We discussed the possible illegality of the swap but with a somewhat cynical eye toward how the current Administration views the Congressional will to make the Administration stay within the law. As in "we will do what we want and by the time you sue us to stop us, we'll long gone, so there."
This NYTimes piece discusses some of the legal issues:
Among other complications, there was a potential legal obstacle: Congress has imposed statutory restrictions on the transfer of detainees from Guantánamo Bay. The statutes say the secretary of defense must determine that a transfer is in the interest of national security, that steps have been taken to substantially mitigate a future threat by a released detainee, and that the secretary notify Congress 30 days before any transfer of his determination.
In this case, the secretary, Chuck Hagel, acknowledged in a statement that he did not notify Congress ahead of time. When Mr. Obama signed a bill containing the latest version of the transfer restrictions into law, he issued a signing statement claiming that he could lawfully override them under his executive powers.
“The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers,” he wrote in the signing statement, adding that if the restrictions “operate in a manner that violates constitutional separation of powers principles, my administration will implement them in a manner that avoids the constitutional conflict.”
An administration official said the circumstances of a fast-moving exchange deal made it appropriate to act outside the statutory framework for transfers.
Some of our thoughts had to do with trading with terrorists in prisoner exchanges and the dangerous precedent that might set.
Bigger names now have weighed in on this swap. Before you read those, it might be good to read Nathan Bradley Bethea's We Lost Soldiers in the Hunt for Bergdahl, a Guy Who Walked Off in the Dead of Night:
The Daily Beast’s Christopher Dickey later wrote that "[w]hether Bergdahl…just walked away from his base or was lagging behind on a patrol at the time of his capture remains an open and fiercely debated question.” Not to me and the members of my unit. Make no mistake: Bergdahl did not "lag behind on a patrol,” as was cited in news reports at the time. There was no patrol that night. Bergdahl was relieved from guard duty, and instead of going to sleep, he fled the outpost on foot. He deserted.
As usual, Max Boot has a good perspective on such prisoner swaps (which, yes, are not uncommon) in his How Not to Handle a Prisoner Swap
What I find offensive is that the president and his team are not treating this as a grubby and inglorious compromise–an attempt to reconcile our competing ideals of “don’t deal with terrorists” and “leave no man behind.” Instead the administration seems to be taking a victory lap. The president held a White House event with Bergdahl’s parents. Secretary of Defense Chuck Hagel flew to Afghanistan to commemorate the occasion. National Security Adviser Susan Rice called it “a great day for America.”Now, suppose Mr. Bethea is correct in his suggestion that this was a desertion that ended as a captivity and that other soldiers paid with their lives in the search to find Bergdahl? Is this a time where some anonymous official can ignore those losses and say:
If only the president and his team showed as much passion about actually winning the war in Afghanistan. Sadly, it appears that the handling of this whole issue is symptomatic of the administration’s approach to the wars in Iraq and Afghanistan: Their emphasis has always been on bringing the troops home, no matter the price, not on making sure that the troops accomplish their objectives.
Another senior Defense official said Bergdahl will not likely face any punishment. "Five years is enough," he told CNN on condition of anonymity.As always in such cases, there are families whose losses will endure far longer than five years of captivity.