海角大神

It鈥檚 been nearly three months since Sgt. Bowe Bergdahl was freed from Taliban captivity in a deal that resulted in the release of five Taliban prisoners held at Guant谩namo Bay. Nearly from the moment that the release happened, Republicans were critical of the deal largely because of the questions regarding the circumstances of Sergeant Bergdahl鈥檚 disappearance from his post and the fact that the Obama administration decided to trade five Taliban leaders to get him back. Perhaps the most potent criticism though, was the argument that the administration had failed to comply with the law because it failed to notify Congress of the trade of Bergdahl for the Guant谩namo prisoners beforehand. The White House justified the failure to comply with the notice requirement by saying that it was necessary to complete the trade in a short period of time due to concerns about Bergdahl鈥檚 health. However, members of Congress on both sides of the aisle, including Sens. Dianne Feinstein (D) of California and Tom Coburn (R) of Oklahoma were skeptical about that justification to say the very least.

Now, the General Accounting Office has come out with a report determining that the administration did in fact violate the law when it failed to notify Congress about the impending prisoner swap as required by law:

George Washington Law Professor Jonathan Turley comments:

As I noted just days after the swap was announced, it seems fairly clear that the administration did in fact fail to comply with the law in this case. The language of Section 1035 of the National Defense Authorization Act for Fiscal Year 2014 seems fairly clear in its requirement that the president, through the secretary of Defense, must notify the appropriate congressional committees of any proposed prisoner swap no less than 30 days prior to the transfer of any prisoner held at Guant谩namo Bay. When he signed the NDAA into law, the president did issue a signing statement in which he purported to make the determination that this provision of the law was potentially an unconstitutional restriction on executive powers. However, as President Obama himself noted several times when he was a senator and candidate for president, presidential signing statements are of dubious legal and constitutional legitimacy to begin with. Additionally, the president himself noted just under a year before the Bergdahl deal became public that he would be required to consult with Congress before making a deal to free Bergdahl that included the release of Guant谩namo prisoners. That, combined with the fact that the medical arguments that were made after the fact in order to justify making the end run around Congress haven鈥檛 stood the test of time, makes the constitutional argument that the White House is making dubious at best.

Moreover, as Professor Turley notes in his post, even if you accept the argument that Section 1035 is an unconstitutional restriction onp residential authority, that cannot justify the misappropriation of money for a purpose specifically forbidden by Congress. In addition to the notice requirement, the law also states that the Defense Department could not use appropriate funds for a purpose not specifically authorized by Congress. This is an excellent example of the very 鈥減ower of the purse鈥� that, traditionally, has always been seen as something well within the authority of Congress. Indeed, a president who spends money in a way that Congress didn鈥檛 authorize would clearly be violating the law. That鈥檚 what the Boland Amendment was about in the 1980s, for example, and it was the efforts of certain members of the Reagan administration to get around that law that led to the Iran/Contra scandal. Here, we have something far more direct, a decision by the executive branch to ignore a federal law and spend money in a way that Congress didn鈥檛 authorize. Whatever side of the political aisle you fall on, that鈥檚 not something that should simply be dismissed. Presidents should not be permitted to ignore the law with impunity and get away with it unscathed and, while it鈥檚 unclear just what the penalty for violating Section 1035 ought to be, it seems pretty clear that is should be something more than just a dismissal of the matter as another Washington partisan battle. The administration broke the law, there鈥檚 really no other way to put it.

Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.