern, and officials were worried that another opportunity might not arise.

“When the opportunity presented itself and we could successfully recover him, we acted quickly to do so,” he said.

The White House also argued Monday that exchanging a prisoner of war held by a terrorist group was no different than negotiating a prisoner exchange with a sovereign nation during a war. When asked if the Taliban are terrorists, Mr. Carney referred to its members as “enemy combatants.” He also referred to Sgt. Bergdahl as a “prisoner of war” instead of a “hostage.”

Mr. Carney said prisoner exchanges “are hardly a new development,” and compared the situation to U.S. actions in World War II and other conflicts.

“Whether it’s the Japanese or the North Koreans, or others, we have engaged in prisoner exchanges in the past,” he said. “The United States does not leave our men and women in uniform behind.”

Asked about reports that Sgt. Bergdahl had deserted his unit in Afghanistan five years ago, Mr. Carney said the Defense Department will evaluate “all of the circumstances” of his capture by the Taliban. But he didn’t repeat the assessment of White House national security adviser Susan E. Rice, who said Sgt. Bergdahl “served the United States with honor and distinction.”

State Department spokeswoman Jen Psaki twice declined to call Sgt. Bergdahl a deserter.

“We would characterize him as a member of the military who was detained while in combat,” she said.

Former Bush administration official John Bolton said by trading for a terrorist group’s hostage, “we are invariably putting a price on the heads of other Americans.”

“Exchanging Bergdahl for five terrorists is functionally no different,” Mr. Bolton wrote in the New York Post. “The Reagan administration was wrong in Iran-Contra to deal for hostages, and it almost cost Reagan his presidency. It is equally wrong today.”

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