Skip to main content

Senior GOP lawmaker wants to see legal case for Bergdahl swap

By Evan Perez, CNN
updated 8:14 PM EDT, Thu June 5, 2014
  • Justice Department gave legal advice to Defense Department on the swap
  • Top Republican wants to see the legal analysis underlying the decision
  • It illustrates that latest salvo in clashes between President Obama and Congress on consultation

Washington (CNN) -- Sen. Charles Grassley on Thursday asked Attorney General Eric Holder to provide a legal analysis that endorsed the swap of five Taliban figures held at the Guantanamo Bay prison in Cuba for Army Sgt. Bowe Bergdahl.

It was the latest salvo in clashes between Congress and President Barack Obama over what to some lawmakers appears to be the President's tendency to act without consulting Capitol Hill.

Grassley, the top Republican on the Senate Judiciary Committee, said he was rebuffed earlier this year when he asked the Justice Department to release its legal analysis for when the President issues executive orders.

But on Bergdahl, the lone remaining captive from the wars in Iraq and Afghanistan who was released over the weekend, he thinks the department needs to explain itself.

A U.S. official told CNN the Justice Department's Office of Legal Counsel opinion on the Bergdahl matter was verbal and, as typically happens, likely will be issued in the form of a written opinion later.

The department often refuses to release such opinions because they are considered protected under attorney-client privilege and the presidential executive privilege.

Grassley, in his letter to Holder, nonetheless makes his case that while "it is too late for Congress to express its concerns about these transfers in time to prevent them ... this measure of transparency will at least allow the American people to better understand the administration's purported basis for ignoring the legal requirement that Congress be notified in advance, and shed additional light on this controversial decision."

Grassley also said sharing the Justice Department's legal advice may also ensure the President abides by his oath" to carry out the law.

At issue is the administration's decision to ignore a restriction in the current defense policy law, signed by Obama last December, which requires 30-day notice to Congress before transferring terror detainees from Guantanamo Bay.

Obama attached a statement when he signed the law that called the restrictions on transfers an illegal infringement on presidential executive powers and declared the right to ignore them when national security interests required it.

Susan Rice said on CNN's "State of the Union" on Sunday that the Defense Department was given advice by the Justice Department before the swap.

Hints of the legal advice provided to the Pentagon can be found in statements issued in recent days by the White House.

National Security Council spokeswoman Caitlin Hayden said in a statement that the administration's interpretation of the law determined that the 30-day notification requirement "should be construed not to apply to this unique set of circumstances, in which the transfer would secure the release of a captive U.S. soldier, and the secretary of defense, acting on behalf of the President, has determined that providing notice as specified in the statute could endanger the soldier's life."

Hayden's statement said that because the 30-day notice would have required the Pentagon to delay the swap, the notification requirement would interfere with the President's constitutional power to protect Americans abroad and protecting U.S. soldiers.

Hayden added: "Because such interference would significantly alter the balance between Congress and the President, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the administration would be barred from taking the action it did in these circumstances."

The six soldiers at center of Bergdahl debate

Who is Bowe Bergdahl?

Bergdahl 'life' video shown, senators still skeptical

Part of complete coverage on
Sgt. Bowe Bergdahl released
updated 8:36 AM EDT, Fri June 13, 2014
It was perhaps the most contentious moment during a House Armed Services Committee hearing filled with them.
updated 9:21 PM EDT, Tue June 10, 2014
Could former U.S. State Department contractor Alan Gross be part of a new prisoner swap?
updated 2:31 PM EDT, Mon June 9, 2014
What happened to six of Bergdahl's platoonmates in the months after he disappeared? Some are blaming their deaths on Bergdahl.
updated 7:43 PM EDT, Thu June 5, 2014
The deaths of six U.S. soldiers in Afghanistan are being tied, directly or indirectly, to the search for Army Sgt. Bowe Bergdahl.
CNN's Jake Tapper's in-depth, three-part documentary, reporting on Bergdahl's time in captivity, life before the Army and what happened the night he disappeared in Afghanistan.
updated 7:49 AM EDT, Thu June 5, 2014
Army Sgt. Bowe Bergdahl's release from Taliban captivity was largely celebrated at first.
updated 1:43 PM EDT, Thu June 5, 2014
Alisa Weinstein was thrilled when she heard about Army Sgt. Bowe Bergdahl's release. She hopes her father will be next.
updated 4:10 PM EDT, Thu June 5, 2014
The recent release of U.S. Army Sgt. Bowe Bergdahl has refocused attention on some of the other Americans held captive in that region.
updated 9:10 AM EDT, Wed June 4, 2014
Bob Bergdahl was startling to see and hear at first: the father had seemingly morphed into an Afghan tribesman, wearing a long beard and even speaking Pashto.
updated 9:43 PM EDT, Fri June 6, 2014
Marcus Luttrell, a fomer Navy SEAL and the author of "Lone Survivor," talks about being trapped behind enemy lines.
updated 5:00 AM EDT, Tue June 3, 2014
Could the exchange of five Taliban prisoners for Army Sgt. Bowe Bergdahl set a precedent for swaps involving other countries holding U.S. military or diplomatic personnel?
updated 7:19 AM EDT, Tue June 3, 2014
President Obama defends his decision to swap imprisoned terrorists for the release of Sgt. Bowe Bergdahl.
updated 8:13 PM EDT, Wed June 4, 2014
Veterans and soldiers call him a deserter whose "selfish act" ended up costing the lives of better men.
updated 7:14 PM EDT, Thu June 5, 2014
People who know Army Sgt. Bowe Bergdahl have described him as a well-rounded, well-grounded and hardworking young man.
updated 7:55 PM EDT, Sat May 31, 2014
Together with the news that Sgt. Bowe Bergdahl was released came word that five detainees at Guantanamo Bay were being transferred to Qatar.
updated 4:48 PM EDT, Wed June 4, 2014
Guantanamo Bay detainees have long been considered America's most dangerous enemies.
updated 6:52 PM EDT, Sat May 31, 2014
The parents of U.S. Army Sergeant Bowe Bergdahl joined President Obama as they await their son's return.