New Revelation: Bergdahl Swap Was Illegal

Congressional investigators from the nonpartisan U.S. Government Accountability Office announced today that Obama’s Department of Defense (DoD) violated the law in two ways earlier this year “when it swapped Army Sgt. Bowe Bergdahl” for five seasoned Taliban soldiers, reports the Associated Press.

First, in making the Bergdahl swap, the DoD violated the 2014 Department of Defense Appropriations Act. Every year, Congress funnels money to the agency via an appropriations bill. This important bill establishes the agency’s budget and the sets in place clear parameters on how the funds are to be used. One of the parameters included in this year’s act (which was thrown into the Consolidated Appropriations Act of 2014 alongside other appropriation bills) specifically states that the DoD must “notify the relevant congressional committees at least 30 days in advance” of any sort of prisoner transfer at Guantanamo. The agency did not do this, and so the swap was therefore done illegally.

Second, according to Vox, the Bergdahl swap required spending close to a million dollars of unappropriated funds. This violates the Antideficiency Act, a 130-year-old law that prohibits a government agency from spending funds that have not been properly appropriated by the House and Senate. Since the Obama administration performed the swap without giving proper notification, it therefore never allowed Congress the opportunity to appropriate the funds needed to make the Bergdahl swap.

The Atlantic reveals that back in June, the Obama administration preemptively argued against this potential ruling by claiming that Congress never intended for the bill to apply to prisoner swaps:

“… [D]elaying the transfer in order to provide the 30-day notice would interfere 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. soldiers.

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 premise is that a 30-day swap notice would delay executive function and therefore put the lives of American soldiers at risk. Keep in mind that according to CNN, a slew of Bowe Bergdahl’s former platoon members “call him a deserter whose ‘selfish act’ ended up costing the lives of better men.”

Regardless, NYU Professor Ryan Goodman disagrees with the administration’s argument. The fact is that Congress was already fully aware of Sergeant Bowe Bergdahl and his condition. Yet it never penned an explicit exception permitting the DoD to make any sort of swap for Bergdahl’s release. This therefore invalidates the administration’s argument and lays additional credence to today’s ruling that it did something illegal when it made the Bergdahl swap.

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