President Obama’s decision to transfer five men imprisoned at Guantánamo to Qatar in exchange for a United States soldier held captive by the Taliban without notifying Congress needlessly politicized a military mission and risks halting the slow but steady progress Obama has recently made in reducing the number of men imprisoned indefinitely without charges or trial at Guantánamo.

Obama’s detractors in Congress are using his failure to provide notice to justify legislation calling for a complete ban on any further transfers from Guantánamo.  This extreme reaction lays bare how politicized Guantánamo has become since Obama took office.  Though there are many men at Guantánamo who every national security branch of government have determined merit release from Guantánamo, there are those in Congress who seek to stop such releases as pay back for Obama’s audacity in engaging in a prisoner exchange without notifying Congress.  The many men at Guantánamo who merit release should not be at the mercy of our ugly partisan politics.

Obama had full authority to make the tough decision to engage in a prisoner exchange—that falls squarely within his Commander in Chief powers.  A federal statute, however, which Obama signed into law, requires him to provide thirty days notice to Congress before transferring a prisoner from Guantánamo.  His decision to violate that law and provoke Congress is difficult to understand.  His administration has put forward various factual justifications—fear a leak risked subverting the deal, the soldier’s deteriorating health and an emerging opportunity that had to be rapidly seized--but none have been persuasive so far.  Even if there were legitimate exigencies that required the military to move fast, precluding the ability to provide the full thirty-day notice, certainly this could have been anticipated and some semblance of at least functional notice could have been put in place.

There is no doubt the thirty day notice requirement, enacted as part of the National Defense Authorization Act, is designed to interfere with Obama’s ability to close Guantánamo.  President Bush released over 500 men from Guantánamo without providing notice to Congress.   It is offensive that apparently Congress trusted President Bush’s judgment on who merited transfer, but President Obama’s decision making on the same matters requires monitoring.  

Despite the repugnancy of the law, Obama’s disregard for it has given his critics in Congress a platform to further undermine what is already a politically difficult goal of reducing the population at Guantánamo through repatriations or transfers to third countries. 

Of course, Congressional critics are only seizing on the notice issue to gain political advantage as mid-term elections approach.  It is difficult to imagine, had proper notice been given, that even President Obama’s most vehement detractors would have scuttled a deal to bring an American POW home, no matter the circumstances of his capture.   They denounce Obama’s decision to release men they claim will pose a future danger to U.S. soldiers, but Obama and the U.S. military he commands make decisions every day that place our soldiers at risk—we hope our military leaders make decisions to minimize risk, but this is the very nature of war.  A U.S. military intent on leaving no soldier behind no doubt explored many options to rescue Sergeant Bergdahl; after five years, President Obama and his military leaders decided a prisoner trade was the best among a range of imperfect choices.

For the men imprisoned at Guantánamo, their futures have always been at the mercy of our country’s partisan politics.  After ordering the closure of Guantánamo in 2009, just days after his first inauguration, Obama allowed his political detractors to lead him to believe that taking action on Guantánamo was a move he could not politically afford.  Last year’s wide- spread hunger strike at Guantánamo refocused Obama’s attention on the injustice of indefinite detention without trial.  Obama must cut through the political noise generated by the prisoner exchange.   The decision was, according to those in the best position to know—our military leaders—the right thing to do.  But Obama should acknowledge it was wrong not to have notified Congress and commit to doing so in the future.  And then he must direct his Secretary of Defense to give notice to Congress of the military’s intent to transfer the many men who, despite having been deemed eligible for release, remain needlessly imprisoned.

Rayner is a clinical associate professor of law at Fordham University School of Law who, with her students, represents several men indefinitely imprisoned without charges by the United States military at Guantánamo Bay, Cuba.