- - Tuesday, June 3, 2014


President Obama insists his swapping an American soldier for terrorists is perfectly legal. Congress last year put language in the defense appropriations bill that limits the administration’s ability to transfer prisoners from Guantanamo. When Mr. Obama swapped five top Taliban prisoners for Sgt. Bowe Bergdahl he defied both Congress and the law.

This conflict was set up with a stroke of a pen last year. “I continue to oppose this provision,” Mr. Obama wrote in a January 2013 signing statement, “which substitutes the Congress‘ blanket political determination for careful and fact-based determinations, made by counterterrorism and law enforcement professionals, of when and where to prosecute Guantanamo detainees.”

What Congress said was that no war criminal could be transferred to a foreign country unless the administration certifies, 30 days in advance, that the prisoner will stay imprisoned and that there would be no way he could resume a life of terrorism. In the Bergdahl swap, Mr. Obama made no such certification. It’s impossible. Murder and mayhem is what jihadists do.

Although Mr. Obama disliked the Guantanamo prisoner provisions when Congress sent them to his desk, he chose not to veto the bill. Taking time to negotiate with Congress is tedious and time-consuming, and Mr. Obama has no time for it. He said he would ignore any part of a law he considers distasteful.

Mr. Obama once said such signing statements are illegal. “It is a clear abuse of power,” he said when he was a candidate for president in 2008, “to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability. I will not use signing statements to nullify or undermine congressional instructions as enacted into law.” How things change.

He discarded such rhetoric once he was elected. Before his new Oval Office chair was broken in, Mr. Obama pulled up to his desk and issued a signing statement objecting to certain provisions of the federal stimulus bill. He has since used his new-found power on more than two dozen occasions.

Signing statements are effectively a line-item veto, which the Supreme Court has said requires a constitutional amendment. If a president signs a bill into law, he must “faithfully execute” it as written.

The problem with signing statements is that they’re not part of the rules of the game, as a real line-item veto gives Congress a chance to override the president’s decision. The signing statement is a one-way seizure of power, and once a branch of government takes such power, it never relinquishes it.

In the case at hand, there’s little question that Congress would have disapproved of the White House scheme to trade five hardened jihadists for one hostage of murky provenance. The circumstances of this particular swap cry out for congressional examination. Mr. Obama obviously wanted this trade for reasons of his own. He made the announcement as a photo-op, with the soldier’s parents at his side at the White House, as if he had rescued a national hero.

The history books overflow with examples of how negotiating with terrorists invites more terrorism. Al Qaeda can now clean out Guantanamo if it can find enough Americans to take captive, as it will surely try to do. If Congress allows Mr. Obama to defy the law, everyone is in danger.

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