GAO: Pentagon violated law with Bergdahl swap
By TRAVIS J. TRITTEN | STARS AND STRIPES Published: August 21, 2014
WASHINGTON – The Department of Defense broke the law when it traded Army Sgt. Bowe Bergdahl for five Taliban prisoners in May, the Government Accountability Office said in a legal opinion issued Thursday.
The department did not notify members of Congress in advance of the trade as required by law and used money not intended for moving prisoners from the United States military prison at Guantanamo Bay, Cuba, according to the government audit agency.
The legal opinion was requested earlier this summer by the Senate Appropriations Committee after lawmakers accused military leaders and the Obama administration of leaving them out of the loop on a swap that freed five Taliban combatants captured during the war in Afghanistan.
“We conclude that DOD violated [the law] because it did not notify the relevant congressional committees at least 30 days in advance of the transfer,” the GAO opinion said.
Defense Secretary Chuck Hagel sent emails and made phone calls to congressional leaders on May 31, the day of the prisoner swap, the investigation found.
DOD spokesman Rear Adm. John Kirby denied the GAO finding, saying the recovery of Bergdahl was conducted lawfully and the decision was made after consultation with the Department of Justice. Kirby said Hagel explained DOD's decision to Congress during recent testimony.
"The [Obama] administration had a fleeting opportunity to protect the life of a U.S. service member held captive and in danger for almost five years," Kirby said in a news release. "Under these exceptional circumstances, the administration determined that it was necessary and appropriate to forgo 30 days notice of the transfer in order to obtain Sgt. Bergdahl's safe return."
The GAO said the DOD also violated the Antideficiency Act, which prohibits federal agencies from spending more money than has been appropriated, by spending $988,400 to pick up Bergdahl in Afghanistan and transfer the Taliban to Qatar, where they must remain for a year as part of the deal.
The law is “clear and unambiguous” that no money can be spent “to transfer any individual detained at Guantanamo Bay to the custody or control of a foreign entity” without proper notice, GAO General Counsel Susan Poling wrote in the opinion.
Bergdahl, 28, was rescued after being held by the Taliban as a prisoner of war for five years. He was taken after wandering off a U.S. base and the circumstances are under investigation by the Army.
The White House and Pentagon have defended his release deal against lawmakers on Capitol Hill who have said they overstepped their authority and endangered the U.S. by allowing Taliban fighters to rejoin the war in Afghanistan.
The military had been negotiating with the Taliban for years on his return but a deal had fallen through at least once before, Hagel told the House Armed Service Committee in June.
Hagel said the opportunity for a trade arose suddenly and DOD believed it was the last good chance to rescue the soldier.