June 5 (Bloomberg) -- The prisoner swap that freed Army Sergeant Bowe Bergdahl was part of a renewed push to deliver on President Barack Obama’s promise to close the prison camp at Guantanamo Bay, Cuba, two U.S. officials said.
The failure to notify key members of Congress in advance was a deliberate move to skirt opposition to releasing the five Taliban prisoners, according to the officials, who weren’t authorized to speak publicly.
Obama has drawn criticism for sidestepping a law requiring that he give Congress 30 days’ notice to review plans for Guantanamo prisoner releases, compounded by questions about whether Bergdahl is a patriot or a deserter from a remote outpost in Afghanistan.
“It’s clear to me that this fits into the narrative of closing Gitmo,” said one Republican critic, Senator Lindsey Graham of South Carolina. “It blew up in their face.”
Democrats including Senator Dianne Feinstein of California, chairman of the Senate Intelligence Committee, have joined Republicans in attacking the administration’s handling of the deal.
“There’s considerable opposition to this and that’s just where things are,” she said yesterday after a more than hour-long classified briefing for senators by four Obama administration officials.
Controversy over the deal may complicate Obama’s efforts to shut the Guantanamo facility. Lawmakers have said many of those being held are terrorists who will return to the battlefield if released.
Senator John McCain, an Arizona Republican who was held as a prisoner of war in Vietnam for more than five years, said he was convinced “they released five people who were judged a risk to the national security of this country.”
“I promise you -- in a year from now, if not before -- they will be back in Afghanistan and in the fight,” McCain said.
The administration was caught somewhat flatfooted by the intensity of the political criticism, according to a White House official, who asked for anonymity to discuss internal deliberations. While White House officials said they anticipated questions about the decision to trade Taliban prisoners, they didn’t expect attacks on Bergdahl from some of his fellow soldiers who have condemned him as a deserter, the official said.
“People recognized that the swap itself would be controversial,” said Erin Pelton, who was a spokesman for White House National Security Adviser Susan Rice when she served as United Nations ambassador. “But I think some of where the Republicans and others have taken this has been surprising.”
After the classified briefing yesterday, Republican Senator Marco Rubio of Florida told reporters he remained “deeply skeptical” and was convinced “that these five individuals that have been released will soon return to the fight against America.”
Rubio said Obama “set a precedent that will encourage enemies of the United States to target American men and women in uniform and capture them in order to carry out a similar exchange in the future.”
Second-ranking Senate Democrat Dick Durbin of Illinois said government officials showed senators a video of Bergdahl in Taliban custody, provided by that group to the U.S. “He did not look good,” Durbin said.
While saying he didn’t know if he would’ve made the same decision Obama did, Durbin said, “I feel more confident now in the decision that was made.” He added, “The premise was solid. Bring our troops home.”
Democrat Joe Manchin of West Virginia said he wasn’t satisfied with the information provided in the briefing.
“There’s still an awful lot that has to be looked into,” Manchin said. “This is something that is extremely disturbing.” He said Bergdahl appeared in the video to have been drugged.
Defense Secretary Chuck Hagel is scheduled to testify on the issue before the House Armed Services Committee on June 11.
Committee Chairman Buck McKeon, a California Republican, said two days ago that he was “troubled” by the military implications of the Talibans’ release and was “concerned that the Obama administration broke a national security law, passed with bipartisan support and signed by the president, in transferring these detainees.”
The Guantanamo prison currently holds 149 prisoners taken captive as part of the war on terrorism. Of those, 78 have been approved for transfer to other countries and about 30 are facing prosecution, State Department spokeswoman Marie Harf said in Washington.
The rest, including the five sent to Qatar last week, were in a group unlikely ever to be prosecuted, meaning they would have been transferred eventually in any event, she said.
Further complicating matters for Obama has been the narrative that the five men, whose releases had been sought by the Taliban, are among the worst of the worst. In fact, only one of the five was a hard-core terrorist, said a retired U.S. military officer familiar with the inmates’ records who asked not to be identified discussing classified information.
The retired military official said that only one, Abdul Haq Wasiq, has close ties to al-Qaeda and other foreign terrorist organizations. The other four, notably Mullah Norullah Noori, are tied to massacres and other war crimes, but weren’t active in supporting terrorist attacks on foreigners.
While this year’s defense authorization law requires 30 days’ notice to Congress before the transfer of prisoners from Guantanamo, Obama asserted in a “signing statement” on Dec. 26 that he has executive authority to make exceptions.
The administration said it couldn’t give Congress the required notice because of the need to move quickly out of concern for Bergdahl’s health and safety.
Since taking office, Obama has been at odds with Congress over his pledge to close Guantanamo by bringing some prisoners to trial and arranging to send the least dangerous ones home or to third countries.
Congress has put up hurdles to Obama’s efforts, barring transferring prisoners to the U.S. for trials and imposing restrictions on how and where they can be sent.
“Obama has wanted to shut down Gitmo ever since he was elected, but I think the fact that this move aroused such anger on the Hill and elsewhere, it will be much more difficult” to achieve that goal, said Michael Kugelman, senior program associate for South and Southeast Asia at the Wilson Center, a Washington policy group. “Gitmo will not be closing down any time soon.”
Obama raised the issue in a May 2013 speech at the National Defense University.
“I transferred 67 detainees to other countries before Congress imposed restrictions to effectively prevent us from either transferring detainees to other countries or imprisoning them here in the United States,” he said. “These restrictions make no sense. After all, under President Bush, some 530 detainees were transferred from Gitmo with Congress’s support.”
According to the Office of the Director of National Intelligence, about 29 percent of the 614 prisoners released from Guantanamo as of January had resumed their participation in violent jihad.
Some have joined the fighting or are helping train fighters in Sunni Muslim extremist groups in Syria or eastern Libya, said a U.S. intelligence official who spoke on condition of anonymity.
The five released Taliban were transferred to Qatar, where they are supposed to be monitored for a year by local authorities.
John Bellinger, legal adviser to the White House National Security Council under President George W. Bush, said their release makes sense from a legal standpoint as the U.S. withdraws from Afghanistan.
“It is likely that the U.S. would be required, as a matter of international law, to release them shortly after the end of 2014, when U.S. combat operations cease in Afghanistan,” he wrote on the legal affairs blog, Lawfare.
The Guantanamo facility was created after the Sept. 11, 2001, terrorist attacks to hold suspected terrorists captured on the battlefield in Afghanistan. In January 2009, Obama issued an executive order aimed at closing the prison camp within a year, though it remains open.
Obama sought to speed Guantanamo’s shutdown by transferring some prisoners to maximum-security facilities in the U.S., though Congress blocked that plan.
To contact the reporters on this story: Terry Atlas in Washington at firstname.lastname@example.org; Kathleen Hunter in Washington at email@example.com; Derek Wallbank in Washington at firstname.lastname@example.org