Roll Call: Latest News on Capitol Hill, Congress, Politics and Elections
August 29, 2015

GAO: Pentagon Broke Law in Bergdahl Case

The Defense Department violated the law when it didn’t tell Congress before transferring five Taliban detainees from Guantánamo Bay, Cuba, to Qatar in return for the Taliban’s release of captured Army Sgt. Bowe Bergdahl, the Government Accountability Office said in a legal decision made public Thursday.

Pentagon officials “did not notify the relevant congressional committees at least 30 days in advance of the transfer,” as required by law, GAO General Counsel Susan A. Poling said in a letter to nine Republican senators who had sought the analysis.

What’s more, Poling said, “because DOD used appropriated funds to carry out the transfer when no money was available for that purpose, DOD violated the Antideficiency Act,” which “prohibits federal agencies from incurring obligations exceeding an amount available in an appropriation.”

The GAO ruling provides legal backing for the position that the administration flouted the notification requirement — a view held by most Republicans and more than a few Democrats. The GAO does not address other issues that many lawmakers have raised about the merits of the exchange.

The requirement for a 30-day notice of transfers is part of the fiscal 2014 defense authorization law ( PL 113-66 ). Moreover, the fiscal 2014 Defense appropriations act ( PL 113-76 ) prohibits spending on any transfers that do not comply with the authorization law’s requirements.

Defense Department lawyers told the GAO that they believe the transfers were lawful regardless of the notification requirement, but Poling said the GAO did not accept that argument.

Pentagon officials also told the GAO that the notification requirement is unconstitutional. They argued that it “would have interfered with the Executive’s performance of two related functions that the Constitution assigns to the President: protecting the lives of Americans abroad and protecting U.S. service members.”

The GAO did not assess the validity of that claim.

The GAO letter was addressed to Republicans Mitch McConnell of Kentucky, Richard C. Shelby of Alabama, Thad Cochran of Mississippi, Dan Coats of Indiana, Lindsey Graham of South Carolina, Lamar Alexander of Tennessee, Susan Collins of Maine, Lisa Murkowski of Alaska and Roy Blunt of Missouri.

Related:

Where National Security Is (and Mainly, Isn’t) in 2014 Elections

Constitutionality Debate Over Guantanamo Provision Sets Up House-Senate Fight

Spending Bill Adds New Requirements on Guantanamo Transfer Notification

GOP Senators Ask If Bergdahl Swap Broke Spending Law

Did President Obama Break the Law in Prisoner Swap?

 

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  1. micoz

    Aug. 21, 2014
    3:51 p.m.

    This president ignores any law that is not convenient to him at the moment. He thinks he’s a king.

    • Layla

      Aug. 27, 2014
      8:40 a.m.

      Well, he is! We’re allowing him to get away with all this, aren’t we? Do you see ANYBODY stopping him?

  2. grannycares

    Aug. 21, 2014
    5:36 p.m.

    The Lawless One continues his lawlessness! Are we surprised?

  3. KarenJ

    Aug. 21, 2014
    11:34 p.m.

    This request for a legal analysis from the GAO by nine Republican senators is reminiscent of the request by the GOP of the IRS for information about search words used in reviewing applications for non-profit status.

    Turns out the GOP’s request to the IRS was slanted to show a false “victimization” of right wing/Tea Party “non-profits”, without asking if the IRS was investigating any progressive non-profit organizations.

    I’ll bet that the GOP specified their request to the GAO for that legal analysis in such a way that limited any opinions about presidential authority in extraordinary situations.

  4. Chance Boudreaux

    Aug. 22, 2014
    1:21 p.m.

    Obama gonna Obama regardless of Law.

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