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.

But there’s still one big issue DoD’s legal staff has yet to resolve with regard to the Pay Our Military Act.

If the section on civilians was difficult to interpret, the Pentagon says an identical section providing for “pay and allowances” to contractor employees is much harder to deal with. That’s because DoD doesn’t provide pay any allowances to contractor employees — at least not directly.

“Almost all contracts are designed to buy goods or services, and almost all of them contain more than just pay and allowances,” Hale said. “They contain profit, overhead, materiel and supplies. So we’re having to try to separate these out in a manner that’s extremely difficult. If the vendor has an approved cost-accounting system and they can separate pays and allowances from everything else, we’ll make an effort to pay it. I think there will be hardly any contracts where a contractor will be willing to do that, because it can’t include profit or overhead. I know that’s confusing, and it’s confusing to us too. But we are working hard to sort it out.”

The shutdown does not affect contracts DoD signed that rely on funds from 2013 or earlier, which at this early stage in the fiscal year encompasses a majority of the ongoing contract work. And POMA brought back many of the civilian employees contractors rely on to do their work and be paid for it.

But for any new contracts, the department has no authority to spend 2014 money. It’s allowed to sign contracts that support “excepted activities” that can proceed during a shutdown, but until the shutdown ends, it cannot pay the bills it incurs for those contracts.

“We’re watching closely to see how this absence of authority affects future operations if the lapse continues. Moreover, even if we can enter into contracts for excepted activities, we can’t pay the vendors using fiscal ’14 funds. And we’re not sure how long our vendors are going to accept IOUs,” Hale said. “I don’t know how they’re going to react. I assume that some of the larger ones will have the ability and willingness to stay with us. I’m more concerned about some of our smaller vendors.”

Furloughs could tick up

As of Thursday, DoD had only about 7,000 civilians workers remaining on furlough. That number is extremely unlikely to shrink, but it may grow, depending on how long the shutdown drags on.

The department can’t use 2014 money to buy day-to-day items like parts, supplies and fuel unless they’re directly in support of ongoing wars or the protection of life and safety. So Defense Secretary Chuck Hagel has pointed out that many of DoD’s civilians will soon run out of things to do, and will have to be sent home again.

There’s also the case of the Army Corps of Engineers, where 35,000 civilians handling stateside civil works projects are continuing to work based on prior-year funds. But once those funds are expended, most of them will be furloughed because DoD has decided they are not covered by its interpretation of POMA.

“The work they do is very valuable to the nation,” said Robert Taylor, DoD’s acting general counsel. “But, in general, its services go to individuals and communities outside of the Department of Defense. It’s hard to see how all of those employees are providing support to members of the armed forces. I wish we could bring them all back, but it appears from the language of the bill to be outside of the scope.”

Hale said even though DoD is paying most civilians, the shutdown will continue to degrade the military’s ability to perform its missions the longer it lasts.

The civilian agencies DoD relies on for many of its day-to-day operations don’t have the benefit of POMA. Several training activities have been canceled, and military commanders in Afghanistan no longer have access to discretionary cash accounts. And most of the Pentagon’s attention has been diverted to managing the mechanics of a government shutdown.

“This is going to get worse,” Hale said. “I feel kind of a like a wind-up doll. We’re going to start to bend over, as we can no longer buy supplies and fuel for nonaccepted activities or because vendors won’t provide the goods and services. Please, we need to end this lapse.”

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