H.Res. 644, Condemning and disapproving of the Obama administration's failure to comply with the lawful statutory requirement to notify Congress before releasing the Taliban 5

H.Res. 644

Condemning and disapproving of the Obama administration's failure to comply with the lawful statutory requirement to notify Congress before releasing the Taliban 5

Committee
Armed Services

Date
September 9, 2014 (113th Congress, 2nd Session)

Staff Contact
Communications

Floor Situation

On Tuesday, September 9, 2014, the House will consider H.Res. 644 under a closed rule.  H.Res. 644 was introduced on June 25, 2014 by Rep. Scott Rigell (R-VA) and was referred to the House Armed Services Committee.  The resolution was marked up on July 29, 2014 and was ordered reported, as amended, by voice vote.[1]

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[1] House Committee Report 113-569.  Two amendments were offered at the markup: 1) an amendment in the nature of a substitute was offered by the ranking member, which failed by a vote of 19-40; and 2) an amendment in the nature of a substitute was offered by the Chairman, which passed by a vote of 34-25.  The Committee then ordered H.Res. 644, as amended, reported by a voice vote, a quorum being present.  Id. at 5.

Bill Summary

H.Res. 644 condemns the Obama Administration’s failure to comply with the 30-day statutory requirement to notify Congress before releasing five senior members of the Taliban from the U.S. Naval Station at Guantanamo Bay, Cuba (“Guantanamo Bay”).  H.Res. 644 expresses grave concern about the national security risks associated with the transfers and about the repercussions of negotiating with terrorists, even when conducted through intermediaries.  The resolution states that further violations of the notification requirement are unacceptable and explains that these actions have harmed confidence in the Administration’s commitment to work constructively with Congress.  H.Res. 644 expresses relief regarding Sergeant Bowe Bergdahl’s safe return to the U.S.

Background

On May 31, 2014, the Department of Defense (DoD) released five detainees from Guantanamo Bay to the State of Qatar.  The transfer was part of an agreement brokered by Qatar between the U.S. and the Taliban to obtain the release of Army Sergeant Bowe Bergdahl.[2]  Pursuant to the agreement, the individuals are required to remain in Qatar for one year.  Yet there is concern that Qatar will not be able to fulfill this commitment.[3]  In addition, their movements will not be restricted after one year.[4]  Each of the five detainees was a senior Taliban leader who previously had associations with al-Qaeda or had engaged in hostilities against the U.S. or its coalition partners.[5]  In 2010, the Obama Administration evaluated Guantanamo Bay detainees to identify those who could be transferred.  The evaluation concluded that these five should remain in custody, as they were “too dangerous to transfer,” and each “pose[d] a high level of threat that [could not] be mitigated sufficiently except through continued detention.”[6]  President Obama has acknowledged that it is “absolutely” possible that some of these former detainees will resume activities that would harm the U.S.[7]

Section 1035 of the National Defense Authorization Act for Fiscal Year 2014 (FY14 NDAA) requires the Secretary of Defense (“Secretary”) to notify relevant congressional committees at least 30 days before transferring or releasing individuals detained at Guantanamo Bay.[8]  In addition, Section 8111 of the Department of Defense (DoD) Appropriations Act, 2014 provides that “None of the funds appropriated or otherwise made available in this Act may be used to transfer any individual detained at [Guantanamo Bay] 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 [FY14 NDAA].”[9]

Approximately 80-90 Administration officials, as well as an unknown number of Qatari officials, received notification prior to the transfer.[10]  Secretary Hagel testified before the House Armed Services Committee that “negotiations for the transfer of the five Taliban detainees in exchange for Sergeant Bergdahl began in January 2014.”[11]  In May of 2014, DoD’s General Counsel signed a memorandum of understanding with the Attorney General of Qatar regarding the transfer.[12]  However, “Congress was not notified of the transfer until June 2, 2014, three days after such individuals were transferred, and 33 days after the date on which such notification was required [by the NDAA and the DoD Appropriations Act].”[13]  In 2011, when House and Senate leaders expressed opposition to transferring these five detainees from Guantanamo Bay, the Administration “assured these Senators and Members of Congress that there would be no exchange of Taliban detainees for Sergeant Bergdahl, and that any transfer of Taliban detainees that might otherwise occur would be part of a reconciliation effort with the Taliban and the Government of Afghanistan and that such a transfer would only take place in consultation with Congress pursuant to law.”[14]  On August 21, 2014, the Government Accountability Office (GAO) found that DoD “violated section 8111 [of the DoD Appropriations Act, 2014] because it did not notify the relevant congressional committees at least 30 days in advance of the transfer.  In addition, because DoD used appropriated funds to carry out the transfer when no money was available for that purpose, DoD violated the Antideficiency Act.”[15]

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[2] Id.
[3] H.Res. 644.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Committee Report 113-569 at 4.
[9] Id.
[10] H.Res. 644.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] GAO: Department of Defense—Compliance with Statutory Notification Requirement (Aug. 21, 2014).

Cost

A CBO estimate is not available at this time.

Additional Information

For questions or further information contact the GOP Conference at 5-5107.