- The president ignored a law – which he signed last year – requiring him to notify Congress 30 days before releasing anyone from Guantanamo Bay
- The Obama administration never told Capitol Hill until after Bergdahl was in American custody and the US Taliban prisoners were preparing to leave
- A former federal prosecutor told MailOnline that while the 30-day-notice law is probably unconstitutional, putting enemy combatants back in a position to harm Americans is an impeachable offense
- A White House insider said Obama administration officials didn’t anticipate how controversial Bergdahl’s rescue would be, and compared it to the 1981 release of 52 US hostages in Iran
- Since Saturday several of Bergdahl’s former military comrades have said he was an Army deserter, and some have speculated that he also aimed to join with the Taliban in Afghanistan
- An official Pentagon report concluded in 2010 that Bergdahl ‘walked away,’ so little effort was made to retrieve him, according to the AP
(Daily Mail) – Barack Obama broke a federal law that he signed just six months ago when he authorized the release of five high-ranking Taliban terror targets from the Guantanamo Bay detention center in exchange for the return of U.S. Army Sgt. Bowe Bergdahl, senior congressional Republicans claimed today.
And the president may also have written a new chapter in the case for his own impeachment, according to a former federal prosecutor who helped bring the 1993 World Trade Center bombers to justice.
‘The return of senior terrorists to the Taliban [is] … a “high crime and misdemeanor”,’ author Andrew C. McCarthy told MailOnline.
His book ‘Faithless Execution: Building the case for Obama’s impeachment,’ is set to be published Tuesday.
Obama ‘clearly violated laws which require him to notify Congress thirty days before any transfer of terrorists from Guantanamo Bay, and to explain how the threat posed by such terrorists has been substantially mitigated,’ House Armed Services Committee chairman Rep. Buck McKeon of California and Senate Armed Services Committee ranking member Sen. Jim Inhofe of Oklahoma said Saturday.
‘Our joy at Sergeant Berghdal’s release is tempered by the fact that President Obama chose to ignore the law, not to mention sound policy, to achieve it.’
What makes the news more controversial still is that many do not see Bergdahl as a hero. Instead he has been branded a ‘deserter’ by many of his former comrades.
An official Pentagon report in 2010 concluded that he ‘walked away’ from his post, so the U.S. Army did not exert any extraordinary efforts to find him after an initial flurry of searches, according to an insider who spoke to the Associated Press.
And at least six soldiers lost their lives in circumstances related to the Idaho native’s disappearance from his post on June 30, 2009. Parents of one dead military men were told that their son perished in a mission aimed at taking down a Taliban target, not capturing a deserter.
With the circumstances of Bergdahl’s disappearance no longer in any substantial doubt, the remaining outrage has focused on the Obama administration’s decision to trade five high-value Taliban terror detainees for him – several years after the Pentagon decided he wasn’t worth recovering.
Yet it appears the administration believed it would win a PR victory big enough to eclipse any legalistic hand-wringing on Capitol Hill, and whatever objections might surface among the military rank-and-file.
A White House official told MailOnline on Monday morning that Obama’s deputies were caught flatfooted by the intensity of public outrage in some quarters after Bergdahl’s rescue by Special Forces.
‘Everyone thought this would be a January 1981 moment,’ the insider said, referring to the negotiated release of 52 U.S. hostages in Iran after 444 days in captivity.
Backlash: Some of the men who served with Bowe Bergdahl are furious that he is being hailed as a hero and claim that he deserted his post
Bergdahl, the last American hostage from the Iraq or Afghanistan wars, was released this weekend in a prisoner exchange that saw five Guantanamo terrorism suspects freed
The United States won their freedom by releasing about $8 billion in Iranian assets that were frozen during the hostage standoff, and immunizing the Iranian government from any lawsuits that might be filed after the crisis was over.
‘Reagan negotiated with terrorists in the weeks before he took office,’ the official said. ‘I don’t remember anyone objecting at the time. They just wanted our people home.’
What the White House didn’t count on was a cadre of Bergdahl’s former platoon-mates coming forward and describing him as a dishonorable soldier beyond redemption.
The law Obama is accused of breaking, the National Defense Authorization Act (NDAA) of 2013, requires Defense Secretary Chuck Hagel to ‘notify the appropriate committees of Congress … not later than 30 days before the transfer or release’ of detainees from Guantanamo.
Hagel is required to explain why prisoners are being let go, why it’s ‘in the national security interests of the United States,’ and what the administration has done ‘to mitigate the risks’ that the terror targets will ‘re-engage’ in war against the U.S.
Obama signed the lengthy law in December – it sets budgets and policy for the entire Defense Department – but issued a statement saying that he thought the notification requirement was unfair.
‘[I]n certain circumstances,,’ he wrote, it ‘would violate constitutional separation of powers principles. 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.’
Congress had moved significantly in the president’s direction, compared with the previous year’s NDAA. That law expressly forbade the administration from spending any money to release enemy combatants to foreign countries from Guantanamo.
Now Obama can make his move, provided he keeps Congress in the loop – which by all accounts he failed to do.
Administration officials were quick to assert that an emergency related to Bergdahl’s health made convening a war council impracticable.
‘We had reason to be concerned that this was an urgent and acute situation,’ National Security Adviser Susan Rice said Sunday on ABC.
‘Had we waited and lost him, I don’t think anybody would have forgiven the United States government.’
But Monday morning on CNN, outgoing White House Press Secretary Jay Carney couldn’t back up that assertion.
‘Now that you have him,’ host Chris Cuomo asked, ‘have they been able to diagnose anything that substantiated the concerns?’
‘Well, you know, I think at this point, Chris,’ Carney said, ‘we need to allow for Sergeant Bergdahl to recover privately. Out of respect for him and his family. we’re not going to get into details of that process. We’re just thrilled that he is back.’
It’s not flouting the defense law that upsets McCarthy, the prosecutor-turned-author.
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He thinks the NDAA itself is unconstitutional since it forbade Obama from moving chess pieces around the battlefield – instead of continuing to prohibit him from spending money to do it, which is Congress’ job.
But putting senior Taliban leaders back in a position to harm U.S. national interests, McCarthy argues, could be Obama’s undoing.
‘I don’t think it’s an impeachable offense for violating the NDAA,’ he told MailOnline.
‘Congress unconstitutionally restricted the president’s war power over the disposition of enemy combatants.’
‘They could have properly done it by using the power of the purse to deny funds for the transfers, but that’s not what they did [this time].’
But transferring the five high-value prisoners to Qatar, as Obama has authorized, ‘violates the law against material support to terrorism,’ McCarthy said.
‘And because high crimes and misdemeanors are not statutory offenses but political wrongs that endanger the United States, the return of senior terrorists to the Taliban while we still have soldiers in harm’s way is, in my view, a “high crime and misdemeanor”.
Article Two of the United States Constitution provides Congress with a way to remove officials, including the president, from the executive branch.
‘The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors,’ it reads in part.
A ‘high’ crime is one that only a person in a position of power or authority can commit.
American history has seen only three serious attempts at impeachment: Andrew Johnson, Richard Nixon and Bill Clinton. Nixon resigned before he could be removed from the White House over the Watergate affair. The U.S. Senate failed to gather the two-thirds majority required to convict (and depose) either Clinton or Johnson.
McCarthy said he’s spoiled for choice with Obama’s impeachable offenses, and the Bergdahl affair doesn’t crack the top tier.
‘If it was a standalone, I would never impeach based solely on it, but I would add it to a larger indictment,’ he told MailOnline.
That indictment, laid out in his book, includes references to Obamacare’s ‘multiple unilaterally decreed amendments,’ security failures in Benghazi, ‘a Department of Justice that has covered up the Fast & Furious scandal’ and the ‘selective targeting’ of conservative groups by the IRS.
But he’s under no illusion that the release of five Taliban in exchange for a U.S. soldier who may have deserted his post and plotted to join with the enemy will suddenly bring out the peasants and their pitchforks.
And the lessons of Republicans’ failed effort to remove President Bill Clinton from power, he says, must not be forgotten.
‘The error to avoid is not the endeavor to remove a rogue president,’ he told MailOnline. ‘It is the endeavor to remove a rogue president without first having convinced the public that his removal is warranted – that the punishment fits the crime.’
He wrote Monday in the New York Post that ‘at this point, impeachment seems farfetched. … You can prove a thousand impeachable offenses, but absent the public will to remove the president from power, impeachment is a non-starter.’
‘The political case for ousting a president must be built. That is a good deal tougher than building the legal case.’