Purpose, Time and Amount:With an Emphasis on

the Stock Level Exception

ASMC LuncheonAugust 2014

Power of the Purse:A Recent Example

ASMC LuncheonAugust 2014

Pub. L. 113-76 Consolidated Appropriations Act, 2014, § 8111

• “None of the funds appropriated or otherwise made available in this Act may be used to transfer any individual detained at United States Naval Station Guantanamo Bay, Cuba to the custody or control of the individual’s country of origin, any other foreign country, or any other foreign entity except in accordance with section 1035 of the National Defense Authorization Act for Fiscal Year 2014.”

Background

• Taliban and Al-Qaida detainees at GITMO• 30 Jun 09: Bowe Bergdahl in Taliban custody• Repeated efforts to negotiate with the Taliban

(through Qatar) Sgt Bergdahl’s release• NDAA’14, § 1035 establishes a process for

transfer that includes notice to certain Congressional committees

• Notice must be 30 days before the transfer

Pub. L. 113-66, NDAA’14, § 1035

• Absent a court order, section 1035(a) grants SECDEF the authority to transfer any individual detained at Guantanamo if the SECDEF makes the required determination.

• “The Secretary of Defense shall notify the appropriate committees of Congress of a determination of the Secretary under subsection (a) or (b) not later than 30 days before the transfer or release of the individual under such subsection.” Sec. 1035(d).

The Event

• On 31 May 14, five detainees associated with the Taliban were transferred to Qatar– Khairullah Khairkhwa, Abdul Haq Wasiq, Mohammed Fazl,

Noorullah Noori, & Mohammed Nabi Omari• According to the DoD, $988,400 of OMA funds

appropriated from Title IX, OCO, of the Appropriations Act, were obligated to effectuate the transfer

• All agree advance notice was not provided– Notification occurred between 31 May & 2 June

B-326013

• Per GAO, DoD violated Antideficiency Act, 31 U.S.C. § 1341(a).

• “If Congress specifically prohibits a particular use of appropriated funds, any obligation for that purpose is in excess of the amount available.” B-326013, at 6f.

• Consistent with well-established Comptroller General decisions

DoD’s Position

• “While DOD acknowledged the section 1035(d) 30-day advance notice requirement, DOD states that section 1035 does not provide that ‘a transfer that is otherwise authorized by section 1035(b) is rendered unlawful by the absence of the notification.’”

E. Scott Castle, Deputy General Counsel (Fiscal), OSD

DoD’s PositionDoD reads the statute this way:Text Interpretation

None of the funds appropriated or otherwise made available in this Act may be used to transfer any individual detained at United States Naval Station Guantanamo Bay, Cuba to the custody or control of the individual’s country of origin, any other foreign country, or any other foreign entity except in accordance with section 1035 of the National Defense Authorization Act for Fiscal Year 2014.

None of the funds appropriated…may be used to transfer…except when such transfer is in accordance with section 1035.

DoD considers the notice provision as distinct from the transfer provision

Constitutional Dimension

• “According to DOD, section 8111 improperly ‘attempt[s] to impose through the spending power the same unconstitutional requirement that section 1035(d) would attempt to impose indirectly.’” B-326013, at 5.

• GAO ignores this argument, despite a canon of construction that prefers Constitutional interpretations of statutes over those that would render the statute unconstitutional