Allahpundit linked this earlier, but the argument presented by House Armed Services Committee chair Buck McKeon is worth watching and reading in full. Saying that the White House still has not briefed Congressional leaders on the terms of the Bowe Bergdahl swap — and especially on security provisions for the five Taliban figures released from GITMO in exchange — McKeon promised hearings soon to investigate the failure of the Obama administration to follow the law signed by Barack Obama on notification for such transfers. In contrast, Congressional leaders got briefed for months into the much more sensitive operation that eventually killed Osama bin Laden, which makes Susan Rice’s claims of fragility of Bergdahl’s state a little weak for an excuse:
The House Armed Services Committee will investigate President Obama’s decision to circumvent Congress in swapping five Guatanomo Bay prisoners for Arm Sgt. Bowe Berdahl, the panel’s chairman said Monday.
“We will be holding hearings. I’m sorry this is being portrayed as a Republican issue,” Rep. Buck McKeon (R-Calif.) said on MSNBC’s “The Daily Rundown.”
McKeon said Obama “broke the law” by not informing Congress 30 days before he released the five Taliban detainees from Guatanomo and sent them to Qatar. …
McKeon noted that National Security Adviser Susan Rice on Sunday said the deal had been in the works for some time, and said Congress should have been informed along the way.
“I don’t know who they were talking to. I have not been a part of this and I’m the chairman of the committee,” he said.
“Now we’re 72 hours after the fact, and they still haven’t told us how they’re going to ensure that these five, top-level Taliban terrorists are not coming back into the fight,” McKeon said.
McKeon linked this to Benghazi and the general disdain for the rule of law in the Obama administration:
“It really is ironic, because this is kind of playing out much like Benghazi, where they kind of do or don’t do something, and then kind of come up with a story afterwards of why they did or didn’t do something,” McKeon said. “This president has a reputation, I think well-deserved, of deciding which laws he’s going to enforce and which laws he’s not going to enforce.”
“We still haven’t heard the details,” McKeon said of the prisoner swap. “We don’t know what they’re doing about these five, how they’re going to keep them out of the fight. We just are in the dark. And this is a violation of the law, no matter what [National Security Advisor Susan Rice] said.”
Allahpundit has a good rundown of the potential political arguments this could raise over the White House’s actions, but let me throw a dash of cold water on the entire enterprise. First, while the House has a very legitimate beef in this case, their overall argument is weak, at least in relation to other instances of failures to engage Congress. In wartime, the executive has the authority to negotiate prisoner swaps, and even had Congress objected to this one there wouldn’t have been much they could do to stop it. In fact, the positions are now largely reversed on executive authority and jurisdiction of detainees from the Bush administration, where Obama and his allies insisted that Bush overreached in creating GITMO and the military commission system. Still, Obama did sign the NDAA with the notification language in it, signing statements or no, and should have abided by it.
However, it’s curious that the House is now attempting to assert its role in a prisoner exchange rather than asserting its role in the commitment of military forces in war. The Obama administration violated the War Powers Act by starting a war against Moammar Qaddafi that had nothing to do with any clear and present threat to the security of the United States, and then refused to ask permission even afterward. That was a far more egregious act and much more offensive to the separation of powers, and yet other than some vocal protests at the time, the House did nothing much to hold the Obama administration accountable for its actions. That war led directly to the collapse of Libya as a functioning state and created the environment in which the attack on our consulate in Benghazi took place. The House is just now getting around to forming a select committee to look into that.
It’s not that McKeon isn’t justified in his outrage, but given the precedent set, it seems a little out of balance. Don’t expect this to produce any real action, either. While it may give the opportunity for angry House members to verbally reprimand members of the Obama administration and air some embarrassing details about Bergdahl’s circumstances and the dangers of the five Talibani released, no one will end up resigning over it. It certainly won’t stop Obama from emptying GITMO — although it may make him a little more circumspect about observing the 30-day notification law in the future. Besides, the 9/11 plotters are still at GITMO and will likely remain there at least until the Obama administration gets around to their military-commission trial.