Disapproval of the Administration's Failure to Notify Congress Before Releasing Individuals from Guantanamo Bay

Floor Speech

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Mr. Speaker, we are here to consider a technical violation of section 1035 of the National Defense Authorization Act. A fair reading of that section would indicate that it is drafted and focused on gratuitous prisoner releases, the many occasions prior to the adoption of that section when the prior administration or this administration chose to release a prisoner. When applied to the situation for which it was drafted, it is a practical and fully constitutional provision.

It is practical because it involves a 30-day delay in release of a prisoner where there is no particular hurry to release the prisoner. We release the prisoner 30 days after the notice; we make the decision to release the prisoner; the prisoner is released; and it gives Congress 30 days to perhaps pass a law prohibiting such release.

I believe it is constitutional because it doesn't interfere with the Commander in Chief's ability to safeguard and protect the soldiers under his command.

Now there is an attempt to criticize the President for not following this statute when it is applied to a situation for which it was not drafted and when it is applied in such a way where it becomes incredibly impractical, perhaps impossible, and constitutionally questionable.

We have had prisoner exchanges in every war we have fought, and they have been implemented by the executive branch. Even in World War II, we had prisoner exchanges before the end of the war.

Now, as a practical matter, if you have a 30-day delay in effectuating a prisoner exchange, it is not just the U.S. Government that has 30 days to think about whether to go through with the decision. You also give the enemy 30 days to think about it. And the hard-liners within the enemy's council can eliminate the deal. So it is impractical, especially if it was a good deal.

Now, this may not have been a good deal, but there may come a time when we have negotiated a very good, favorable-to-America prisoner exchange. And this provision would say it is prevented not by decisions of the Congress or the President, but by decisions made by our enemy in their council.

But, second, a prisoner exchange returns to the United States a soldier under the command and protection of the Commander in Chief. He has a constitutional duty to protect and hopefully return home safely our soldiers.

When you create a circumstance that makes it practically impossible to have a prisoner exchange because in order to have one you have to give the hard-liners within the enemy's council an ability to upset it, then you have, I believe, unconstitutionally interfered with the role of the Commander in Chief.

We tell our Commander in Chief to bring as many as possible of our men and women home safely. We cannot at the same time, in effect, prohibit any prisoner exchange with which the enemy hard-liners may disagree.

Now, I am not here to praise the Bergdahl decision. I think I disagree with it; I know I disagree with it. But I am here to say that this was a code section not designed to apply to the situation, cannot practically be applied to this situation, and is constitutionally questionable as applied to this situation.

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Given that, how can it be said that it is a good use of Congress' time to pass some formal resolution attacking the President for not applying to this situation a code section so infirm?

I think that what we are doing today is dodging the real responsibility of Congress. We are engaged now in bombing ISIS. The Constitution says that Congress should play a role in making that decision. Many of our colleagues would prefer to dodge the issue. It is safer to attack the President for what he did in the past than to participate in the decisions of the future.

We should be dealing with an authorization to utilize military force against ISIS. We should be debating the term that that applies. We should be debating whether it applies to airpower alone or whether, under some circumstances, we should have boots on the ground.

But, no, we are not dealing with that. That is too tough a vote. That is a vote on which members of both parties might disagree. Instead, we are playing around with this resolution.

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