DOJ Sent DOD 'Guidance' 'By Email Exchange' on Legality of Releasing Taliban

June 12, 2014 - 10:42 AM

Chuck Hagel testifies on Taliban swap

Defense Secretary Chuck Hagel testifies before the House Armed Services Committee on Wednesday, June 11, 2014, about the Bergdahl-Taliban prisoner swap. (AP Photo/Susan Walsh)

(CNSNews.com) -- In testimony before the House Armed Services Committee on Wednesday, Defense Department officials said the Obama Administration’s decision to release five Taliban detainees from Guantanamo Bay in exchange for Sgt. Bowe Bergdahl was “fully consistent with U.S. law” – including the National Defense Authorization Act – and was made after the Department of Defense consulted with the Justice Department on the matter by email.

The Defense Authorization Act includes a requirement that Congress be given at least 30 days’ notice before any Gitmo detainee is transferred. The law has been cited repeatedly over the past two weeks by members of Congress from both sides of the aisle, who say they were not briefed by the administration before the prisoner-swap on May 31.

“Our operation to save Sgt. Bergdahl’s life was fully consistent with U.S. laws and our national security interests,” said Defense Secretary Chuck Hagel, adding that the administration “followed the precedent of past wartime exchanges.”

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(Photo courtesy Fox News.com)

“We complied with the National Defense Authorization Act of 2014 by determining that the risk the detainees posed to the United States, American citizens, and our interests was substantially mitigated,” Hagel said.

Defense Department General Counsel Stephen Preston also testified at the hearing, saying the administration sought legal guidance from the Department of Justice over the 30 days’ notification requirement.

“The administration sought the guidance from the Department of Justice on the applicability and impact of the 30 days’ notice requirement under these circumstances, and received guidance from the Department of Justice,” Preston said, saying the “guidance” was given in email form.

“It was not by means of a formal memorandum opinion, but rather by email exchange principally,” Preston explained.

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“We solicited legal guidance on the legal issues that would apply in application in this extraordinary set of circumstances in which the president was seeking to repatriate a service member who was in captivity and in peril,” Preston said.

During his testimony, Preston did not provide the specific legal recommendation the Defense Department received from the DOJ, and the question was not raised by any member of Congress.

Rep. Joe Courtney (D-Conn.) did ask if the emails between the Defense Department and the Justice Department could be made available to Congress, to which Preston responded the administration “appreciates the interest” and would “take [the request] back.”

House Armed Services Committee Chairman Buck McKeon (R-Calif.) pressed Preston on the timeline of the email exchange between the DOD and DOJ.

"Mr. Preston, when did you consult the [Department of Justice] on the 30 day notification, what date was that?" McKeon asked.

Attorney General Eric Holder

Attorney General Eric Holder (AP Photo/J. Scott Applewhite)

"I don't remember the precise date," Preston said. "But it was in the time-frame in which we had completed our discussions with the Qataris over the [memorandum of understanding] but before it was signed."

Preston said earlier in his testimony the memorandum of understanding between the United States and Qatar was signed on May 12.

“We anticipated that these issues would arise,” Preston admitted. “We certainly thought about it, we did not ignore it.”

“So you had time to discuss this with the Department of Justice, you probably could have used that same time to talk to Congress,” McKeon said. “It sounds like what you’re saying right now is that you thought about it, you were aware of it, you had a discussion about it and decided that the law didn’t apply. So if the circumstances are extraordinary, you don’t have to follow the law.”