GAO: Pentagon violated law in Taliban-GI swap

WASHINGTON -- The Pentagon broke the law when it released five Taliban leaders in exchange for the freedom of Army Sgt. Bowe Bergdahl, a prisoner in Afghanistan for five years, congressional investigators said Thursday.

The nonpartisan Government Accountability Office said the Defense Department failed to notify the relevant congressional committees at least 30 days in advance of the exchange -- a clear violation of the law -- and used $988,400 from a wartime account to make the transfer. The office also said the Pentagon's use of funds that hadn't been expressly appropriated violated the Antideficiency Act.

"In our view, the meaning of the [law] is clear and unambiguous," the office wrote to nine Republican senators, including Minority Leader Mitch McConnell, R-Ky., and various committees. "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 the law.

The office said the relevant committees received phone calls from May 31 -- the day of the transfer -- to June 1, and written notification June 2.

Five senior Taliban members were released from the U.S. prison at Guantanamo Bay, Cuba, in exchange for Bergdahl, who had disappeared from his post in Paktika province in eastern Afghanistan on June 30, 2009. The five are to remain in Qatar for a year.

Spokesman Rear Adm. John Kirby defended the Pentagon's actions, saying that as Defense Secretary Chuck Hagel stated in his congressional testimony earlier this year, the Defense Department "acted lawfully in the operation to recover Sgt. Bergdahl, a judgment that was supported by the Justice Department."

"The 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 added. "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."

Lawmakers, especially Republicans, were angry with President Barack Obama and members of his administration for failing to notify them about the swap. Some in Congress have accused Bergdahl of being a deserter and said the United States gave up too much for his freedom. Several lawmakers also have cited intelligence suggesting the high-level Taliban officials could return to the Afghan battlefield.

The administration has defended the swap and its decision to keep Congress in the dark, saying concern about Bergdahl's health and safety required speedy action.

Sen. Susan Collins, R-Maine, a member of the Intelligence Committee, said it was "completely disingenuous" for the administration to suggest that notifying Congress might have compromised the transfer because dozens of administration officials knew well in advance.

"It's not hard to imagine that the president didn't notify us until after the fact because he knew the proposed transfer would have been met with opposition," Collins said in a statement Thursday.

The Joint Chiefs of Staff has unanimously supported the exchange, insisting that the United States has a sacred commitment to men and women who serve that it will never leave anyone behind on the battlefield.

Bergdahl is doing administrative duties at Fort Sam Houston in San Antonio while an investigation is conducted into how he was captured by the Taliban.

Last month, a divided House Armed Services Committee voted to condemn Obama for the swap. The Republican-led panel backed a nonbinding resolution that disapproves of the exchange and faults Obama for failing to notify Congress 30 days in advance of the swap, as required by law.

The bipartisan resolution raised national security concerns about the transfer of the five Taliban members, who had been held at Guantanamo Bay for more than a decade, and the "repercussions of negotiating with terrorists." The measure also expresses relief that Bergdahl has returned safely to the United States.

The full House is expected to consider the measure in the fall, just a few weeks before the midterm elections.

Information for this article was contributed by Lolita C. Baldor of The Associated Press.

A Section on 08/22/2014

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