Sen. Carl Levin, D-Mich., speaks to reporters on Capitol Hill on June 10, 2014.

Sen. Carl Levin, D-Mich., speaks to reporters on Capitol Hill on June 10, 2014. J. Scott Applewhite/AP

There’s Little Congress Can Do About the Bergdahl Deal

As Defense Secretary Chuck Hagel heads to the Hill to defend the release of Sgt. Bergdahl, members of Congress realize there’s not much they can do about it now. By Molly O’Toole

Amid a flurry of closed-door briefings on Capitol Hill, members of Congress are furious they weren’t notified in advance of the deal to exchange American POW Sgt. Bowe Bergdahl for five Taliban leaders at Guantanamo -- but acknowledge there’s little they can do about it.

Defense Secretary Chuck Hagel will appear before the House Armed Services Committee on Wednesday to answer publicly questions that members of Congress say haven’t been answered privately. Pentagon spokesman Rear Adm. John Kirby said Hagel “looks forward to explaining why the president's decision to secure the release of Sgt. Bergdahl was the right one.”

“I think you will find that he will be forthright and candid about his participation in the decision-making process, the determinations that he made with respect to the transfer of the five detainees, that it was in the national interest,” he said.

For all the fuming from Congress over the Bergdahl exchange, the furor has so far unearthed no real revelations, only the uncomfortable reality that there is next to nothing they can do now that the deal is done.

According to the National Defense Authorization Act, the White House must notify Congress 30 days before any detainee transfer from Guantanamo Bay. But President Barack Obama added a signing statement indicating he may bypass the rule in certain cases.

Senate Intelligence Committee chair Sen. Dianne Feinstein, D-Calif., conceded, “Enough is enough.”

“I think we need to put an end to all of this now,” she said, noting that both the Senate and House have had closed-door hearings with top administration officials. “Everybody has heard what they need to hear.”

Sen. Marco Rubio, R-Fla., said following the Senate’s classified briefing on Wednesday that Congress’s probe needed to go “all the way to the truth,” but he balked at questions of specific next steps, such as subpoenaing members of the administration.

“We should clearly understand all of the decisions and what all the motivations were behind their decisions, and I think that’s critically important moving forward as well,” he said. He continued that officials would be subpoenaed “if necessary,” but cautioned that “certainly when dealing with matters of this nature and classified nature I think the subpoena process needs to be used carefully. But I think we need to know the truth about how this decision was made and all the advice the president received in making it.”

Following a closed-door briefing with the Senate Armed Services Committee on Tuesday, Sen. Kelly Ayotte, R-N.H., said it is within Congress’s power to enact further restrictions on the transfers of high-risk detainees, referencing her previous work on the issue and the oft-cited statistic of a recidivism rate of around 30 percent for released detainees. But in response to the question of whether similar language could prevent such a transfer from happening again, given that the 30-day notification law was on the books before the Bergdahl exchange took place, she said restrictions would need to be strengthened again.

“No, no, actually it was weakened,” she said. “There was stronger national security waivers that were in place that were reduced last Congress and I think they need to be put back in place.”

“Understand that there needs to be a stronger national security waiver required of the president of the United States. Congress has weakened that language, I’ve not supported it, but I think it’s time to revisit that.” 

As of now, Sen. Ted Cruz, R-Texas, is the only lawmaker set to introduce legislation addressing the Bergdahl exchange, pledging to file a bill this week to freeze any transfers from Guantanamo Bay for 6 months. 

Beyond the question of whether the legislation might interfere with the president’s constitutional powers under Article 2, the bill is highly unlikely to pass, and more likely designed to turn the dial up on tension with the White House.

Sen. John McCain, R-Ariz., himself a prisoner of war during Vietnam, has been highly critical of the Obama administration’s decision, saying it threatens our national security and that the threat posed by the five detainees was taken far too lightly. But beyond criticizing the move, he said he’s not sure what actions should be taken on the part of Congress.

“I think that it’s very difficult to know what action needs to be taken once they’re released except apart from ensuring they won’t make this mistake again,” he said.  “I don’t know if we can [act] or not, because the president is the commander-in-chief, and so, listen, I’m sorry, I’d have to look at it, we’d have to look at the constitutionality.”

Senate Armed Services Committee Chairman Sen. Carl Levin, D-Mich., agreed, noting the administration’s argument that the move was within the president’s powers under the Constitution.

But House Armed Services Committee Chairman Rep. Buck McKeon, R-Calif., disputed the assertion.

“This is now the third explanation the White House has offered as to why they violated the law. First, they were concerned about Sgt. Bergdahl’s medical condition, then it was a Taliban threat to kill him, and now it is because they couldn’t comply with the law without putting military operations at risk,”  McKeon said in a statement late Tuesday. “When Secretary Hagel testifies before the committee tomorrow, I hope that we might finally get to the facts behind the Administration’s decision to ignore the law, instead of just more spin."

Late Tuesday, the House Appropriations Committee overwhelmingly approved a provision banning the use of funds for the transfer of detainees from Guantanamo until Hagel reassures Congress that the 30-day notification rule will be enforced.

Pentagon officials said Bergdahl’s health continues to improve and he is becoming increasingly engaged with military hospital staff in Landstuhl, Germany. But Kirby, the Pentagon spokesman also said that Bergdahl himself and his caretakers would dictate the pace at which those next steps will be taken.

“Nobody is going to push it any further or any faster than Sgt. Bergdahl and his caregivers are willing to take it,” he said. “This soldier was held captive for nearly five years in what we must assume were harsh conditions. He is going to need time to re-assimilate, time to heal mentally and physically.”

Kirby said this will not be the last flare-up between Congress and the White House over national security policy on detainees.

“We continue to review detainee cases for transfer out of Guantanamo Bay,” Kirby said, noting that more than 600 detainees have been transferred out of Guantanamo since the Bush administration. “I mean, there is a process. That process continues … The president's made it very clear what his intentions are with respect to Guantanamo Bay. And we follow orders. And we're going to follow those orders.”