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

Floor Speech

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Mr. SMITH of Washington. Mr. Speaker, I yield myself such time as I may consume.

There are two issues important to this piece of legislation. The first that the chairman mentioned is the legality of this. However, he is wrong in the idea in saying that this is clear on its face and there is no debate. There is actually considerable debate as to whether or not the President's actions were legal.

The President and the Secretary of Defense have stated unequivocally that they believe they acted within the law, and this is actually an issue that comes up repeatedly between the legislative and the executive branch. It has been coming up for a couple hundred years now.

The administration's position is that they acted in accordance with their article II Commander in Chief authority in the interest of national security and in bringing one of our soldiers home, and it is their position that article II of the Constitution, which is a law, supersedes the piece of legislation that was referenced about 30 days' notice that was passed, and therefore, their actions were legal.

The first thing to really understand about this is that this is in no way unprecedented. I am sure if we went back and examined the history, just about every President at one time or another did something contrary to a piece of legislation or a law because they felt article II required them to do so. They felt article II--the Constitution, which is a law--superseded the legislation in question.

In fact, we don't have to go back very far. President George W. Bush repeatedly took actions that were in violation of the clear law post-9/11. He basically authorized warrantless wiretapping. He authorized indefinite detention.

Both of those issues were clearly contrary to statutory law, but President Bush asserted his article II authority and said that, therefore, it was legal to do that.

Go back to Abraham Lincoln, who suspended habeas corpus in the same way. This is a long-running debate between the legislative and the executive branch, and never before has the legislative branch stepped out with legislation like this to censure the President.

So, number one, the President did not violate the law. He followed what he felt was article II of the Constitution, perfectly consistent with what George W. Bush and a whole lot of other folks did, so I think it is wrong to call him out and say that he violated the law when this is simply part of a long-running debate between the legislative and the executive branch.

Now, let me say I feel that the President should have given us 30 days' notice. I do believe that. Now, the reason that they didn't is because they were concerned that the information would be leaked.

This was a very sensitive negotiation, and they were told that if the information was leaked, it would kill the deal, and they were deeply concerned about Sergeant Bergdahl's health and that if any further delay happened, that he might not survive his current incarceration with the Taliban, so that was their reason for doing it.

While I have said and will continue to say that I think he should have given us that 30 days' notice, that I think Congress has proven repeatedly that we can, in fact, keep a secret--we have been told about a number of very sensitive things and have not revealed that information.

I think it is worth noting that the President isn't completely without reason for that. In fact, Senator Saxby Chambliss, after this was revealed, was asked, ``Well, if you had known about this, what would you have done?''

He initially said, ``Well, I would have let people know, absolutely, because I didn't think it was a good idea, and I would have done everything I could to stop it.''

Now, after having been explained that that is exactly why the President was reluctant to tell Congress, the Senator walked himself back from those remarks and said that he wouldn't, but his initial reaction sort of shows that the President and the administration were not completely out of bounds in thinking that their ability to bring Sergeant Bergdahl home might have been jeopardized by allowing Congress to know that.

Be that as it may, I think they should have. I think we have proven ourselves capable of keeping secrets, and they should have given us 30 days' notice, but on the legality question, this is perfectly consistent with what a large number of Presidents have done in the past.

So to call this President out specifically, I think, is wrong, which brings us to the second issue, and that is the partisan nature of this body. Now, it is not unique to this body. Regrettably, if you go back and you look at instances where the President is of one party and the Congress is of another, that is when investigations are off the charts.

Somehow, when both the President and the Congress are in the same party, we don't have anywhere near the condemnation, anywhere near the investigation for actions, on and on and on; and that regrettably reflects the deepening partisan rift in Washington, D.C.

That ultimately is what I think this legislation reflects. It is simply an opportunity for a Republican Congress to take a shot at a Democratic President. If it was more than that, then back 10 years ago, when President George W. Bush was violating all manner of different statutory law under his articulated article II powers, then we would have had something out of this Congress that said, ``Hey, don't do that.'' We didn't. All we had was silence.

Now, unfortunately, what that leads the public to believe is that this is a partisan exercise, and we need fewer partisan exercises, not more. I think it is perfectly appropriate for many Members, as I did and others, to say the President should have given us notice. He should have given us 30 days.

For this to be the first--or I guess the second issue, since we had the
water bill just before this--that we take up when we come back from recess, when you think of all the economic and national security challenges and everything that is going on out there, I think once again makes the public just shake their head and say, ``Here we go again, another partisan exercise.''

Unfortunately, I think this piece of legislation is unnecessary, and I think it further poisons the well between Congress and the President. Again, I do not feel that the President violated the law. He had a different interpretation of it, as many Presidents before him have.

With that, I reserve the balance of my time.

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Mr. SMITH of Washington. Mr. Speaker, I yield myself 2 minutes just to respond quickly.

First of all, the GAO study specifically said they didn't address the constitutional issue; they didn't address article II. They simply said on the plain reading of the statute, 30 days' notice was required and 30 days' notice wasn't given, which, by the way, didn't take a GAO study to figure out. That is very plain.

The statute itself is really not in question nor that the President didn't give the notice required. The question is one that we have had repeatedly as to when the President has the authority under his article II authority to go in a different direction of the statute. As was mentioned, that happened many times, most recently with George W. Bush, a warrant with wire tapping and indefinite detention and a number of other issues. That's number 1. The GAO did not comment on that specific issue.

The second thing I would say is we are not really arguing that two wrongs make a right. We are arguing about whether or not it was wrong in the first place. All right? I still haven't heard anyone stand up on the other side who supports this issue and say: Gosh, we missed an opportunity. President George W. Bush was absolutely wrong to have taken those actions that he did and contrary to statute and did something that was illegal, and we are very mad about that. As long as we are talking about it, we should mention the fact that--so I haven't heard anyone say that, because I think the implication is, on that side, they didn't think it was wrong.

And that is the issue: Is it wrong for the President to do something that he believes is in the national security interest of the country under his article II authority? I think most people would say: Sometimes yes, sometimes no. It is a debatable issue. It is not a matter of saying two wrongs make a right. It is a matter of arguing whether or not it was wrong in the first place. And consistency is the hobgoblin of small minds, as the saying goes, but there certainly is enough inconsistency on this issue to make people believe this is more partisan motivated than it is purely policy and conscience motivated.

I reserve the balance of my time.

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Mr. SMITH of Washington. I would again note that it is not a matter of speeding. It would be as if someone were stopped for speeding and said that there is no posted speed limit, how are you saying that I was speeding? That is the argument. It is the argument a number of Presidents have made, that their article II authority for national security purposes gives them the legal right to do this.

I would also note that in a couple hundred years of history, no court has ever said otherwise, has ever reversed one of these decisions by the President.

So this notion that the President knew he was breaking the law and just did it, and comparing it to two wrongs don't make a right or people speeding, it is the President's opinion--and, by the way, not just this President, but every President that I am aware of, including, again, George W. Bush, that this is not a violation of the law, this is not speeding, because of his article II authority. So it is not a matter of simply saying, well, he broke the law but if someone else did it, it is okay. It is arguing that none of those people actually broke the law. That is the argument in the debate.

As far as the bill itself, yes, the President was very much aware of it, that it was in that bill when he signed the bill, and it was part of a much larger bill. It was part of the National Defense Authorization Act.

When he signed that bill, he noted: ``I disagree with this portion. I think it has the potential to violate my article II authority.'' So he absolutely noticed that it was in there and gave us notice that he did not feel that it would legally bind him in certain circumstances.

Again, it is a debatable point. All I know is that in a couple hundred years of history, the Presidents, all of them, have won that debate. And now here we stand today saying that this one President somehow uniquely should be condemned for doing what all before him have done and what all courts have said is perfectly okay.

So, again, I find this to be more partisan than substantive.

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Mr. SMITH of Washington. Mr. Speaker, I yield myself 2 minutes.

The issue here of negotiating with terrorists misses the fact that this happened on the battlefield. The five Taliban commanders were captured on the battlefield, as was Bowe Bergdahl. This was a prisoner exchange, as has happened in every war that we have fought.

Now, it is a slightly different situation because it is the Taliban who are now out of power. We are not actually fighting a government at this point. We are fighting a group of insurgents, but nonetheless, Bowe Bergdahl was captured on the field of battle, as were the five Taliban commanders, and this was a prisoner exchange.

To equate this with negotiating with terrorists I think totally misses the point of that aspect of it, that we were exchanging prisoners, not dealing with a straight terrorist situation. I don't think it sets that precedent at all, and I think we need to be aware that that was what the President was facing.

Was the exchange a good deal? That is highly debatable. I am glad I wasn't the Commander in Chief having to make that call, facing the deteriorating health of Bowe Bergdahl and wondering if five Taliban prisoners were worth saving his life, but these sorts of decisions are made all the time.

I would remind you that Prime Minister Netanyahu of Israel, no shrinking violet when it comes to terrorism, once exchanged over 1,000 Palestinian prisoners for two Israel soldiers because that was a prisoner exchange. That was bringing home the people that Israel wanted brought home, and it was not easy.

So this is not simply a matter of negotiating with terrorists or giving away prisoners. It is the difficult choice of what you do to bring your own soldier home, a difficult choice that every President or Prime Minister whose country is engaged in warfare has to face. I don't think we should diminish the difficulty or the importance of that decision.

I reserve the balance of my time.

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Mr. SMITH of Washington. Mr. Speaker, I yield myself the balance of my time.

On the last point about the people who were noticed how long this was going on for, yes, the negotiations were going on for around 3 years, but the timeliness came in when they actually had a deal. The President's concern was once they got to the point where they had the deal, if the details of it had been leaked, it would have nixed the deal. And they were deeply concerned about Sergeant Bergdahl's health.

As I have said, this is an extraordinarily difficult call. I don't know if I would have done this deal or not. It is hard. The Commander in Chief has that responsibility. As I have mentioned, other leaders through the world have done it, including Prime Minister Benjamin Netanyahu, who gave up over a thousand prisoners in exchange for two Israeli soldiers. Those choices are difficult, and I am certain that those thousand Palestinians that were released posed some risk to Israel, but that is the decision they made. And that is the decision the President made.

This resolution is not primarily about whether or not the deal should have been done; it is about whether or not we should condemn the President for a clear violation of the law. And I will simply come back to the fact that this President has only done what every other President before him did in exercising his article II authority--under his interpretation and every previous Executive's--that this was legal.

It has been implied throughout this resolution that the President looked at the law and said: I'm just not going to follow it. That is not what he did. He did what every President before him has done. He said that he believed it was within his legal authority to make this decision.

So to put forward a resolution that said he intentionally broke the law, I think, is wrong on its face. This President made a determination about his article II authorities and went forward with it. He did not knowingly violate the law. Secretary Hagel has explained that repeatedly.

Again, I said it a little while ago that President Bush did the exact same thing. He violated any number of different laws and said that article II is the reason. We have been told: Well, that was years ago. I don't know what we would have done then.

I have offered up the opportunity for anybody on the other side to as roundly criticize and condemn President Bush for those actions now that we are here. I haven't heard it. It hasn't been said. All of which leads us to the inescapable conclusion that this is more partisan than principled. This President is the one who is being condemned by a Republican Congress. All the other Presidents have done it and it is just: Oh, we are just not going to do anything about that. That leads to the belief that this is a partisan action.

I think Congress should comment on this. We had great hearings on this. We should have had a hearing on this. We brought in Secretary Hagel. He explained himself. We criticized some of those decisions. That is appropriate.

This resolution is unprecedented and I think once again shows that this body has become more partisan than principled.

I urge everyone to reject the resolution, and I yield back the balance of my time.

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