The Government Accountability Office has rendered a decision on the actions of the Obama Administration in swapping five Taliban leaders for Army Sgt. Bowe Bergdahl earlier this year. At the time on CNN and other forums, I noted that President Obama had again openly violated federal law which requires at least 30 days of advance notice in such a change. The GAO agreed and found that the Administration clearly violated federal law. I recently testified (here and here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. As in past cases, defenders of the President insist that any violation was done for the best of reasons, but that is a dangerous rationalization for any violation of law. Presidents always insist that they are acting with the best of motivations when they violate laws. We remain a nation of laws and presidents do not have the option of not complying when the laws are inconvenient or counterproductive. Notably, it was not just one law that President Obama violated in taking this unilateral action.
In this case, the duty to inform Congress could have been easily satisfied and it was not even necessary to violate the law in order to carry out the exchange. It seems more likely that this was done for political purposes to avoid opposition in Congress.
The GAO found the obvious violation and added that the Pentagon broke another law by using funds that were not technically available. The GAO also concluded that the Obama Administration violated the Antideficiency Act, barring spending by agencies above the amount of money that Congress has obligated.
The appropriations dimension is another example of how the Administration has circumvented the “power of the purse” which is often cited as the core congressional check on presidential power. Indeed, as I have discussed in recent testimony, the Administration has repeatedly shown that this power is becoming something of a constitutional myth (despite the fact that it is often cited as a reason not to recognize standing by members in challenging unlawful acts of a president). The law in this case was part of a Defense spending bill states that no money can be used to transfer Guantanamo prisoners to another country “except in accordance” with a law requiring that the secretary of Defense to notify key congressional committees at least 30 days before such a transfer.
In this case, the swap occurred May 31 but the committees were only notified between May 31 and June 2. The finding also puts to rest the spin put out by advocates that Congress was notified by the White House.
When some of use raised the violation of federal law as obvious at the time, many supporters of the White House insisted that there was no violation and that this was another partisan attack. However, the GAO found the violation “clear and unambiguous” and said that the Administration was dismissive of “the significance of the express language” in the law.
The report comes several months after the Obama administration released five senior Taliban members from Guantanamo Bay in exchange for Bergdahl, who had disappeared in 2009. Under the exchange terms, the five Taliban are to remain in Qatar for a year.
Lawmakers at the time complained about the security implications of releasing Taliban leaders from Guantanamo, but also about the late notification by the Pentagon that they were going forward with the swap.
In response, the Administration is saying that the law, which President Obama signed, was trumped by his inherent national security powers — an all-too-familiar argument for civil libertarians. The Administration insisted that the law “would have interfered 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. service members.” There are clearly good-faith arguments about inherent executive powers that have been made. Yet, even if you accept that the President can simply ignore such laws, misappropriating money is not part of any plausible claim of an inherent or absolute executive function. This is the type of dismissive Nixonian attitude that raises concerning about the rise of an uber-presidency in the United States.