Pentagon: Shutdown still hurting Defense Department, in spite of military pay law

The congressman who introduced legislation to ensure active duty military personnel would get paid and have support staff during the government shutdown on Thursday accused the Pentagon of purposefully misinterpreting the law for political reasons.

The Pentagon, however, insists that by keeping 10 percent of its staff furloughed, it's simply following the clear directive of the Pay Our Military Act. At the same time, the department warned that the shutdown is having negative impacts on the war in Afghanistan, among other aspects of the Defense Department's responsibilities.

Rep. Mike Coffman, R-Colo., introduced the Pay Our Military Act (POMA) in the days leading up to the government shutdown, and it passed quickly through Congress to President Obama's desk, where it was signed into law on Sept. 30. "The overwhelming support for the guidance exemplifies the deep respect the American people have for our military," Coffman said at a House Armed Services Committee Thursday.

However, Coffman said he believes the decision to keep some Defense Department staff furloughed, in spite of the law's broad language, was "based on a deliberate decision by the Department of Defense to misinterpret the Pay Our Military Act for political purposes."

"My bill cast as wide a net as possible to ensure civilian personnel... can report to work on day one of the government shutdown," he said. Nevertheless, the Pentagon furloughed the vast majority of its civilian workforce for the first week of the shutdown, "in violation of federal law," Coffman said.

Robert Hale, the Defense Department comptroller, acknowledged POMA "greatly changed the picture" for the department. However, he said the department was clearly obligated under the law to take some time to determine which employees could be called back into work.

"We concluded that POMA did not provide legal authority for a blanket recall of all civilians," Hale said. "Had the law been intended to provide for recall, it should have said, 'recall all civilians.' It did not."

The law explicitly says that civilian staff who support the military could be exempt from the shutdown. It further requires the Secretary of Defense to determine who falls into that category.

"The ultimate judgement was the statute says 'support,'" Robert Taylor, the Defense Department's acting general counsel, said to Congress. "That opened up the aperture quite a bit, and we've seen the results of that with about 95 percent or so back." However, he added, "There are some functions -- even with understanding that the support need not be direct -- that seem to be outside the scope" of what the law allows for.

Furthermore, Hale said that while POMA has alleviated some of the consequences of the shutdown, the lapse of government funding is still having "serious adverse effects" on Defense Department operations.

"There are already some limited adverse effects on the war in Afghanistan," Hale said. "Notably, we no longer have authority to make CERP payments" in Afghanistan, he added, referring to the payments the Pentagon makes to Afghans to compensate for death or damage caused by the military. Those payments, Hale said, "are key to continuing a responsible drawdown."

The shutdown has also kept the Pentagon from making "death gratuity" payments to the families of fallen servicemen, though the department announced Wednesday that it is working with a nonprofit to ensure those families still get their expected payments. Meanwhile, the Senate on Thursday passed a "death benefits" bill to allow the Pentagon to make those payments; it now goes to Mr. Obama's desk for his signature.

The shutdown has also stopped the Pentagon from paying some vendors for contracted services and supplies like fuel. "We're not sure how long our vendors are going to accept IOU's," Hale said.

And while the vast majority of civilian Pentagon employees returned to work this week, the shutdown has further harmed the morale of the civilian workforce, Hale said, and "low morale means low productivity."

"Please, we needs to end this lapse," Hale said.