Monday in the White House press conference CNN reporter Joe Johns asked White House spokesperson Jay Carney whether President Obama feels he's "above the law." The White House is facing criticism from Capitol Hill and legal circles that their efforts to secure the release of Sgt. Bowe Bergdahl were a blatant violation of the National Defense Authorization Act.
The NDAA requires the administration provide Congress notification "not later than thirty days before the transfer or release" of any prisoners from Guantanamo Bay. The Obama administration admittedly flouted that part of the statute.
Carney categorically denied that President Obama had broken the law however, arguing the signing statements accompanying the NDAA gave the president the legal authority "to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers, if necessary."
Johns followed up by noting President Obama as a candidate called for "restraint" with the use of signing statements. "Is this an example of presidential restraint?" asked Johns.
Carney avoided answering directly, replying the signing statement attached to the NDAA falls outside of what President Obama deems an abuse of the practice.
The CNN reporter then turned to another complicating issue on the Bergdahl release, questioning if the president has "put a price" on the heads of other Americans by negotiating with the Taliban.
The White House spokesman again deflected, referencing America's long history of negotiating prisoner releases during armed conflicts. "There is a long history of prisoner exchanges in previous armed conflicts, and this action that was taken to recover Sergeant Bergdahl is entirely consistent with this past practice," he said.
While a general consensus has emerged that silently negotiating with the Taliban is not outside the scope of recent diplomatic norms, many in Congress are voicing concern the propaganda fallout will lead to more Americans being abducted by terrorists. "I fear President Obama’s decision will inevitably lead to more Americans being kidnapped and held hostage throughout the world," Sen. Lindsey Graham (R., S.C.) wrote Monday in a letter to the Senate Armed Services Committee.
A Monday Wall Street Journal editorial concurred with Graham's assessment, adding the deal will also furthers the narrative of American weakness and provides incentive for the Taliban to keep fighting:
The Taliban swap will only underscore the perception that the U.S. is tiring of its antiterror fight. Mr. Obama announced last week that the U.S. will withdraw all of its military forces from Afghanistan by the end of 2016, no matter the facts on the ground. The U.S. hasn't used drones to hit a terror target in Pakistan since December. The prisoner swap sends a similar message of retreat.
Mr. Obama said in a statement on Saturday that he hopes the prisoner swap will lead to a resumption of peace talks with the Taliban, but this reverses the usual order. In Vietnam and most other wars, the prisoner releases were part of a peace deal. In this case the Taliban can continue the war with their ranks enhanced.
If the Taliban now negotiate, it won't be because Mr. Obama's Guantanamo release has changed their intentions. It will be because they sense they can gain more by talking than by fighting. More likely, the success of their hostage-taking and Mr. Obama's 2016 withdrawal pledge will convince them that they can keep fighting while they talk and still win.
JOE JOHNS: There have been obviously a lot of questions about the legality of this. Point blank, does the president feel as though on this issue and this kind of issue, he's above the law?
JAY CARNEY: Absolutely not. To be clear, the 30-day notice requirement has appeared in NDAA bills and in other legislation in this and prior years, and we have repeatedly noted concerns with this requirement. In signing statements he has — he, the president, has consistently made clear that the executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers, if necessary. And that was certainly the case here.
JOHNS: On the issue of those signing statements, the president said when he was first running for president that he thought restraint needed to be used with signing statements. Is this an example of presidential restraint?
CARNEY: I appreciate the way you phrased that question, because it's often misreported that he somehow took a position against all signing statements, which was never the case, as a senator and candidate. He made clear that there were times when it would be appropriate, but that the authority to issue signing statements should not be overused or abused and that a president should exercise restraint. And I think if you look at his record in office, now 5 1/2 years in office, you'll see that restraint demonstrated. But there will be and have been circumstances when signing statements are necessary because of the president's view and the executive branch's view of the constitutional issues involved in the particular legislation.
And with regard to this specific situation within the NDA (sic) bill, that was that already addressed within a signing statement.
JOHNS: And last question: Has the president put a price on the heads of other Americans because of the way this deal went down?
CARNEY: I think this goes back to the general proposition that has been true throughout our history as a nation: that we, the United States, always seek the return of our prisoners in an armed conflict. And there is a long history of prisoner exchanges in previous armed conflicts, and this action that was taken to recover Sergeant Bergdahl is entirely consistent with this past practice.
Sergeant Bergdahl was a prisoner in an armed conflict, and we did the right thing by, after five years of captivity, securing his release and recovery and return to the United States.
The fact of the matter is, as I noted before, if you look through our history there are ample — there are ample precedents to this kind of decision because, as Chairman Dempsey said and so many others have said, we don't leave our men and women behind and we don't — we don't qualify a decision about leaving them behind or not leaving them behind based on who's holding him.