DoD Violated Laws in Swap of Taliban for U.S. Army Sergeant

By on August 21, 2014 in Current Events with 75 Comments

Those who pay any attention to the news will recall that a decision was made by the Obama administration to swap an American soldier, Army Sergeant Bowe Bergdahl, for five Taliban leaders in May. A new report from the Government Accountability Office (GAO) concludes that the Pentagon broke the law when this action was taken.

The GAO concluded in a legal opinion issued at the request of congressional lawmakers that the Department of Defense violated the law by failing to notify key Capitol Hill committees at least 30 days in advance. Also, the Pentagon broke another law by using funds that were not available for that purpose.

The new GAO report was issued several months after the Obama administration released five Taliban members from Guantanamo Bay in exchange for Bergdahl. SGT Bergdahl disappeared from his unit in Afghanistan in 2009. The five Taliban leaders are supposed to remain in Qatar for a year after their release. The swap occurred on May 31, 2014. However, the GAO report notes that, according to DoD:  “[t]he Secretary of Defense provided written notice of the transfer of the five individuals by letters dated May 31, 2014, addressed to the Chairmen and Ranking Members of the congressional appropriations, armed services, foreign relations, and intelligence committees.”

The GAO concludes the law is “clear and unambiguous.” The Department of Defense defended the legality of the controversial swap and its actions in ignoring the legal requirements.  According to GAO, “in our view, DOD has dismissed the significance of the express language” of the law.

The GAO report also concludes that the Department of Defense also violated the Antideficiency Act. This law bans spending by agencies above the amount of money that Congress has obligated. In this case, the report said the Defense Department spent nearly $1 million more than had been obligated. In this instance, DoD obligated at least $988,400 in excess of available appropriations.

As a consequence of using its appropriations in a manner specifically prohibited by law, DoD violated the Antideficiency Act and the agency should report its Antideficiency Act violation as required by law.

The Obama administration has argued the decision to make the swap was within the president’s constitutional authority to protect U.S. personnel overseas.

Sen. Susan Collins (R-ME), one of the nine Republican senators on the Defense Appropriations Subcommittee who requested the report, said it confirmed that President Obama knowingly violated the law. She said in a statement that “This GAO report confirms my belief that the Administration violated the law when it released and transferred these dangerous Taliban detainees without notifying Congress as the law clearly and unequivocally requires.  It is highly likely that these men will return to the fight against our country after their year in Qatar.  That is the assessment of the Administration’s own intelligence experts.”

The report does not state what actions, if any, should be taken as a result of the violation of the laws as outlined above. Presumably, any remedial or disciplinary actions that are taken will be determined by administration officials. Despite the clear violation of law as determined by the GAO, it is likely that no action will be taken to prevent future violations since the decision to take this action was presumably made by President Obama.

Although the antideficiency and its predecessors are over 120 years old, no one has ever been convicted or indicted for its violation. However, punitive administrative actions have been taken against government employees.

© 2016 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources.

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