Congress, Constitutional Law, Politics, Society

GAO: Obama Violated Federal Law in Bergdahl Swap

President_Barack_Obama305px-USA_PFC_BoweBergdahl_ACU_CroppedThe 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.

Source: WSJ

189 thoughts on “GAO: Obama Violated Federal Law in Bergdahl Swap”

  1. Bailers, If someone acts like a cultist, I will call them that. I call both sides cultists when they exhibit the behaviors of a cult follower. I consider it an accurate and civil word. It is exponentially more tame than the words that used to fly around here 8 months ago. But, I take note of your suggestion. You are a reasonable non cult person. The people who complain about the word are often the cultists. I never direct it @ any person in particular.

  2. This is simply BS. Let us look at the intent of Congress when they passed this law. Obama had promised to close Gitmo, and this was to ensure that would not happen. The primary desire of the legislation was to keep Obama from transferring the POWs to the US mainland. Then you and his critics assail him for NOT closing it! GET REAL! The law was designed to limit the inherent power of the President as CiC which in itself is not quite legal to begin with. Congress cannot dictate where and when the military is to be placed. The best example is Teddy Roosevelt who sent the Great White Fleet on the around the world cruise. There was not enough money to do that, and Congress refused to provide funds. So TR simply sent the fleet as far as Japan, and then let Congress decide what to do after that. Needless to say, they voted the funds to bring them back and keep the cruise going. Now should Congress have impeached TR for doing that? Was he exceeding his legal authority? Then we have the example of the other Roosevelt, FDR, who ordered the US Navy to provide armed escort to the convoys going to Britain before the joined the war. A couple of Navy destroyers were in fact sunk doing this duty. Did FDR violate the acts of Congress in doing this? Did he violate his powers as CiC? I do not think so.

    Then suppose Congress decided to cut off all funds for feeding the POWs at Gitmo. Would Obama have the right to continue feeding them despite Congress’ wish? Or would he have to let them starve and violate any number of other laws? This is such a nitpicky question on this subject, ,and given the rank political opportunism of the critics here, it is less than a compelling case to be made. The President has the unlimited legal authority to control POWs as per the head of the military. Indeed W Bush went out of his way to avoid calling them POWs even though that is in effect what they are. So does that mean that the critics here think that they are NOT POWs? So Prof Turley now thinks that they are illegal combatants and NOT subject to the Geneva Conventions? If that is the case, THEN I will agree with the argument, but not until then.

  3. Nick,
    We should all try to debate the issues calmly without calling anyone or their beliefs cult like. It only makes the debate personal and not about the actual issue.

    If we wanted lowest common denominator we could go to a Gawker website.

  4. susan, Cultists are just like children. They live for today and can’t see tomorrow.

  5. I think democrats and the media will rue the day they defended, supportef and remained silent over the many over steps by this administration. They’ve done this country an abundance of harm by allowing the endless power grab by this Executive branch of government.

  6. So the question is will DoD or DOJ investigate and prosecute for Anti Deficiency Act violations? My take on this GAO ruling is less that the President violated laws (even though it was by his order), as it is DoD and their commanders that ultimately took action that are in violation here. Same goes with the notification. DoD has the ultimate responsibility for upholding the notification since the prisoner transfer was done by them.

    An ADA violation is technical on the agency, but it takes individuals to cause one.

    1. Annie, I have another comment deleted directed at another poster in violation of our civility rule. This is the fourth or fifth request that you comply with our rule or refrain from posting.

  11. I’m sure Bergdahl’s parents are grateful that their son’s head still sits on his shoulders.

  12. Reblogged this on Centinel2012 and commented:
    The sad truth is we are no longer a nation of laws the power has been shifted from the states to the District of Columbia (I no long want to us Washington as he would never condone this) and presidents from now on will, in fact, be more Tyrant than anything else as they can now do as they please regardless of the laws.

    I’m glad that my family that fought and won WW II did not live to see their country lost.

  13. How many times do people have to jump up and down and yell that the President and his administration is the most illegal evah. You would think at some point this would sink in. Is this getting reported on MSM?

  15. I know that some law students sleep through class and since we have never gotten Obama’s law school grades, do we even know how well he did in Con Law? He clearly does not see the Constitution as something that needs to be followed. It is like those stop signs I blow through from time to time. They are just a guide, not mandatory.

  16. GAO found blah blah blah…

    Nobody will be held accountable and this will all be forgotten this time next week.

  17. All those supporters of this Prez’s illegal will be the first to yell fowl when the next Repo Prez “extends” presidential authority. If only some of the many Mr O acolytes would admit as such. By giving this “extended” authority to this Pres you are ensuring the next Prez will extend it as well.

  18. The more those in power violate laws, lie, misrepresent, the more the public does the same. Countries, as well as families, seem to follow this pattern.

  19. The WH is sticking w/ the stupid reasoning that the DOJ rubber stamped, err, approved the deal. The list of lawless and incompetent actions is STAGGERING.

  20. That beheaded journalist paid the price for this utterly incompetent President. They tried to get a swap of a dirty bomb making prisoner. We said no. They beheaded. The Bergdhal swap was wrong on every level. Anyone who has ever worked in a prison knows that.

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