A former attorney general during the George W. Bush administration says President Obama broke the law when he exchanged Army Sgt. Bowe Bergdahl for five Taliban fighters, but said the law itself is unconstitutional.


Controversy has surrounded the president’s swap for Bergdahl, who had been held captive by the Taliban for five years. Many Republicans have accused Obama of violating the National Defense Authorization Act by not notifying Congress 30 days prior about the release of the Guantanamo detainees.

“He broke the law, but I believe the law itself is unconstitutional,” said Michael Mukasey on "Fox News Sunday." “Article 2 makes him the commander in chief of the armed forces…and to the extent that statute purports to restrict his Article 2 powers I think it’s unconstitutional and he said so at the time he signed it.”

Mukasey recently wrote an opinion piece in The Washington Post in which he described the Bergdahl swap as a “ghastly transaction.” He also criticized the president for endangering the U.S. military for handing back five highly trained Taliban commanders with ties to Al Qaida before a withdrawal of troops from Afghanistan.

Mukasey told Fox News’s Chris Wallace that Bergdahl should receive a swift investigation and sentencing for what he said was clear evidence of desertion.

In the past, he said, soldiers who deserted during wartime had received the death penalty. But Mukasey said he did not think it should be on the table for Bergdahl.

Bergdahl is currently recovering in a military hospital in Germany. Reports say he has told his medical team about the torture and beatings he endured during his captivity at the hands of the Taliban.