Defense Dept. Violated Law in Bergdahl-Gitmo Trade

A report published Thursday by the Government Accountability Office found that the Department of Defense violated the law twice when it transferred 5 prisoners from Gitmo without providing notice to Members of Congress. The five prisoners were part of a trade to secure the release of Sgt. Bowe Bergdahl.

The Defense Appropriations Act states that DOD must give Congress 30 days advance notice before transferring any prisoners from Gitmo. The prisoner transfer in question took place on May 31, 2014. According to the GAO report, written notification was presented to Members of Congress that same day.

DOD argued that legality of a transfer from Gitmo was up to the Secretary of Defense and that failure to notify Congress as specified in the statute did not render an otherwise lawful transfer unlawful. But the GAO concludes that argument is inaccurate. Its report states, “DOD has dismissed the significance of the express language enacted in section 8111.” This section makes it unlawful for DOD to spend money on a prisoner transfer without notifying Congress in advance.

Since DOD did spend nearly a million dollars on the transfer without giving proper notice, GAO concludes DOD also violated the Antideficiency Act. The report states, “If Congress specifically prohibits a particular use of
appropriated funds, any obligation for that purpose is in excess of the
amount available.”

The legal question about providing notice to Congress is not new. In June, Sen. Saxby Chambliss, ranking Republican member of the Senate Intelligence Committee, told CNN, “[The President] knew very well that he was required by law to give us 30 days’ notice and he didn’t do it.”

The President claimed at the time that a swift decision was necessary and that Congress had been consulted prior to the deal. National Security Council spokesperson Caitlin Hayden told CNN at the time, “Given the credible reports regarding the risk of grave harm to Sergeant
Bergdahl and the rapidly unfolding events surrounding his recovery, it
was lawful for the administration to proceed with the transfer
notwithstanding the notice requirement.”

The GAO found both of these excuses insufficient. Critics will rightly see this as one more instance where the President’s willingness to bypass Congress exceeded his actual authority to do so.