It’s been nearly three months since Sgt. Bowe Bergdahl was freed from Taliban captivity in a deal that resulted in the release of five Taliban prisoners held at Guantánamo Bay. Nearly from the moment that the release happened, Republicans were critical of the deal largely because of the questions regarding the circumstances of Sergeant Bergdahl’s disappearance from his post and the fact that the Obama administration decided to trade five Taliban leaders to get him back. Perhaps the most potent criticism though, was the argument that the administration had failed to comply with the law because it failed to notify Congress of the trade of Bergdahl for the Guantánamo prisoners beforehand. The White House justified the failure to comply with the notice requirement by saying that it was necessary to complete the trade in a short period of time due to concerns about Bergdahl’s health. However, members of Congress on both sides of the aisle, including Sens. Dianne Feinstein (D) of California and Tom Coburn (R) of Oklahoma were skeptical about that justification to say the very least.
Now, the General Accounting Office has come out with a report determining that the administration did in fact violate the law when it failed to notify Congress about the impending prisoner swap as required by law:
WASHINGTON—The Obama administration violated the law when it failed to give Congress adequate notice about the transfer of five detainees from Guantanamo Bay as part of a swap for Sgt. Bowe Bergdahl, the investigative arm of Congress said Thursday.
Sgt. Bergdahl was released after nearly five years of captivity in Afghanistan as part of a May 31 exchange for five Taliban detainees held at a U.S. military base in Guantanamo Bay, Cuba.
“The Department of Defense violated section 8111 of the Department of Defense Appropriations Act, 2014 when it transferred five individuals detained at Guantanamo Bay, Cuba, to the nation of Qatar without providing at least 30-days notice to certain congressional committees,” the Government Accountability Office said in response to a letter from Republican lawmakers, including Kentucky Sen. Mitch McConnell, the minority leader, and Alabama Sen. Richard Shelby.
That provision prohibits the Defense Department from using government funds to transfer individuals from Guantanamo unless it notifies Congress at least 30 days in advance.
The department also violated another law that prohibits federal employees from spending money not authorized by Congress. “DOD should report its Antideficiency Act violation as required by law,” the GAO said.
At the time of the swap, President Barack Obama defended the move, saying the U.S. has a “sacred rule” not to leave men and women in uniform behind.
“We saw an opportunity,” Mr. Obama said on June 3. “We were concerned about Sgt. Bergdahl’s health. We had the cooperation of the Qataris to execute an exchange, and we seized that opportunity.”
But lawmakers from both sides of the aisle questioned the decision, saying the administration disregarded the 30-day notice provision of the law.
The Defense Department notified Congress of the transfer in writing on May 31.
According to the GAO letter, the department said its actions complied with the law and, in any event, the relevant portion of the law is unconstitutional as applied to the Bergdahl transfer.
Providing notice “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 department said in reply to a GAO inquiry.
The watchdog didn’t weigh in on the constitutionality of the law but noted that it had been signed by the president.
In this case, the duty to inform Congress could have been easily satisfied and it was not even necessary to violate the law in order to carry out the exchange. It seems more likely that this was done for political purposes to avoid opposition in Congress.
The GAO found the obvious violation and added that the Pentagon broke another law by using funds that were not technically available. The GAO also concluded that the Obama Administration violated the Antideficiency Act, barring spending by agencies above the amount of money that Congress has obligated.
The appropriations dimension is another example of how the Administration has circumvented the “power of the purse” which is often cited as the core congressional check on presidential power. Indeed, as I have discussed in recent testimony, the Administration has repeatedly shown that this power is becoming something of a constitutional myth (despite the fact that it is often cited as a reason not to recognize standing by members in challenging unlawful acts of a president). The law in this case was part of a Defense spending bill states that no money can be used to transfer Guantanamo prisoners to another country “except in accordance” with a law requiring that the secretary of Defense to notify key congressional committees at least 30 days before such a transfer.
In this case, the swap occurred May 31 but the committees were only notified between May 31 and June 2. The finding also puts to rest the spin put out by advocates that Congress was notified by the White House.
When some of use raised the violation of federal law as obvious at the time, many supporters of the White House insisted that there was no violation and that this was another partisan attack. However, the GAO found the violation “clear and unambiguous” and said that the Administration was dismissive of “the significance of the express language” in the law.
As I noted just days after the swap was announced, it seems fairly clear that the administration did in fact fail to comply with the law in this case. The language of Section 1035 of the National Defense Authorization Act for Fiscal Year 2014 seems fairly clear in its requirement that the president, through the secretary of Defense, must notify the appropriate congressional committees of any proposed prisoner swap no less than 30 days prior to the transfer of any prisoner held at Guantánamo Bay. When he signed the NDAA into law, the president did issue a signing statement in which he purported to make the determination that this provision of the law was potentially an unconstitutional restriction on executive powers. However, as President Obama himself noted several times when he was a senator and candidate for president, presidential signing statements are of dubious legal and constitutional legitimacy to begin with. Additionally, the president himself noted just under a year before the Bergdahl deal became public that he would be required to consult with Congress before making a deal to free Bergdahl that included the release of Guantánamo prisoners. That, combined with the fact that the medical arguments that were made after the fact in order to justify making the end run around Congress haven’t stood the test of time, makes the constitutional argument that the White House is making dubious at best.
Moreover, as Professor Turley notes in his post, even if you accept the argument that Section 1035 is an unconstitutional restriction onp residential authority, that cannot justify the misappropriation of money for a purpose specifically forbidden by Congress. In addition to the notice requirement, the law also states that the Defense Department could not use appropriate funds for a purpose not specifically authorized by Congress. This is an excellent example of the very “power of the purse” that, traditionally, has always been seen as something well within the authority of Congress. Indeed, a president who spends money in a way that Congress didn’t authorize would clearly be violating the law. That’s what the Boland Amendment was about in the 1980s, for example, and it was the efforts of certain members of the Reagan administration to get around that law that led to the Iran/Contra scandal. Here, we have something far more direct, a decision by the executive branch to ignore a federal law and spend money in a way that Congress didn’t authorize. Whatever side of the political aisle you fall on, that’s not something that should simply be dismissed. Presidents should not be permitted to ignore the law with impunity and get away with it unscathed and, while it’s unclear just what the penalty for violating Section 1035 ought to be, it seems pretty clear that is should be something more than just a dismissal of the matter as another Washington partisan battle. The administration broke the law, there’s really no other way to put it.
Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.