At this point, it’s a minor footnote in the saga of this out-of-control Administration, but the Government Accountability Office confirmed today in a letter to the Senate that by executing the swap of Bowe Bergdahl for five Taliban big shots without properly notifying Congress, the law was indeed broken:
As explained below, we conclude that DOD violated section 8111 because it did not notify the relevant congressional committees at least 30 days in advance of the transfer. In addition, because DOD used appropriated funds to carry out the transfer when no money was available for that purpose, DOD violated the Antideficiency Act. The Antideficiency Act prohibits federal agencies from incurring obligations exceeding an amount available in an appropriation. 31 U.S.C. § 1341(a).
Laws are for the little people, not the masters of our super-government. At issue is the funding – slightly less than a million dollars – used to effect the transfer:
On May 31, 2014, DOD transferred five individuals from Guantanamo Bay to the nation of Qatar in exchange for the Taliban’s release of an American soldier. DOD July 31 E‑mail; Secretary of Defense, Statement on the Transfer of Detainees before the House Armed Services Committee (June 11, 2014), available at www.defense.gov/Speeches/Speech.aspx?SpeechID=1860(last visited Aug. 21, 2014). DOD obligated appropriations provided under title IX, Overseas Contingency Operations, in the Department of Defense Appropriations Act, 2014, to effectuate this transfer. DOD July 9 E‑mail. Specifically, DOD obligated $988,400 of its Operation and Maintenance, Army appropriation. Id.
We asked DOD what date the Secretary of Defense provided the notice required by section 1035 of the FY 2014 NDAA to the appropriate committees of Congress. DOD responded that “[t]he Secretary of Defense provided written notice of the transfer of the five individuals by letters dated May 31, 2014, addressed to the Chairmen and Ranking Members of the congressional appropriations, armed services, foreign relations, and intelligence committees.” DOD July 31 E-mail. Your staff advised us that committee leadership received telephonic notice from May 31 to June 1, 2014, and received written notice on June 2, 2014.
It’s just a minor technical detail, and again, minor technical details are for the little people. You can’t expect the people who create and enforce our byzantine code of laws to be bound by them! Even when they’re “clear and unambiguous,” as the GAO describes the laws in question. The letter dismisses an argument from the Defense Department by noting that its argument would render an entire section of the DOD Appropriations Act for 2014 “meaningless.”
DOD also tried arguing that the requirement to notify Congress was unconstitutional, prompting the GAO to declare that it doesn’t rule on the constitutionality of laws: “In our view, where legislation has been passed by Congress and signed by the President, thereby satisfying the bicameralism and presentment requirements in the Constitution, that legislation is entitled to a heavy presumption in favor of constitutionality.” Nobody leans more heavily on the “presumption in favor of constitutionality” in other situations than the Obama Administration.
Funding for the prisoner swap was also judged to violate the Antideficiency Act, citing a 2010 precedent in which the Secret Service and Department of Homeland Security “obligated” funding without notifying the relevant committees.
We arrive at a similar conclusion in this case. Like the Secret Service, DOD obligated funds that were not legally available for obligation because DOD did not satisfy the notification requirements under section 8111. Accordingly, DOD violated the Antideficiency Act. See 31 U.S.C. § 1341(a). If Congress specifically prohibits a particular use of appropriated funds, any obligation for that purpose is in excess of the amount available. B‑321982. Here, DOD obligated at least $988,400 in excess of available appropriations. See DOD July 9 E‑mail. DOD should report its Antideficiency Act violation as required by law.
Fortunately for the Administration, nobody will actually be held accountable for breaking the law. Accountability also for the little people. The big dogs get to do whatever they want, and maybe deal with a few snippy letters from oversight agencies later.