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
That comment above was for Annie
G. Mason, the Israelites conducted an EXODUS from Egypt too.
And how about those “indentured servants?”
It’s been a rough few millennia all around.
Im confused that the department of state daily briefing states that we do not negotiate with the terrorists and that is why they beheaded a US journalist, and if we had negotiated, they would have kidnapped more americans, but is not just that what this president did when he let the al qaida priosoners go to get this one soldier? By the way , Mr. Turley, you keep on saying that this president does not deserve to be impeached despite all the things that you keep on writing about him, why even nother then..? I mean what is the use of wasting tiime of your readers or your own time by writing these articles when nothing in your mind merits an impeachment?
Post missing here. Please retrieve. Thank you.
@annie
I do not think we are polar opposites. Sometimes I agree with you. Look above and I am not down on Obama about the prisoner swap. I think minimum wages should be higher, and we both will end up voting for Hillary if she runs. I think maybe sometimes you overreact to what I write, like the Gentle Giant sonnet. Which I made him a tragi -heroic figure instead of somebody thuggish, which he may end up being. Plus, how you would ever think I admire Hitler is beyond me. Sooo, I don ‘t think you really read what I wrote but just reacted to it being me that wrote it. Which is OK if that is what you want to do. So maybe we are like only 90 degrees apart instead of 180 degrees.
Squeeky Fromm
Girl Reporter
Happy,
I do want to correct your misconception that I worry that we will have a Republican President. I don’t worry, I would welcome it in one way because we would all quickly see there will be the continuation and even an exacerbation of Presidential overreach, so actually you may be agreeing with my premise, but you haven’t realized it. Please read my comments more carefully, please don’t confuse me with Squeeky as you indicated in the other thread. I think perhaps that why your comments make little sense to me, because you seem to be attributing some of her past comments to me. Squeeky and I are polar opposites, that should be clear to anyone. If I can clarify my own comments, if you don’t understand them, I’d be happy to do so.
I’m sorry to have to repeat myself Happy, but you continue to post disjointed comments directed to me and they still don’t really express the point you are trying to make. Please clarify further.
Happy,
I do want to correct your misconception that I worry that we will have a Republican President. I don’t worry, I would welcome it in one way because we would all quickly see there will be the continuation and even an exacerbation of Presidential overreach, so actually you may be agreeing with my premise, but you haven’t realized it. Please read my comments more carefully, please don’t confuse me with Squeeky as you indicated in the other thread. I think perhaps that why your comments make little sense to me, because you seem to be attributing some of her past comments to me. Squeeky and I are polar opposites, that should be clear to anyone. If I can clarify my own comments, if you don’t understand them, I’d be happy to do so.
That’s not the point. The system is broken. The Constitution and the Bill of Rights are the threads holding it together. I am repeating myself. You and Squeeky are not polar opposites but you dance around each other and most of the time I can blow off comments but the Hitler stuff is too much for me. I am at an age where I swore I would never forget that and would never let young people forget the horror of it.
I do re read your posts to try and understand them. I try to make mine of a tenor so you can understand them because the best way is for us all to understand each other. Anyway, thank you for that new article from the Guardian. It’s Posted on my Twitter and Facebook on the New bad Cop
Annie – your comment – Annie
on 1, August 22, 2014 at 5:28 pm happypappies
Jill, She is worried about Bergdahl’s Mother loving him even though he doesn’t acknowledge her right now because sooommmme day he will looove her ageain like a soap opera or something I guess. That’s more important than people losing their heads and lives for him wandering off the reservation
Happypappies, once again you are not making any sense to me. Could you please clarify?
Jills comment -Next you say that Obama is damned if he does, damned if he doesn’t. I’d say that is part of his job. No decision he makes will be approved by everyone. The more important point is what is the nature of the decision of this population. What will it be?
Are we going to condone Obama’s murder and torture? Well if so, why are you worried that the next murderer and torturer in office might be a Republican? That worry doesn’t make sense. Murder and torture are heinous actions no matter who engages in them. Any person, of any political party ought to oppose these things, not because a member of the “wrong” party does them, but because these actions are, in and of themselves, evil.
You seem to advocate that we fear certain actions such as murder, torture and general destruction of the rule of law, when, in the future, a Republican will engage in them. In the meantime, apparently they are acceptable because a Democrat engages in them. That is a strange ethical world view, albeit, a common one.
on 1, August 22, 2014 at 4:32 pm Annie
I am sure that Bergdahl’s parents still LOVE him despite he not wanting to see them. I’m sure they are grateful he continues to wear his head, so when he reconciles with his parents they can plant kisses on their sons cheeks. His mother gave BIRTH to him and I’m sure she loves her son every BIT as much as Foley’s mother. I guess people don’t seem to understand that connection a parent has to their child.
Annie – you got some real gems here – and you have no idea what I am talking about?
on 1, August 22, 2014 at 4:59 pm Annie
When armchair generals leave their living rooms and send their kids to fight or go themselves, then they may have some credibility, until then it’s all hot air.
Really? How many of us here do you think had no part of any military resistance?
Or- Annie are you aware the System is Broken and the Constitution is the only Hope and the Bill of Rights is the Salvation?
on 1, August 22, 2014 at 5:18 pm Annie
Eric,
So if a Republican President did the same thing it would also indicate he was the wrong President. Right
We all know that Obama is Bush Lite – Witness his Air Strikes and he is also Damned if he does or doesn’t. I respect him more for doing myself.
I respect him more for behaving kind of like a Neocon.
Well, I hope somebody sells the Westboro folks some t-shirts that have Mohammed Sucks! on it in Arabic. The sellers could tell them it says “Beheading Is A No-No!” Is that wrong???
Squeeky Fromm
Girl Reporter
The sad thing about this post and all the debate is the President knows there is virtually nothing that can be done to stop a constitutionally elected president from becoming a King. He knows it and he flaunts it.
http://www.addictinginfo.org/2014/08/22/this-should-go-well-westboro-baptist-church-says-its-going-to-iraq-to-protest-isis/
I hope they don’t lose their heads in their exuberance.
Reagan and Obama are the cult leaders of my lifetime. Lots of wide eyed lemmings thinking their guy can do no wrong. JFK was a cult leader after he was killed.
BarkinDog,
As a matter of law, a specific statutory authorization is equivalent to a declaration of war. Other than the symbolism, they work the same way in practice. At a guess, specific statutory authorization has become the norm due to recognition that war is too limited in scope for securing the peace.
Let no child be left behind. I am not referring to Bergdahl. I am referring to the people who sort of want a King or Queen and who like a Ronnie Raygun guy. But when we get a new guy on the block so to speak, into the holy office, like Obama, we hear all this rubbish about denigrating the role of Commander in Chief. The Liz Cheney book on James Madison is a good book. Yeah, Liz, wife of Dick. But you will find that this is a good book on this topic. Some wanted a King. Some wanted a stronger President. Some felt that Democracy could not work across a broad continental nation state. Some were right when the Civil War came along. Lincoln was a Commander in Chief. What would Lincoln do in the Bergdahl situation? Would he have waited from Congress and the GAO to approve of springing the guy? He was a good man to suspend habeas corpus in time of war. It was a bad war. We learned some things. Or some of us did. Support your President. We are in War. It is just not declared. We have not declared war since 1941. Korea, Vietnam, all the rest. No declaration of war. Tell your Congressman to get off his arse and demand either a declaration of war or a prohibition of war. Now they have beheaded a journalist. The screams for war are arising. The eyes of Texas are upon you America.
Annie,
Judging a President as Commander in Chief shouldn’t be a partisan exercise. For example, if you recall, my explanation of OIF as right on the law and justified on the policy, eg, procedurally triggered by Iraq’s noncompliance confirmed by the UNMOVIC Cluster Document, relies chiefly on Clinton’s Iraq enforcement. Bush the Republican was right on Iraq only because Clinton his Democrat predecessor was right on Iraq.
Director of National Intelligence Clapper and CIA Director John Brennan committed felony perjury before congress. Banksters committed $50 billion dollars of fraud, but somehow no one committed a crime to prosecute. The people who “tortured some folks” – no investigation or prosecution. But the torture and Wall St. whistleblowers are prosecuted by the Obama DOJ.
Any pretense of equal justice under the law is now a JOKE.
Paul C. Schulte: “…not only did he not consult with Congress on the new release until the deed was done, he disobeyed the agreement of working with Congress.”
With your comment and a 2nd reading of the OP, the Constitutional question is murkier than my 1st take. I misconstrued it as a requirement for Congress to grant permission in order to release funds. Rather, it seems to be a notification condition that doesn’t ultimately bar Presidential action whatever the Congressional opinion since the notification itself releases the funds. As you point out, the design was to compel the President to consult with Congress, not take away Executive authority.
However, a requirement for 30 days prior notice is a hard limit by the Legislature on Executive authority. War is competition that, like many fluid competitions, is often time-sensitive. Unlike normal non-emergency domestic governance, time normally is at least as valuable and more perishable than money in war, which I believe the Obama administration has raised as a defense.
Such a notification condition to Congress is normal and, I think, proper on a higher level, but still strikes me as undue micro-managing interference by the Legislature with the Executive authority on the level of action of the Taliban leaders release.
Annie, I would say that we are in process of this upheaval!
Darren,
There were several prior opportunities in which Obama could have negotiated the release of Bergdhal. They were not taken. This does point to there being an ulterior motive (or perhaps several of them).
Darren, Of course that was the intent. But when the shit hit the fan, and Dems ran away from Obama, it was an obvious failure. Obama and his operatives were incredible campaigners. But, they are COMPLETELY out of touch w/ the country and even their own party. When this Rose Garden Bergdahl’s parents thing exploded the WH was flatfooted. This is the most incompetent and tone deaf administration in my lifetime. It is mind boggling.
I have wondered about the timing of the Bergdhal release. It coincided in the wake of the fallout from the V.A. scandal so I thought it would be worthwhile for someone in the know to see if the president offered an extremely sweetheart deal to the Taliban to release five of their high level operatives in order to get an announcement that he was coming home. It would have the effect of taking attention away from the scandal and showing that the president is doing something for the soldiers on a personal level.
Darren – I wondered the same thing you did about the timing of the release.