Government watchdog: DOD broke law with Bergdahl prisoner swap

The Pentagon broke the law when it swapped Taliban captive Army Sgt. Bowe Bergdahl for five members of the group held at Guantanamo Bay, a government watchdog group said Thursday.

The nonpartisan Government Accountability Office (GAO) said the Department of Defense (DOD) violated the law by failing to notify the relevant congressional committees at least 30 days in advance of the exchange. The DOD used $988,400 of a wartime account to make the transfer, which GAO said had not been expressly appropriated and violated the Antideficiency Act.

"In our view, the meaning of the [law] is clear and unambiguous," the GAO 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 GAO assessment was requested by Republican lawmakers who were angered over the lack of notice on the U.S. decision in May to transfer five Taliban prisoners to Qatar in exchange for the release of Bergdahl, who had disappeared from his post in eastern Afghanistan on June 30, 2009.

Senator Saxby Chambliss, vice chairman of the Senate Select Committee on Intelligence, said the GAO finding validated the view that President Barack Obama had "completely disregarded laws duly passed by Congress and signed by his own hand" by allowing a prisoner transfer that cost almost $1 million.

"This latest overreach regarding our national security has dangerous implications," Chambliss said in a statement. "The United States has a longstanding policy of not negotiating with terrorists for good reason, and these senior Taliban leaders will soon rejoin the fight."

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."

The Defense Department told the GAO that Hagel authorized the exchange based on a section of the law that allows transfers of Guantanamo prisoners if actions are being taken to reduce the risk that they will re-engage in hostile activity. The Pentagon said it did not believe the failure to give 30-days notice would make it unlawful to approve a prisoner transfer that was otherwise permitted under the law.

Lawmakers, especially Republicans, were angry with Obama and members of the administration for failing to notify them about the swap. Some have said Bergdahl was a deserter and the United States gave up too much for his freedom. And several lawmakers have cited intelligence suggesting the high-level Taliban officials could return to the Afghanistan battlefield.

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. Army Gen. Martin Dempsey, the chairman of the Joint Chiefs, said the swap in May was "likely our last, best opportunity" to free Bergdahl.

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

Last month, a bitterly 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.

The bipartisan resolution raised national security concerns about the transfer of the five Taliban, who had been held at the U.S. military prison at Guantanamo Bay, Cuba, 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.

Wire services