Report: Obama’s Bergdahl swap violated the law
posted at 6:41 pm on August 21, 2014 by Noah Rothman
You suspected it, members of Congress alleged it, but only now has it been confirmed: Barack Obama’s administration broke the law when it negotiated the release of five Guantanamo Bay prisoners in exchange for Army Sgt. Bowe Bergdahl without providing Congress with appropriate notice.
According to the independent Government Accountability Office, the Pentagon did not give Congress the required 30-day notice before releasing the five former Taliban commanders in U.S. custody. Moreover, the GAO alleges that Defense Officials illegally used funds for that prisoner transfer that had not been appropriated for that purpose.
The Pentagon was found to have “violated” the 2014 Department of Defense Appropriations Act “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,” according to the report.
The Defense Department also was legally prohibited from using congressionally appropriated funds to pay for the transfer of detainees from Gitmo without first getting approval from Congress, which the Obama administration failed to do, according to the report.
“Because [the Pentagon] did not provide written notice to the relevant congressional committees until 31 May 2014, the same day as the transfer,” the GAO noted, Defense officials clearly violated the law.
“Our opinion in this matter rests upon the Secretary of Defense’s responsibility to comply with notification condition on the availability of appropriations to transfer individuals from Guantanamo Bay,” the GAO report concludes.
This opinion does not address the Secretary’s decision to transfer the five individuals in this case as part of DOD’s efforts to secure the release of an American soldier. However, when DOD failed to notify specified congressional committees at least 30 days in advance of its transfer of Guantanamo Bay detainees to Qatar, DOD used appropriated funds in violation of section 8111. As a consequence of using its appropriations in a manner specifically prohibited by law, DOD violated the Antideficiency Act.
Many Democrats in Congress spent much of the early summer dismissing Republicans’ claims as partisan and even callous, preferring to focus on the return of an American soldier held captive rather than the politically expedient removal of the “Taliban Five” from American custody.
But not all on the left favored partisanship over intellectual honesty. Some, like MSNBC.com’s Adam Serwer, called this situation out for what it was.
“When it comes to the legality of the Gitmo transfers however, the president’s Republican critics are correct,” he wrote. “The Bergdahl exchange appears to be a situation in which Obama did exactly what he promised he wouldn’t – used a signing statement to disregard a part of a law Congress passed by saying ‘I don’t agree with that part.’”
He is probably feeling pretty good about his decision to cut against the liberal grain today.
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