June 5, 2014

Lost in the furor surrounding President Obama’s decision to swap five high-level terrorists for Sgt. Bowe Bergdahl is a potential ulterior motivation for the deal lurking in the background: fulfilling the president’s 2014 State of the Union promise to completely shut down the prison at Guantanamo Bay.

A senior GOP Senate aide told the Daily Beast’s Josh Rogin that. this "whole deal may have been a test to see how far the administration can actually push it, and if Congress doesn’t fight back they will feel more empowered to move forward with additional transfers.”  It seems that they’ve lined up all the dominoes to be able to move a lot more detainees out of Guantanamo and this could be just the beginning.

The principal domino is the notion, getting play in the precincts of the left, that once a war ends, the prisoners of that war must be released. In an exchange with Fox News’s Megyn Kelly Sen. James Inhofe (R-OK) addressed the absurdity of that contention. He said they "should have turned Hitler loose and that would have been the end of the war.” Inhofe pointed out that this "isn’t right, and I just – it’s hard for me and people I talk to, a lot of people in Oklahoma, just this morning about this, they can’t figure out why in the world would we turn loose the five most dangerous people who hate America, who want to kill Americans, who have the equipment and the following to revive the Taliban and that’s what they are doing.”

It’s part of an agenda a long time in the making.

In October of last year, the Washington Post reported that Defense Secretary Chuck Hagel appointed Paul M. Lewis, a Democratic lawyer for the House Armed Services Committee and a former judge advocate in the Marine Corps, to a newly-created Pentagon position as special envoy for Guantanamo closure. The appointment fulfilled a promise made by Obama the previous May to create special envoy positions at both the State and Defense Departments to pursue that agenda.

The strategy here was to perpetrate yet another end-run around Congress, which had blocked the administration from releasing or transferring many of the then-remaining 164 detainees, and taking only a small number of them to trial. The administration was exploring the possibility that the withdrawal of U.S. troops from Afghanistan would facilitate challenges regarding the United States' legal authority to continue holding them.

The declaration of the war’s end could force that determination to be made about Afghan Taliban captured on the battlefield and allow them to file new appeals in federal courts. According to Brig. Gen. Mark Martins, chief prosecutor for military commissions at Guantanamo, the Supreme Court provided the authority to detain – if you’re detaining based on someone being a belligerent – can unravel as hot wars end.

And I think that’s a real question. The word “end” is key.

When the president announced his intentions to ultimately withdraw from Afghanistan in 2016, he nonetheless stressed that our combat mission in that nation would end this year, even as 9,800 troops will remain until 2015, and half that number until 2016.

An administration official briefing the press prior to that announcement stressed that 2014 would be the end of our “combat mission,” even as he further noted that the U.S. remain open to “training Afghan forces and supporting CT (counter-terrorism) operations against the remnants of Al Qaeda.”

One is left to wonder what the legalistic difference is between “combat” and counter-terrorism “support,” but the overall motive remains clear: declaring the war over, regardless of events on the ground, paves the way for the release of enemy combatants – and in turn, the closure of Gitmo.

One is also left to wonder about the legality of the latest exchange as well. Current law, included as part of the National Defense Authorization Act (NDAA) for 2014, requires the Secretary of Defense to notify Congress 30 days prior to any prisoner transfers, to explain the reason for doing so, and to provide assurances that none of the released detainees would be able to re-engage in activities harmful to the United States or its interests.

That law replaced one that was even stricter, and while Obama signed it, he issued a signing statement contending it was an unconstitutional infringement on his powers as commander in chief, allowing him to override it.

Ironically, the move to a less strict statute requiring only that Congress be notified was due in some part to concern over Bergdahl’s well-being. And while both the Bush and Obama administrations have transferred prisoners to other countries, this swap was the first under the new requirements. Requirements that  were ignored by Obama because the administration knows there is no consequence for ignoring them. No legal consequences at any rate.

The Wall Street Journal explains presidential power “is never stronger than in the role of Commander in Chief,” and Congress’s attempt to restrict it may be unconstitutional. Furthermore, Obama already ignored the War Powers Act of 1973 to intercede in Libya and Congress did nothing more than grumble about it. Thus it seems likely that he would be more than willing to push the envelope in whatever way he deems necessary to empty Guantanamo Bay.

Congress is well aware of that reality, and several GOP Senators were working to restrict further releases of Gitmo prisoners before the Bergdahl swap took place.

Obama scored an initial victory in his effort to close the prison when the Senate Armed Services Committee approved giving him the authority to transfer detainees to the United State if Congress votes to close the facility. Sen. Carl Levin (D-MI) chairman of the Armed Services Committee hailed the provision. Inhofe, the top Republican on Committee, voted for the overall defense bill, but will work with the GOP-controlled House to kill it. During the session, two GOP senators won support for key amendments. Sen. Lindsey Graham (R-SC) won support for establishing a process in which any administration plan aimed at closing Gitmo would be subject to a joint resolution of disapproval from both houses of Congress, and Sen. Kelly Ayotte (R-NH) won support for a one-year ban on transferring Gitmo prisoners to Yemen.

Ayotte’s amendment theoretically prevents the prison’s closure in 2014, because half the remaining prisoners are Yemeni and they would presumably be sent back home, despite the reality that other released detainees from that nation have resumed their terrorist ways. Yet as Rogin notes, timing is key:

The GOP effort, however, will take longer than seven months to have any effect because the defense policy bill won’t even be considered in the Senate until after the election. Typically, the defense bill is passed in late December. There’s no chance Congress will pass an appropriations bill this year, meaning Congress can’t remove the funding for transfers. That gives Obama plenty of time to use the current looseness of the law to push forward the releases of many more prisoners.

Perhaps not. As the National Review’s Andrew McCarthy explains pressure can be brought to bear, not because the president might be overstepping his authority with regard to the requirements of the NDAA, but because Obama has returned five senior commanders to the Taliban and Haqqani network while those violent jihadist organizations are still conducting offensive attacks against American troops, who are still in harm’s way and still conducting combat operations pursuant to a congressional authorization of military force.

This point is critical because it not only undermines leftist contentions regarding prisoner exchanges, it reveals the utter fecklessness of the president’s desire to end the war, even as our terrorist enemy remains willing to pursue it. McCarthy correctly noted that the Taliban and Haqqani have not surrendered or settled; they are still working hard to kill our troops. "It is thus mind-bogglingly irresponsible for the commander-in-chief to replenish their upper ranks", McCarthy said.

House Armed Services committee chairman Buck McKeon (R-CA) has promised to hold hearings on the prisoner swap. As of now, he is focused on the violation of the 30-day notice in the NDAA.

Any investigation would be far better served focusing on what McCarthy terms the Commander-in-Chief’s “profound dereliction of duty." If Republicans pursue the prisoner exchange within that context, Obama’s efforts to continue transferring enemy combatants out of Guantanamo Bay prison becomes a political millstone of gargantuan proportions, even before the details of Sgt. Bowe Bergdahl's dubious past are  fully confirmed.

Regardless, Obama likely remains determined to push the legal and political envelope in pursuit of that odious agenda. Republicans and perhaps even some thoughtful Democrats should be determined to push back just as hard. American lives may depend on it.

We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.