GAO Report: Department Of Defense Violated The Law In Bergdahl-Guantanamo Prisoner Swap


The U.S. Government Accountability Office has found that the Department of Defense violated the law when it carried out the Obama Administration’s arranged swap of five Taliban detainees at Guantanamo Bay for the freedom of Sgt. Bowe Bergdahl.

In a ruling released today, GAO General Counsel Susan A. Poling confirmed that the DoD unlawfully spent nearly $1 million in funds to make the swap, because the appropriations measure that funds the department specifically requires at least 30 days’ notice to relevant Congressional committees before appropriated money can be used to transfer Guantanamo prisoners.

From today’s decision, addressed to Republican members of the Senate Appropriations Committee:

At issue in this opinion is whether DOD violated section 8111 of the Department of Defense Appropriations Act, 2014, for failing to provide at least 30 days of advance notice to specific congressional committees, and if so, whether DOD also violated the Antideficiency Act.

…In our view, the meaning of section 8111 of the Department of Defense Appropriations Act, 2014, is clear and unambiguous. Section 8111 prohibits the use of “funds appropriated or otherwise made available” in the Department of Defense Appropriations Act, 2014, to transfer any individual detained at Guantanamo Bay to the custody or control of a foreign entity “except in accordance with section 1035 of the [FY 2014 NDAA].” Pub. L. No. 113‑76, § 8011. Section 1035 of the FY 2014 NDAA, in turn, requires the Secretary of Defense to notify certain congressional committees at least 30 days in advance of such a transfer, among other things. Pub. L. No. 113‑66, § 1035. Because DOD did not provide written notice to the relevant congressional committees until May 31, 2014, the same day as the transfer, DOD violated section 8111.

…Our opinion in this matter rests upon the Secretary of Defense’s responsibility to comply with a notification condition on the availability of appropriations to transfer individuals from Guantanamo Bay. 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. See 31 U.S.C. § 1341(a). DOD should report its Antideficiency Act violation as required by law.

Though it’s a slog to get through all that, most of it is self-explanatory. Congress funded the DoD through the 2014 Department of Defense Appropriations Act, setting clear parameters on how the DoD could use the appropriated funds in the event of a prisoner transfer at Guantanamo.

At the Obama administration’s behest, the DoD did not follow those parameters — specifically, giving 30 days’ notice to the Congressional committees that originate and oversee appropriations legislation — when it secreted the forthcoming prisoner exchange from Congress until after the transfer was done.

Not only did that move violate the DoD Appropriations Act of 2014; it also violated the Antideficiency Act, a law that (perhaps redundantly) states that it’s illegal to spend money that isn’t (legally) there. “We have consistently concluded that the use of appropriated funds for prohibited purposes violates the Antideficiency Act, because zero funds are available for the purpose,” the GAO explains in a footnote.

We will update this story as the consequences (if there are any) for the DoD or other government personnel involved become clearer.

Personal Liberty

Ben Bullard

Reconciling the concept of individual sovereignty with conscientious participation in the modern American political process is a continuing preoccupation for staff writer Ben Bullard. A former community newspaper writer, Bullard has closely observed the manner in which well-meaning small-town politicians and policy makers often accept, unthinkingly, their increasingly marginal role in shaping the quality of their own lives, as well as those of the people whom they serve. He argues that American public policy is plagued by inscrutable and corrupt motives on a national scale, a fundamental problem which individuals, families and communities must strive to solve. This, he argues, can be achieved only as Americans rediscover the principal role each citizen plays in enriching the welfare of our Republic.

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