GAO: Bergdahl Swap Violated “Clear and Unambiguous Law” and violated “Antideficiency Act”

August 21st, 2014

The GAO has released a new report find that the DOD’s decision to release the detainees from Guantanamo without complying with the statute violated a “clear and unambiguous law” and violated the “Antideficiency Act.”

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. DOD July 31 E-mail.

But in any event, the President did not rely on his Article II powers. The administration claimed that Congress would not have wanted it to apply this way under these “circumstances.”

Initially, Secretary of Defense Chuck Hagel justified the release on the President’s inherent Article II powers, as a rationale for his failure to comply with the law: “we believe that the president of the United States is commander in chief, [and] has the power and authority to make the decision that he did under Article II of the Constitution.” White House National Security Adviser Susan Rice—a Sunday-morning show stalwart—similarly alluded to the President’s inherent powers during an interview on This Week, “We had reason to be concerned that this was an urgent and an acute situation, that his life could have been at risk. We did not have 30 days to wait. And had we waited and lost him, I don’t think anybody would have forgiven the United States government.”

Shortly thereafter, the Administration attempted to walk back that position, and the National Security Council released a more refined statement, not based on inherent powers: the “Administration determined that the notification requirement should be construed not to apply to this unique set of circumstances.” Further, “Because such interference would significantly alter the balance between Congress and the President, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances.” The White House Press Secretary likewise explained, “The administration determined that given the unique and exigent circumstances, such a transfer should go forward notwithstanding the notice requirement of the NDAA, because of the circumstances.”

This argument borders on absurd because virtually all members Congress–Republican and Democrat–specifically opposed this very trade. As I explain in Gridlock and Executive Power, “here lies the fatal flaw of the “congressional intransigence” theory of Article II—it manifests delusions of executive grandeur and machinations of congressional support, when neither exists.”

Yet, the argument provided by the DOD seems to offer a slightly different answer, that seems closer to inherent Article II powers:

We asked DOD for its legal views on the application of section 8111 to the transfer at issue in this opinion. DOD responded that section 8111 prohibits the use of appropriations “only if the transfer is unlawful under section 1035” and that the “transfer was lawful under section 1035, regardless of whether the Administration complied with any notice requirement imposed by section 1035(d).” DOD July 31 E‑mail, Attachment 1, at 1–2. DOD asserts that a transfer is lawful if the Secretary of Defense makes the requisite determinations under section 1035, and that “section 1035 does not impose any other preconditions on the Secretary’s authority under section 1035(b) to make transfers.” Id., Attachment 1, at 1. While DOD acknowledged the section 1035(d) 30-day advance notice requirement, DOD states that section 1035 does not provide that “a transfer that is otherwise authorized by section 1035(b) is rendered unlawful by the absence of the notification.” Id.

GAO flatly rejects this obfuscation:

In our view, DOD has dismissed the significance of the express language enacted in section 8111. Section 8111 prohibits DOD from using appropriated funds to carry out a transfer “except in accordance with section 1035 of the National Defense Authorization Act for Fiscal Year 2014.” Pub. L. No. 113-76, § 8111. Section 8111 makes no distinction regarding the weight of various subsections under section 1035. The notification requirement in section 1035(d) thus stands on equal footing with the determination requirements in section 1035(a) or section 1035(b). Section 8111 means, then, that DOD must comply with all provisions in section 1035, including the notification requirement, before obligating appropriated funds to carry out a transfer. To read section 8111 otherwise would render the notification requirement meaningless.

DOD also falls back on Article II, but not the Commander in Chief power.

Alternatively, DOD asserts that section 8111 is unconstitutional as applied to this transfer.[5] DOD July 31 E-mail, Attachment 1, at 2–3. DOD states that providing notice “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.” Id., Attachment 1, at 2. DOD asserts that these provisions violate the “constitutionally-mandated separation of powers.” Id., Attachment 1, at 3. According to DOD, section 8111 improperly “attempt[s] to impose through the spending power the same unconstitutional requirement that section 1035(d) would attempt to impose indirectly.” Id.

This is similar to the arguments justified for the Iraq strikes.

The GAO report offers no thoughts on the constitutional argument.