Transcripts For CSPAN Key Capitol Hill Hearings 20140612

You have no basis we have no basis to prosecute them in federal court. I find these statements very difficult to accept, mr. Secretary, given the status that these particular individuals had before they were captured. It is hard to believe that these individuals in these positions within the taliban government had no role in attacks on americans. So could you, mr. Secretary, speak to this issue and explain to the people i represent and this committee and those of us who are all across this country asking these questions, why you believe the release of these men was appropriate and it does not pose a threat to our National Security . Congressman, i think i have answered the question and i think i addressed as you quoted from my testimony. Let me start again. We recognize, as i said in my testimony and i think the answers i have given this morning, that there are risks. There are always risks. There are going to be risks in a deal like this. We had to factor in every circumstance that we could factor in. Our intelligence, where these guys came from, what facts we had on them, as you noted from my testimony, how big a risk would they be . How substantial could we mitigate those risks for our country, for our allies, for our citizens, our Service Members. We think we have done that. We think we have done it through a 12month pretty tight enforcement of memorandum of understanding. We know that after 12 months that is another deal. But factoring everything in we all felt, everyone was secure on this in the National Security council signing off on this number one and number two uniformed military, general dempsey that, in fact, we had substantially mitigated the risks to this country. And i believe that. I would not have signed it. The president wouldnt have signed it. Thank you, mr. Secretary. Let me move to a second aspect of the issue. I understand this is hard to predict. We have not been able to secure a bilateral Security Agreement with the Afghan Government. President karzai is on again off again. I was in afghanistan a couple of months ago. I was wanting to find out how our troops were reacting to this situation and particularly to the attacks, verbal attacks that president karzai has made on our troops and our country. We have an election coming up in just a few days. But my question is, do you have any sense of how the release of these detainees will impact on the ability for us to secure a bilateral Security Agreement with the new administration, whoever that might be . Clearly we have seen a lot of anger in afghanistan over the release and we wonder, obviously, how that might effect future agreements with the new afghan president. Congressman, as you know, the two finalists one will presumably be the next president of afghanistan. They have both said and both reaffirmed that they, if elected president , one of the first things they would do is sign the bilateral Security Agreement. I have seen nothing to change that. We have heard nothing to change that. I believe that commitment is firm from either one of them, from both of them and they have made that commitment. Thank you, mr. Secretary. Mr. Chairman, i yield back. Thank you, mr. Chairman. Mr. Hagel, Prisoner Exchanges in the past for instance after the korean war and vietnam war were done after a peace deal had been hammered out. The president recently said about the bergdahl deal this is what happens at the end of wars. How is what is happening in afghanistan the end of a car other than the president has made a unilateral decision to remove our forces next year no matter what the facts on the ground are . In other words, have we negotiated some type of peace with the taliban making this an end to the war . Well, first part of the question, congressman, i dont think anyone would have wanted us to wait if we had a chance to get bergdahl until the socalled war is over. We had an opportunity to get him. It was a fleeting opportunity. We did it. So the president was wrong when he said this is what happens at the end of wars . That is the first part if you will let me finish. This decision the president made, this wasnt a new decision. You go back to the lisbon nato conference of 2010 it was established that combat missions would come to an end at the end of 2014 for the United States. The only questions that remained up until about a month ago is how many is how many forces would the president decide to leave behind secretary so thats not new. Wasnt any arbitrary the administrations position isnt new, but i dont understand how his unilateral decisions bring in the taliban and make them a negotiating partner. Well, im not sure he said that about what you just said. Im not sure what you mean. After vietnam, after the korean war, Prisoner Exchanges were done when a Peace Agreement was signed. This is unprecedented to have a release like this before theres even a Peace Agreement. All thats happened is the president said were withdrawing forces, and the taliban are not a party to the negotiation the Afghan Government was not brought in on this, were they . This was a Prisoner Exchange, and, again, i dont think the American People would have wanted us to wait. If we had a chance to get our p. O. W. But you keep saying that this is a prisoner release. Its not a deal with terrorists releasing a hostage. This is a negotiated prisoner release with a legitimate type of government. I dont see where the taliban im not sure i get your point though, congressman. Youre saying this was not a deal with terrorists, is that correct . Thats correcright. The alternative is this is a deal with a legitimate government of some kind with a legitimate military that were in the process of hammering out a Peace Agreement. None of those things are happening. The president didnt say were in the process of hammering out a Peace Agreement. This was a Prisoner Exchange. I mentioned this morning in one in answer to one of the questions about you go back to the 2012, 2011 days, there was the larger scope of reference of reconciliation and maybe the taliban and Afghan Government getting to a Peace Agreement. Thats what we were talking about in 20112012. Taliban shut all that off, so this was a straight lets get our prisoners Prisoner Exchange. Was the Afghan Government brought in the loop on this decision during the negotiation . No. But you said earlier that this is an attempt to, among other things, reconcile the Afghan Government and the taliban. No, i didnt say that. You didnt say that . I said the opposite. I said this was not. I said in 2011 and 2012 there was a broad framework of reconciliation. That was 2011 and 2012. That has changed. That totally changed. Im just trying to understand how this is not a deal with Terrorists Holding a hostage. You cast this as a legitimate prisoner swap, and yet they are a terrorist organization. Were not the taliban have never been designated by us as a terrorist organization. The Treasury Department says the Pakistan Taliban is a terrorist organization. The Pakistan Taliban. And the state Department Says the Haqqani Network were talking about the afghani taliban. These are bad guys. Theres no question that theyre bad guys. Of course they are. And i laid that out and i have said that today, but, again, i go back to all the considerations that we put into play that substantially mitigate the risk to this country to get our p. O. W. Back. Thank you, mr. Chairman. Thank you. Miss shayporter. Thank you. Secretary hagel, thank you very much for being here and obviously its a challenging circumstance and i want to thank you for your service and say that you probably more than most people in this room know what its like to be in combat and could imagine what it feels like to be left behind, so i want to thank you for that very principled stand because we do have that policy and we tell our men and women that we will not leave them behind. So i want to thank you for that. I do have some concerns though, and one of the concerns is obviously the trade, and im particularly concerned about why five . Is that the minimum number that they would accept because looking at that, we got one, they got five, and we know that they are bad guys, like you said. And so i have some concerns about the number to begin with. Then im also would like to comment, and ill let you wrap up with this, but id like to comment about the reintegration process. One of my colleagues suggested that there was something going on that you didnt just quickly bring him back, but i do remember watching our p. O. W. S from vietnam coming back, and we learned a lot of lessons about dropping them right into American Culture after having been isolated for so many years. And so my understanding is theres a reintegration process and theres three stages and we have to allow the former prisoner to work his or her way through these stages. So i would like you to address that and also why five, and then id like to put my comment in that i do believe that congress should have been notified. I probably split the difference here between my colleagues. I understand why you might not tell all of congress because of the sensitivity and the timing and the risk, but certainly i do believe the leadership of congress should have been told. So anything else youd like to add to that, i still have three minutes and please tell me why theres five, a little bit about the reintegration process, and any other comments youd like to add. Thank you. Congresswoman, thank you. On the reintegration process, i think everyone agrees that the principal focus now on Sergeant Bergdahl should be his health. Maybe someone disagrees with that, i dont know. But for us, for the military, that is. Getting him healthy enough, his body, mind, spirit, and thats the point of a reintegration process. You know, your point about what weve learned since p. O. W. S came back from vietnam is an important point. Weve learned a lot, our doctors have, our Health Care Specialists have. Everybody is different to start with. Every situation is different to start with. So thats the focus. Lets get him healthy, mind, body, spirit, then well get on with the rest of it. The United States armed forces and his family agrees with this incidentally. We let the medical professionals make those calls. Let me add, this doesnt mean that he wont have to answer questions. There are important questions that need to be answered. Were just waiting for him to be well enough. Thats right. As i said in my testimony, both the secretary of the army and the chief of staff of the army has already said there will be a comprehensive review and there should be. Of all the circumstances surrounding his disappearance. And i thank you for that. Now why five . Ill get to that. One other point on that, i remind you again, youll have an opportunity to look at the socalled form 156 which does give a review at the time of his disappearance. It was signed off i believe in august of 2009. Thats up here at the committee. Now, the five. Okay. General counsel has asked i just before the secretary addresses im sorry, we wont be able to because my time is running out. I really would like the answer from the secretary but i hope we can talk about it i give shorter answers. Thanks. Why five . Well, first, i have addressed this in other questions about how did this all come about . It originally was six and we went back and forth over the years. They wanted all the taliban prisoners, the taliban did, wanted all in guantanamo and so on, and it settled at around five. The sixth detainee died. So thats part of it, but i think theres a bigger issue here, too. The American People, the american society, our armed forces, have never seen Life Exchange of just one for one. We put a value on our american lives as the most important thing. Not that other societies dont, i cant speak for any other society and i wouldnt try, but our society is every human being is important. So why wasnt it 20, why wasnt it 3 . The five started to be what the taliban insisted on. They wanted more, had been six, then they wanted everything. So i dont think theres any magic to it. Thats the way it developed, but, again, we dont put a one for one deal on our well, thank you. I just want to reiterate that you can trust congress to handle this. Time has expired. Thank you. I yield back. Mr. Whitman. Thank you, mr. Chairman. Secretary hagel, thank you so much for joining us today. Secretary hagel, let me go to the administrations own Guantanamo Task force report where they reviewed the files of these five detainees that were transferred and unanimously recommended in 2010 they continue to be held by the United States based on the specifics of their cases. The task force also said that it was conceivable with Adequate Security measures the five could be sent elsewhere eventually. In light of those recommendations that these detainees continue to be kept and that recommendation taking place when it did, can you tell us what Extraordinary Security measures can qatar offer today to allow for this transfer . Well, again, thats the essence of much of our mitigating dimension, why we signed off on the deal. Those assurances the first year. Congressman, again, i will say when we close this place down and go into the classified, well go into every one of those specifics, but i would tell you this, you may have already read the mou which we sent up here yesterday, and well be glad to take you down into the subparagraph six of each one of those to get to your question. But to go beyond my testimony here, i dont want to do that and if its okay, well wait. Let me go back historically then and look at the history of qatar and what theyve done in receiving detainees. As you know, the first transfer to qatar was in 2008, and was that one considered a successful test case . I believe, and i just asked our general counsel if we just had one transfer. Is that right . To qatar . To my knowledge. So weve had one. I dont know all the history of that transfer, although my understanding is it wasnt particularly good generally. So whats changed . Again, i addressed this here this morning. First of all, you have a new em emir. Weve got more presence, assets there. Their relationship with the area and with us is significantly changing. Now, are these absolute guarantees . No. I mean, there are very few absolute guarantees in life, as we all know. But i think a number of things have changed enough, significantly changed, to be able to have confidence in the enforcement that the emir told the president of the United States that he would personally see to that as well as the government. And if you follow down, as you did, through your reading of those mou requirements and then well get into details, we felt confident that that mou covered enough, but the enforcement was good enough. You did acknowledge there was an additional risk there in qatar taking those detainees, especially based on their past performance, so are you comfortable with that risk and does this willingness for the u. S. To accept that risk, does that now set the stage for the u. S. Transferring detainees to other nations who have not met obligations under previous agreements in accepting these detainees from guantanamo . Well, you said the right word, risk, and that is the essence of what were always dealing with here and the analysis that we made, the decision that i made, as well as the National Security council and ultimately the president , again i say we believed that all of this together could substantially mitigate the risk. Let me ask this. There is some concern, too, that of knows considerations given for the qatari government and what they will do to keep up with these detainees, is there an opportunity for these detainees to go to the qatari legal system to have these travel restrikctions lifted so under legal means they could have free rein to travel throughout qatar or elsewhere . Ill ask the general counsel. He signed the mou and i will ask him to handle that in particular, that question, because he negotiated it and signed it. Thank you. I think the question is best answered in the closed session, if you would indulge us in that respect. Let me close by asking this then. What happens to these detainees after a year . As has been said, the restrictions of the mou are for a oneyear period. That includes the restriction on their travel outside of qatar. So after one year so after one year, no restrictions. Except under circumstances that we would discuss in the closed gentlemans time is expired. Thank you, mr. Chairman. Thank you, mr. Chairman. Thank you very much, mr. Secretary and mr. Preston. I appreciate very much your service. Mr. Secretary, you said in your testimony that this was a well, first of all, let me just say that i think a lot of people have had very emotional reactions to this and what theyve seen about this with incomplete information, and i certainly think thats understandable, but these are difficult circumstances to judge, and we as elected officials and you as appointed officials have to put aside our emotions and political expediency in order to best use our professional judgment, and obviously what will be said in secret session also pertains to this. But what im concerned about now is the law and the notification of congress. And you said in your testimony, i believe you actually used the word unique circuits. Im a little concerned that this isnt unique. It might be rare, but not all that unique. Do you believe that congress hadnt thought this was a sort of issue that could come up when they passed the law . Should we amend this law if, indeed, these kind of, you know, very rapidly evolving situations occur where you would want to have the authority to do a prisoner transfer . First the secretary and then either one of you. Well, here is the way i would answer your question. First, it was an extraordinary situation, and maybe everyone doesnt agree with that. I absolutely believe it. The president believed it, National Security Council Leaders believed it. For the reasons weve discussed here the last three hours and actually more. So i think were on pretty solid ground in saying that this was an extraordinary situation. I think it also gets into the constitutional issues that we have discussed here this morning. The responsibilities of the president given to him through article 2 of the constitution, what are his authorities under that article. It doesnt discount what the Congress Passes as laws. By the way, this is not the first challenge to a law by a president , as has been noted here this morning. President bush, george w. Bush, probably signed as many signing statements as anybody. Executive legislative differences exist probably since the beginning of the republic, so i answer your question that way, too, and then if you want to hear from the general counsel. Well, actually let me just stick with it. I think you answered it fine, mr. Secretary. I am concerned though that there was an opportunity to notify the congress. I have heard some reports that 80 or 90 people in our administration knew. I dont know if you can confirm that or not. But sort of the answer that goes back to 2011, 2012, i agree with the chairman on that. That was a different set of circumstances. It was also, by the way, a different congress. I wasnt in that congress. And it does concern me that that many people knew and there wasnt some sort of a notification of congress. Particularly given that obviously the qatari officials knew. How are we to avoid the perception that this administration trusts qatari officials more than it trusts leaders in congress . Well, you may see it that way as a congressman, and i wouldnt question your perspective, but i would just say this. The qataris had to be a part of it because they were a part of it. They were doing the deal. We signed the memorandum of understanding with them. There would have been no Prisoner Exchange without the qataris. So not everybody, by the way, in the qatari government was aware of this. Again, presston was there. I dont think its a matter of we trust the qataris but we dont trust our own congress. I have already addressed this, too, in my opening statement. Could we have done it better, smarter . Yes. Yeah. I think my concern and im not sure if this would rest in your office or not, my concern is, okay, i understand the circumstances under which the department was not able to obey the letter of the law. My concern is whether the Department Even tried to obey the spirit of the law. Certainly not informing myself, rank and file member, but at least the leadership of the relevant committees that this was happening. Well, again, ill say and i know members of this committee dont agree with this, but in explanation as to why we did what we did, and again ill say one sentence, we were very, very concerned about the risk. We had a fleeting opportunity here. We were told there was a risk. The more people who knew about it, the more risk. I get that. I get why did you trust some in the white house and not here. I get all that, but your question, overall question about who knew and who didnt, i dont know about the 80 or 90 number. I can tell you from my responsibility in dod, very, very few people knew about this at dod. Gentlemans time has expired. Mr. Hunter. Thank you, mr. Chairman. Mr. Secretary, good to see you. I guess youve said there were better ways to do this, there were more precise ways to do it. I guess my first question would be, is that because do d was not in charge of this the entire time . Congressman hunter, im sorry, i just read a note. I would ask you to add 20 seconds back on. Take it out of my time. Im sorry. Was dod in on this the whole time . You have said before this could have been done better and im guessing that means if you were doing this from the beginning, this Prisoner Exchange, it would have been done better. Well, i appreciate the comment, but, yes, it was dod involved in this from the beginning . Yes, we were. Let me interject there then. We talked in february and i said because the state department had this option on the table and they had preapproval from the executive to go ahead with this Prisoner Exchange, this was months ago, you appointed mr. Lumps lumpkin as the osd representative to the bergdahl case. Yes. Which makes me think you werent heavily vested in this from the very beginning but that you did get vested in it a few months ago. No, thats not true. Youre right, lets pick up february. Youre right, we had the conversation. You know you had written me about this. I did appoint lumpkin who was the guy who oversaw the whole operation, as you know from dod, mike lumpkin. Congressman, this was so fast moving, everything you said is right. There was a break, and i have got the chronology right here i dont need that from you. What im asking is, did you have other options you looked at for approval or at least consider, nonkinetic options. You mean dod . You, yes. No. This was the one this was the only option you considered . The only nonkinetic option you considered . We consider everything and we are, but where we were in the time frame youre talking about in the scope of the reality here, this was the one option that we were all working toward that looked like the best. Thats what lumpkin thats why i appointed him to get into it. Youre exactly right let me ask again, did you have other nonkinetic options that you looked at for approval . Or at least consideration . Not anything that was serious. We look at all kinds of things all the time let me ask then, so you didnt pass any other courses of action besides this one for the president s consideration from the department of defense . If youre talking about this specific deal with qatar im talking about getting bergdahl back, just getting bergdahl back. No, this was the one on the table that was the most realistic, viable, and, no, we didnt present that im aware of anybody in dod present any other let me ask this thing. Why would the president approve or you approve only one course of action after seeing now selfadmittedly no other courses of action . I have never heard that where you only say this is the one thing that weve chosen to do and were not going to consider any other courses of action besides this one, and that means that the president didnt even have any other options, nonkin nettedic options from the department of defense that you recommended to him because you just said you recommended no other options but this one. Well, congressman, we werent holding all the cards here. You know, if the taliban wasnt ready to engage forget about the taliban. Im not asking that but they you have different courses of action. If i want to enter this room, i can come in through that door, that door, or the door over there. What youre saying is you didnt look at any other doors accept that one. You didnt consider any other options besides this Prisoner Exchange, and you only recommended to the president this one pathway . To get bergdahl back. Congressman, this was the only pathway that was emerging that was available. There was no other pathway unless youre aware of something i am aware actually, and these are not from special briefings so i can probably mention a few of them. You at dod, your department, working concurrent options with pakistan to get bergdahls release. You had other options that we know that at least people in your department had looked at. We wont go into those nonkinetic options, but it just astounds me for something this large you wouldnt recommend to the president any other course of action but this one and that the president of the United States would not have looked at other courses of action besides this one before he made the decision to approve this. Well, two issues here. One is do we always look at other courses of action . Yes, we do. Second issue, recommending to the president. This was the most viable, best pathway we could find, we knew that was active. The taliban were coming back. The qataris were telling us they were coming back, so we pursued that as the most immediate, viable, and possible option we had to get him back. In closing, i would think there were Better Options and i think that the president should have been better briefed by folks in your department that knew what those options were, and i hope that the dod and mr. Lumpkin takes a stronger role in trying to get the rest of the americans back that were forgotten via this exchange in afghanistan. I yield back. Mrs. Duckworth. Thank you, mr. Chairman. Mr. Secretary, its good to see you again and just want to say how great it is to see a member of the nco corps, the backbone of our military at the head of the dod. I served in iraq with a vietnam veteran e7 who went back over at 59 years old. Didnt make it home and he probably is smiling and cussing at me right now and telling me i better treat you right. Look, i think your background and the background of all of us who have worn a uniform and as you said been in combat informs how we feel about the release of Sergeant Bergdahl as well as how we feel about someone who abandons their post and exposes their buddies to attack by the enemy. However, its never been the practice of the United States to leave one of our own behind on the battlefield regardless of the circumstances of their disappearance. We do everything we can to bring them home. You dont leave them to be dealt with by the enemy. Its not who we are as a country. Its not who we are as a military. Now, that doesnt mean that there are not questions that need to be answered about the circumstances around his departure from his post, and i would hope that the military will take appropriate action to review the circumstances again and i have full faith in the leadership of the United States army and the uniform code of military justice to conduct a thorough investigation and to carry out any justice that the result of a subsequent investigation may warrant. That said, i wanted to ask you two specific questions. First, are there any plans by the dod or the department of the army to go back and review the circumstances of his disappearance and then if it is found that he did abandon his post, so he did desert, there will be an investigation, perhaps prosecution . Congresswoman, yes, and thank you for your service and to the other members of this committee who i didnt by name acknowledge, but i referenced as you noticed in my testimony, thank you for your service. Yes. As i noted in my testimony and a couple of the answers ive given this morning, secretary of the army, chief of staff of the army both indicated, did last week, that they intended a full comprehensive review of all the circumstances involved in the disappearance of Sergeant Bergdahl. The results of those reviews will determine if any action would be required based on conduct and based on the review. They feel strongly and i do, but im not going to get involved in trying to influence that. Thats the United States army decision, as you know how this works. They are open to get the facts, and wherever the facts lead then, theyll get them and they will respond appropriately. Thank you. Thank you. You have to ask me. Would the gentle lady yield, please . Yes, i would like to yield the balance of my time to the gentleman from illinois. Thank you. Mr. Secretary, you have a tremendous perspective as miss duckworth has alluded to with your background as a combat infantryman. Now, im sure that you weighed every pro and con in these decision in this decisionmaking process, and your decision was made in the best interests of this nation based on the facts you had as a whole, im sure. And its really unfortunate that the toughest decision that many of your critics have been making on this is as to whether or not they should run for reelection. Now, have you received a single or heard a single sound suggestion from any of these monday morning quarterbacks as to a better course of action that you might have taken in this decision . The coverage has been rather bare on that account. We have a lot of experts in this town especially, but as i said, and i appreciate your service, sir, im well aware of it, in this town its pretty easy or anywhere else to give analysis usually uninformed and criticize every decision. Thats okay. Thats the role everybody has. The country is built that way. Everybodys opinion matters and counts. Everybody has one. But in the end, as i said in my testimony, some of us are dealing with the responsibilities of having to make the tough choices. You make them up here in your votes, and i make them. And thats the way it is, and that will always be that way. So i just deal with it and i do the best i can and i do what i think is right for my country, and i dont have any problem sleeping. Thank you, mr. Secretary. I yield back. The gentle ladys time is expired. They have called the votes about six minutes left, but about 394 havent voted yet. So i want to thank the secretary. Weve gone over what we thought we would it would take, but its a very important issue, and this is the largest committee in congress, and everybody wanted to have their questions answered. The secretary has agreed, we will take one more question, then we will break for votes. I would encourage all who have not had an opportunity to ask a question that want to return. The secretary said he will stay for that, and then we will reschedule at a later time the closed session part. Dr. Fleming. Thank you, mr. Chairman. Secretary hagel, weve talked about this 30day notice. Yesterday the chairman told us that he received notification after Sergeant Bergdahl had actually been transferred. Im sure his Senate Counterpart received that notice at the same time. It was really a notice after the fact, and i listened carefully through all the questions, all the legalese, the technical, the spin, everything. Its clear to me that really what happened here, and this goes back to the question from the previous gentleman as to what else could have been done, has there been any other offers. My understanding is that back in 2011 and in 2012 when this issue was first brought forward that secretary clinton opposed it without additional measures and protections. And i believe also mr. Clapper and others as well, congress on a bipartisan basis pushed back on this. And so it really suggests to me that when this erupted again this past january, that the president decided he didnt want to hear no. All he wanted to do is to move forward, get it done, and whatever thing he could do here in terms of lawyering or end runs around congress or whatever i mean, its been reported by many different agencies that at least 90 people in the executive branch knew about this, but yet the chairman of House Armed Services did not know about it. So, i mean, isnt this really just an attempt by the president to do an end run around congress to not take no for an answer or not get some pushback and maybe a little bit of wisdom from people who have been around here a long time and have been elected. Congressman, the president of the United States, like every president of the United States, as you know, has not just Constitutional Responsibilities but moral responsibilities on behalf of every american, and his first responsibility is the security of this country, and i have never seen in the time i have known him, and i have known him since hes been in the senate and i have been in this job about 15 months, ever a time he flinched on that. You may disagree with decisions hes made but there was no political decision here. Now, on clinton and clapper, the director of National Intelligence has already made a statement on his agreement with this but he first opposed it, is my understanding. He did but he explained why he has changed his position. But let me as did secretary clintons situation was the same. It was a different world in 2011, 2012 for all all im saying is theres a benefit for more heads, more wisdom in this, and i think the president really didnt want to hear no. He wanted to do this no matter what. Lets go to number two here. He wanted to make sure we could get our p. O. W. Back but not no matter what. I understand. You all were driving this as the American People i didnt say no matter what. That wasnt my statement. As far as who had control of Sergeant Bergdahl, we keep hearing about the taliban, but the reports have all been it was the Haqqani Network. You yourself i think suggested that. We know the Haqqani Network is an International Terrorist organization. We all agree with that. And so ultimately just because we have a surrogate, in this case qatar, who is going between who is acting as an agent, how is that not negotiating with terrorists . Well, first, lets look at the objective here. Its to get our prisoner of war back who was a prisoner of war. He was a prisoner i get that but, again, arent we violating a commitment, a doctrine, that weve had for decades by no. Doing that . No. How is that not negotiating with terrorists simply because we put someone in between, how is that any better than direct negotiations . We engaged with the government of qatar wouldnt the outcome be the same . The other end of it was the taliban, a combatant against us in war but still surrogate nonetheless. Would the outcome have been any differently if we talked directly with the ha can ni you and i disagree on that. I dont think it would and i dont hear you saying it would be any different. But anyway you didnt hear me say what . I didnt hear you say it would be any different. Youre saying you didnt know and i didnt know what . What are you saying . That the outcome would be any different whether we talked i didnt say that. With Haqqani Network not at all. We were very clear who we were talking to and why and following the law. Thats what i said in my testimony. I have said it all morning. Okay. I yield back. Thank you. Gentlemans time has expired. Okay. We will recess for the two votes. I would encourage the members return as soon as poss you, it wouldfor be helpful for if you would review as you could the number of people who within the department were aware of the momentelease of Bowe Bergdahl was released and transferred. Thank you. I appreciate your comments. First, i dont have the exact number of individuals within the dod who knew about the operation. I mentioned specifically the dod. This was ongoing as the days , eachou know, the time on day there had to be some more people brought in. Had toou had to just estimate, how many . Seen. Number that i have i just dont know. We kept it at a very small number. I appreciate that. Just suffice to say, it kept it a very, very small number. I appreciate that. Whats largely in the Public Domain has made it clear to me that a number of people, certainly more than 25 or 30 im very safe with that certainly on the dod side, perhaps when you come back and tell us in a definitive way how. Many. But the point of is it is this, is that if we look at the 30day requirement, which is the law of the land, even if one sets aside a separate interpretation of the 30day requirement, even if one gives the benefit of the doubt to the testimony that youve provided here today and what other Administration Officials have provided in public statements, i remain convinced that really no effort whatsoever was made to comply, not only with the letter of the law, but even spirit of the law. I do not understand why no effort was made whatsoever to pick up the phone and to call a committee chairman, either on the house or the senate side. To me, it seems like a repudiation and really a slap in the face to this institution, this equal branch of government. And i do not understand, even though ive listened carefully to your testimony and that by other officials. What compelled you to move without picking up the phone . Well, as i said this morning a number of times, we felt that the fleeting opportunity to get this done required an absolute minimum in people who knew it. I also said that if we had an opportunity to come back around and do this again, we didnt handle some of this right. So i get that. Ive taken exactly what you said. But, the reason we didnt let anybody know right up until the end is because of what i said, we were concerned. We really did believe that the risk was so great, just one thing getting out. And i understand your point of view. Mr. Secretary, i was, and remain, convinced that you exercised your best judgment. I dont question that. I do believe that damage has been done to the governance aspect of this, to whatever trust and confidence there may have been in the administrations commitment to complying with a law, a statutory requirement. And i think it might yield and result in something from this institution that i think there ought to be some formal condemnation of it, frankly. But i appreciate your service to our country. Indeed i do. And i yield back the remainder of my time. Thank you. Thank you, Ranking Member smith. Thank you, mr. Chairman. I want to revisit the issue of the threat these five taliban present. I think youve been very straightforward in saying, without question, you knew there was risks. And as always, if you simply look at one side of a deal, its not going to look good. But the issue was, can you get Sergeant Bergdahl back and how do you balance the risk of that. I think this committee needs to be careful to act like we got nothing out of this. We brought home one of our soldiers who, based on what i have seen, was in very, very poor health, was in a very dangerous situation an we met that obligation. So we got something for this. Thats not to say that releasing these five taliban came with no risk. Of course it came with risk but i think that risk has been greatly exaggerated. At one point, one member said it was like releasing 10,000 fighters which is the type of exaggeration that isnt particularly helpful. These five guys, as i understand it, were mid to highlevel commanders in the taliban. Theyve been out of the loop for 12 years. Presumably in that time frame the taliban had replaced them, frequently. Now this is five more that probably after a year will go back and help the taliban. But how, out of the thousands of taliban that are actively working against the Afghan Government in afghanistan, and also, theres no real evidence that these five were part of attacks against the u. S. Homeland. They were part of the taliban government. They were interested in toppling the Afghan Government. But where is the evidence they are interested in plotting attacks against the u. S. So can you revisit a little bit how much is that risk . Admittedly, without question, did you release these five guys, theres risk. But how much risk, in your assessment . Congressman, thank you. I ask the dni, general clapper, to give me an Intelligence Community assessment of that question that you asked me to come back to me with the best assessment they could give me, recognizing first we start with, there is risk. We get that. Im going to read to you three sentences what i got back this is, i think, unclassified, so i think were fine. Theres more classified. But this is one observation. This is our Intelligence Community, total. Threat, if returned to afghanistan or pakistan. One. Should these five detainees return and reintegrate with the taliban, their focus would almost certainly be on taliban efforts inside afghanistan. Not the homeland of the United States. Second, a few new taliban leaders. No matter how senior, will not appreciably change the threat to the afghan people, to the afghan army, but most importantly, for us, to our forces. Just again go back and note, will not apreeshbpreciably chan threat. This is the Intelligence Communitys latest report to me. Third point they make is a point i made this morning in pointing out the significant progress of the afghan military, the army, has made other tover the last fw years. They say the same thing, afghans future will depend more on accept outcome to the second round of president ial elections. How Afghan Security forces perform against the taliban over the next 18 months and continued external donor support that allows kabul to fund civil and security functions. So does that say theres no threat . No. But we have as never said that. But this is the best, most recent assessment from our Intelligence Community. Thank you, mr. Chairman. Thank you, mr. Chairman. During the 20112012 consultations with Congress Regarding a larger deal with the taliban, the secretary of state, then secretary clinton, told the National Security chairman in writing and verbally that if detainees at gitmo were transferred, this was not an exchange, but rather these taliban detainees would only be released as part of a larger diplomatic process. She identified a number of prerequisites to this deal over and bofr tabove the security assurances from qatar. In addition to the release of Sergeant Bergdahl, which of those other prerequisites were met. Well, first i start with, this is really the answer to the general clapper issue which he had to same position, as you know, as secretary clinton in that year. But because things have changed, general clapper has supported, signed off, on this deal. One, the whole dimension of afghanistan today where the afghan army is, where the Afghan Government is thats first. Second, the assurances, written assurances that we have, from qatari government, particularly the emirs specific personal commitment to the United States, a change in leadership in qatar. These are all differences that were not present in 2011 and 2012. Also, the framework and ive read the letter, by the way, that the secretary sent. The framework, you recall in that letter, as i mentioned earlier this morning, was a larger reconciliation piece. Not that bergdahl was incident aal to that, but bergdahl was not the core of it. This time bergdahl is the core of it. So those are some of the differences and the changes that are pretty dramatic. And in fact, why general clapper signed off on this and supports this decision. What i would like to know is, what else did we get for this deal . Im not minimizing the impact of the sergeant himself. Well, start with the sergeant. Well but what else . I mean you mean reconciliation there were other things talked about in that letter that was hoped to be secured as part of an overall deal. But this was not an overyaal deal. This was a Prisoner Exchange, versus 2011 and 12. What the framework was, was the intent was, what the objectives were. Those objectives were far wider and wider at that point. At the briefing on monday the question was asked whether any money was exchanged with qatar or with other people for this deal. And the answer was, no money was exchanged, but it wasnt clarified with who. And if there was anything in addition. The question wasnt answered whether there was anything besides perhaps money discussed in this. So did the taliban or any of the individuals involved receive anything from our government other than no. No. Okay. At the housewide member briefing monday night, the same briefing, tony lincoln was asked if this agreement makes american men and women if uniform and other officials stationed abroad safer. I recall his response to be the agreement wouldnt make americans safer. But thats a law that didnt require the administration to assess that. So do you believe that our military Service Mechanical bers around the worl Members Around the world, not just in afghanistan, are safer because of this deal . The way i would answer is this way. First, the objective it was to get our p. O. W. Back. That was the objective, and we did. Mitigating risk and so on, which youve heard this all morning. But to your specific question, when you look at first now we have no p. O. W. That means there are more resources that we can apply in other areas in afghanistan in particular. I think for our military i mentioned this this morning. For our military to know that well come get them if theyre captured, regardless of the circumstances, it may not translate into direct safety, but i think thats pretty significant. Plus, getting our forces more of their own capacity to deal with what theyre doing in afghanistan without, quite frankly, some restrictions that did inhibit some because we knew every day we were trying to find ways to get our p. O. W. Back. I think, again, when you add all that up, thats pretty significant. Thank you. Gentle ladys time expired. Mr. Secretary, i believe that these are likely already included in the letter that i wrote to you but a cull of documents have been mentioned here today and id like to specifically request, if i didnt already, copies of those. The doj guidance to the ndaa that mr. Preston was talking about, and the odni assessment that you requested that you just were referring to on the threat posed by the five detainees. Please. If theyre not on that list, if you can add them. We will include them. Thank you. Thank you, mr. Chairman. Good afternoon again, mr. Secretary. Mr. Secretary, retired marine general james mattis, former chief of u. S. Central command, said on sunday that the prisoner swap for Sergeant Bergdahl will give the United States military more freedom to carry out missions against the taliban and the Haqqani Network. He went on to say that u. S. Commanders in afghanistan always lived with the concern that bergdahl would be killed in retaliation for a u. S. Offensive against the taliban. Im quoting here, we no longer have that concern. They have this pawn they can play against us. It is also a military vulnerability the haqqanis now face the taliban now faces because they no longer hold a u. S. Soldier in captivity. Now, to me, as a veteran of just over 35 years service, that means, to me, that the United States military has increased its operational effectiveness. Mr. Secretary, would you agree with general mattis assessment and would you agree with the assessment this has in fact increased our operational effectiveness, and thereby, effectively rendered u. S. Military personnel safer worldwide. Well, those of you who know general mattis know that you run a risk if you disagree with him. I have the greatest respect for general mattis and i agree with his analysis. Everything that you laid out. Im glad you said those things on sunday, because they are not things that have been said throughout this ten days, or less, and they are important factors as to how they affect our military. And i believe theyre real, and i think his specific points not only are accurate but they come from someone who knows a Little Something about this business. Thank you. Hes not a member of the administration. Hes now retired, is that correct . Hes an independent retired fishing and hunting now somewhere are. Thats a wonderful thing. I look forward to that day, mr. Secretary, as im sure you do. Mr. Secretary, ive seen the proof of life video of Sergeant Bergdahl, as im sure you have. Its currently classified. And my question to you is, sir, after having viewed that video, is there any doubt in your mind that his health and mental state was in very, very serious condition . There is no doubt in my mind. I rendered that analysis not as anyone who has any medical expertise, but i listened carefully to what our Health Expert did say, our intelligence people, and then just looking at the past videos of him versus that video. It was pretty clear to me that his health was deteriorating. Mr. Secretary, theres been some previous questioning about the risk future risk potential future risk to american Service Members if they were to have to recapture these five individuals who were swapped. In the prisoner of war exchange. Is there any evidence whatsoever that any future risk for those five is any greater than the 532 folks who have previously been released by the Bush Administration or, for that matter, the 88 that have been released from the obama administrati administration, a total of 620 prisoners. In one word, the answer is no. One final question for you, mr. Secretary. Sergeant bergdahl, when he was captured, was a private 1st class. Correct . For those who are not familiar, that would be an e3. And today he is a sergeant, or an e5. So hes been promoted twice by the army during his period of captivity. Isnt that correct . Thats correct. Were there overwhelming evidence, or any evidence whatsoever that he had done something wrong, would those promotions have taken effect . No. As i said in my testimony, it was never any charge brought against by the United States army against Sergeant Bergdahl. So its clearly a rush to judgment against this young man. Well, i think it is. As we all know, and i said, the United States army is going to conduct a police complete revil the circumstances once Sergeant Bergdahl is back and he can speak for himself. Thats appropriate. And that will happen. Thank you. Thank you, mr. Secretary. I yield back. Thank you. Mr. Secretary, i know that one of the issues thats been addressed, or that you have addressed in regard of lack of notification to this body was the concern about potential leaks and the impact it may have on the operation. Can you tell me, was that concern over leak so great that two also prevent limited notification as is allowed to the gang of eight, the leadership of both of majority and Minority Party in both chambers as well as the chairman and Ranking Member of the relevant committees . Yes. I know you werent secretary defense at the time, but was there any less concern i know you mentioned that part of it was the potential for an adverse effect on the safety of the operators who were going to execute the operation. But was there any less concern over the safety of the operational personnel who are actually known to be going into a kinetic operation in the Osama Bin Laden caper . Would there be any less concern about leaks and their safety . I wasnt there but youre right. There were i know concerns about that. And it is equally risky, both operations. But this one was different though. We had some much more control, quite frankly, over the Osama Bin Laden exercise, and that operation was more within our control. This one was not. As i said, we didnt even though where i i understand that, mr. Secretary. But in the Osama Bin Laden raid the gang of eight was notified and there was no leak of information. I know. I know. But what im saying congressman, there was actually more risk in this because we had far less control over this in case something leaked out. Moving on to another i appreciate your answer. Thank you. Moving on to another question, obviously this issue of the exchange was brought to a sufficient level that it was addressed with congress in the 20112012 time frame. You said there was a growing urgency, the need to act swiftly. Thats one of the reasons that we werent necessarily notified. But had the issue concerning looks not necessarily been an issue, would you not agree that after you received the january video, proof of life video, that escalated reentering negotiations, that that might have been a time where perhaps congress could have been informed . Yes, that might have been. As ive already said, if we had a chance to redo this, congressman i understand, secretary. That seems to be an apparent pattern this administration is always coming back after something happened saying if we had a chance to do it all over again, wed have done it differently. Well, thats the answer to this one. I appreciate that. Likewise, i would say after you received the qatari warning that the window may be closing would have been an opportunity, in early may, to come and notify at least the gang of eight. Well, ive been over this before. Again, if we go back and replay everything. But again i say the risk we felt was so great that any leak we were told this by the people we were negotiating with. We were warned about this. So, yes, it was a judgment call. We might do it differently again but i dont know. But the risk was still no matter what, overwhelming for us because we thought we had we were told probably one shot at getting bergdahl back. And it was a rapidly evolving opportunity that could close as well. I would just close by making a statement or asking im not sure, were you familiar or have you seen the letter from various chairmen of jurisdiction to secretary of state clinton and her response back in 20112012 . Yes, i did. In that 2011 letter to thenstek clintthen thensecretary of state clinton, there was significant nonconcurrence. Yes. So my concern is, how much of that letter and the potential for pushback from this organization actually influenced the action not to provide timely notification for fear of being able to ask for forgiveness rather than permission and come back after the fact and say, if we had had a chance to do it all over again we would perhaps do it differently . Im not sure what you mean by pushback with this institution. You know that in 2001 when this was first contemplated the Ranking Members and chairmen of the appropriate committees did not concur with the swap. But yet understanding that the environment has changed, perhaps there was a concern by the administration of coming to notify for fear that that same oh, i see. Pushback would have been i understand what youre saying. Well, i just answered, as you heard probably my answer here, miss hartzler on this. Complete change in environment, dynamics, realities, objectives from 201112. But i can tell you from my perspective and what i know and i know a lot about it was involved only on this deal. Cant answer to 20112012. But it wasnt because we were concerned that somehow the congress wouldnt go along with it. Ive given you the reasons why we made the decisions we did. Thank you. Thank you. Thank you very much, mr. Chairman. Mr. Secretary, mr. Preston, thanks for being here. Mr. Secretary, thank you for your service, both in uniform, here in congress and as you continue your service now to our country. Like you, im a soldier and understand at the core of my being that principle of leaving no man behind. Along with that principle goes another, which is i will always place the mission first. And that mission National Security and the context that that provides to this whole conversation is really where id like to focus and where i have the most concern. You have ofs mentioned earlier about the assurance to Service Members that regardless of circumstances, they will not be left behind. Your words. Regardless of shishcircumstance they will not be left behind. I think that is an issue to call into question, because there are varying circumstances. We were told i think possibly today but in a briefing yesterday on monday, rather, a that if this were a deal to be done, exchanged with the release of Khalid Shaikh mohammed, the deal would not have been done. So the circumstances do play a role in this based on that mission of National Security. So with regards are to the five taliban detainees who were released, your statements from dni director jim clapper, id like to address that directly, because weve had some issues with statements with jim clapper before congress previously on a different topic with regards to his statement that the nsa does not collect data on americans, which he later admitted to be, in his words, the least untruthful answer. It was not a truthful answer. So id like to point to the Guantanamo Review Task force that was done where it was stated that these five individuals specifically, pose a high level of threat that cannot be mitigated sufficiently except through continued detention. Im wondering what has changed from the time that this assessment was made by this president s appointed task force of military officers, federal prosecutors, fbi agents, intel analysts, and civil litigators, that has changed . Well, congresswoman, thank you for your service first. A couple of things. One, obviously is the reassurance that we got from qatar which we have gone over in some detail. Second, more to the point of i think that im sorry. Qatar is not detaining them though. They are not the reassurance from qatar that oneyear i dont know if you had a chance to look at the mou on this on the things that they would enforce so that these five transferred detainees not leave the country, so on, and so on, and so on, which we covered a lot this morning. Thats one big thing thats changed to give us some assurance, United States, that these five detainees we would have some control over them. Second, to the point that you made about the commissions recommendations, i think that the commission started in 2009. Three years has passed. We looked at comments made by guantanamo guards, others. Now im not saying or implying that these five individuals all of a sudden transformed into st. Francis. Thats not the point. But the circumstances change in many ways. We felt, again, as ive said here this morning, that when you take the totality of all the new dimensions the environment, reassurances, so on, and so on, and what i just i dont know if you were here when i just answered congressman smiths question about the intelligence committees reassurance and their evaluation of how dangerous these five detainees would be if they went whaback t afghanistan and joined the taliban. Thank you. Before my time runs out, i want to just make one quick point that the discussion of them returning to the battlefield seems to imply that return would put them as foot soldiers with boots on ground. We are talking about the five most senior taliban leaders they werent the most senior who were detained. Who were detained. They can become operational without having boots on ground in afghanistan. We will have troops on the ground for the next couple of years, according to the president s plan, and thats really where my concern lies. Thank you very much. Thank you, congresswoman. We have the same concerns. Thank you. Mr. Scott. Thank you, mr. Chairman. Secretary hagel, at the start of the committee you made a statement that said the Justice Department said the president has Constitutional Authority to essentially do this deal and ignore the 30day requirement in the law in this case. Is that dy hear that correctly . Someone asked the question i think on what basis the president made a decision and what authority he had. I think my response was very similar to that. Could we get a copy of the letter from the Justice Department that says that the president had that authority . Sir, we received a request for that and were taking that back. Its not entirely within our control. Thank you. And i look forward to see you that. Mr. Prescott, you are an attorney. Yale and harvard. Which provision of the constitution would allow the president to ignore the law . The president has authority under article 2 and has a duty and responsibility to exercise that authority. It is not a matter of ignoring the law, it is where the exercise of his Constitutional Authority is intention with the statute, where in this case his duty and authority to protect Service Members, to protect u. S. Citizens abroad with the application of this particular provision in this particular set of circumstances would interfere with the exercise of authority, then the statute yields to the Constitutional Authority either as a matter of interpretation or through the application of separation of powers principles. So is it article 2, section 2 then that the Justice Department is using to justify saying that he does not have to comply with the law . Its his authority as commander in chief and chief executive. Article 2, section 2. I believe thats right. Under what other circumstances would the Justice Department potentially eric holder, simply tell the president that he did not have to comply with the law . I wouldnt really be in a position to answer that question. I think thats the key concern here for most of us on the committee, is that if the attorney general can simply give the president of the United States, who appointed the attorney general, a letter that says, mr. President , you dont have to comply with the law or the constitution gives you the authority to ignore the law, then that is the law of the land under which the president operates, seems to be in clear violation of what our forefathers gave us in the system of our democracy where you have a house and a senate and the president. The house and the senate both pass pieces of legislation. The president signs that law signs that making it the law, and now he can get a letter from an appointee of his that says, mr. President , you dont have to comply with this. Which leads me to a bigger concern in what you said at the start which was that today this country has had, and has the authority to hold detainees that would potentially change in the future but it would not necessarily change at the end of 14 when we essentially declare were no longer engaged in hostilities in afghanistan, but that that would continue as long as we were in a conflict with the taliban and al qaeda. And i guess my question then is, thats your opinion. Correct . Thats my understanding of how the International Law principles apply. Yes, sir. And i agree with you. But if we follow the same train of thought and action which they use to determine they did not have to give the 30day notice, the attorney general could simply give the president a letter and say, you dont have to do this, and he could release everybody. And thats where thats why were here. The law requires 30 days notice and the idea that eric holder or somebody at the Justice Department can just give the president a letter and say you dont have to comply with the law, thats simply ridiculous. Well, let me just say in general, the role of the department of justice, among them, is to advise the president on the law. I wouldnt be in a position to talk about the content and i cant agree with your characterization, but that is normal process for the executive branch, for the president to receive advice on the law in the execution of his constitutional and statutory responsibilities. This law is extremely clear. The law requires 30 days notice and the idea that eric holder can give him a letter saying you dont have to comply with the law, then that becomes the law of the land, is a clear violation, separation of powers. Mr. Smith . Thanks. Just following up on that just really quickly, under the Bush Administration, there was warrantless wiretapping authorized, there was indefinite detention. Post9 11 there was a whole host of things that were clearly against a wide variety of laws. And the president and Vice President s justification at that time was that the constitution gave them those powers given the circumstances. I dont recall any outrage on the right. I recall a great deal of outrage on the left. I recall a number of folks on the left, including one memorable gentleman who wouldnt let me go at the gym about the fact that i was unwilling to impeach the president over this. But this is not even remotely unprecedented. Be and i just wonder if you can comment on that from a legal standpoint. The constitution is a law. And now i disagree at first glance with the interpretation that you made here, but it is not unprecedented. Walking through what president bush did, he justified an endless array of things that were clearly contrary to u. S. Law based on had his interpretation of the constitution and on a much smaller, more narrow scale. Isnt that exactly what you guys are doing . I mean i dont agree with it, but it is far, far from unprecedented. Congressman, i wouldnt be in a position to comment on what the Previous Administration did but i think your point is a good one, that in the exercise of the president s article 2 powers, hes called upon to make judgments about the extent of those powers and thats precisely what he does. There will be occasions where are the statute tore law is intention with the constitutional provisions and there are canons of interpretation that call for interpreting the statute so as to avoid a conflict, but where the conflict cant be avoided, then the constitution reigns. That is not uncommon and has happened in the history of the presidency. First, if i may, if that interpretation had been handled by for mr. Mcintyre. Thank you, mr. Chairman. Thank you, mr. Secretary, for your strong commitment an service to our country. In light of these recent questions, i know its been a long hearing, i just want to clarify for the record again as we are coming toward the end of this hearing. On page four of your testimony you say, i quote, consistent with previously congressional briefingin briefings conducting our intent with these particular five individuals. Now in that quote it sounds like you are saying that this or it is implying that it met the requirements of notifying the appropriate committees of congress at least 30 days before the transfer or release of guantanamo detainees. Yet in the next paragraph, again quoting your testimony, you state, i fully understand and appreciate concerns about our decision to transfer the five detainees without provides 30 days advance notice to congress. So in that are you stating and admitting that the 30 days advance notice was not met . No. That wasnt the point of why i put that in my statement. The point was, it gives some frame of reference of the history of this issue, and in particular the five taliban detainees that had been discussed. It wasnt anything more than that. If i was unclear, then i cleared it up. Youre just saying you understand and appreciate the concern but you are not stating that in fact you did not meet that 30day advance notice. Well, we didnt meet the 30day that was my point. So that you stated you did not meet that. Yeah. All right. Then, i want to clarify that youre saying exceptional circumstances and that was the phrase used in your testimony, allowed you to construe that it was not necessarily to follow the law as stated by the National Security Council Spokesman Caitlin Haden on june 3rd. I quote from Caitlin Haden, notification requirements should not be construed to this set of circumstances. Thats your strong opinion today. Correct . Well, i agree. Think that was probably the core of this conversation and exchange between congressman scott and mr. Preston on the authority the president had. And i agree with that. Im just trying to clarify this. Then for future reference, is it your opinion that the administration would have this same liberty to disregard or to construe that it is not necessary to follow the 30 days notice in future similar situations . The way id answer i actually answered it again this morning once or twice is that first, the Constitutional Responsibilities and authorities the president has, which i happen to even though when i was in the senate i would challenge the administration at the time on some of this. But i think that in my opinion, the constitution is clear on that. When there are extraordinary circumstances and situations regarding the security of the American People or a Service Member or citizen, i think the president has the authority to act. All right. So it would this decision then in future situations that may be similar you believe would always be subject to the administrations interpretation of the situation on an ad hoc basis. Well, i think thats probably right but i dont think, congressman, anyone wants to ever tie their hands of the commander in chief, of the president of the United States, on an extraordinary situation. I dont think thats what was intended. Im not a lawyer but just the practicality of the responsibilities a president has. Regardless of the party. No. No, i understand that. Im simply trying to again clarify for the record. So in a similar situation in the future then in light of your statement you just made we would intend to continue to comply, as we have in almost every circumstance with that 30day notification in the future on any future transfers. But again, i think any president has to have that power, that authority which i do think is in the constitution to deal with extraordinary cases. That was the clarification i wanted. Thank you very much. Thank you, mr. Chairman. Thank you, mr. Chairman and secretary hagel. I want to thank you for your service. I had a brother in vietnam right around the same time you were. So i appreciate what youve done. Youve mentioned a couple things today and ill get to it in just a second but does the department of defense consider taliban detainees at gitmo prisoners of war . Let me ask the general counsel to give you the specific answer. Because that was the basis of what we had the prisoners exchanged on. So are they classified as prisoners of war . They are not they are not technically prisoners of war. They are detained what we would call unprivileged belligerents. And as such, they are entitled to the basic entitlements under common article 3 of the Geneva Convention s. But they do not enjoy fullup p. O. W. Status and all of the protections of the third Geneva Convention. It is a little technical but they are detainees in Armed Conflict. But theyre not classified as a prisoner of war. They dont meet the Legal Definition for prisoner of war. Mr. Preston, i think the administration has referred to this as a Prisoner Exchange. But the Administration Never classified Sergeant Bergdahl as a prisoner of war. Thats, as i understand it, for two reasons. And again, they tend to be technical. One is the term prisoner of war relates to a combatant detained in the context of an International Armed conflict whereas Armed Conflict with the taliban is characterized as a nonInternational Armed conflict. Other thing is a prisoner of war under the law governing prisoners of war is someone who is laufl awfully held. In our very strong view he was not lawfully held but he was held in the context of armed combat. So really doing a Prisoner Exchange is probably not the correct term the administration should have used. But, regardless, youve heard a lot here obviously i certainly dont want to secondguess you in regards to the recovery of Sergeant Bergdahl. But i do have concerns about the administration any administration basically going to an attorney and giving me an opinion that allows me to operate outside the law. Had this was passed specifically because of concerns that congress had in regards to prior notifications about these five. I know miss gabbard brought up, these werent just trigger pullers, these were planners and organizers. And while they may have been out of the mix for 12 years, what they do bring and i think you will agree with this they do bring some level of expertise, particularly in regards to the fact that theyre highly reveered amongst the taliban with so youve just increased their operational at least morale. Would you agree with that . I would say that the department of justice provides to the executive its legal guidance. The decision is made by well let me ask you this. Secretary hagel, you mentioned this, that if you had to do this all over again theres some things that you would do differently. What would you do differently . I havent spent a lot of time thinking about it, quite honestly. Well, you mentioned it a number of times. No, heres the way i said it. I said in my testimony i dont know if ive ever made any big decision on anything where i wouldnt go back maybe and say well maybe i could have done that better. Congressman, i havent spent a lot of time inventorying what i would do differently. Weve got all the things coming at us. But what im saying is, sure, if we had an opportunity to go back, maybe we could have handled this differently, should have handled it differently. I mean you could have notified congress. Well, theres because otherwise what youre Say Something you dont trust congress. Im sure thats not what youre saying. I had a Little Exchange on that earlier this morning im sorry i missed that. Well, i was told by one of your members that i said that, that i dont trust congress. I know. Im not saying that you i didnt say that. Which i would never say that. But but the actions would look as if the administration does not i explained it. I get it. I understand it. I said it. I told you may not agree but why the decision was made the way it was. But i understand exactly wlaurs saying. Thank you. I yield back. Thank you, mr. Chairman. Secretary and mr. Preston, were charged with the responsibility of providing security and defense for this country, as well as you. And we take that oath. You said earlier i know the trust has been broken. And i appreciate that you recognize that that has happened. Its really disturbing to me, i have a track record of being trusted by my government. I served in iraq. I had secret clearance. I knew what battles were coming up so as a surgeon running a cache i could prepare for what may be coming our way. It bothers me that im not trusted now that im here. It bothers me that youre afraid that i would provide a leak with my record of service. And i think that stands for many others here. And if thats not even considered, its really bothersome and should be to the American People. But im glad what i was in uniform i was trusted to carry out my mission as opposed to here by this administration apparently. And you had mentioned that everyone is unanimous on the plan. I wonder if they were unanimous on the premise itself for this exchange, because theres a difference between being in favor of what were doing and approving the plan once its decided that were doing it. Id be curious to know about that. But during the course of this, i wonder did we promise any retaliation if our soldier was harmed in any way . Did we let our enemy know that if this soldier was harmed in any way, that there would be retaliation of some sort . If the taliban in the negotiations, if ill call him by name Sergeant Bergdahl. If harm came to him under their care, would there be any retaliation from the United States of america . Well, let me ask steve preston. He was there during the negotiation. I would say, sir, that in the discussions of the exchange, the focus was specifically on the logistics so no is the answer. You did not say, if you a harm him in any way it was to minimize the chance of harm. Obviously we didnt say that there would be some retaliation if he was harmed. Now secretary, you before said that he was a p. O. W. You said that here today that he was a p. O. W. Now we are hearing it is a different name. So do we know, did his captorsed a headhere to the Geneva Convention like we do . When i referenced him a p. O. W. , he was a prisoner of war. He was a prisoner, of war. Im okay with that. The technicality of what general counsel is talking about, thats why i asked the general counsel to make sure the technical to my question, do they adhere to the Geneva Convention as we do . I think it remains to be seen how he was treated. But theres a serious question. I appreciate that. Are you familiar with our policy of compassionate release of detainees . Either of you . If youre not, i can inform you because i served as surgeon at abu ghraib prison in 050 6. For some of our worst enemies, if they were to be fatally ill, wed release them to their families. Called a compassionate release. This is a policy of the United States. Did we ask them for a compassate release fin deed our soldier was so sick that we had to move so quickly, did we ask them for a compassionate release in the manner that we perform as the United States of america . Not to my knowledge. Thank you. So we do i might add though, congressman yes, sir. The taliban, as you know, you have some experience, which i thank you for that service. They dont play by the same rules. Thats my point. That is exactly my point, mr. Secretary. I thank you for verifying for the case im trying to make. We play by a set of rules as a decent people. And we are not dealing with decent people here. Yet we acted as though we were. And we acted as though we were releasing decent people. And we are not. And i would ask you, does anyone here really think that the world is a safer place after weve made this trade . And i want to ask one other question. We have five american casualties yesterday. What if one ever those was captured . By the taliban . Would we be back in qatar at the negotiation table . Well, you know. You served. You heard all morning, we dont leave anybody behind. We do what we have to do. Theres several ways of not leaving someone behind. Well, thats right. But you dont send them chocolates and say send them over. Tough business. Tough business. I agree. Thank you. I yield back. Miwalorski. Is the administration considering other taliban deteen yaez previously considered not a candidate for release . Were also assessing possible detainee right. But ive got a New York Times article right here that talks about six being considered right now to go to uruguay. So you are then considering additional transports and transfers of these other detainees at guantanamo . Were always looking at this. Its not new. I know. Im very aware. This administration transferred far more than the Bush Administration. Are you looking at afghanistan im not going to get into the security arrangements here. Just hypothetically, if youre releasing anymore afghan detainees, are they going directly back to afghanistan after the International Law expires and we no longer have, as mr. Preston was saying, in a year when the International Law expires that were holding these detainees under, do they go right back to afghanistan . Conceivably . Could they . Im not going to respond to any specific actions. But counsel may want to. I may have misunderstood. I did not i dont believe i said that the conflict would expire at the end of the year. Just with that clarification. You made a comment about the International Law theyre being held under by which were actually detaining them. Right. As belligerents in an Armed Conflict. And that goes on if were completely pulled out of the conflict and are no longer involved except for minimal troop level or in 2016 when were completely pulled out there will come a point in time where the conflict ends. If there is not an alternative basis for which to hold them, the law of war basis would no longer be available to us. Right. What is that point in time . Is that point in time when we pull out our on the drop date that the president made, say by the end of 201516 were going to be completely pulled out, theyre going to be on their own . When an Armed Conflict comes to an end is a rather complex question. You can one could answer it as my predecessor did in terms of the degradation of the enemy this was with reference to al qaeda to the point where they no longer present a threat. Our view i think it is reflected in the speech, that this is our Government Works best, our country is the strongest when both political branches focus on issues such as the end of a conflict. My concern is, were getting ourselves in a position because weve made an exception to a law, that were getting into a corner where we could conceivably be releasing afghans from guantanamo, and by whatever means or for whatever measure, sending them right back into afghanistan, is afghanistan is the emphasis on the list of the countries that can receive gitmo prisoners . I think you described whatever the arrangement, it would have to meet the statutory requirements 35b, which is to say the risk is properly mitigated. I understand the list. So right now, based upon that list, and you guys are considering, and looking at and evaluating all the time and looking at this list of potential countries, obviously qatar is a country who said we will receive and be able to further detain these people, is afghanistan on there, or when the drawdown continues to happen, is there going to be a point where afghanistan is going to be free and clear because were pulling our troops out, theyre on their own, theyre handling themselves . Are they on that list now to be able to receive prisoners, or is there a time when they will be on the list to receive people . I dont know. I mean, weve had detainees have gone to over 15 countries. Ive seen the list. You have the list of potential countries that are available. Weve had conversations in other hearings about, for example you asked in the future right now, is afghanistan on the list now where they can receive people back from gitmo . Maam, im not familiar with a list per se. Is afghanistan a country that could be considered afghan could receive detainees. But its not now . Is it currently a country that we say, meets the parameters and we could take afghans from gitmo and send them back to afghanistan, if they met the criteria, and were saying afghanistan does meet the criteria, does afghanistan meet the criteria today . For example, theres obviously a list of six being looked at to go to uruguay. Im just asking if afghanistan in its Current Situation as far as i know, afghanistan would be a potential recipient country. Okay. Thank you very much. I yield back my time. The gentle lady yields back. Mr. Bridenstine. Thank you, mr. Chairman. Mr. Secretary, did i hear correctly earlier, you mentioned that when you were making the decision to release the five members of the taliban, that you did not take into consideration whether or not they would return to the field of battle . No, i didnt say that. We took that into consideration. We took everything into consideration. Yes . Was your assessment the best assessment from the people who advise you, was that assessment that they would or would not return to the field of battle . The assessment was, first, we looked at the threat. Whether they would or not. We cant predict. You can make an assessment. Ill read you what i just read this committee a little bit ago and i dont think you were here on the latest Intelligence Community assessment on the threats. I asked for this from gem clapper. This is the most recent Intelligence Community assessment. Threat, if returned to afghanistan, pakistan, after they after the one year in qatar. Says, should they return and reintegrate with the taliban, their focus would almost be on taliban threats in afghanistan, not the homeland. Will we have troops in afghanistan at that time . Well, 12 months from may 31st. So yes, well have troops. So they would pose a threat to American People . Well, let me finish this. Hold on. Let me move to mr. Preston. Im giving you if you want information, im giving you with the ic says. I understand that. I think i got the answer i was looking for. Well, you didnt hear it all. My understanding im a navy pilot, i flew combat in iraq and afghanistan. My understanding is there are really two types of law, theres a law of war, a law of Armed Conflict, if you will, which is International Law, then theres a law of peace, which is how we handle things domestically. Under the law of war, correct me if im wrong, but we dont detain people for rehabilitation, and we dont detain people for purposes of, you know, punishing them. We detain them to keep them off the field of battle, is that correct, under the laws of International Conflict . As i understand it, when theyre held under those laws, its for that purpose. It is to keep them off the field of battle. So if there is a judgment that there is a chance that these folks could go back into the field of battle, and we still have an authorization for use of military force indicating that we still are at war, the judgment, whether these people are going to go back and harm our troops is pretty important, is that correct . The way i would answer that is to say that it is clear that we have, and had the authority to detain these people. The judgment to transfer them to the custody of another country is one that is governed in substantial measure by the ndaa provision and by a judgment by the president. I might just add, congressman, in the second sentence of this Intelligence Community report, to answer your question, it says, a few new taliban leaders, these five, if they would return to the taliban, in afghanistan, no matter how senior, will not appreciably change the threat to american forces, the afghan people, and the afghan army. Is that in a physical sense or morale sense . If you look at what the taliban is putting out right now, theyre declaring victory on this. Are you aware of this . Well, im aware of a lot of what the taliban says. We cant control what the taliban says. Yes, you can. Because you didnt have to release these five people. By releasing them, you have created in essence a victory for the taliban. It is being used as propaganda against this country, and ultimately, i think you are aware, that these people are likely to return to the field of battle. And our troops are going to be in harms way because of it. Korngsm congressman, i just gave you what they say about that. This is an imperfect business. If we want our prisoner of war back, we have to make some accommodations to that. We did it with a substantial mitigation of risk. We thought this was the smartest, wisest, most responsible thing that we could do to protect our people, get our prisoner back. The taliban feels the same way. Theres nothing i can do about that. Theyre going to be predictable, i suspect, and try to use this. But you asked whether thats physical. Or is it a morale boost. I think the first thick we ought to look at, is this a physical threat that they represent. And you just heard what the the morale boost turns into a physical threat. Well, its an imperfect world, congressman, and you know that. Gentlemans time is expired. Mr. Burn . Thank you, mr. Secretary. Ive been watching you, youve been answering questions about the consultation with congress. I know youre sensitive to that. I was wondering if at any time during this process, did you, yourself, recommend or suggest to anyone at the white house, the embassy, any of the parties, any of the people involved, that they should consult or notify the Congress Prior to may 31st . Congressman, through this process, which i have in front of me, the deputies meetings at the white house, the principal meetings, which im a principal, all of these things were discussed. Notification, the risks which weve talked about today. I support the decision that was made on notification. I didnt particularly like it, i think a lot of people didnt, but we felt in the interest of not risking any further Bowe Bergdahl and the opportunity to get him back, and maybe even his life, this was the smartest way to do it. Well, i understand it was discussed. But did you yourself suggest or recommend that some notification or consultation be made prior to may 31st . We all made suggestions, recommendations to at least exploring what happens if we dont, whats the down side of that, whats the down side if we do. All these things were so you did. We all talked about it. It wasnt a recommendation. We went around the table and talked about it, all of us. You suggested maybe we should talk to congress and give them some notification . We talked about it, look at it, go up and down. No formal recommendation was made by me. At the end, we discussed it. We came all came out in the same place. That the risk was just too great. We didnt want to take the risk. Let me ask you a question. I was interested in the colloquy you had with several people over this constitutional issue. Is it your position, is it the position of the Obama Administration that after the president of the United States signs a law, and it becomes law, that he can on his own after consultation with legal counsel, the Justice Department, whoever, say, i dont have to comply with a particular provision of that law without going to court first . I can only speak for myself. But i think that the president may act in the exercise of his Constitutional Authority as he understands it, and as circumstances demand, without necessarily going to court. How is that different from the position that people in the Nixon Administration took during watergate, that the president does it, its legal . How is that different . I wouldnt even know where to begin to answer that. Well, begin with the beginning. Can the president of the United States decide he can do whatever he wants to do, because he thinks hes got some constitutional perfection . Despite a clear provision in the law he cant do that . This president faced a Service Member in peril in activity and exercised a constitutional duty and authority to recover that Service Member. In circumstances in which it was the judgment of the policy, the leading policy makers of this country, that the circumstances were not going to permit the 30day notification. Thats a very concrete response to what was a very compelling situation. I understand that youre saying that under these particular circumstances. Youre not saying that its a blanket thing. But you think under certain circumstances, the president of the United States, after he has signed a law and it has become law, can decide certain parts of it he doesnt have to comply with, without going to a court and getting a determination about his constitutional basis for doing so . There are circumstances, and this was one. One final question for you, secretary hagel. Could you please provide us assurance that there will be no unlawful command influence related to the case of Sergeant Bergdahl . Absolutely. I said it here in answer to a couple of questions before. Thank you, sir. I yield back. Gentleman yields back. Ill recognize myself for five minutes. I want to echo the remarks. Appreciate the panelists for being here today. And your leadership in the dodd. And mr. Secretary, thank you for your courageous and Honorable Service in vietnam. As a former soldier myself, ill start by saying that, the ethos that we leave no soldier behind is very important to the profession of arms. Still, i have deep concerns about the judgment in this particular case. And i want to associate myself with the remarks of miss gabbard earlier. First, some context. I must say i respectfully disagree with the administrations decision to keep troops in afghanistan for two more years. I think that weve largely accomplished what we set out to do. Decimating al qaeda and preventing them from having a safe haven in afghanistan. I certainly would stipulate that we have an enduring National Security interest to make sure that that remains the case. I dont think we need to leave troops on the ground to do that. I believe we can do that from over the horizon with special operations troops, arabian sea or indian ocean. Evidently the administration agrees, because the administration is talking about departing in two years. You know, if the administration believes that we have an interest in continuing to train the afghanistan forces, i dont see why we cant bring them to the United States of america. And train them here. And by the way, the afghanistan people should pay for that. But, you know, we are where we are today, and that is that the administration wants to keep u. S. Troops there for two more years. And given that, i question the judgment of this particular decision. And i know weve been over im not going to ask to rehash a lot of the ground weve been on, but i do want to add this point, that at any point in the negotiations, sir, did it come up that we would want to keep these five detainees in qatar until the last american troop comes home . Congressman, that was not the nature of the discussion. It was with reference to the period of time for which the security assurances would be in place. Well, listen, i certainly caught the earlier remark that said, we werent holding the best cards. I get that. It doesnt appear we were holding any cards. Im not sure our negotiating position, we gave up very highlevel commanders. It doesnt appear to us that we had any kind of leverage. And i just refuse to accept that we had no leverage at all. I mean, they evidently had been wanting to get these five leaders back. And i think at the very minimum, we would have pressed for the point that these five commanders would not return to afghanistan until the last american troop returned back to our soil. Let me say this, that im interested to know in the best military judgment of our commanders, our ground commander in afghanistan, the centcom commander and chairman of the joint chiefs. I guess im curious why the chairmans not with us today. But im interested in their assessment and their go nogo recommendation. Thank you, congressman, and thank you for your distinguished service. I know about it, and we appreciate it. Chairman dempsey is in london. He is convening a group of chief military defense officers, counterparts of his from nato. This was a conference that was planned months and months ago. He considered not going. Since chairman mckeon asked not to have any uniformed military at this table, i told general dempsey not to come back, because he was not invited to sit here. As to his role, i said in my testimony, as well as the vice chairman, who has been very active on this, admiral winifeld, i think has been in every briefing for the house and senate the last two weeks, they have been very intricately involved in all the meetings, all the counseling, all the steps, signed off, supported. They have not been left out. In any dimension of this. And the vice chairman, as i said, has actually been in all the meetings. So im understanding that both the vice chairman and chairman recommended go on this mission . Yes. What about the ground commander and centcom commander . They were notified on the 27th of may. General dunford and general austin, their awareness of something going on was there. But again, to keep this as close as we could, they were not informed until four days before the specific operational plans and decisions, until four days before the operation. I believe that im right on those dates. Thank you, gentlemen. Well now move to chairman mccall. Thank you, mr. Chairman, mr. Secretary, mr. Preston. I chair the Homeland Security committee, so i look at it from that vantage point. I do have concerns that this move, this swap empowers and emboldens our enemies. One can only look at what omar is saying about this, when he celebrates. This is a huge