The exchange of five Gitmo detainees for Sgt. Bowe Bergdahl, held captive by the Taliban since 2009, has been one of the more dramatic trades since the days of swapping Cold War spies in Berlin (like Francis Gary Powers of the U2 spy plane fame), or trading arms for American hostages in Lebanon (the Iran Contra affair) during the Reagan Years.
President Obama’s critics have claimed that he violated the law on congressional notification of the release of Gitmo detainees. Obama claimed he notified Congress about the potential for such a deal, but claimed he had to act quickly to seize the opportunity for this particular case.
At the heart of the matter is something known as a signing statement. That’s because Obama is using one in his defense on the controversial exchange, while opponents accuse him of hypocrisy, as Senator Obama criticized President Bush for employing them.
According to Chris Moody with Yahoo News “The Obama administration has argued that the president acted within his constitutional authority, pointing to a signing statement Obama attached to a defense authorization bill last year containing the congressional notification requirement. In his statement, the president called the constitutionality of that requirement into question and said that, as commander-in-chief, he reserved the right to act outside the provisions of the law in special circumstances.”
President Obama promised he would take a different approach that his predecessor, known for making frequent signing statements outlining how he might enforce the law that often differed from what the legislation said.
Did he? According to Professor Kevin Evans of Florida International University in a blog post, “President George W. Bush made the constitutional challenges within signing statements (in)famous by citing problems with approximately 1,200 provisions of legislation; double the amount of all the previous presidents combined. Those challenges can be found within Bush’s 112 first-term statements and his 50 second-term statements.”
How does this compare to Obama? “The Obama administration has only issued 22 statements during his first term,” Evans wrote back in early 2013. “While these statements are chock-full of constitutional challenges (Obama’s most recent NDAA signing statement challenges more than 20 sections of law on constitutional grounds), the lack of frequency with which the administration issues them leaves Obama nowhere close to Bush in terms of the number of provisions challenged over a similar timeframe.”
But Karen Tumulty with the Washington Post provides evidence that President Obama campaigned against such signing statements when running for president, and is taking a different approach to them now, consistent with what Bush. That’s the case even if (a) he uses far fewer of them than his predecessor, and (b) there was a possible good reason for doing so, according to Bergdahl’s former commander Gen. Stanley McChrystal claims.