National Security

Bergdahl swap illegal, says top congressional lawyer

Bowe Bergdahl, August 6, 2014.
Bowe Bergdahl, August 6, 2014.

Defense Secretary Chuck Hagel acted illegally in May when he authorized the release of five Taliban detainees for Army Sgt. Bowe Bergdahl because he’d failed to provide lawmakers adequate notice of the exchange, the main investigative arm of Congress found Thursday.

Bergdahl, now 28, had been held for almost five years by his Taliban captors when he was freed May 31 in Afghanistan in exchange for five former senior Taliban officials who were released from the U.S. military detention center at Guantanamo Bay, Cuba, to the custody of the Qatar government.

Susan A. Poling, the top lawyer for the Government Accountability Office, said the controversial prisoner swap violated two measures passed by Congress and signed into law by President Barack Obama _ a broad authorization bill for the Pentagon and the 2014 appropriations legislation funding its activities.

Poling’s seven-page opinion, which does not carry the force of law, revealed for the first time the price tag of the dramatic operation in which U.S. special forces commandos whisked Bergdahl away in a Blackhawk helicopter minutes after he was freed in eastern Afghanistan. The cost was $988,400.

Poling, the GAO general counsel, concluded that the Pentagon had spent the money illegally because it had failed to provide four Senate and four House committees at least 30 days’ notice of the Taliban prisoners’ release from Guantanamo, as required by the defense authorization bill. The committees were notified on the day of the exchange.

Poling acknowledged, however, that she did not address deeper constitutional issues raised by the case, involving the proper separation of powers between the legislative and executive branches. Those determinations were beyond the role of the GAO, she said.

The White House declined to comment on Poling’s report.

Rear Adm. John Kirby, the Pentagon spokesman, said, “As Secretary Hagel testified to Congress, 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.”

Obama and Hagel had asserted earlier that the president’s constitutional charge to protect the lives of U.S. service members and of all Americans abroad trumped the congressional requirement that he provide at least 30 days’ notice of the release of any terror suspects from Guantanamo.

When he signed the National Defense Authorization Act last year, Obama issued a “signing statement” arguing that the 30-day notice requirement infringed on his constitutional authority as commander in chief.

Two days after Bergdahl’s release, on June 2, then-White House Press Secretary Jay Carney told reporters, “The president has consistently made clear that the executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers if necessary. That was certainly the case here.”

The five freed Taliban, which include former senior officials from the regime that ruled Afghanistan before the October 2001 U.S. invasion following the Sept. 11 terrorist attacks, must remain in Qatar for one year from their release under the terms of the deal.

Senate Minority Leader Mitch McConnell, a Kentucky Republican, requested the opinion, along with eight GOP members of the Senate’s defense appropriations subcommittee, including Sens. Thad Cochran of Mississippi, Lindsey Graham of South Carolina, Lisa Murkowski of Alaska and Roy Blunt of Missouri.

At a contentious hearing June 11, Hagel sparred with Republican members of the House Armed Services Committee over the exchange. In addition to blaming Hagel for failing to provide 30 days’ notice, the lawmakers said Obama had breached a longstanding bipartisan U.S. policy of never negotiating with terrorists.

Hagel said the deal that freed Bergdahl upheld the military’s promise never to leave fallen or captured soldiers behind enemy lines.

Several former platoon mates of Bergdahl have accused him of having gone AWOL or even deserted his unit on June 30, 2009, when he left their remote outpost in Afghanistan’s Paktika province near the border with Pakistan shortly before his capture by the Taliban.

Maj. Gen. Kenneth R. Dahl is heading an Army investigation of Bergdahl’s departure from the base and his subsequent captivity. His report is expected next month.

After medical treatment, debriefing and an Army “reintegration” process at military hospitals in Germany and Texas, Bergdahl was put back on active duty last month and assigned a desk job at Fort Sam Houston in San Antonio.

Lesley Clark of the Washington Bureau contributed to this report.

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