Guantánamo Taliban trade without 30-day notice to Congress broke law

The Obama administration broke the law when it failed to inform Congress a month ahead of its plans to release five Guantánamo Bay detainees May 31 in exchange for Army Sgt. Bowe Bergdahl, the main investigative arm of Congress found Thursday.

Bergdahl, now 28, had been held for almost five years by his Taliban captors. He was handed over to U.S. special forces in Afghanistan on the same day the U.S. released five long-held Taliban captives</a> from the prison in Cuba to the Qatar government.

Susan A. Poling, the top lawyer for the Government Accountability Office, said the controversial prisoner swap violated two measures passed by Congress and signed into law by President Barack Obama — a broad authorization bill for the Pentagon and the 2014 appropriations legislation funding its activities.

Poling’s seven-page opinion>, which does not carry the force of law, revealed for the first time the price tag of the Taliban transfer to Qatar: $988,400. On that same day, in a dramatic operation, U.S. special forces whisked Bergdahl away in a Blackhawk helicopter minutes after he was freed in eastern Afghanistan.

The GAO general counsel concluded that the Pentagon had spent the money illegally because it had failed to provide four Senate and four House committees at least 30 days’ notice of the Taliban prisoners’ release from Guantánamo, as required by the National Defense Authorization Act.

It was the first time that the Defense Department did not notify Congress 30 days in advance of the release. Instead, Pentagon officials started notifying congressional leaders on the day it was happening, by phone, and sent written notice June 2.

Poling acknowledged, however, that she did not address deeper constitutional issues raised by the case, involving the proper separation of powers between the legislative and executive branches. Those determinations were beyond the role of the GAO, she said.

The White House declined to comment on Poling’s report.

At the Pentagon, Rear Adm. John Kirby noted that Secretary of Defense Chuck Hagel testified to Congress that “the recovery of Sgt. Bergdahl was conducted lawfully and in accordance with our responsibility to bring home a soldier taken captive in armed conflict. This is a judgment shared by the Justice Department.”

Obama and Hagel had asserted earlier that the president’s constitutional charge to protect the lives of U.S. service members and of all Americans abroad trumped the 30-day congressional notice requirement.

When he signed the National Defense Authorization Act last year, Obama issued a “signing statement” arguing that the notice requirement infringed on his constitutional authority as commander in chief.

Two days after Bergdahl’s release, on June 2, then-White House Press Secretary Jay Carney told reporters, “The president has consistently made clear that the executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers if necessary. That was certainly the case here.”

Senate Minority Leader Mitch McConnell, a Kentucky Republican, requested the opinion, along with eight GOP members of the Senate’s defense appropriations subcommittee, including Sens. Thad Cochran of Mississippi, Lindsey Graham of South Carolina, Lisa Murkowski of Alaska and Roy Blunt of Missouri.

At a contentious hearing June 11, Hagel sparred with Republican members of the House Armed Services Committee over the exchange. In addition to blaming Hagel for failing to provide 30 days’ notice, the lawmakers said Obama had breached a longstanding bipartisan U.S. policy of never negotiating with terrorists.

Hagel said the deal that freed Bergdahl upheld the military’s promise never to leave fallen or captured soldiers behind enemy lines.

Several former platoon mates of Bergdahl have accused him of having gone AWOL or even deserted his unit on June 30, 2009, when he left their remote outpost in Afghanistan’s Paktika province near the border with Pakistan shortly before his capture by the Taliban.

Maj. Gen. Kenneth R. Dahl is heading an Army investigation of Bergdahl’s departure from the base and his subsequent captivity. His report is expected next month.

<span class="italic">Lesley Clark contributed to this report from the McClatchy Washington Bureau.</span>