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Clash over Taliban release unlikely to be resolved in U.S. courts

By Lawrence Hurley and Andy Sullivan

WASHINGTON (Reuters) - Republican allegations that President Barack Obama broke the law when he freed five Taliban prisoners in return for U.S. soldier Bowe Bergdahl are unlikely to be tested in court because judges are reluctant to intervene in political disputes, legal experts said.

But that is unlikely to stop the political firestorm. Republicans have attacked the Obama administration's decision not to consult Congress before exchanging the Taliban detainees for Bergdahl, and resentment is growing among former fellow soldiers who call him a deserter.

Republicans hope foreign-affairs and military issues can help them wrest control of the Senate in elections in November. They have mounted an investigation into the 2012 attacks on the U.S. embassy in Benghazi, Libya and seek to tie vulnerable Democrats to a scandal at the Veterans Administration.

Added to that list is Bergdahl, America's newest hot-button political issue.

"The administration has invited serious questions into how this exchange went down and the calculations the White House and relevant agencies made in moving forward without consulting Congress," House of Representatives Speaker John Boehner said.

Boehner, the top Republican in Congress, said on Tuesday he supported calls for congressional hearings on the decision to swap the Taliban detainees for Bergdahl.

Representative Howard McKeon from California and Senator James Inhofe of Oklahoma, both Republicans, said Obama "clearly violated laws" in transferring the detainees, offering a taste of the likely political brawl ahead.

On Tuesday, a House Republican who is hoping to unseat an incumbent Democratic senator in Arkansas became one of the first lawmakers to publicly suggest that Bergdahl abandoned his unit voluntarily.

"I'm deeply troubled that you and your administration aren't being forthcoming with the truth: Bergdahl was most likely a deserter," Arkansas Republican Representative Tom Cotton wrote in a letter to Obama.

FEW LEGAL RISKS

But legal experts say Obama appears clear of legal risks.

On Saturday, after lawmakers in Congress were informed of the deal, Republicans raised questions over whether Obama had violated the 2014 National Defense Authorization Act (NDAA) by failing to notify them in advance.

The law requires at least 30 days notification before the release or transfer of detainees held at the U.S. military prison at Guantanamo Bay, Cuba.

Courts, however, are unlikely to provide any resolution.

Judges are traditionally wary of getting involved in disputes between the branches of government. The case may also be considered moot because the action Obama ordered has already been completed.

“I think it is highly unlikely anything can be done in the courts,” said Michael Gerhardt, a constitutional law scholar at the University of North Carolina School of Law. "The courts usually stay out of cases like this."

Ultimately, lawmakers may complain and hold hearings, but there's little they can do to challenge the president's action, said John Bellinger, who served as the top legal adviser in the State Department under President George W. Bush.

That said, the administration made a "big mistake" politically in not notifying selected members of Congress in advance, he added.

White House officials called some key members of Congress on Tuesday, including Senate Intelligence Committee chairwoman Senator Dianne Feinstein, and Senator Saxby Chambliss, the top Republican on the committee, to apologize for not keeping them properly informed.

John Noonan, a spokesman for the House Armed Services Committee, which Representative McKeon chairs, said on Tuesday that so far the only plan was for hearings on the issue. "We will see what we find" before taking further steps, he added.

The administration outlined its legal defense in a statement issued by the National Security Council on Tuesday. It said officials did not believe the NDAA applied because the transfer was done to secure the release of a U.S. soldier and because officials concluded that divulging information about the deal could have endangered Bergdahl's life.

When Obama signed the bill into law, he included a so-called "signing statement" clarifying its limits. He stated that the administration should have the flexibility to act swiftly when negotiating with foreign countries.

POLITICAL IMPLICATIONS

Presidents of both parties have used such statements to offer their interpretation of laws enacted by Congress.

The administration has also indicated it believes that Obama’s commander-in-chief powers, granted under Article Two of the U.S. Constitution, trump the notification provision.

Defense Secretary Chuck Hagel told reporters on June 1 that the president “has the power and authority to make the decision that he did.”

Marty Lederman, a law professor at Georgetown Law Center who served in Obama's Justice Department, indicated some support for the administration's legal arguments.

"It's difficult to imagine that Congress would have intended to insist upon such a 30-day delay if the legislators had actually contemplated a time-sensitive prisoner-exchange negotiation of this sort," he wrote in a blog post.

But even if Obama has the upper hand legally, the extent of the political fallout is less clear.

"It could have political implications, it's just too early to tell," said Republican strategist Saul Anuzis. "I think there's just too many unknown facts."

(Editing by Jason Szep and Ross Colvin)

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