But that is unlikely to stop the political firestorm. Republicans
have attacked the Obama administration's decision not to consult
Congress before exchanging the Taliban detainees for Bergdahl, and
resentment is growing among former fellow soldiers who call him a
Republicans hope foreign-affairs and military issues can help them
wrest control of the Senate in elections in November. They have
mounted an investigation into the 2012 attacks on the U.S. embassy
in Benghazi, Libya and seek to tie vulnerable Democrats to a scandal
at the Veterans Administration.
Added to that list is Bergdahl, America's newest hot-button
"The administration has invited serious questions into how this
exchange went down and the calculations the White House and relevant
agencies made in moving forward without consulting Congress," House
of Representatives Speaker John Boehner said.
Boehner, the top Republican in Congress, said on Tuesday he
supported calls for congressional hearings on the decision to swap
the Taliban detainees for Bergdahl.
Representative Howard McKeon from California and Senator James
Inhofe of Oklahoma, both Republicans, said Obama "clearly violated
laws" in transferring the detainees, offering a taste of the likely
political brawl ahead.
On Tuesday, a House Republican who is hoping to unseat an incumbent
Democratic senator in Arkansas became one of the first lawmakers to
publicly suggest that Bergdahl abandoned his unit voluntarily.
"I'm deeply troubled that you and your administration aren't being
forthcoming with the truth: Bergdahl was most likely a deserter,"
Arkansas Republican Representative Tom Cotton wrote in a letter to
FEW LEGAL RISKS
But legal experts say Obama appears clear of legal risks.
On Saturday, after lawmakers in Congress were informed of the deal,
Republicans raised questions over whether Obama had violated the
2014 National Defense Authorization Act (NDAA) by failing to notify
them in advance.
The law requires at least 30 days notification before the release or
transfer of detainees held at the U.S. military prison at Guantanamo
Courts, however, are unlikely to provide any resolution.
Judges are traditionally wary of getting involved in disputes
between the branches of government. The case may also be considered
moot because the action Obama ordered has already been completed.
“I think it is highly unlikely anything can be done in the courts,”
said Michael Gerhardt, a constitutional law scholar at the
University of North Carolina School of Law. "The courts usually stay
out of cases like this."
Ultimately, lawmakers may complain and hold hearings, but there's
little they can do to challenge the president's action, said John
Bellinger, who served as the top legal adviser in the State
Department under President George W. Bush.
That said, the administration made a "big mistake" politically in
not notifying selected members of Congress in advance, he added.
[to top of second column]
White House officials called some key members of Congress on
Tuesday, including Senate Intelligence Committee chairwoman Senator
Dianne Feinstein, and Senator Saxby Chambliss, the top Republican on
the committee, to apologize for not keeping them properly informed.
John Noonan, a spokesman for the House Armed Services Committee,
which Representative McKeon chairs, said on Tuesday that so far the
only plan was for hearings on the issue. "We will see what we find"
before taking further steps, he added.
The administration outlined its legal defense in a statement issued
by the National Security Council on Tuesday. It said officials did
not believe the NDAA applied because the transfer was done to secure
the release of a U.S. soldier and because officials concluded that
divulging information about the deal could have endangered
When Obama signed the bill into law, he included a so-called
"signing statement" clarifying its limits. He stated that the
administration should have the flexibility to act swiftly when
negotiating with foreign countries.
Presidents of both parties have used such statements to offer their
interpretation of laws enacted by Congress.
The administration has also indicated it believes that Obama’s
commander-in-chief powers, granted under Article Two of the U.S.
Constitution, trump the notification provision.
Defense Secretary Chuck Hagel told reporters on June 1 that the
president “has the power and authority to make the decision that he
Marty Lederman, a law professor at Georgetown Law Center who served
in Obama's Justice Department, indicated some support for the
administration's legal arguments.
"It's difficult to imagine that Congress would have intended to
insist upon such a 30-day delay if the legislators had actually
contemplated a time-sensitive prisoner-exchange negotiation of this
sort," he wrote in a blog post.
But even if Obama has the upper hand legally, the extent of the
political fallout is less clear.
"It could have political implications, it's just too early to tell,"
said Republican strategist Saul Anuzis. "I think there's just too
many unknown facts."
(Editing by Jason Szep and Ross Colvin)
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