The White House ignored Pentagon and intelligence community concerns and overrode existing protocol for the transfer of Guantanamo prisoners to fast-track the Bergdahl exchange, TIME reports.
Though National Security Council officials say that “there was not a dissent on moving forward with this plan,” Pentagon and intelligence community officials have prevented the release of the “Taliban Dream Team” five times prior to their release, which the Taliban has been explicitly seeking at least since last summer. Two of the five are wanted for war crimes by the UN.
The five had been considered too high risk to release since George W. Bush’s presidency, a status which was confirmed by a Justice Department review at the beginning of Obama’s first term in January 2009. Their release had been hotly debated within the administration since then, with top security officials relying on classified information proving that they were a continuing threat.
“When our military is engaged in combat operations you’re always going to err on the side of caution,” said one anonymous official. “Just conceptually, how much sense does it make to release your enemy when you’re still at war with him?”
The White House’s position was strengthened last summer with the passing of the 2014 Defense Authorization Act, which allows the Secretary of Defense to release Guantanamo prisoners when in the country’s national security interest. The act was passed less than a month after the Taliban first proposed trading Bergdahl for the five Guantanamo detainees.
But even the new law required that Congress be notified at least thirty days in advance, which the administration did not do, prompting many to wonder whether Obama has crossed a line. “He believes somehow that he’s become a monarch or an emperor,” said Florida Senator Marco Rubio Tuesday afternoon. “The president has violated the law here.”
Though White House officials have said that Bergdahl’s release “has been a central element of our reconciliation efforts [with the Taliban]” since May 2011, things escalated quickly in light of “credible reports regarding the risk of grave harm to Sergeant Bergdahl,” according to a Tuesday press release from the National Security Council. (RELATED: Prisoner Exchange Won’t Bring Peace Talks, Taliban Says)
The NSC goes on to argue that the 30-day notification requirement “should be construed not to apply to this unique set of circumstances, in which the transfer would secure the release of a U.S. soldier and the Secretary of Defense, acting on behalf of the President, has determined that providing notice . . . could endanger the soldier’s life.” (RELATED: Harvard Professor Jeffrey Toobin Says Obama ‘Clearly Broke The Law’)
“We have done prisoner swaps in the past,” said one official, but “that’s been in international armed conflict where you have a state with which you can negotiate and you can say this guy will not go back to the fight.”