Press coverage of Republican claims that Obama broke the law by failing to give Congress the required 30 days notice before transferring Army Sgt. Bowe Bergdahl ignores one key fact. In December 2013, Republicans amended the existing law which required
both notice to Congress
and Congressional approval for any Gitmo transfers, and instead made it a naked notice provision only:
"Many in Congress will still be opposed to the swap, but lawmakers gave up their right to stop it. A small change in the Fiscal Year 2014 National Defense Authorization Act (NDAA), which passed last December, now makes it only a requirement that the Defense Secretary notify Congress when releasing Guantanamo prisoners. Before the change, Congressional sign off on any Guantanamo releases would have been needed." http://www.thedailybeast.com/...
Indeed, long before this change in the law the White House had been discussing this precise Bergdahl swap and some form of Congressional approval. From the NYT one year ago:
"One Republican staff member on the House Armed Services Committee said that the administration had yet to present any concrete, detailed plan for how such an exchange would work. An administration official said that kind of consultation with lawmakers would be a prerequisite to a deal, if any ultimately emerges."
“If we were going to make this decision, which we have not yet decided to do, we would consult with Congress, as we always do on these issues,” the administration official said. “We are not looking to quickly do something that they wouldn’t be aware of, and for which there wouldn’t be proper oversight."
http://www.nytimes.com/...
Perhaps this January 2014 voluntary surrender of Congressional authority was a coincidence or omission as to this specific case, but it seems more likely that Congress "washed its hands" of responsibility for any Bergdahl deal, while retaining the right to yell and complain about it. Viewed that way, this is fairly similar in structure to the recent debt ceiling deals. Republicans got what all agree is necessary - avoiding a debt default, freeing a U.S. POW - but also retained the right to kick, scream and posture against what is responsible and difficult about actually governing.
This doesn't necessarily absolve Obama for failing to provide the statutory notice, but it does inform the legal question, and likely shows that this was the sort of absurd political dance that is required to get anything meaningful done these days.
Everyone wanted to get this soldier home, but one party wanted to retain the right to scream, stamp its feet, fundraise and politic on it anyway. That is pathetic, but it is also very obvious. So, the next time a Republican Congressman is on cable TV or interviewed by the print press, I suggest that the necessary question is: "If you cared so much about this issue, why did you affirmatively change the law to eliminate Congress's responsibility for the terms of the deal? Why did Congress want no part of making these decisions?" Because everything else is just empty posturing . . .