Government Accountability Office report concludes that the Obama administration violated a “clear and unambiguous” federal law when it exchanged five high-ranking Taliban leaders for Private Bowe Bergdahl without giving Congress legally required 30 days advance notice

August 21, 2014

In a report issued earlier today, the federal government’s Government Accountability Office concludes that the Obama administration violated a “clear and unambiguous law” when it exchanged five high-ranking Taliban leaders for captured US soldier Bowe Bergdahl without first giving Congress 30 days advance notice, as required by the 2014 National Defense Appropriations Act [HT: Josh Blackman, who has a good post on the subject here]:

In our view, the meaning of section 8111 of the Department of Defense Appropriations Act, 2014, is clear and unambiguous. Section 8111 prohibits the use of “funds appropriated or otherwise made available” in the Department of Defense Appropriations Act, 2014, to transfer any individual detained at Guantanamo Bay to the custody or control of a foreign entity “except in accordance with section 1035 of the [FY 2014 NDAA].” Pub. L. No. 113‑76, § 8011. Section 1035 of the FY 2014 NDAA, in turn, requires the Secretary of Defense to notify certain congressional committees at least 30 days in advance of such a transfer, among other things. Pub. L. No. 113‑66, § 1035. Because DOD did not provide written notice to the relevant congressional committees until May 31, 2014, the same day as the transfer, DOD violated section 8111.

The report also concludes that the administration’s actions violated the Antideficiency Act, which forbids federal agencies from spending funds “in excess or in advance of amounts that are legally available.”

The administration’s actions were not just a minor technical violation of the law. The administration circumvented Congress because they knew that both Republican and Democratic members of the House and Senate intelligence committees overwhelmingly opposed the deal, and would likely have torpedoed it had they been informed in advance. By so doing, they could have saved us from a deal with terrorists that was both unwise and immoral.

The GAO report notes that it does not consider the argument that Section 8111 is unconstitutional because it infringes on the President’s powers as commander in chief of the armed forces. I criticized such claims here.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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Will Baude · August 21, 2014