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. Anonymously Yours


    And you have no sense of respect for service folks that get injured….. Anything you say now will be very much doubted….
    Did someone just retrieve an AY message from WordMess of six months ago?

    1. AY – I can hardly take the word of someone who doesn’t know it is court-martial and generals have stars rather than birds. Anything you saw about the military has no validity.

  2. Paul;

    One assumes risks staying in bed or getting out thereof. But its callous (IMO) to cavalier dismis a mindset n dynamics resultant.

    I assumed risk being in business; but didn’t expect to loose my career, life savings (and quite probably my life) when I turned down a bribe and reported it (as required by law) to federal authorities.

    It is callous, obtuse and encouraging to the racketeers to tell me I’m CT or shut up n get over it.

    The same thing (in essence) ; just different events.

    You buy into the anti-Obama rhetoric, as did the soldiers i spoke to yesterday.

    Generals were part of bringing the guy home,

  3. Paul;

    Does one “assume the risk” of a plane being abducted into a building?

    As a pilot?

    As a passenger?

    Our soldiers are idealists who assume the risks; but based on a certain set of principals.

    Like never being left behind!

    1. laser – when one goes to a baseball game one assumes the risk of being hit by a fly ball. You cannot sue the team for your injury.
      Yesterday I watched a program on the Civil War where they were reading soldiers’ letters to family and friends the night before battle. It was clear that they has assumed the risk of death or injury.

  4. Paul;
    You need to learn definitions better and study the fallacious argument pyramid too. Ad hominem is right above the very bottom item kf name calling.

    I assure you nothing of the kind was my intent.

    I applaud your truthfulness (in a Raymond Davis / Andrew Dice Clay sort of way). A premise that is sound by the proof of your closing remarks that a (totally successful Progressive Revolution) would result in you being on a fire squad wall.

    For this Progressive would be the 1st one to offer to take a bullet for you; should such an apothy come.

    1. AY – a soldier does not assume the risk? It was different when their was a universal (men only though) draft. Now it is a volunteer military, hence assuming the risk.

  5. laser – hurry and get your laptop back working. Your phone spelling is as bad or worse than mine. 🙂

  6. LDL,

    You’re right…. It’s crazy…. It’s almost as pathetic as civil funding of wounded warrior…. Generally as a rule… If you mess someone up during the course of employment…. They foot the bill for life so to say…

    1. AY – we do have VA hospitals who are supposed to treat veteran related diseases, injuries, etc. However, they are in disrepair right now. And workman’s comp does not pay the bill for life. There is often a settlement of cash. However, one can say that if you join the Armed Services, you assume the risk.

  7. AY;

    Trou ling matters abound, concerning military personnel. This is almost as disheartening as how many homeless vets there are.

    What a pathetic America we are becoming (due solely to profiteering milatary n global oil pursuits}.

  8. Though – Paul – if you’re premise is my saying “GOP playbook” is “ad hominem

    Isn’t such a claim – itself -a slight?

    Sorry that I failed in my (arguably half hearted) attempt to defend you. But – it is plain to see that you are ( most certainly) bias against Peogressive posturing.

    Though (and I ‘m sure AY would agree) much less efforting to be incognito about it than the Lord of this realm.

    Post script – what do I know – I used to be hardline homophobic; but am now a George Takei fan.

    1. Laser – it was the entire comment, beginning to end that was an ad hominem attack. And the truth is not an ad hominem attack.

      I could not agree with you more that I am against Progressive anything. I am sure that when the Progressive Revolution comes, I will be one of the first against the wall. Just hoping to stop the revolution aborning.

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