Three Lawsuits over Gitmo Terrorist Release

AP Photo/Charles Dharapak

According to the Obama administration, the five Guantanamo terrorists they traded for Army Sgt. Bowe Bergdahl are “no longer a threat to U.S. national security.” That’s what former Secretary of Defense Chuck Hagel concluded when he signed the document setting them free.

But we’re not so sure. We’d like to know what kind of information the secretary used to make this determination. Did the five detainees have a genuine conversion experience during their time in prison? Are they no longer prone to violence? The American people deserve to have more insight into some very questionable decision-making. Sen. John McCain (R-AZ) correctly observed that the dangerous terrorists released by Obama “are the hardest of the hard-core. These are the highest high-risk people.”

That’s why we have filed a Freedom of Information (FOIA) lawsuit against the Department of Defense (DOD) asking a federal court to force the Pentagon to respond to our FOIA request for this information.

Army Sgt. Bowe Bergdahl left his post and was held captive by the Taliban-aligned Haqqani network in Afghanistan from June 2009 until May 2014. The circumstances surrounding Bergdahl’s disappearance and subsequent capture have become the subject of intense controversy. He was released on May 31, 2014.

There has been a fair amount of back and forth between Judicial Watch and the DOD, which has asked for some points of clarification. We took the opportunity to make it clear that copies of any “determinations” made by the Secretary of Defense indicating that the released detainees are no longer a threat to U.S. national security are not limited to the memos the secretary signed authorizing their release.  They must also include documents that detail the rationale behind the release.  The lawsuit, which was filed after the DOD failed to comply with our FOIA request, is actually the third we have filed in the Bergdahl case.

On November 18, 2014, Judicial Watch filed FOIA lawsuits against both the DOD and the State Department in an effort to obtain records concerning arrangements made between the U.S. government with third parties or another state regarding agreements and monetary payments to secure the release of Army Sgt. Bowe Bergdahl from captivity in Afghanistan.

Earlier, in an August 22, 2014, a Judicial Watch Corruption Chronicles article reported that the Obama administration violated “clear and unambiguous” law when it made the highly controversial, secret exchange:

The nonpartisan investigative arm of Congress, the Government Accountability Office (GAO), confirmed this week that the president broke a “clear and unambiguous” law when he swapped the high-level terrorists for Bowe Bergdahl, an Army sergeant who went AWOL in Afghanistan in 2009. According to rules issued by the White House Office of Management and Budget (OMB), the violation is serious and can carry severe consequences. They include fines, imprisonment, administrative discipline, suspension from duty without pay, or removal from office. The rules specifically state:

Congress must be notified before acts of this magnitude are committed and the president completely disregarded the legislative branch. In fact the Department of Defense (DOD) failed to notify Congress at least 30 days in advance of the exchange, a flagrant violation of the law, and misused nearly $1 million of a wartime account to make the transfer, the GAO report says. The DOD used appropriated funds to carry out the transfer when no money was available for that purpose, congressional investigators found. This means the DOD violated a measure known as the Antideficiency Act, which prohibits federal agencies from incurring obligations exceeding an amount available in appropriation.

The apparent violation of the Antideficiency Act, by the way, carries potential criminal penalties.  I think it worth quoting the GAO’s summary of the penalties for violating the law:

Federal employees who violate the Antideficiency Act are subject to two types of sanctions: administrative and penal. Employees may be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office. In addition, employees may also be subject to fines, imprisonment, or both.

In reference to Antideficiency Act, the GAO further details that violators “shall be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office.”

In addition, an officer or employee who “knowingly and willfully” violates any of the three provisions cited above “shall be fined not more than $5,000, imprisoned for not more than 2 years, or both.

It won’t surprise you to learn that the GAO reports that “no officer or employee has ever been prosecuted, much less convicted, for a violation of the Antideficiency Act.”  If there is to be a first time, this might be it.  The contempt for the law and our nation’s security warrants a criminal investigation.  This might be a good area of inquiry for the U.S. Senate to pursue with President Obama’s nominee for Attorney General, Loretta Lynch.

Barack Obama is on a mad dash to empty GITMO of terrorists, the law and public safety be hanged.  It began with the release of bin Laden’s bodyguard and ended with the “transfer” of five more terrorists just before the New Year, bringing the total of terrorists released by Obama in 2014 to an astonishing 28.

And don’t be persuaded by the lies about these enemy combatants being “reformed.”

The track record for terrorist rehabilitation is not very good. In fact, as Judicial Watch first exposed, the U.S. government is now offering a $5 million award for the capture of a GITMO detainee who was released from prison. Most unfortunately for our national security, the president’s goal is to close the prison and relocate the world’s most dangerous terrorists, all too often to countries that seem to share the terrorists’ agendas. Still left at the facility are 9/11 masterminds Khalid Sheikh Mohammed (KSM), Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi, as well as USS Cole bomber Abd al-Rahim al-Nashiri.  Judicial Watch is a designated observer of the military commission proceeding there and our representatives have traveled to GITMO well over a dozen times.

Meanwhile, the DOD remains tight-lipped about events surrounding the disappearance and captivity of Bergdahl. In a terse statement released on December 22, 2014, the U.S. Army said:

After a thorough investigation and a comprehensive legal review, the investigation concerning Sgt. Bowe Bergdahl has been forwarded to a General Courts Martial Convening Authority, Gen. Mark Milley, commanding general of Forces Command. Gen. Milley will determine appropriate action — which ranges from no further action to convening a court martial. The Army cannot discuss or disclose the findings of the investigation while disciplinary decisions are pending before commanders.

Aside from any legal trouble for Bergdahl, the circumstances of his release deserve intense investigation, which is exactly what Judicial Watch is doing.  Three federal lawsuits, to start, is the least that can be done considering the potential high level criminal wrongdoing and risk to innocent lives caused by Obama’s and his appointees’ contempt for the rule of law.