Bergdahl swap violated law, legal opinion says

WASHINGTON — President Obama's decision to exchange captive Army Sgt. Bowe Bergdahl for five Guantanamo Bay detainees violated federal law, according to a legal opinion the Government Accountability Office sent to Congress Thursday.

That's because the administration failed to notify Congress at least 30 days before the transfer, as required under a law passed in February. The Pentagon notified Congress of the deal on May 31, the same day the transfer was made.

And because Congress did not authorize spending for the exchange, it also violated the Antideficiency Act, a law intended to protect Congress's power of the purse.

The Department of Defense spent $988,400 on the transfer, the Pentagon told the GAO.

An intentional violation of the Antideficiency Act is a crime punishable by up to two years in prison, but those criminal penalties are rarely enforced.

Bergdahl was captured by the Taliban in June 2009 after he abandoned his post in Afghanistan, the Army says. In exchange for his release, the Defense Department sent five Taliban detainees to the Gulf state of Qatar.

The deal met with almost immediate congressional criticism from both parties. Nine Republican senators asked the GAO — the nonpartisan congressional agency that reviews whether its laws are being followed — for an opinion.

The White House referred questions about the opinion to the Pentagon, which defended the swap.

"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. 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," said Rear Admiral John Kirby, the Pentagon press secretary.

That defense turns on a constitutional question. When President Obama signed the law requiring him to give advance notice of a transfer, he said in a signing statement that the provision could violate constitutional separation of powers.

"The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers," he said.

The GAO opinion was based solely on the violation of the congressional notification requirement, and does not address whether the transfer itself would have been proper if Congress had been notified, said Edda Emmanuelli Perez, a GAO attorney.

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