Pentagon Defends Bowe Bergdahl/Guantánamo Prisoner Swap as Government Accountability Office Delivers Critical Opinion

23.8.14

In a move that has no legal weight, but which will embolden supporters of the “war on terror” prison at Guantánamo Bay, the Government Accountability Office, the non-partisan investigative arm of Congress, which is “charged with examining matters relating to the receipt and payment of public funds,” has concluded that the Department of Defense broke the law when, in May, five Taliban prisoners in Guantánamo were released in Qatar in a prisoner swap for Sgt. Bowe Bergdahl, the only US prisoner of war in Afghanistan.

The GAO concluded that the DoD acted in violation of section 8111 of the Department of Defense Appropriations Act, 2014, which “prohibits DOD from using appropriated funds to transfer any individuals detained at Guantánamo Bay unless the Secretary of Defense notifies certain congressional committees at least 30 days before the transfer.”

When the prisoner swap was announced, a tsunami of manufactured outrage poured forth from Republicans and right-wing pundits, even though both defense secretary Chuck Hagel and President Obama provided robust explanations about why they had bypassed Congress. As I explained at the time, Hagel said that the decision to go ahead with the swap — which, it should be noted, had been mooted for at least two years — came about after intelligence suggested Bergdahl’s “safety and health were both in jeopardy, and in particular his health was deteriorating.”

As I also explained at the time:

As Al-Jazeera described it, the decision “was not relayed to Congress because officials believed Bergdahl’s life would be further endangered.” In Hagel’s words, “We couldn’t afford any leaks, for obvious reasons.” He added that President Obama’s decision to order the exchange was made “essentially to save his life,” and also explained that administration officials had concluded that the president “had the authority to order the operation under Article 2 of the Constitution.”

President Obama also spoke about the prisoner swap, its timing and the role of Congress. In Warsaw, during a trip to Poland to discuss Eastern European security, he said, “We have consulted with Congress for quite some time about the possibility that we might need to execute a prisoner exchange in order to recover Bergdahl. We saw an opportunity, and we were concerned about Bergdahl’s health. We had the cooperation of the Qataris to execute an exchange, and we seized that opportunity.” He added that “the process was truncated because we wanted to make sure we would not miss that window.”

As the Washington Post explained, the 7-page GAO report “also said that the Pentagon ran afoul of the law by funding the prisoner swap with money not intended for that purpose,” and explained that the Antideficiency Act “prohibits agencies from spending congressional appropriations on unauthorized activities.” As the GAO put it, “We have consistently concluded that the use of appropriated funds for prohibited purposes violates the Antideficiency Act, because zero funds are available for the purpose.”

The report also revealed the total cost of the prisoner swap: $988,400, or just $11,600 short of a million dollars, which might seem like a large amount if you overlook the fact that it costs $2.7 million a year to hold each of the men still held at Guantánamo, and that, last summer, the total cost of running the prison since it opened in January 2002 had reached $5.24 billion.

Highlighting the DoD’s point of view, the Post noted that the Pentagon “argued that the transfer was lawful under a section of the appropriations act that allows the defense secretary to move Guantánamo prisoners in the interest of national security.” However, the GAO claimed that the DoD “was still required to give Congress advance notice of the action.” As the report put it, “To read [the law] otherwise would render the notification requirement meaningless.”

Nevertheless, the Defense Department has continued to assert that no laws were broken. After the report was made public on Thursday, the Pentagon stated that the Justice Department had “determined before the transfer was implemented that the move would be legal,” as the Post put it.

Essentially reiterating what Chuck Hagel and President Obama had stated after the prisoner swap, Pentagon spokesman Rear Adm. John Kirby said, “The administration had a fleeting opportunity to protect the life of a US service member held captive and in danger for almost five years. Under these exceptional circumstances, the administration determined that it was necessary and appropriate to forego 30 days’ notice of the transfer in order to obtain Sgt. Bergdahl’s safe return.”

Rear Adm. Kirby also pointed out that, in June, Hagel had 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.”

As the Post also noted, the GAO “did not issue an opinion on whether the transfer was necessary for national security purposes,” even though that was as key element of the prisoner swap, As well as securing the safe return of Sgt. Bergdahl, the swap can — and should — be seen as a necessary move in the negotiations that will have to take place with the Taliban as the war in Afghanistan winds down, and is, therefore, categorically a move that involved — and continues to involve — national security issues.

I hope that the Obama administration will not be fazed by the ruling, and will press ahead with the release of six men in Uruguay, as planned. It remains disappointing that the decisions involved in the prisoner swap — about saving Sgt. Bergdahl’s life, and negotiating with the Taliban — have aroused such a cynical display of venom from President Obama’s opponents, as it is absolutely clear to me that, if a Republican was president at the time, exactly the same decisions would have been taken — although if a Republican was president, it can realistically be argued that the obstacles raised by lawmakers would never have been imposed in the first place.

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.

3 Responses

  1. Andy Worthington says...

    Thanks to everyone liking and sharing this. I hope those of us who do not share the right-wingers’ opportunistic enthusiasm for condemning the Obama administration for the Bowe Bergdahl/Taliban prisoner swap can make people aware of why the Government Accountability Office was mistaken in its conclusion about the prisoner swap. Republican lawmakers and right-wing pundits just want to keep Guantanamo open, and, as I mention in the article, overlook the fact that, had a Republican been president, the same deal would have taken place.

  2. arcticredriver says...

    Bowe Bergdahl is in the news again. He may be court martialed for desertion, as some war hawks demand.

    However his lawyer is Eugene Fidell — who may be the Dean of US lawyers specializing in Military Law. Fidell is himself a veteran, serving in the US Coast Guard. He is married to Linda Greenhouse, who was, for decades, the NYTimes highly respected specialist on Supreme Court. I think Fidell taking Bergdahl’s case strongly suggests his defence is credible.

    Fidell says:
    (1) Bergdahl left his base seeking to report breaches of military law to superiors. He couldn’t report the breaches to his immediate superiors, at the base, as they were involved.
    (2) Bergdahl was at large for less than 72 hours before he was captured by the Taliban. 72 hours is the dividing line between “desertion” and being AWOL “Absent WithOut Leave”. AWOL is a much less serious offense.

  3. Andy Worthington says...

    Thanks, arcticredriver. I had seen that Bowe Bergdahl was being charged, but I hadn’t had time to look at the details of the case. I suspect you are right that having Eugene Fidell represent him may be a good sign.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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