GOP Lawmakers lambaste DoD over shutdown furloughs

Friday - 10/11/2013, 4:07am EDT

Jared Serbu reports.

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The Defense Department says more than 95 percent of its civilians now are back at work after the government shutdown furloughs that began last week. But the Pentagon and members of Congress continue to argue over whether any civilians needed to be furloughed in the first place.

The civilian recalls came about because of a law Congress passed and the president signed the night the shutdown started. The single-page Pay our Military Act (POMA) provided for pay and allowances to military members, civilians and contractors during the shutdown. It took the Pentagon five days to arrive at a legal interpretation of exactly who could be paid in the civilian workforce. Several members of Congress believe DoD deliberately dragged its feet and that it could and should have exempted all civilians from furlough from the beginning.

Rep. Mike Coffman (R-Colo.), the prime sponsor of the legislation, went so far as to accuse DoD comptroller Robert Hale of deliberately violating the law.

"You've really compromised your responsibilities, and I think you have a tremendous conflict of interest," he told Hale during an Armed Services Committee hearing Thursday. "You've subordinated your responsibilities to achieve a political objective. You went out of your way to inflict as much harm as you possibly could, and I think you've also compromised the national security of this country by creating such a disruption. I think it's just such an embarrassment to this country," Coffman said as he yielded the rest of his time to the committee chairman.

"I would like a chance to respond. I resent your remarks," Hale said. "Let the record show that."

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Intent was unclear

Hale and DoD lawyers say the law, which gave an unspecified sum of money to pay the salaries of civilians who the Secretary of Defense determined "are providing support to members of the armed forces," was not exactly black-and-white.

He said it took an enormous amount of time and effort to determine which civilian jobs that definition encompassed, and said DoD would have preferred a clearer definition — or, better yet, that Congress prevented a shutdown in the first place.

"First, had the Congress intended to provide recall for all civilians, it should have said, 'Recall all civilians.' It did not," Hale said. "And perhaps more problematic, it required that the Secretary of Defense make a determination of who would be recalled, which our lawyers concluded clearly implied that a blanket recall was not supported. Instead, DoD was required to conduct a review to identify those civilians who most directly serve members of the armed forces. That review focused on the degree to which civilians aided the morale, well-being, capabilities and readiness of members of the armed forces."

On a related matter, several members of the committee said they were infuriated and offended that DoD determined it could not pay death gratuities to the families of fallen active duty servicemembers during the shutdown.

"I was shocked and angered when I learned that five of our nation's heroes died in Afghanistan over the weekend and their families were informed that benefits could not be paid," said Rep. Rob Wittman (R-Va.), the committee's vice chairman. "These benefits, which fall in the category of military member pay and allowances authorized by the legislation, provide a small amount of financial support as families grieve so that during the most harrowing of times they can focus on what matters most."

Hale said those missed payments were tragic, but that the law also is clear. He said death gratuities simply were not covered under the last-minute law Congress passed as the shutdown neared.

"We've been through this with the Justice Department, with the Office of Management and Budget general counsel and with our own general counsel," he said. "It's in another section of the law, separate from pay and allowances. We just don't have the legal authority, and I don't think you want us to start going around the law."

POMA unresolved for vendors

But the death gratuities issue now is a moo point. On Wednesday, DoD signed a deal with the nonprofit Fisher House Foundation to cover the $100,000 payouts out of that organization's own funds. The contract provides for DoD to reimburse the group once Congress ends the government shutdown. And on Thursday night, President Obama signed separate legislation that makes explicit that gratuities to servicemembers' survivors can be paid directly from the U.S. Treasury, even during a shutdown.