This June 10 file picture shows supporters of Bergdahl, including representatives of the ANSWER Coalition, CODEPINK and March Forward, in front of the White House to welcome Bergdahl home after five years of being held by the Taliban in Afghanistan. The non-partisan Government Accountability Office (GAO) has reported that the Pentagon broke the law when it traded Bergdahl for five Taliban leaders.
AFP/Reuters/Washington
The Pentagon violated US law when it controversially swapped a soldier held in captivity for five years in Afghanistan for five Taliban detainees without giving lawmakers sufficient notice, congressional investigators found.
The Pentagon used $988,400 of its war-time funding for the transfer that freed Sergeant Bowe Bergdahl.
The Government Accountability Office (GAO) said that President Barack Obama’s administration violated a section of the Department of Defence Appropriations Act for 2014, which bars the agency from using federal funds to transfer any Guantanamo detainees without giving key committees in Congress at least 30 days’ notice.
“In addition,” the GAO said in its finding, “because DoD (Department of Defence) used appropriated funds to carry out the transfer when no money was available for that purpose, DoD violated the Antideficiency Act”, which prohibits federal agencies from spending funds not expressly appropriated for the purpose.
With the 2014 law, Obama gained some flexibility in transferring prisoners from the US detention centre at Guantanamo Bay, Cuba. But he was still required to notify Congress 30 days in advance.
“In our view, the meaning of section 8111 of the Department of Defence Appropriations Act, 2014, is clear and unambiguous,” the GAO wrote in its decision sent to nine Senate Republicans.
The GAO said that lawmakers were advised by telephone of the decision to make the swap on May 31 – the day it took place – and June 1, and received written notice on June 2.
At the time, Republicans – and even some of Obama’s Democratic allies – fumed over what they considered a bad and dangerous deal.
The White House and Pentagon defended the transfer, arguing that protecting American lives was the executive branch’s constitutional obligation.
They cited Bergdahl’s rapidly deteriorating health and security to justify quick action and keeping Congress in the dark.
“We believe it was lawfully done and lawfully conducted and this was a judgment shared with the Justice Department,” Pentagon spokesman Rear Admiral John Kirby told CNN after the GAO released its findings.
Defence Secretary Chuck Hagel has said the deal brokered by Qatar represented the “last, best opportunity” to ensure Bergdahl’s freedom.
Bergdahl disappeared from his post at a base in eastern Afghanistan in June 2009.
In the swap five Taliban leaders were released from Guantanamo and sent to Qatar, where they are to remain for one year.
Republican Senator Susan Collins, reacting to the GAO opinion, said that the administration’s argument that informing lawmakers could compromise the transfer was “completely disingenuous” because several administration officials knew about it in advance.
“It’s not hard to imagine that the president didn’t notify us until after the fact because he knew the proposed transfer would have been met with opposition,” she said.
Bergdahl’s release was greeted by an initial wave of euphoria, but the prisoner swap deal triggered a backlash among US lawmakers angry over the failure to give 30 days’ notice as stated in the law.
Some of Bergdahl’s former Army comrades also charged that he had deserted.
Army Major-General Kenneth Dahl is currently investigating the circumstances surrounding Bergdahl’s disappearance in Afghanistan and whether he broke any military regulations or laws.
Dahl interviewed Bergdahl earlier this month and is expected to report on the case soon.
Bergdahl has returned to duty by working a desk job at Fort Sam Houston in Texas.
The GAO opinion is not a criminal finding, but it could revive debate about the controversial prison transfer.
Any criminal penalties would have to be considered by the Department of Justice, a GAO official said.
