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House report accuses Obama of violating law in Bergdahl exchange

Story highlights

The committee rejected the administration's argument that the release of Guantanamo prisoners to secure the release of a captive American soldier was an "extraordinary situation"

The report further suggests the administration quietly reached a deal to free the Guantanamo prisoners to help fulfill Obama's pledge to close the Guantanamo Bay prison

Washington CNN  — 

A House Armed Services Committee report set to be released Thursday accuses the Obama administration of misleading Congress and violating federal law during a controversial prisoner exchange.

The report compiled by the GOP majority charges that the administration did so when it bypassed Congress in negotiating the exchange of five Taliban prisoners for U.S. Army Sgt. Bowe Bergdahl, who was being held in Afghanistan. They suggested that the White House had put politics and expediency ahead of proper procedure in making the deal.

The White House welcomed Bergdahl home to much fanfare 19 months ago, but has since been faced with recriminations over the way the exchange process was handled and for hailing the sergeant as a hero when many have accused him of desertion. Earlier this year he was charged with desertion, though the Army officer investigating the charges recommended against prison time in October.

A dissent by Democrats on the committee blasts the Republicaan-authored report and calls it “a weighted and politically motivated document that makes no serious effort to fairly assess the Administration’s perspective.”

The Obama administration has claimed that it side-stepped a mandated 30-day congressional notification period out of fear for Bergdahl’s life, and that it had constitutional authority to do so. But the report finds the argument wanting.

The committee slams the the White House’s disregard for congressional oversight as “deeply disturbing” and rejected the administration’s argument that the release of Guantanamo prisoners to secure the release of a captive American soldier was an “extraordinary situation” that justified keeping Congress out of the loop.

The report further suggests that the administration quietly reached a deal to free the Guantanamo prisoners in exchange for Bergdahl in part to help fulfill President Barack Obama’s pledge to close the Guantanamo detention facility by the end of his time in office.

The Democratic dissent slams the report’s link between shutting Guantanamo and the prisoner release as “conjectural and unsubstantiated,” but did not argue with the contention that the Pentagon failed to keep Congress informed.

Report claims political motives behind deal

The freed detainees were part of a group of 48 prisoners that a panel commissioned by the Obama administration determined should not leave U.S. custody. The House report maintains that releasing them in order to free a U.S. prisoner of war was one of the best chances the Obama administration could have to release those detainees.

“The effort to transfer the Taliban Five was not merely a mechanism to recover a captive U.S. servicemen,” reads the report. “Doing so allowed the Administration to rid itself of five of the most dangerous and problematic detainees.”

The House Armed Services Committee, led by Texas Republican Mac Thornberry, reached that conclusion after an 18-month-long inquiry into the Department of Defense’s role in the prisoner exchange, which revealed that the department’s top officials charged with assessing the release of Guantanamo prisoners were not included in discussions about the Taliban militants’ release until just a few weeks before the exchange.

“This greatly increased the chance that the transfer would have dangerous consequences,” the committee writes in one of its findings about the omission.

Committee staff members said Wednesday thattn they were “confident” the political consideration of closing the Guantanamo facility was at play in the prisoner exchange, despite lacking a paper trail leading to the White House to confirm the assertion.

“We were unable to find another explanation for why the experts who would have normally overseen and managed a transfer process were excluded from that transfer process, especially given that there had been an earlier determination that these five should not have been transferred,” said one staffer, pointing to the administration’s exclusion of the Defense Department’s Office for Detainee Policy until three weeks before the prisoner exchange took place.

For its part, Congress was not notified of the Taliban prisoners’ release until two hours before it took place – dramatically short of the 30-day requirement for notification of any Guantanamo detainee release laid out under the National Defense Authorization Act, which Obama signed in December 2013.

The Taliban Five, the report notes, got two days’ notice that they would be set free.

Reached for comment on Wednesday, a senior administration official told CNN that the Obama administration acted to release the five Taliban detainees without a 30-day congressional notification because of the U.S.’s “unwavering commitment and patriotic duty to leave no man or woman in uniform behind on the battlefield.”

“We had a near-term opportunity to save Sgt. Bergdahl’s life, and we were committed to using every tool at our disposal to secure his safe return,” the official said. “Our policy is clear: We will not transfer any detainee from Guantanamo unless the threat the detainee may pose to the United States or U.S. persons or interests will be substantially mitigated. We determined that this standard has been satisfied here.”

The detainees, mid- to high-level officials in the Taliban regime, were released in Qatar in coordination with the Qatari government, which pledged to enforce a temporary travel ban and provided assurances the men would not pose a threat to the U.S. One of those five was later suspected of trying to return to militant activity, U.S. officials told CNN in January.

Debate over press leaks

Obama administration officials have cited the fear of leaks to the press about the sensitive exchange negotiations as part of the reason Congress didn’t receive its due notification.

But the report swatted away that argument, noting that the committee and its staff members regularly handle classified information of the most sensitive nature and insisted that the administration had a constitutional and legal duty to notify Congress of its plans.

Beyond being kept in the dark, the committee wrote that administration officials misled the committee over the course of inquiries into the status and existence of negotiations to free Bergdahl, particularly when press reports emerged about ongoing negotiations.

In one case, the deputy special representative for Afghanistan and Pakistan jetted off to Qatar for negotiations over Bergdahl’s fate one day after testifying before Congress that the Taliban had broken off “direct contact” with the U.S. when asked about Bergdahl.

“The Committee staff’s conversation with Department representatives, coupled with the White House’s public demurral, left the Committee with the impression that recent news stories were wrong and no recent or relevant activities had taken place in connection with a potential swap,” the committee wrote in its findings.

Privately, Pentagon officials fretted about the press reports, leaving a trail of emails demonstrating that details about the talks were making their way to the public.

Brig. Gen. Robert White, the director of Joint Staff’s Pakistan-Afghanistan Coordination Cell, wrote in an email to a colleague involved in the prisoner exchange negotiations: “Who’s leaking this very accurate info?”

Other email exchanges the committee obtained reveal similar concerns about keeping the talks about the swap secret – a worry shared by the Qataris serving as intermediaries.

Asked whether the administration lied to the committee, a majority staff member gave a cautious response.

“It was definitely intended to leave a specific impression that was not an accurate impression,” the staff member said.