White House Knew Bergdahl Swap Would Go Through a Day Before It Happened

Obama hugs Jani Bergdahl, as Bob Bergdahl stands nearby on May 31. Obama hugs Jani Bergdahl, as Bob Bergdahl stands nearby on May 31. Carolyn Kaster/AP

One reason the Obama administration may have not alerted Congress 30 days in advance of the Sgt. Bowe Bergdal swap: It made the decision right before it took place.

"They knew a day ahead of time that the transfer was going to take place. They knew an hour ahead of time where it was going to take place," the Senate's No. 2 Democrat, Dick Durbin, told a small group of reporters Tuesday.

President Obama has said that the swap required quick action: "We had to act fast in a delicate situation that required no publicity," Obama said Friday on NBC Nightly News.

The administration has also argued that it put Congress "on notice" back in December 2013, via a signing statement from Obama relating specifically to a requirement that the administration notify Congress 30 days in advance of releasing any prisoners from Guantanamo Bay. Additionally, administration officials point out that they had previously briefed lawmakers on the idea of swapping these five Taliban leaders.

Durbin says it was "impossible" for the president to strike the deal and then wait 30 days, saying it could have "endangered the man's life" by waiting.

"So we have a provision in the law about 30-day notification which doesn't square with reality. Could he, could anyone have contacted Congress sooner? Perhaps," Durbin said. "But this notion of 30 days, I can't believe anybody's arguing, 'Well as soon as we knew there was a transfer we had to wait for Congress to think it over for 30 days.' That is not in the best interests."

But that argument doesn't satisfy everyone on Capitol Hill. A number of lawmakers, particularly Republicans, emerged from a closed Senate Armed Services Committee briefing Tuesday still critical of the administration's decision to make the swap without more of a heads-up to Congress.

Democratic Sen. Tim Kaine of Virginia said the 30-day notice issue is one outstanding problem for him. "I'm still troubled by whether the administration met the 30-day requirement and I'm digging into that further," he said.

Senate Armed Services Chairman Carl Levin said administration officials presented some additional information that was not included in last week's all-senators closed briefing. On Tuesday, administration officials focused more on "the legal reason" for why the 30-day notice was not needed, namely pointing to Article II of the Constitution, which specifies the president's role as commander-in-chief.

Levin later said that officials knew of the detailed location "a few hours" before the swap and that the deal had come together in just "a matter of days."

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