McCain: WH Should Have Notified Congress on Taliban Swap -- ‘Big Problem’ is Risk These Murderers Pose

By Brittany M. Hughes | June 5, 2014 | 1:50 PM EDT

Sen. John McCain (R-Ariz.), left, and Sen. Lindsey Graham (R-S.C.). (AP)

( – Senator John McCain (R-Ariz.) said he believes the White House should have given Congress the 30-day notice required by law for releasing prisoners from Guantanamo but that his main concern is the danger the five freed Taliban combatants, some of whom are mass murderers, now pose to America.

McCain’s colleague, Sen. Lindsey Graham (R-S.C.), said there is “an argument to be made” for why President Barack Obama did not give Congress at least 30-days notice before releasing the Taliban prisoners in exchange for U.S. Sergeant Bowe Bergdahl, but added that, “from a political point of view, they really screwed up.”

Following a closed Senate briefing Wednesday on the Bergdahl/Taliban exchange, asked Sen. McCain, “Do you believe the president violated the law by not giving Congress 30 days’ notice before releasing these prisoners?”

McCain said, “That’s -- but my big problem is the release of these five people who are hardcore, a couple of them mass murderers. Our experience of those 30% of the detainees who have been released, have re-entered the fight in leadership positions.”

“These guys are Mullah Omar’s Cabinet,” said McCain.  “They’re the Fab Five. They were picked out by the Taliban for release. They were judged in Guantanamo, when they were there, by the Review Board as posing a risk that was so severe that they needed to remain in detention. Now, they’ve been released.” then asked, “So, if these individuals are so dangerous, do you believe Congress should have been given the notice that’s written in the law?”

“I do, but that’s -- my major concern is what these individuals can do to damage the United States of America and the men and women who are fighting,” said McCain.

(Photo courtesy Fox

McCain added that he does not know if Congress can do anything to change how situations like this can be handled in the future, given a law already existed that required Congress be given advanced notice before a prisoner transfer.

“I don’t know. I don’t know if we can or not, because the president is the commander in chief,” said McCain, who himself was a Vietnam Prisoner of War. “I’d have to look at it. We’d have to look at it.” also asked Sen. Graham, “Do you believe the president violated the law by not giving Congress 30-days’ notice?”

“I’ve always said there’s an argument to be made that the -- dealing with a captive, the president as the commander in chief has certain inherent authority,” said Graham.

In this image taken from video obtained from Voice Of Jihad Website, U.S. Sgt. Bowe Bergdahl sits in a vehicle guarded by the Taliban in eastern Afghanistan. (AP Photo/Voice Of Jihad Website via AP video)

“They would have been smart to notify the Congress, but if he decided to empty the jail, there would be a constitutional crisis here,” Graham continued. “He would clearly be overstepping the boundaries. But the argument is that we had an ongoing military operation involving an American soldier. I understand that theory. There’s legitimacy to it. From a political point of view, they really screwed up.”

According to the National Defense Authorization Act enacted in 2013, the Secretary of Defense is required to give Congress at least 30 days notice before transferring any detainee from Guantanamo Bay to a foreign nation or entity.

The law also outlines certain requirements that must be met to ensure the individual cannot re-engage in terrorist activity that threatens the U.S. or its interests upon release.

President Obama joins Bob and Jani Bergdahl, parents of Army Sgt. Bowe Bergdahl, on Saturday, May 31, 2014. (AP Photo/Carolyn Kaster)

During a press conference in Poland on Tuesday, President Obama defended his decision to release five Taliban leaders in exchange for Bowe Bergdahl, saying the administration "had consulted with Congress for quite some time about the possibility that we might need to execute a prisoner exchange.”

But lawmakers from both sides of the aisle have criticized the president for not giving Congress the 30-day notice required by law, saying they were not informed of the exchange until a day – or even mere hours – beforehand.

Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) said the administration called her to apologize for not giving her and other members of Congress advanced notice of the swap, according to The Hill newspaper.

“I had a call from the White House last night, from Tony Blinken, apologizing for it,” Feinstein said. “He apologized and said it was an oversight.”