Bergdahl Prisoner Exchange Deemed Illegal

(CN) - Keeping Congress in the dark about the plan to exchange five Taliban detainees from Guantanamo Bay for U.S. Army Sgt. Bowe Bergdahl, a Taliban prisoner of war, was illegal, the Government Accountability Office found Thursday.

Bergdahl is a U.S. soldier who was held captive by the Taliban in Afghanistan from June 2009 to May 2014 when he was freed in a prisoner exchange.

Though the Department of Defense used $988,400 of Army appropriations funds to make the transfer, the Department of Defense Appropriations Act of 2014 specifically forbids the use of appropriations funds to transfer a Guantanamo detainee to a foreign county, except in accordance with the 2014 National Defense Authorization Act.

That law requires the secretary of Defense to "notify the appropriate committees of Congress of a determination ... no later than 30 days before the transfer or release of the individual," and demands an explanation of how the transfer meets U.S. security interests.

DOD notified Congress of the Bergdahl prisoner exchange on May 31, the same day that it was made.

"In our view, DOD has dismissed the significance of the express language enacted in section 8111 [of the Appropriations Act]," the Government Accountability Office (GAO) said Thursday in a seven-page report.

The report notes that DOD cited section 1035 of the NDAA in denying that notice was necessary when the transfer is legal.

GAO found, however, that "the notification requirement in section 1035(d) stands on equal footing with the determination requirements in section 1035(a) or section 1035(b)."

"Section 8111 means, then, that DOD must comply with all provisions in section 1035, including the notification requirement, before obligating appropriated funds to carry out a transfer," the report states. "To read section 8111 otherwise would render the notification requirement meaningless."

The Department of Defense also claims that section 8111 unconstitutionally interferes with the president's duty to protect U.S. service members and the lives of Americans abroad, but the accountability agency declined to offer an opinion on this point.

"This opinion does not address the Secretary's decision to transfer the five individuals in this case as part of DOD's efforts to secure the release of an American soldier," the report concludes. "However, when DOD failed to notify specified congressional committees at least 30 days in advance of its transfer of Guantanamo Bay detainees to Qatar, DOD used appropriated funds in violation of section 8111."

Bergdahl fell into Taliban hands shortly after leaving his combat outpost in the Paktika province on June 30, 2009.

He returned to active duty at U.S. Army North, Joint Base San Antonio-Fort Sam Houston (JBSA), last month .

An investigation into Bergdahl's disappearance and capture remains ongoing. The Pentagon tapped Maj. Gen. Kenneth Dahl for that assignment.

A 2012 profile for "Rolling Stone" by late investigative reporter Michael Hastings documented Bergdahl's growing disillusionment with his mission in Afghanistan and featured the sergeant's last email to his parents.

"The future is too good to waste on lies," Bergdahl wrote, according to the article. "And life is way too short to care for the damnation of others, as well as to spend it helping fools with their ideas that are wrong."

In the June 27, 2009, email, Bergdahl made a reference to witnessing U.S. soldiers run over Afghan child with armored truck, an incident that Hastings said his parents believed to be a "formative, possibly traumatic event."

The sergeant left his post three days later in the early morning with only water, a knife, a digital camera, and his diary, and would become the U.S.'s only prisoner of war for nearly five years, the article stated.

Since Bergdahl's release, reporters have mined WikiLeaks-released diplomatic cables from the time and interviewed members of his unit. Anonymous government officials told multiple news outlets that a classified investigation indicated that Bergdahl wandered off base before but had returned.

During his investigation, Gen. Dahl will access "previously gathered documentary evidence, including the 2009 investigation," the Pentagon said.

While in Taliban custody last year, Bergdahl wrote a letter to his family explaining his decision to leave by stating: "Leadership was lacking, if not non-existent" in his unit, the Daily Beast reported.

Though Guantanamo's chief prosecutor Brig. Gen. Mark Martins had said that the five men traded for Bergdahl could not have been prosecuted, congressional Republicans nonetheless criticized the swap.

As Sen. John McCain told CNN, without evidence, that the White House had traded Bergdahl for "hard-core military jihadists who are responsible for 9/11," Republican strategists arranged interviews with members of Bergdahl's unit who would attack their former comrade as a deserter.

The Army has not yet identified a general who would decide whether Bergdahl should face disciplinary action.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit