The Obama administration violated the law when it swapped five Taliban leaders held at Guantanamo Bay for Army Sgt. Bowe Bergdahl in June, according to a report from the Government Accountability Office.
In a letter to Republican senators made public on Thursday, the GAO said the Defence Department broke the law by not notifying the appropriate congressional committees of the swap at least 30 days in advance of the exchange. A section of the 2014 Department of Defence Appropriations Act prohibits the department from using appropriated funds to transfer Guantanamo Bay detainees without notifying Congress at least 30 days in advance.
The GAO also said the Pentagon violated the Antideficiency Act — which prohibits federal agencies from spending money in excess of the amount available in appropriated funds — since no funds were technically available to transfer the detainees. The government spent almost $US1 million to transfer the detainees, according to an email sent from the Pentagon to the GAO.
“In our view, DOD has dismissed the significance of the express language enacted” in the appropriations act, GAO counsel Susan A. Poling said in the letter.
The GAO said the relevant congressional committees weren’t notified until the day of the transfer. Written notification from the Pentagon actually came two days after the swap.
A senior defence official told Business Insider the Pentagon disagrees with the GAO’s conclusion.
“The Administration, after consultation with the Department of Justice, concluded that the transfer could lawfully proceed in the exercise of the President’s constitutional authority. GAO expressly does not address the lawfulness of the Administration’s actions as a matter of constitutional law,” the official said.
“The Administration had a fleeting opportunity to protect the life of a U.S. service member held captive and in danger for almost five years. Under these exceptional circumstances, the Administration determined that it was necessary and appropriate to forego 30 days’ notice of the transfer in order to obtain SGT Bergdahl’s safe return.”
The Obama administration has defended its decision to swap the detainees for Bergdahl and has argued the move was legal amid criticism from Republican lawmakers.
Caitlin Hayden, a spokesperson for the White House’s National Security Council, said in June that the administration determined the 30-day requirement did not apply in these unusual circumstances. She said Secretary of Defence Chuck Hagel, acting on behalf of the president, determined the normal notification process could endanger Bergdahl’s life.
“In these circumstances, delaying the transfer in order to provide the 30-day notice would interfere 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. soldiers,” Hayden said.
“Because such interference would significantly alter the balance between Congress and the President, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances.”
The administration later told senators that the Taliban threatened to kill Bergdahl if any information about the swap leaked, providing more ammunition to its argument that the on-the-spot exchange was necessary.
Bergdahl is currently stationed at Fort Sam Houston, while the U.S. Army conducts an investigation into how he fell into the Taliban’s hands.
This post was updated at 5:45 p.m. ET with comment from a defence official.
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