National Security Council spokeswoman Caitlin Hayden on Tuesday morning said the administration determined that the federal statute requiring the administration to give Congress 30-days notice before transferring a detainee from Guantanamo Bay to a foreign country did not apply to the Bergdahl case because it was a "unique set of circumstances."
“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,” Hayden said in a statement.
In this case, she said, 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,” she said.
President Obama, speaking Tuesday while traveling in Poland, said Congress shouldn't be surprised by the Bergdahl exchange because the administration had “consulted with Congress for quite some time about the possibility.”
Sen. Carl Levin, D-Mich., who chairs the Armed Services Committee, on Monday told the Washington Examiner he didn't believe he or other members of Congress were consulted about the specific idea of swapping Bergdahl for Taliban leaders outside of a peace talks with the Taliban. He said he "gathered" that the administration didn't notify Congress because "of a fear of a leak."
"No, I think there was a conversation about a release a long time ago in exchange to facilitate reconciliation," he told the Examiner on Monday. "I don't think I knew anything about that until last weekend whenever I got a call."
Levin doesn't share some Republicans' outrage over the trade, calling it an "excruciating decision for a president to have to make,” and noting that his committee will hold a hearing on the matter.
"In the meantime our policy has been to do everything we reasonably can to get our people back — that's been our very, very firm belief and it's important for the morale of our troops," he said.
The Senate Armed Services Committee has scheduled a briefing for members next Tuesday and Levin said he will hold a hearing on the matter. The Senate Intelligence Committee also plans a briefing, Sen. Dianne Feinstein, D-Calif., told reporters Monday.
Sen. Buck McKeon, R-Calif., who chairs the House Armed Services Committee, argues that the Bergdahl deal is illegal and said he too will hold hearings.
“[Obama's] responsibility is to administer and uphold the laws that are passed by Congress ... and the law stated that before any detainee is released the administration must notify Congress at least 30 days ahead of time. ... That never happened,” McKeon told Fox News on Monday.
“We still have not been told what [the administration] is going to do to stop the top five Taliban leaders from re-entering the fight,” he added.