WARSAW, Poland -- President Barack Obama defended Tuesday the prisoner swap that freed a U.S. soldier in Afghanistan and vowed to keep watch over the five Taliban figures who were released from the U.S. prison camp in Guantanamo Bay, Cuba, in exchange.
Responding to criticism of the trade for the first time, Obama dismissed questions about whether the freed prisoner, Sgt. Bowe Bergdahl, deserved special efforts, given reports that he deserted his post in combat. And the president said he had opted not to notify Congress in advance as required by law because there was not enough time.
"The United States has always had a pretty sacred rule, and that is: We don't leave our men or women in uniform behind," Obama said in Warsaw during the first stop on a four-day European trip.
Gen. Martin Dempsey, the chairman of the Joint Chiefs of Staff, said Tuesday that the military would look at whether Bergdahl had violated rules by leaving his post, but Obama said nothing would change the responsibility to try to recover the soldier.
"Regardless of circumstances, whatever those circumstances may turn out to be, we still get an American prisoner back," he said. "Period. Full stop. We don't condition that."
Obama also brushed off accusations that he had violated a law requiring a 30-day advance notice to Congress before releasing prisoners from Guantanamo, saying the urgency of the moment made that impractical.
"We have consulted with Congress for quite some time about the possibility that we might need to execute a prisoner exchange in order to recover Sgt. Bergdahl," he said. "We saw an opportunity. We were concerned about Sgt. Bergdahl's health."
He added, "The process was truncated because we wanted to make sure we did not miss that window."
Bergdahl, 28, left a small observation post in eastern Afghanistan in the early-morning hours of June 30, 2009, without informing anyone, three former members of his 30-man platoon said in interviews Monday. In his one-man tent, they said, they found Bergdahl's rifle, helmet, body armor, night-vision goggles and other gear neatly stacked.
The former soldiers said Bergdahl had expressed disillusionment with the way the Army was conducting the U.S. combat mission in Afghanistan and had made off-hand comments about walking into the mountains or walking to India.
Calling Bergdahl a deserter, the soldiers said he should be held accountable for possible violations of the Uniform Code of Military Justice. They contended that several U.S. service members died in direct or indirect connection with the 90-day search for the missing sergeant.
The Pentagon has not confirmed that any deaths were related to the search for Bergdahl.
Dempsey said Tuesday that the soldier should not be judged until evidence is collected.
"The questions about this particular soldier's conduct are separate from our effort to recover ANY U.S. service member in enemy captivity," Dempsey wrote on his Facebook page. "This was likely the last, best opportunity to free him."
"As for the circumstances of his capture, when he is able to provide them, we'll learn the facts," the general said. "Like any American, he is innocent until proven guilty. Our Army's leaders will not look away from misconduct if it occurred. In the meantime, we will continue to care for him and his family."
Dempsey's Facebook post -- which the White House immediately sent to reporters -- is the strongest indication yet that the Defense Department may pursue some sort of punitive action against Bergdahl.
The Pentagon has swung back and forth on the issue since the sergeant's release Saturday, first saying that whatever his crime, five years as a prisoner in Afghanistan was punishment enough, then saying that officials were unsure what they would do, then returning to the "five years is punishment enough," line, as a senior defense official said Monday.
Bergdahl could face court-martial if the Army uncovers sufficient evidence of desertion, said Eugene Fidell, who teaches military law at Yale Law School.
Because the U.S. is not formally at war with the Taliban -- Congress authorized military force against terrorists -- a soldier serving in Afghanistan would not face the death penalty if convicted of desertion, Fidell said. The maximum penalty under these circumstances is five years in prison and a dishonorable discharge for "intent to avoid hazardous duty or shirk important service," Fidell said.
Any decision on disciplinary measures will be up to the Army, Dempsey said.
The decision by the White House to draw notice to Dempsey's Facebook post was an indication of the political pressure Obama has been under since his decision to swap the detainees for Bergdahl, an administration official said.
The administration argued that it had not violated the law by failing to provide the notice to Congress. Obama has in the past objected to that provision because of what he called its unconstitutional infringement on the power of the executive.
Caitlin Hayden, a spokesman for the White House National Security Council, said Defense Secretary Chuck Hagel had approved the prisoner swap and had agreed that the 30-day notice should not apply in this instance.
"The administration determined that the notification requirement should be construed not to apply to this unique set of circumstances," Hayden said, because Hagel "determined that providing notice as specified in the statute could endanger the soldier's life."
Hayden added that the law in this case would "interfere with the executive's performance" of functions assigned by the Constitution, namely protecting American lives abroad and protecting U.S. soldiers.
"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," she said.
But House Speaker John Boehner said lawmakers raised serious concerns that were never satisfactorily answered about the potential swap when the idea was brought up two years ago, and they also received assurances from the Obama administration that if a deal were more likely, Congress would be contacted.
"There was every expectation that the administration would re-engage with Congress," Boehner said. "The only reason it did not is because the administration knew it faced serious and sober bipartisan concern and opposition."
Boehner's sentiment was echoed by Republican and some Democratic senators, who questioned the Obama administration's suggestions that Bergdahl's deteriorating health posed an imminent risk, requiring fast action.
"There has not been even the weakest case, in my opinion, made that he was suffering from a health standpoint to the degree to which a decision had to be made," said Sen. Saxby Chambliss, the top Republican on the Senate Intelligence Committee.
"He was undernourished, not necessarily malnourished," echoed Sen. Dianne Feinstein, the panel's Democratic chairman, citing an assessment from a few months ago. "Unless something catastrophic happened, I think there was no reason to believe he was in instant danger. There certainly was time to pick up the phone and call."
Both senators slammed the administration's disregard for Congress after attending a classified briefing with intelligence officials Tuesday.
Feinstein said she and Chambliss wrote classified letters to Obama and then-Secretary of State Hillary Rodham Clinton in late 2011 and early 2012 expressing their opposition to the transfer of high-level detainees to Qatar as part of the proposed deal to free Bergdahl. The top House Republican and Democrat for intelligence also signed on.
Clinton responded by promising further consultation before making the exchange, Feinstein said, but no subsequent talks or notification ever occurred. Feinstein said the administration knew it must notify Congress at least 30 days in advance.
"Our views were clearly translated," Feinstein said. "So it comes with some surprise and dismay that the transfers went ahead with no consultation, totally not following the law."
Feinstein said a deputy national security adviser apologized for not informing the lawmakers of the prisoner trade.
"I had a call from the White House last night from Tony Blinken apologizing for it, I don't know if it was an oversight or what," she said Tuesday.
Chambliss said an administration official, whom he declined to identify, also contacted him to apologize.
"You can't undo what the president has done, and I think the long-term potential for damage is enormous," Chambliss said.
He said the five men released from Guantanamo Bay "pose a serious threat to the national security of the United States." Chambliss said he would write to Obama demanding that details about the men and their alleged crimes be declassified.
The president said the five Taliban figures sent to Qatar in return for Bergdahl would be monitored.
"We will be keeping eyes on them," he said. "Is there the possibility of some of them trying to return to activities that are detrimental to us? Absolutely. That's been true of all the prisoners who have been released from Guantanamo. There is a certain recidivism that takes place."
However, he said, "I wouldn't be doing it if I thought it would be contrary to American national security."
Information for this article was contributed by Peter Baker of The New York Times; by Bradley Klapper and Donna Cassata of The Associated Press; by David Zucchino of the Los Angeles Times; and by Derek Wallbank, Kathleen Hunter and David Lerman of Bloomberg News.
A Section on 06/04/2014