In my earlier post on the subject of the prisoner swap for Taliban prisoner Bowe Bergdahl, I said that I thought it was a difficult call and one I was glad I did not need to make. This morning Ruth Marcus:
Don’t count me among those who pronounce with certitude on the wisdom — or folly — of the Bergdahl deal. It was an agonizingly hard call, one that requires more knowledge than is publicly available about the dangerousness of the five Taliban officials and the United States’ ability to keep tabs on them once released.
and Kathleen Parker:
The United States does negotiate with terrorists; the president will circumvent laws as circumstances require; Republicans and Democrats will be summarily outraged as party affiliations seem to require.
We might also add that processes will be “truncated,” as President Obama described the exchange, and these are “hard choices,” as Hillary Clinton put it, cleverly employing the title of her new book.
Which is to say, war is tricky and we have no idea what we’re willing to do until the ball is in our court.
both writing in the Washington Post echo my thoughts. Ms. Marcus’s instinct is to oppose the swap; Ms. Parker’s to support it.
When I wrote I did not take notice of the law requiring that the president give Congress 30 days notice before releasing prisoners from Guantanamo. Although I’m still of mixed mind on the swap itself, I think that the president should have conformed to the law and notified Congress. That’s not a partisan position or even a political judgment. Both Congressional Democrats and Republicans have said much the same thing and the Democrats saying this are not merely those fighting tough re-election campaigns. Painting it as a purely partisan position is in fact the partisan and political position.
The president’s supporters have defended the president’s position using the same logic as used by the Bush Administration to condone torture and in some cases quoting from those statements. I think the Congress has the stronger legal position based on these two clauses in Article I, Section 8 of the U. S. Constitution. Among Congress’s enumerated powers are the powers:
11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
14: To make Rules for the Government and Regulation of the land and naval Forces;
The Congress has acted under its enumerated powers. In violating the law, it is the president who has threatened the separation of powers. The key point here is that the president doesn’t just get to do whatever he wants. The president must obey the law and is bound by it just like the rest of us.
The Supreme Court has recently affirmed and re-affirmed that Congress cannot resort to the courts to compel the president to follow or enforce the law—impeachment is Congress’s only recourse. The president is coming far too close for my taste to giving Congressional Republicans the pretext they’ve sought for some time.