Obama’s National Security Team Mounts Defense Of Bergdahl Rescue

The White House National Security Council hit back hard on Tuesday against the mostly conservative critics of the prisoner swap that led to the release of Sgt. Bowe Bergdahl.

In two separate statements from Chairman of the Joint Chiefs of Staff, General Martin Dempsey, and NSC spokeswoman Caitlin Hayden, the administration defended the legality of the prisoner exchange and stressed the urgency of Bergdahl’s health.

Dempsey also responded to the intensifying allegations that Bergdahl was a deserter.

“Like any American, he is innocent until proven guilty. Our Army’s leaders will not look away from misconduct if it occurred. In the meantime, we will continue to care for him and his family,” Dempsey said. “I want to thank those who for almost five years worked to find him, prepared to rescue him, and ultimately put themselves at risk to recover him.”

Bergdahl has drawn resentment from some in the military who have said the manhunt that followed his disappearance in 2009 led to the deaths of soldiers. For some, his stated grievances with the military’s actions have only solidified the belief that he abandoned his unit. By Monday, virtually all goodwill surrounding Bergdahl’s release had dissipated on the right. Sarah Palin denounced Bergdahl for his “horrid anti-American beliefs,” while other conservatives shifted their scrutiny to his father.

Dempsey said the administration was faced with “likely the last, best opportunity to save” Bergdahl, and Hayden cited the “credible reports regarding the risk of grave harm to Sergeant Bergdahl and the rapidly unfolding events surrounding his recovery.”

Obama said Tuesday in Poland that the administration has “consulted with Congress for quite some time about the possibility that we might need to execute a prisoner exchange in order to recover Sgt. [Bowe] Bergdahl.”

In her statement, Hayden outlined the administration’s interpretation of the 30-day requirement.

“With respect to the separate 30-day notification requirement in Section 1035(d), the Administration determined that the notification requirement should be construed not to apply to this unique set of circumstances, in which the transfer would secure the release of a captive U.S. soldier and the Secretary of Defense, acting on behalf of the President, has determined that providing notice as specified in the statute could endanger the soldier’s life,” she said.

Dempsey’s statement:

“In response to those of you interested in my personal judgments about the recovery of SGT Bowe Bergdahl, the questions about this particular soldier’s conduct are separate from our effort to recover ANY U.S. service member in enemy captivity. This was likely the last, best opportunity to free him. As for the circumstances of his capture, when he is able to provide them, we’ll learn the facts. Like any American, he is innocent until proven guilty. Our Army’s leaders will not look away from misconduct if it occurred. In the meantime, we will continue to care for him and his family. Finally, I want to thank those who for almost five years worked to find him, prepared to rescue him, and ultimately put themselves at risk to recover him.”

Hayden’s statement:

I’d like to explain why, given the credible reports regarding the risk of grave harm to Sergeant Bergdahl and the rapidly unfolding events surrounding his recovery, it was lawful for the Administration to proceed with the transfer notwithstanding the notice requirement in Section 1035(d) of the FY14 NDAA.
First, there is no question that the Secretary made the determinations required to transfer the detainees under Section 1035(b) of the FY 2014 NDAA. Section 1035(b) states that the Secretary of Defense may transfer an individual detained at Guantanamo to a foreign country if the Secretary determines (1) that actions have or will be taken that substantially mitigate the risk that the individual will engage in activity that threatens the United States or U.S. persons or interests and (2) that the transfer is in the national security interest of the United States. The Secretary made those determinations.
With respect to the separate 30-day notification requirement in Section 1035(d), the Administration determined that the notification requirement should be construed not to apply to this unique set of circumstances, in which the transfer would secure the release of a captive U.S. soldier and the Secretary of Defense, acting on behalf of the President, has determined that providing notice as specified in the statute could endanger the soldier’s life.
In these circumstances, delaying the transfer in order to provide the 30-day notice would interfere with the Executive’s performance of two related functions that the Constitution assigns to the President: protecting the lives of Americans abroad and protecting U.S. soldiers. Because such interference would significantly alter the balance between Congress and the President, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances.

The President also has repeatedly expressed concerns regarding this notice requirement. For example, the President’s FY14 NDAA signing statement indicated that “Section 1035 does not, however, eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, 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.” To the extent that the notice provision would apply in these unique circumstances, it would trigger the very separation of powers concerns that the President raised in his signing statement.
In these unique circumstances, in which the Secretary of Defense made the determinations required by Section 1035(b) and in light of the Secretary’s assessment that providing notice as specified in Section 1035(d) could endanger the soldier’s life, the Secretary of Defense’s failure to provide 30 days’ notice under Section 1035(d) was lawful.