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Is The President’s Unconstitutional Bergdahl Exchange An Impeachable Offense?

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Herb London
President, London Center for Policy Research
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      Herb London

      Herb London is the president of the London Center for Policy Research. He is the former president of the Hudson Institute and professor emeritus at New York University. He created the Gallatin School of Individualized Study in 1972 and was its dean until 1992. London is coauthor of “The Sunni Vanguard.”

President Obama’s unilateral release of five senior Taliban terrorists in exchange for a possible American deserter has provoked a constitutional crisis and placed American lives in danger. Congress needs to determine whether the president’s reckless and unlawful behavior rises to the level of a high crime against the United States.

The transfer took place without so much as a courtesy call to the bipartisan leadership of Congress, in direct contravention of federal law and in clear violation of the constitutional separation of powers.

Nearly a week into a growing political firestorm, the White House now makes vague claims that it did indeed “consult” with Congress and that the health of the alleged deserter presented an “exigent circumstance” requiring immediate action.

The facts suggest otherwise.

The administration’s “consultation,” such as it was, took place more than two years ago, when the White House raised the prospect of trading Taliban prisoners for captured Army Sgt. Bowe Bergdahl in light of then-ongoing preliminary talks with the Taliban. Back then, notably, both Republicans and Democrats alike voiced serious concerns about such a scheme.

Once the Taliban walked away from the table, the president himself publicly promised future consultation with Congress should a prisoner exchange again became possible. In fact, the president was already legally obligated to do so, having himself signed legislation requiring that Congress be notified 30 days in advance of the release of any Guantanamo detainee.

Even if, as the administration has claimed, Sgt. Bergdahl’s deteriorating health required urgency, this exchange didn’t happen overnight: negotiations were held, agreements reached and arrangements made. The president should be called to account for his willful failure to even notify Congress during that time, much less seek its consultation.

This presidential action challenges the spirit behind the separation of powers with a president deciding unilaterally that “exigent” conditions forced him to act – conditions that are not merely unclear, but contested by a variety of sources in Pakistan.

The only “exigency” here was the unfolding scandal at the nation’s Veterans Administration hospitals, and President Obama’s desire to get it off the front page. Unfortunately for him, his reckless, singlehanded release of five Taliban terrorists has done so.

This incident is just the most recent, and potentially most disastrous, example of a president who believes himself above the law. For him, Congress is irrelevant.

Even before the terrorist-deserter swap, Andrew McCarthy had built a persuasive case for President Obama’s impeachment in his recent book, Faithless Execution: Building The Case for Obama’s Impeachment. As McCarthy argues, the president does not abide by the rule of law; he is the law unto himself, and a dangerous law at that.

For their part, Republicans have treated each of the president’s previous acts of illegality as predicates for fundraising appeals — mere commodities for political gain. This most recent incident, however, demands a more mature response. What has happened this time is a serious challenge to the Constitution, one that calls into question the basis for the president’s very political legitimacy.