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.
Source: WSJ
Though I think Obama has a bad tendency to do his own thing, I don’t criticize him for the Bergdahl swap. Right or wrong, Obama is President and he has to make tough calls. This is one that I would mark up to Presidential discretion.
Squeeky Fromm
Girl Reporter
Annie… You selling apples today…. The rain in Spain goes mainly on the plain….
Ok he violated the laws…. So exactly how does this differ from Bush/Cheney…. Gonzales…. Et al… Oh and how many people died because Bush lied… Journalist as well….
I read with interest and reflection the post and comments. Developing and adopting our Constitution was no small task nor accomplished in a short period of time. The document has supported the freedoms we enjoy for over two centuries. One would think the President as a constitutional scholar would know the damage he does our country by pulling apart the very underpinnings of our Constitution. In the words of Abraham Lincoln, “America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.
Wouldn’t it be interesting if our next President were to be a Republican? A president who made Obama look like a choir boy? Who will be pointing out the Nixonian qualities of the next President? I think perhaps that is exactly what we need.
LaserD: So you’d prefer that Prof Turley spend his time opining on events of years ago? Further, you’ve combed through the thousands of articles he’s posted over the years to determine whether he opined on then-current events? And you object to his posting on the topic of his acclaimed expertise: constitutional law?
If you want to read a blog about constitutional legal issues, this is the one. If you want to read a blog that defends Obama and attacks Republicans, go somewhere else.
There you have it – censor bots nixing the evidences
BTW – PROFESSOR ….. Exhibits 1 and 2….
Here’s what U.S. Attorney General John Ashcroft was (reportedly/testified of) saying to the Hague Global Forum on Corruption;
http://petters-fraud.com/KnizeTestimony_DOJ_JudicialConference_BankruptcyCorruption.pdf
Having no where to turn (including corrupt courts saying the FRAP don’t apply to our case {of confessed fraud on the court} – and a Chief Justice saying she doesn’t want to hear about Romney’s fraud {has to get back to Tweeter is her exact words on Transcript record})
So, I turn to purported keepers of the faith – such as you Professor.
——————————————-
As for John Ashcroft
Romney owns Bain Cap that owns Clear Channel Communication
Clear Channel came from founder Red McCombs
who owns Blackwater (now renamed innocuous “Academi”)
That has John Ashcroft as top executive.
And the remarks above – began to vanish from the web.
N’est-ce pas!
LaserDliquidator, I retrieved your comment at 11:40.
Rumor is, 4 other soldiers were lost, as part of search party;
looking for Bergdahl (wonder if that particular has validity).
I think the POTUS sent a message, in multiple ways, with the swap.
Certainly got attention to several matters……
Dear Professor Turley;
I’m throwing down the gauntlet to your feet!
Repeatedly – you assail THIS Administration with a vigor that is troubling. And yet, on extremely important, nationally significant, matters vexing;
you are silent!
What gives?
I know more about our POTUS than you could possibly fathom (if you wish to play catch-up: please read Andrew Kreig’s “Presidential Puppetery” – I can call and have him give you a courtesy copy)! Where did he meet Michele (S&A).. the truth about his parents (C.I.A.).
Chris Christie, as U.S. Attorney, gave former USAG Ashcroft (and Pres. Corp. Fraud Task Force Debra Yang) – a $50 Million NO BID contract; and then Chris Christie became Gov (imagine that – Blagojevich tries to make a deal for Senator seat – gets 14 years…..)
POTUS wannabe Romney lies on his federal campaign finance OGE 278 Form and we are able to get both the main stream and Obama’s campaign to (finally) post the fact Mitt lied about his tenure as Bain Cap. CEO.
You Know the Law – Professor; and are FULLY aware Romney = RICO (civil)
Yet, here we are, a man freed from hellish gate;
and a national scandal for doing so – you would make.
What side of the bread – are you buttered on?
I;m just sayin…………
It’s a one side of the coin – ye seems to be playin…..
N’est-ce pas!
BarkinDog, the Constitution does not only apply when a Republican is the President. I know some of you only want law to matter when the other side is in office but it has got to stop. Blind partisan zealotry will be the end of this Republic.
Which one?! I don’t recall directing an uncivil comment at anyone.
Help, please. I think the spam filter has hold of my post.
Turley: The President is Commander in Chief. Congress sits on judicial nominations for over a year. Tell Bergdahls mom your squirrely argument.
Another question between should/shouldn’t and can/can’t. Congress enacts a statute requiring the Executive Branch to give 30 days notice of the release of a Gitmo detainee. While I opine that Congress could prevent the President from bringing the detainees into the US, it seems clear to me that notwithstanding the statute, the President possesses plenary authority to engage in the exchange without notifying Congress at all. If we recall Hamdi discussing the power of the Executive Branch to take prisoners was a ‘natural incident’ of armed conflict and the AUMF’s failure to expressly note the power didn’t take away that power from the President. Likewise, exchanging prisoners has been part and parcel to warfare since the founding of the Republic (particularly so in the Civil War). Further to which the President also possesses the authority to issue reprieves and pardons and while we don’t think of this as the pardon that we’re accustomed to seeing, fact is, the Constitution doesn’t note how the President should utilize that power. Indeed, one thing that seems clear is that the President actually does have power to release anybody at anytime.
Does this GAO have lots of war experts in the bean counter department?
Does this mean ISIS is being hurt wrongly (The Universal Smedley – 3) or should we get ready for Desert Snow Storm?
That blue Spinny smoke up the kazoo is generating a lot of poetry.
What a librul.
John Boehner, are you listening?
Amend your complaint.
Squeeky is caffeinated and rhyming!
@nicks
It is a shame Gilbert and Sullivan aren’ t around to lampoon Obama. If they were, I suspect you would see something like this:
Our President Can Do No Wrong
An Excursion To Operetta by Squeeky Fromm
Chorus:
Our President can do no wrong!
He never breaks the law!
And if he does, we turn our heads,
Pretend we never saw.
President Big Ears:
Some people say I have big ears.
That ‘s truly what they said!
But I’m obliged to have big ears
To go with my big head!
Repeat chorus, etc.
Squeeky Fromm
Girl Reporter