Congressional critics claim that Obama administration violated the law requiring it to inform Congress of the deal releasing 5 senior Taliban leaders because it knew that lawmakers would have “torpedoed the agreement”

June 4, 2014

Alexander Bolton of The Hill reports that the administration has now apologized to congressional leaders for failing to inform them in advance of the deal to release five senior Taliban leaders in exchange for capture US soldier Bowe Bergdahl. But the members of Congress – including liberal Democrats such as Senate Intelligence Committee Chair Dianne Feinstein are not satisfied. And for good reason:

The Obama administration has apologized for bypassing Congress before it released senior Taliban commanders from Guantanamo Bay as part of a controversial prisoner exchange.

The expression of regret was a major shift for the White House, which had previously offered a defiant defense on why it could not adhere to the notification provisions of a 2013 law.

Tony Blinken, President Obama’s deputy national security adviser, apologized to Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) Monday evening for the administration’s failure to alert Congress in advance.

“I had a call from the White House last night, from Tony Blinken, apologizing for it,” Feinstein told reporters Tuesday.

“He apologized and said it was an oversight,” she added.

But the “oversight” excuse is not resonating with lawmakers on Capitol Hill. Critics claim the White House didn’t tell Congress for one reason: The administration knew legislators would have torpedoed the agreement had they been told.

Feinstein said leaders of the House and Senate Intelligence panels were almost unanimously against a prisoner trade when it came up in 2011.

She said the chairmen and ranking Republicans of the “connected committees” spent a lot of time three years ago reviewing the possibility of a prisoner swap and came out firmly opposed to releasing senior militants from the prison camp at Guantanamo Bay, Cuba.

“There were very strong views, and they were virtually unanimous against the trade,” she said.

This story demonstrates that the administration’s failure to obey the law requiring 30 days advance notice to Congress is more than must a minor procedural issue. Given the strong opposition of congressional leaders – including liberal Democrats such as Senator Feinstein – it is very possible that the deal really would have been “torpedoed” had the administration followed the law. And we could have avoided a shortsighted and unethical deal with terrorists that is likely to endanger both soldiers and innocent civilians.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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