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Government Didn't Have to Deny Military Death Benefits, Non-Partisan Legal Opinion Says – White House Blames Defense Department

"Well again, it was the Department of Defense's position that they would not be legally able to..."

The White House claimed the Defense Department had no choice but to withhold military death benefits during the partial government shutdown. Not so, says a legal opinion from the non-partisan Congressional Research Service issued Thursday.

WASHINGTON, DC - OCTOBER 10: White House Press Secretary Jay Carney talks to reporters during the daily press briefing at the White House October 10, 2013 in Washington, DC. Carney said he could not comment about a proposal by House Republicans to temporarily raise the federal debit limit and begin negotiations on the budget without seeing an acutal bill. Credit: Getty Images

But White House Press Secretary Jay Carney still says it was the judgment of the administration that the law doesn't cover pay for the families of the fallen soldiers.

Congress passed the bipartisan Pay Our Military Act on Sept. 30 before the government shutdown took effect on Oct. 1 to ensure members of the armed services were paid on time. This week, administration officials from the Defense Department and the White House insisted the act did not extend to military death benefits.

On Thursday, Bill Plante of CBS News, asked Carney, “the Congressional Research Service was asked to provide a legal opinion of whether the Pay Our Military Act could legal pay the death gratuity. There appears to be sufficient legal basis upon which a court could hold the best reading of the term payment would be to go ahead and pay the debt gratuity.”

Carney again repeated that the Defense Department gave ample warning before the shutdown.

“Well again, it was the Department of Defense's position that they would not be legally able to,” Carney said. “This was in the briefing that they gave Congress prior to the debt ceiling and in statements made to the Undersecretary of Defense to the press prior to Oct. 1 and the decision of Republicans to shutdown the government that the effect of the lapse in funding would be the Department of Defense would be unable to make those payments. So the Pay Our Military Act emerged after that. It's important to remember, from the beginning, we were arguing, don't shut down the government.”

Congressional Research Service legislative attorney Edward Liu reportedly said the wording of the Pay Our Military Act does “provide pay and allowances to members of the Armed Forces,” even though the legislation did not specifically mention the death benefit. The CRS report further said the legislation is “clear on its face.”

Fischer House, a private charity for veterans, is stepping in to pay the benefits.

However, both the House Wednesday and the Senate on Thursday passed legislation to pay the military families of fallen soldiers.

“Fischer House is contracting through the Department of Defense. Through that contracting, obligates itself to reimburse Fischer House upon reopening of the government,” Carney said. “It does mean that we don't need legislation.”

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