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Judicial Watch • Judicial Watch Sues Pentagon and State Department over Secrecy on Bergdahl Terrorist Swap

Judicial Watch Sues Pentagon and State Department over Secrecy on Bergdahl Terrorist Swap

Judicial Watch Sues Pentagon and State Department over Secrecy on Bergdahl Terrorist Swap

JANUARY 27, 2015

(Washington, DC) – Judicial Watch announced today that on November 18, 2014, it filed a Freedom of Information Act (FOIA) lawsuit against the U.S. Department of Defense seeking “any ‘determinations’” made by Defense Secretary Chuck Hagel that the five Guantanamo terrorists traded for Army Sgt. Bowe Bergdahl were “no longer a threat to U.S. national security.” The lawsuit was filed in the U.S. District Court for the District of Columbia (Judicial Watch v Department of Defense (No. 1:14-cv-01935)).

Judicial Watch also announced today that on January 2, 2015, it filed a FOIA lawsuit against the U.S. State Department seeking access to the bilateral Memorandum of Understanding between the U.S. and Qatar relating to the terrorist release. The lawsuit was filed in U.S. District Court for the District of Columbia (Judicial Watch v Department of State (No.1:15-cv-00003)).

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 intense controversy. He was released on May 31, 2014, as part of a prisoner exchange by the Obama administration for five Taliban terrorist leaders who were held at the detention center in Guantanamo Bay, Cuba.  NBC News reports today that Bergdahl will indeed be charged with desertion, but is likely to face no jail time.

Federal law states that the Secretary of Defense can transfer or release a Guantanamo detainee to a foreign country only if “if the Secretary determines, following a review…that the individual is no longer a threat to the national security of the United States.” (Section 1035 (a) (1) of the National Defense Authorization Act for Fiscal Year 2014, which was signed into law by President Obama on December 26, 2013.)  Judicial Watch sued the Pentagon in November 2014 after it refused to comply with Judicial Watch’s June 3, 2014, FOIA request for the Secretary Hagel’s reviews of the national security threats posed by the detainees he released.

The Judicial Watch lawsuit was filed against the State Department after the agency ignored a FOIA request filed on June 3, 2014, seeking access to the following:

The bilateral memorandum of understanding between the United States and Qatar relating to the release from U.S. custody of five detainees held at the U.S. Naval Station at Guantanamo Bay, Cuba in exchange for the return of U.S. Army Sgt. Bowe Bergdahl.

Judicial Watch now has filed four lawsuits relating to the controversy surrounding the Bergdahl-terrorist trade.  In November 2014 Judicial Watch filed two FOIA lawsuits against the Pentagon and the State Department to obtain records concerning arrangements made between the U.S. government with third parties or another state regarding agreements and monetary payments to secure Bergdahl’s release.

Reuters reported that the Taliban commanders released by the Obama administration are dangerous:

All five prisoners were classed as “high-risk” and “likely to pose a threat” by the Pentagon and held senior positions in the Taliban regime before it was topped by a U.S. led coalition in 2001.

At least two of them are suspected of committing war-crimes, including the murder of thousands of Afghan Shi’ites, according to leaked U.S. military cables.

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 carries potential criminal penalties.  The GAO’s summary of the penalties for violating the law notes:

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.

The GAO further details that violators of the Antideficiency Act:

“[S]hall 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.

The Daily Beast exclusively reported this week about yet another possible terrorist swap involving Qatar, the country that served as the middleman in the Bergdahl terrorist exchange:

The proposed swap involving the al Qaeda agent, Ali Saleh Al-Marri, raises troubling questions about whether the Bergdahl trade opened a kind of Pandora’s box, signaling to foreign governments that they can pressure the United States to make concessions on terrorism by trading American prisoners abroad for dangerous extremists held in the United States.

Al-Marri was released by the Obama administration last week and allowed to leave the country, despite his being a “sleeper” al-Qaeda terrorist who had been sent to the United States by Khalid Sheik Mohammed, the 9/11 mastermind. As National Review’s Andrew McCarthy notes, Al-Marri was supposed “to await instructions on carrying out a second wave of attacks after the 9/11 atrocities – against water reservoirs, the New York Stock Exchange, U.S. military academies, and other targets.”

“The American people deserve to know precisely how the Obama administration arrived at the decision to release five brutal terrorist leaders in exchange for a possible deserter, and how it determined the terrorist leaders were no longer a threat to U.S. security,” said Judicial Watch President Tom Fitton. “As far back in 2010, we reported that the Director of National Intelligence had revealed that 150 former Gitmo detainees were confirmed or suspected of ‘reengaging in terrorist or insurgent activities after transfer.’ Now there is public concern that terrorists and unfriendly states will take hostages to force the release of more terrorists.  These new FOIA lawsuits show that the Obama administration is once again in cover-up mode – about a scandal that involves not only national security but also criminal conduct by the top leadership of the Obama administration.”


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