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
G. Mason: I think you are right. While I can compare the abuse, they were all more than willing to run with it. The only real differences are the dates.
When Bergdahl was swapped I went on the record that all US hostages were @ greater risk. That was obvious. Bergdahl doesn’t want anything to do w/ his parents. Foley’s got to see their BRAVE son beheaded. The deserter is alive and well.
That’s OK Nick. Words and facts sometimes make us rethink our already held ideas, which means accepting we were wrong at some point.
The same people that think the 5 guys we released were ‘4 star generals of the Taliban’ or ‘the Taliban Dream Team’, were also the same people that defend Reagan selling weapons to Iran, cheered the ‘Mission Accomplished’ photo op, and were certain that we would be ‘greeted as liberators’. I almost always use the Fox News test. If a talking point from a politician matches one from the hosts on various Fox News programs, I am usually not surprised to find that the politician is making shit up. If the talking points don’t match, then there is research to be done.
Sorry if my fear of the political hacks continuing to lie and kill off more Americans in wars of choice than the Taliban ever did overrides my fear of 5 guys in Gitmo being let loose. Maybe they knew Osama bin Laden, but so did the King of our very good friend Saudi Arabia, and we still kiss his ass.
America is significantly better at murdering the people over there, than they are at killing us. Exactly how are these 5 guys an actual threat over all of the other confirmed threats? How are those 5 dudes more of a threat to our lives and safety than our own government that willingly lies to us, sends our kids off to die in a sand pile for oil, and demands no sacrifice from anyone except the people at the bottom of the economic ladder?
Sorry Nick, you can go and fear the naughty brown Muslims if you want. I will focus on the actual threat to this nation; the refusal of American to participate in our government and hold our leaders to any responsibility. The American public has allowed all of this behavior. But no, go worry about ‘terrorists’. That will make us safe.
Mr Frankovitch
I would argue good sir, that there is utterly no difference of consequence between Nixon, Obama, Reagan, either Bush nor Clinton.
They have all increasingly embraced the expansion and abuse of powers.
slohrss29,
if there is a Revolution or Civil War that actually turns violent, and I hope we do not end up there, I predict the Progressives will be forced to run to Canada. I am completely serious. The Progressive Left is picking a fight that they have zero chance of actually winning. I am not speaking of the Liberals btw. The Liberals are the Civil Libertarians. There is a rather stark difference between the Liberals and Progressives though this is glossed over by the party and media.
Ill shall say this though, I do not think we will see violence unless the government reacts to a Revolution or Civil split movement with violence.
But yes, I quite agree that this country will have a Revolution or Civil Split soon. It is coming. I do not know how anyone is unable to see it coming. This country is a power keg ready to have the fuse lit. We have a complete political divide. There can be no compromise because the issues are not capable of middle ground.
The only true solution to remain as somewhat close to how this nation exists as is, would be to reaffirm the 10th Amendment and scale back the strength and power of the Federal government and give more power to the individual states to govern themselves. Only then will ALL people be satisfied because it leaves us with 50 options for them to move to while still being Americans.
While we can argue over the abuse that the 1st 2nd 4th 5th etc has taken, I will argue with anyone that no Bill of Right Amendment has taken more abuse than the 10th. Its time to give it back the power it so richly deserves.
I do believe that not even Hamilton would be happy with the power of the Federal govt today. The Federal government should really serve more as a Representative of the States themselves in relation to the rest of the world.
I personally believe that the strength of the Bill of Rights should overrule all. Those who cannot accept that should leave.
If we were to have a split or Revolution my concern would be that the BoR would face a crisis by the winning side. There are those on the right who would love nothing more than to force Christianity upon the nation. There are those on the left who would love nothing more than to see Christianity be ushered into the oblivion.
This is why I advocate a return to stronger states rights. A much weaker Federal government and a strong Supreme Court and strong respect for the Bill of Rights.
Uhm, Nixon used his influence to keep the Vietnam War going so he could win an election. I think that is a bit more severe than Bill and Barack. I can maybe see George W. and Nixon sharing a parking spot in hell, but (and I hate to defend him) George W. was surrounded by dishonest war profiteers, so I can at least entertain the idea he honestly thought Iraq was a material threat to the US.
Nixon was a great many things, but to say he ‘paled’ in comparison to the politicians of today is just silly.
Daniel, When I read you saying “5 nobodies in Gitmo” I knew to stop reading. That is simply a lie.
Pretty much everything Jill said, and that article she linked is fantastic and correct.
The President broke the law again, just like the last guy. When you let one guy get away with it, every person after that will build on the previous generations of abuse.
Tying the Bergdahl swap to Foley being killed because there was no swap is just a cheap political shot.
Bergdahl was traded for 5 nobodies in Gitmo. (unless you think everyone we put there really is a ‘high rank’ Taliban goon)
Foley died because the US wasn’t going to give ISIL the person they wanted(for really good reasons), and ISIL was saving Foley for this kind of thing.
Had the US refused to assist Iraq with the ISIL, Foley would still be alive.
We all need to stop trying to ‘win’ for our political team and start working together as a nation because they guys in charge do not care what laws they break, just as long as we argue amongst ourselves rather than do something about it.
It is like people honestly believe that the political affiliation of a person means they will be good versus the other guy. Haven’t we had this discussion before.
I feel like I’m taking crazy pills.
http://www.vox.com/2014/6/9/5786834/obama-law-bergdahl
I don’t think according to what I read here that this will ever go to court because of something called “Standing” – The key issue is something called “standing.” In order to sue the president in a case like this, someone needs to show “individualized harm:” something bad has to happen to you.
“releasing inmates from Guantanamo doesn’t harm a specific person in the same obvious way as seizing their property does”
For instance, one of the most important Article II cases happened after Harry Truman seized a Youngstown steel mill during the Korean War to keep it running in face of an impending strike. The mill owners had standing to sue because they were harmed by losing their property. They won, and Youngstown Sheet & Tube Co. v. Sawyer remains one of the most famous limits on the president’s warmaking powers.
But releasing inmates from Guantanamo doesn’t harm a specific person in the same obvious way as seizing their property does. “You could argue that the public is somehow injured,” Posner said, “but that’s not sufficient for standing.” In other words, there’s no one in an obvious position to sue.
Private, I think Nixon’s offenses pale in comparison to what is happening today. It’s almost like comparing apples and oranges. Especially to what the last three got away with when they were in charge. Once again. I won’t have any part of the team mentality–just because they got away with it doesn’t mean it is OK and dandy for someone else to do it. Got to get out of the 2 team mentality.
Now–that would be a test! If a tea partier would be elected President. Interesting. I am not very sure from the ones I hear from would work hard to restore the authority of the Executive branch to Constitutional ideals.
I ask you all a question.
IF today Nixon was president, regardless of his party, pretend he is a Democrat if you must, Would he be Impeached or face removal and would he have resigned?
I will say No and that he would still be President.
Responding to Jill’s link on Ferguson.
Annie, I think the seeds are sown for the next great upheaval. All we need now is the right spark. Could be the smallest thing anywhere in the world, but if it reverberates correctly, the dominoes will fall.
Survive? Hmmmm. The government and banks have failed us. Without the compliance of the rest of the world in our economic system, we are nothing, I pile of IOUs.
Also, the hardest question right now is, “what is it to be American.” Without a common answer to this most basic of questions, I don’t see how we can survive intact as a nation in a soon to be transformed world.
So how many of you will be upset when the next Republican President that lets say is someone you hate with a passion, begins using the expanded powers of the Executive which you are advocating for now? Will you be so happy and chipper and defensive of the rightwing using these powers or will that be unacceptable then. My bet is you will howl with rage at the thought of a Tea Party President with expanded executive powers.
Better think about what you advocate now because as we all know, eventually the control of the country swings back to the other side.
A small part of me almost does hope we get a far right President just so you can see the monster you are creating with your lust for defending a Democrat presidency.
In reality though, I just want a Libertarian for once.
The two major parties, the Democrats and Republicans, are nothing but poison and not because both are full of good will either. 2 thieving rapists fighting over a tied up and blindfolded victim is all they are.
SWM, Ferguson is the other thread. This one is about the lawless cult leader.
Jim the kid may be a thug…. But the officer might be a bigger thug….. Sometimes the only difference between the two is a legitimately issued badge….
Squeeky will be tingling all over, Jim.
Annie, I wouldn’t worry to much about a Rep. winning in 16 since President Obama has screwed things up so well that if/when the reps win the senate in 14, the press will be more than happy to blame how bad the country is doing on the reps for two years. The tingle up the legs will all be for “rags to riches” Hillary.
swarthmoremom, – “Annie, Especially, when you see so many whites defending the action of the Ferguson police. Polls confirm this.”
Why wouldn’t we defend the police actions? Do you know all of the facts? If so, please enlighten us. I don’t know all of the the facts from Ferguson, so for now, I will believe side with a police officer over a store robbing thug.