Skip to main content
Internet Archive's 25th Anniversary Logo

tv   Key Capitol Hill Hearings  CSPAN  June 12, 2014 3:00am-5:01am EDT

3:00 am
-- had he not done anything including the transportation improvements to those who think this is all about fracking and natural sm these omissions were going to come down anyway, if he had not done that, you missions the united states has reduced its emissions more than any other country over this period of time and i think that's a his leadership, both in terms of the investments that were made in clean energy at the beginning of the administration through the recovery act and that these includingregulations much more efficient appliances and commercial appliances.
3:01 am
>> karen? benefit ofave the observing this administration from the outside and more recently from the inside and you also have the experience of sevenning in the clinton administration. includingcs lately some democrats have accused this white house of political tone lately on the rose garden appearance on bergdahl and perhaps the president's in some people view slowness to take action on the v.a. scandal. just wondering what you think about those criticisms. the president,k you know, that's sort of having it both ways. i think the president knew thises with a controversial decision. was a decision that, and he he'spoken to this, that taken ownership of, that he went out in the rose garden because
3:02 am
to theimportant to plain american people that this was whot an actual human being was under great distress, being taliban.he and that while controversial, needed to explain that to the american people. he makes no apolicies for that, as he said yesterday in think it was the right decision and we'll move forward with it. respect to the v.a., he asked secretary shinseki to do a review. after those reviews were done, i that the secretary decided the department would be better led by someone else and he resignation. calls.e are tough i think particularly the back sergeanting bergdahl was certainly a tough call. he knew it would be
3:03 am
was thersial, but it right thing to do. and as chairman dempsey said, last, our clear chance to bring him home, and the president made a decision to do that and took the heat for it. >> john, because of your role in the transition and now i wanted to come back to the guantanamo question. because of your role in president elect obama's trance i wantedyour role now to go back to the guantanamo question. does the president believe that the constitutional executive authority before the term to close guantanamo on his own say-so, believing that it's a national security issue to transfer the he departs?fore >> i think the president wants to close guantanamo, he's and ig very hard to do it think he's doing it within the bounds of the laws that are passed by the congress. think that we've let our
3:04 am
knowds on capitol hill what restrictions are unacceptable in the current negotiation, and i think that will just keep that theo ensure remaining detainees there are or tried, and that the guantanamo is closed by the end administration. >> there's a quote in the "new times" today from a senate democrat saying that we've got to stop putting out fires, to guantanamo. are you sympathetic to senate that way?who feel >> look, i think that we'd like the economic about future of the country. but when the president has an obligation, when there's a problem as we found in the scheduling at the v.a., you have to tackle it. ton there's the opportunity
3:05 am
bring sergeant bergdahl home, it's a tough call, but you have to make it. and that just gets served up to you. i think that the president is those toughe decisions. and i think the context for that keep coming back and coming back, and will do it when from europe, and talking about an economic program that will deliver better american people. but you know, you just don get in this game to say, sorry, i'm going to wait until after november, to the opportunity to bring one of our young soldiers home. who has been, you know, who has captured by the taliban. you don't get to make that call.
3:06 am
decisionto make a right then and there, and he made it and he made the right decision to bring sergeant bergdahl home. question). >> the white house has asked johnson to stand down for now any on administrative actions that could be taken, presumably we think houses republicans can act between now august. >> but i wonder just from your taking action is discrepancy are diezing your position, because republicans you know, he's still going to do something on own and given the limits of what you can do through executive action, are you also yourself between a rocks and a hard place with the advocates of legal status who
3:07 am
broader action from you? >> yeah. i never really tried to make a living psycho analyzing a republican. so i think there is an opportunity, i think that speaker boehner would like to legislation move forward, that's what i think. and i think that's what the president thinks, that there's an opportunity to get immigration reform done. that is a much better solution permanent solution for a and a immigration system, pain that it's causing across the country. have to waitans we to see whether the republican can get a compromise together that can earn bipartisan support over the of the summer, the president is prepared to do
3:08 am
that. but i think if the secretary is reviewing his authorities about particularly alleviate dislocation,amily that he's focused on, and i we'll have to think through what our options are if unable toss is just act. a, i think that if we acted i'm fairly certain that they would use that for so we'll have to wait and make assessment. sometime during the course of this summer about whether they have the capacity to act. havee the moves that you at your disposal broad enough to satisfy people who want
3:09 am
comprehensive done? >> i'm not going to forecast that. >> lauren? follow up, you said the administration determined of unaccompanied minors going across the border the legal of a humanitarian crisis. how is the administration theing at that issue in context of immigration reform and how that might propel them act now, where maybe before they were willing to hold off a longer. >> well, wee seen a big bump this summer largely coming from know.l america, as you and the law requires that it, children are unaccompanied minors are coming from canada or mexico they can't returned, they need to be turned over to the department of services. human that surging numbers has put pressure on the system. so sent job son has pulled
3:10 am
group toan interagency work this problem with a task by f.e.m.a. tod the and ensure that children, you know, this is a heartbreaking situation where 10, 12-year-old kids unaccompanied by their parents, violence in particularly america, trying to find their way up to the u.s., be reunited with their parents who are living up here. reason why i think we need to reform the system, get a legal immigration system that's going to work and be viable. to in the meantime we have deal with the humanitarian crisis. ofall the agencies government led by d.h.s. and but now coordinated by f.e.m.a. are finding places to house
3:11 am
and make sure that those kids are safe and well taken care of. there any indication that some in congress are looking at this issue as a reason to their actions? >> i don't know the answer to that. >> back to the e.p.a. issue, so critics of what the administration is doing point to chambergures, from the of commerce that show that this rule would cause job losses about 224,000 per year 15, 16 years. and you said earlier that an existentialis issue. so i'm wondering if it's truly existential issue, are you even taking into account whether lossesre potential job and economic costs? >> sure. look at the e.p.a. filings you'll see what our onlysis is of the effect
3:12 am
jobs, and we think it latest have a positive effect. morese we'll build up clean energy infrastructure in the short term and much more efficiency and efficiency in general in the electric system over the long term. think that these claims of massive job losses have largely debunked. they're based on a set of zero to do that have with the rule that was put on the table. job losse fantasy numbers. they're basically been debunked who have looked at them. thereat isn't to say that aren't going to be places and occupations where you'll see some job loss, and i think we need to be sensitive to that, investments, make in communities that might an feked by job loss, whether or as the loss of a plant otherwise. have the, andt we
3:13 am
we in the white house are march to make our efforts sure that we can respond to that. congress also has an important role to play in smoothing that transition. time that a environmental regulation has the pollutersrd, say massive job losses, you know, lights going off, electricity system crashing, going through the roof. they were wrong before, they're wrong now. that the particular chamber study you referenced, as based on assumptions that have absolutely zero to do the e.p.a.le that put forward. a fantasy analysis. >> so i'll take that but in yous of your motivation, if see climate change as an aexistential threat to the planet --aybe to the
3:14 am
all?alance anything at >> you know, we're paying the $100 billionover of losses last year from extreme we'rer events much already paying the cost. the question is which side is the risk on. we can build a stronger economy, a better economy based energy the people who are invested in polluters,quote, the want to keep getting the rents out current system. debate is.hat the but there's no question that the opportunity to build new industries, to create jobs, to to makeew technology, the world a global leader in us.n tech is available to the question is whether we'll put the right policy environment ensure that that goes forward. so i think that we're very much
3:15 am
about trying to build a strong and powerful and good economy. will come through investments in cleaner energy reliance on the systems that we've had in place, now increasingly burdening our economy through losses in agriculture, in forestry and extreme weather losses, in storm surges, in sea level rise that, you know, if question where a dirty, i'd, clean or ask the insurance industry. >> you mentioned that the president's commitment to veterans got a little lost with over the --r i was just wondering if there's review in the executive branch of the fact that there were so many reports on the
3:16 am
problem and that it wasn't identified sooner. also whether or not sort of a review with the bergdahl decision in not to notify the level ofn there.ver >> people who made the decision the congress, so they'll hear why. there was evidence, at least there was analysis that a premature disclosure the loss of his life because of divisions in the taliban, et cetera. so they'll answer those questions. with respect to the former, i think we're always trying to and in this case in particular i'm sure that sloane gibson and, who now is the
3:17 am
neighbors,etary, rob who has gone other to the v.a. the white house. when we have a full complement v.a.ople at the top at the are going to drill down and look at that question. and i think we owe it to our veterans and we owe it to citizens to always be that. why did we miss not just in this particular case, but across other issues in government to increase the efficiency and the effectiveness government. error try to learn from rather than just run from it. havenk that's what we'll to do here. with respect to the specific asked me, again, i what rob andat's the acting secretary are in the process of doing, trying to
3:18 am
out why was, this wasn't a one off problem in phoenix, there was more systematic error and why wasn't that attended to earlier. >> only have a my left so i'm going to ask you, you've talked about how the presidents were rolerent, how is your different? why did you come back? >> it's a lot better to be the counselor than the chief of staff. >> okay thank you for doing john. we appreciate it. back.ou'll come >> thanks.
3:19 am
>> the house veterans affairs committee holds a hearing today on veterans access to health care. officials from health care companies and the department of veterans affairs will testify. begins live at 9:15a.m. eastern on c-span 3. on c-span 3, a discussion about trade and commerce between the u.s. and mexico. that's live beginning at eastern.
3:20 am
defense secretary chuck hagel went to capitol hill yesterday to talk about the deal to five guantanamo bay prisoners in exchange for aerial sergeant bowe bergdahl. the house armed services committee questioned him about how the prisoner ebbs negotiated, and the administration's decision not to notify congress about the the detainees. this is three and a half hours. this hearing will come to order. please hold, as we seat the public.
3:21 am
at the start of this hearing, i'm pleased to welcome members of the public who have such an interest in these proceedings. we intend to conduct this hearing in an orderly and efficient manner to ensure all the members have an opportunity to ask questions and our witnesses have an opportunity to be heard. to that end, please be advised i'll not tolerate disturbances of these proceedings, including verbal destructions, photography, standing, or holding signs. i thank you all for your cooperation. i want to thank secretary hagel,
3:22 am
and mr. preston, for testifying before the committee today on the may 31st transfer of five senior taliban detainees from detention at guantanamo bay to the government of qatar. the matter before us is deeply troubling. the committee has begun a full investigation into the administration's decision. it's unprecedented negotiations with terrorists, the national security implications of releasing these dangerous individuals from u.s. custody, and the violation of national security law. we hope for and expect the department's full cooperation. let me be clear up front on the focus of today's hearing. it is not my intention to dive into the circumstances of the disappearance of sergeant bergdahl from his base in 2009. there will be a time and a process for that. i also do not intend to use this hearing to weigh the merits of
3:23 am
returning an american soldier to the united states. everyone who wears the uniform should be returned home. however, the detainee transfer raises numerous national security policy and legal questions. the explanations we received from the white house officials at a housewide briefing earlier this week were misleading, and at times blatantly false. this transfer sets a dangerous precedent in negotiating with terrorists. it reverses long-standing u.s. policy and could incentivize other terrorist organizations, including al qaeda, to increase their use of kidnappings of u.s. personnel. it increases risk to our military and civilian personnel serving in afghanistan and elsewhere. as the president, yourself, and other administration officials have acknowledged, these five terrorists still pose a threat to americans, and afghans alike. and in one year they will be free to return to afghanistan, or anywhere else.
3:24 am
what's more, although there will be fewer u.s. personnel in afghanistan in 2015, the return of these five taliban leaders directly threatens the gains of our men and women who have fought and died -- the gains that our american women have fought and died for. the transfer is a clear violation of section 1035 of the national defense authorization act of 2014. there is no compelling reason why the department could not provide a notification to congress 30 days before the transfer. especially when it has complied with the notification requirement for all previous gitmo detainee transfers since enactment of the law. the statute is more than a notification. it requires detailed national security information, including detailed consideration of risk, and risk mitigation. that the congress and american people would expect any administration to consider
3:25 am
before a decision is made to transfer gitmo detainees. it was designed and approved by a bipartisan majority in congress, due to real concerns the dangerous terrorists were being released in a manner that allowed them to return to the battlefield. we're also seeing the consequences of the president's hasty afghanistan withdrawal strategy. afghanistan is at a critical juncture. at the same time we're focused on the first democratic transition of government, and supporting security and stability within the country. this negotiation has legitimized the taliban. the organization that safeguarded the 9/11 al qaeda perpetrators and ruled afghanistan through atrocities. lastly, this transfer sets dangerous precedent for how the president intends to clear out gitmo. the remaining detainees, by the obama administration's own analysis, include the most dangerous against u.s. forces
3:26 am
and national security interests. in the president's rush to close gitmo, are other deals in the works to release these dangerous individuals? mr. secretary, i don't envy the position you have been put in. we understand the responsibility you bear for signing these transfer agreements. but we're also aware of the immense pressure the white house has put on you to transfer these detainees so it can claim victory for closing gitmo. nevertheless, we expect the department to abide by the law and to provide its candid assessment of national security impacts of the president's decisions. this is a bipartisan committee. last month we passed our authorization act out of committee unanimously. and off the floor with well over 300 votes. that kind of bipartisanship is based on trust. members on this committee trust each other to live up to our word, and when we work with the department, and the white house, to pass legislation, the
3:27 am
president will sign, we have to trust that he will follow those laws. the president has broken a bipartisan law and put our troops at greater risk. and i'm eager to find out why. mr. smith. >> thank you, mr. chairman. and thank you for holding this hearing. thank you to our witnesses for being here. i think this is a very appropriate issue for congress to exercise over sight on and there are a lot of questions that need to be answered and i'm pleased the administration's here today to attempt to answer those questions. i also want to agree up front with the chairman that one thing we shouldn't talk about today is the cirques of sergeant bergdahl's -- sorry, mr. bergdahl's capture. i'm happy about that. i regrettably at the briefing we had on monday that issue did come up. there simply is no proof, no evidence, i think the way mr. bergdahl has been slaernded has been scandalous. you know, and i hope we'll take a step back and do what admiral winifield said we'll get him
3:28 am
home, get him healthy and figure out what happened and due process will be exercised. that should not be discussed today. what should be discussed are the circumstances of this deal. and i think the chairman raised a number of appropriate questions, and i have enormous sympathy for the president and for you, mr. secretary, over a very difficult decision that had to be made here in terms of figuring out whether or not this was an exchange that was in the best interests of the united states. ultimately, i will tell you, i think it was. we do our level best to bring our service men and women home if we possibly can. not under any circumstances. the issue was raised, you know, would we have traded khalid shaikh mohammed for him. absolutely not. totally different situation. but when you're talking about these five members of the taliban, it is a different equation. and that really raises the issues that the chairman came up with. what -- who were we negotiating with? he says we were negotiating with terrorists. but sergeant bergdahl was captured on the battlefield, in
3:29 am
a war zone. the taliban were, until just a few months before that, the legitimate government of afghanistan. the current afghan government has said over and over again that they want to negotiate with the taliban. any sensible person who looks at the situation in afghanistan right now understands that there is no ultimate peaceful solution if at some point you don't negotiate with some of the taliban. which ones? we don't know. so to simply dismiss this as one terrorist group in negotiating with terrorists i think totally misstates the situation. this was on the battlefield, in a war zone, a soldier who was captured by a group of people that were the legitimate government of afghanistan mere months before. i don't know the full implications of that. and i completely agree with the chairman that we need to be very, very careful about setting any precedent that we would negotiate with terrorists. but i think this raises an entirely different set of questions that need to be answered and addressed and i
3:30 am
would be very interested, secretary hagel, in your viewpoint on that. hat does that mean going forward? but understand the idea that under no circumstances will we negotiate with the taliban is one that has been rejected by virtually everyone. we, the afghan government, if we're going to get any sort of peaceful solution in afghanistan, are going to have to negotiate with at least some elements of the taliban. which ones? we don't know. but that has certainly been the position of the afghan government, so this is an entirely different situation than saying we simply negotiated with terrorists. the second troubling question this raises, is the situation in guantanamo. and i will disagree with the chairman on one key point. the president is not pursuing this out of some naked political goal. he wants to close guantanamo just because politically he'd like to. that's not the situation. we have over 150 people held in guantanamo, many of them in very murky status. is it the plan of the united states of america to hold these
3:31 am
people forever, without charge, and without trial? what would that do to our values, to precedents that we've set in a different way if we do that? now there's no easy way out of this. but to simply dismiss it and say, any effort to try to close guantanamo is purely political overlooks the fact that we're in a very difficult situation. in large part because a lot of these people were captured in the first place without a clear understanding of how or why, without a plan to try them, and now we have them. and it is not the united states of america that i believe in that says look, we're just going to grab people and hold them forever without charge, without trial, without process. how are we going to handle that? one of the interesting questions that's raised that has been -- it has been argued that these five that were captured would have to have been released at the end of hostilities with afghanistan. it's not my understanding that that's actually the status that we've given them. they are not being treated clearly as prisoners of war. in fact i believe the phrase was unlawful enemy combatants has
3:32 am
been the phrase that has been used of them. so if they weren't being held as prisoners of war, is it the administration's position that at the end of our full involvement in afghanistan, we would have to release them? i don't believe that it is. that's been alluded to. that really needs to be clarified. first of all, with regard to these five. but second of all, how many more inmates are there in afghanistan that might be put into that category? that at the end of 2014 we would feel like we would have to release. again, it's my understanding that it's none of them. that we didn't put them in that prisoner of war category where they would have to be released at the end of hostilities. but the category they are in is very murky and very confusing and something we have to answer if we're going to live up to our own constitutional values. now the final issue that i think is worth exploring and where i am in more substantial agreement with the chairman is on the congressional consultation issue. and there's two pieces to this. first of all, it is very important, i believe, for the white house to engage with
3:33 am
congress, just as a way for us to work together to advance the right policies. to consult us on key issues. and i think it is wrong that months before -- well, it's wrong that when you knew that you were thinking about doing this deal you didn't take the top leadership in congress and talk about it. now, i know the concern, the concern was that it would have been leaked. but as has been mentioned, congress has been trusted with many, many other things, including the location of osama bin laden, and not leaked it. i think that type of consultation would have helped the process, not hurt it. and the second piece that i'm concerned about is the 30-day requirement. now i know the president put a signing statement when he signed the law that had that 30-day requirement in it, saying that he was concerned about the constitutionality about it. but the law is the law. the way you challenge constitutionality is you go to court. and you figure out whether or not the courts say it's constitutional or not. and until the courts rule on that, it is the law. when president bush was in the white house, he had gosh, hundreds of signing statements. and there was, i believe, a
3:34 am
correct amount of outrage amongst many that those signing statements were put out there as a way to simply avoid the law. was it right for president bush to do it, it's not right for president obama to do it, so i would be very keerious to understand the argument for why that 30-day requirement wasn't in place and again i'll come back to the fact that there was no reason that 30 days notice couldn't have been given to the leadership of congress. we can, in fact, keep a secret. or i would say we're no worse at it than the administration if you go back through history in terms of how things get out. so i think better consultation with congress is something we will definitely need going forward. with that i look forward to your testimony. i thank the chairman for this hearing. >> i ask unanimous consent that noncommittee members if any be allowed to participate in today's hearing. after all committee members have had an opportunity to ask questions. is there objection? without objection, noncommittee members will be recognized at the appropriate time.
3:35 am
mr. secretary, the time is yours. >> mr. chairman. i thank you, ranking member smith, thank you. and to the members of this committee, i appreciate an opportunity to discuss the recovery of sergeant bowe bergdahl, and the transfer of five detainees from guantanamo bay to qatar. and i appreciate having the department of defense's general counsel steve preston here with me this morning. mr. preston was one of our negotiators throughout this process in qatar and signed on behalf of the united states the memorandum of understanding between the governments of qatar and the united states. also, here representing the joint chiefs of staff, sitting behind me, is brigadier general pat white, who was the director of the joint staffs pakistan, afghanistan coordination cell. general white helped coordinate theburg dal recovery on behalf
3:36 am
of the chairman through the joint chiefs of staff general dempsey. the vice president of the joint chiefs admiral winnefeld who the chairman has noted will join us later this morning in the classified closed portion of the hearing. and as you know, general dempsey and admiral winnefeld played critical roles in the feetings at the national security council leading up to sergeant bergdahl's release, and supported the decision to move forward with this prisoner exchange. in my statement today, i will address the issues of chairman mckeon and mr. smith, the issues they raised when the chairman asked me to testify. and explain why it was so urgent to pursue sergeant bergdahl's release. why we decided to move forward with the detainee transfer. and why it was fully consistent with u.s. law, our nation's interests, and our military's core values. mr. chairman, members of this committee, i want to make one
3:37 am
fundamental point. i would never sign any document or make any agreement, agree to any decision, that i did not feel was in the best interest of this country. nor would the president of the united states. who made the final decision with the full support of his national security team. i recognize that the speed with which we moved in this case has caused great frustration. legitimate questions, and concern. we could have done a better job. could have done a better job of keeping you informed. but i urge you to remember two things. this was an extraordinary situation. first, we weren't certain that we would transfer those detainees out of guantanamo until we had sergeant bergdahl in hand. and second, we had sergeant
3:38 am
bergdahl in hand only a few hours after making the final arrangements. there are legitimate questions about this prisoner exchange, and congress obviously has an important constitutional role and right and responsibility to play in all of our military and intelligence matters. as a former member, mr. chairman, of the senate select committee on intelligence, and the council on foreign relations i appreciate the vital role congress plays in our national security. and i will present to this committee within the limits of an open, unclassified hearing, and in more detail in the classified hearing, everything i can to answer your questions and assure you this committee, the american people, that this prisoner exchange was done legally, it was substantial mitigation of risk, to our country, and in the national interests.
3:39 am
of this country. let's start with sergeant bergdahl's status as a member of the united states army. he was held captive by the taliban in the haqqani network for almost five years. he was officially listed as missing/captured. no charges were ever brought against sergeant bergdahl, and there are no charges pending now. our entire national security apparatus, the military, the intelligence community and the state department pursued every avenue to recover sergeant bergdahl just as the american people and this congress and the congresses before you expected us to do. in fact, this committee, this committee knows there were a number of congressional resolutions introduced and referred to this committee directing the president of the united states to do everything he could to get sergeant bergdahl released from captivity. we never stopped trying to get him back. as the congress knows that. because he is a soldier in the
3:40 am
united states army. questions about sergeant bergdahl's capture are as mr. smith noted and you mr. chairman are separate from our effort to recover him. because we do whatever it takes to recover any and every u.s. service member held in captivity. this pledge is woven into the fabric of our nation and our military. as former central commander marine general jim matis recently put it bottom line is quote the bottom line is we don't leave people behind. that is the beginning and that is the end of what we stand for. we keep faith with the guys who sign on, and that is all there is to it. end of quote. as for the circumstances surrounding his captivity, as secretary of the army mchugh and army chief of staff odierno will review later, and they've said, clearly, last week, that the army will review, they will
3:41 am
review this exchange, circumstance, captivity of sergea sergeant bergdahl in a comprehensive, coordinated effort that will include speaking with sergeant bergdahl, and i think need not remind anyone on this committee, like any american sergeant bergdahl has rights. and his conduct will be judged on the facts, not politically hearsay, posturing, charges, or innuendo. we do owe that to any american, and especially those who are members of our military wand their families. like most americans i've been offended and disappointed in how the bergdahl family's been treated by some in this country. no family deserves this. i hope there will be some sober reflection on people's conduct regarding this issue, and how it relates to the bergdahl family. in 2011, the obama administration conducted talks with the taliban on a detainee exchange involving the same five
3:42 am
taliban detainees that were ultimately transferred after the release of sergeant bergdahl. 2011. these talks, which congress was briefed on, some of you in this room were in those briefings, i understand, which congress was briefed on in november of 2011, and in january of 2012, were broken off by the taliban in march of 2012. we have not had direct talks with the taliban since this time. in september of 2013, the government of qatar offered to serve as an intermediary, and in november of last year, we requested that the taliban provide a new proof of life video of sergeant bergdahl. in january of this year, we received that video, and it was disturbing. some of you may have seen the video. it showed a deterioration in his physical appearance and mental state compared to previous
3:43 am
videos. our entire intelligence community carefully analyzed every part of it. and concluded that sergeant bergdahl's health was poor, and possibly declining. this gave us growing urgency to act. in april of this year, after briefly suspending engagement with us, the taliban again signaled interest in indirect talks on an exchange. at that point we intensified our discussions with the qatar government about security assistances and assurances. particularly security assurances. on may 12th, we signed a memoranda of understanding with qatar detailing the specific security measures that would be undertaken, and enforced, and enforced by them if any taliban detainees were transferred to their custody. steve preston, who as i noted earlier, signed that memoranda
3:44 am
of understanding on behalf of the united states government, and was included in those negotiations. included in this mou were specific risk mitigation measures, and commitments from the government of qatar, like travel restrictions, monitoring, information sharing, and limitations on activities, as well as other significant measures, which we will detail in the closed portion of this hearing. they were described, as you know, mr. chairman, in the classified documentation and notification letter i sent to this committee last week. that memoranda of understanding has been sent to the congress, to the leadership, to the committees, and every member of congress has an opportunity to review that memoranda of understanding in a closed setting. u.s. officials received a warning. we received a warning from the
3:45 am
qatari intermediaries that as we proceeded, time was not on our side. and we'll go into more detail in a classified hearing on those warnings. this indicated that the risk to the sergeant bergdahl's safety were growing. we moved forward with indirect negotiations on how to carry out that exchange. that exchange of five detainees. and agreed to the mechanics of the exchange on the morning of may 27th. following three days of intensive talks. that same day president obama received a personal commitment and a personal telephone call from the emir of qatar to uphold and enforce the security arrangements and the final decision was made to move forward with that exchange on that day. as the opportunity to obtain sergeant bergdahl's release
3:46 am
became clear, we grew increasingly concerned that any delay or any leaks could derail the deal and further endanger sergeant bergdahl. we were told by the qataris that a leak, any kind of leak, would end the negotiation for bergdahl's release. we also knew that he would be extremely vulnerable during any movement and our military personnel conducting the handoff would be exposed to the possible ambush or other deadly scenarios in very dangerous territory that we did not control. and we'd been given no information on where the handoff would occur. for all these reasons and more, the exchange needed to take place quickly, efficiently, and quietly. we believe this exchange was our last, best opportunity to free him. after the exchange was set in
3:47 am
motion, only 96 hours passed before sergeant bergdahl was in our hands. throughout this period there was great uncertainty. great uncertainty about whether the deal would go forward. we did not know the general area of the handoff until 24 hours before. we did not know the precise location until one hour before. and we did not know until the moment sergeant bergdahl was handed over safely to u.s. special operations forces, that the taliban would hold up their end of the deal. so it wasn't until we recovered sergeant bergdahl on may 31st that we moved ahead with the transfer of the five guantanamo detainees. the president's decision to move forward with the transfer of these detainees was a tough call. i supported it. i stand by it.
3:48 am
as secretary of defense i have the authority and the responsibility, as has been noted here, to determine whether detainees, any detainees, but these specific detainees at guantanamo bay, can be transferred to the custody of another country. i take that responsibility, mr. chairman, members of this committee, damn seriously. damn seriously. as i do any responsibility i have in this job. neither i nor any member of the president's national security council are under any illusions about these five detainees. they were members of the taliban. which controlled much of afghanistan's prior, all the territory to america's invasion and overthrow of that regime. they were enemy belligerents detained under the law of war, and taken to guantanamo in late 2001 and 2002. they've been in the u.s. kid toddy at zbaun mow since then,
3:49 am
12, 13 years, but they have not been implicated in any attacks against the united states, and we had no basis to prosecute them in a federal court or military commission. it was appropriate to continue to consider them for an exchange, as we had been over the last few years, as congress had been told that we were. and if any of these detainees ever try to rejoin the fight, they would be doing so at their own peril. there's also always always some risk associated with the transfer of detainees from guantanamo. this is not a risk-free business. we get that. the u.s. government has transferred 620 detainees. 620 detainees from guantanamo since may, 2002. with 532 transfers occurring during the bush administration. and 88 transfers occurring during the obama administration.
3:50 am
in the case of these five detainees the security measures qatar put in place led me as secretary of defense to determine consistent with the national defense authorization act that the risk they posed to the united states, our citizens and our interests, were substantially mitigated. i consulted with all of the members of the president's national security team and asked them, as they reviewed all the details, they reviewed the draft of my notification letter, the specific line by line, word by word details of that letter, i asked for their complete reviews, the risks associated, and i asked either concur or object to the transfer. the secretary of state, the attorney general, secretary of homeland security, director of national intelligence, and the
3:51 am
chairman of the joint chiefs of staff all supported this transfer. all put their names on it. there was complete unanimity on this decision, mr. chairman. the president and i would not have moved forward unless we in the national interests and the best traditions of our country. our operation to save sergeant bergdahl's and the u.s. laws and national security interests in at least five ways. first, we complied with the national defense authorization act of 2014 by determining that the risk of detainees posed to the united states, american citizens, and our interests was substantially mitigated. and that the transfer was in the national security interest of the united states. second, we fulfilled our commitment to recover all military personnel held captive. third, we followed the precedent
3:52 am
of past wartime prisoner exchanges. a practice in our country that dates back to the revolutionary war. and has occurred in most wars that we fought. fourth, because sergeant bergdahl was a detained combatant, being held by an enemy force, and not a hostage, it was fully consistent with our long-standing policy not to offer concessions to hostage takers. the taliban is our enemy. and we are engaged in an armed conflict with them. fifth, we did what was consistent with previous congressional briefings this administration has provided, as i've already noted in late 2011 and early 2012. reflecting our intent to conduct a transfer of this nature with these particular five individuals. mr. chairman, i fully understand and appreciate the concerns, the questions about our decision to transfer these five detainees to
3:53 am
qatar without providing 30 days notice to congress. but under these exceptional circumstances, a fleeting opportunity to protect the life of an american service member held captive and in danger for almost five years, the national security team and the president of the united states agreed that we needed to act swiftly. we were mindful that this was not simply a detainee transfer. but a military operation with very high and complicated risks and a very short window of opportunity that we didn't want to jeopardize. both for the sake of sergeant bergdahl, and our operators in the field who put themselves at great risk to secure his return. in consultation with the department of justice, the administration concluded that the transfer of the five could lawfully proceed. the options available to us to recover sergeant bergdahl were very few.
3:54 am
and far from perfect. but they often are in wartime, mr. chairman. and especially in a complicated war like we've been fighting in afghanistan for 13 years. wars are messy. and they're full of imperfect choices. i saw this firsthand during my service in vietnam in 1968. 1968 this committee may recall we sent home nearly 17,000 of our war dead in one year. i see it as the secretary of defense. a few of you on this committee, a few of you on this committee have experienced war, and you've seen it up close. you know there's always suffering in war. there's no glory in war. war is always about human beings. it's not about machines. war is a dirty business. and we don't like to deal with those realities. but realities, they are. and we must deal with them.
3:55 am
those of us charged with protecting the national security interests of this country are called upon every day to make the hard, tough, imperfect, and sometimes unpleasant choices based on the best information we have, and within the limits of our laws. and always based on america's interests. war, every part of war, like prisoner exchanges, is not some abstraction or theoretical exercise. the hard choices and options don't fit neatly into clearly defined instructions in how-to manuals. all of these decisions are part of the brutal, imperfect realities we all deal with in war. in the decision to rescue sergeant bergdahl we complied with the law. and we did what we believed was in the best interest of our country, our military, and sergea sergeant bergdahl. the president has constitutional responsibilities, and constitutional authorities to protect american citizens, and members of our armed forces.
3:56 am
that's what he did. america does not leave its soldiers behind. we made the right decision. and we did it for the right reasons. to bring home one of our own people. as all of you know i value the defense department's partnership, partnership with this congress, and the trust we've developed over the years. i know that trust has been broken. i know you have questions about that. but i'll tell you something else, i have always been straightforward, completely transparent about this committee since i've been secretary of defense. i will continue to do that. i will do that always with all my relationships, associations and responsibilities to the congress. that's what i always demanded, mr. chairman, of any administration when i was a member of the united states senate.
3:57 am
i've been on your side of this equation. i understand it. that's what i've done this morning with the statement i've made and i made the decision i did. and i've explained that in general terms. the circumstances surrounding my decisions were imperfect. and these decisions that have to lead to some kind of judgment always are. the president is in the same position. but you have to make a choice. you have to make a decision. the day after the bergdahl operation, at bagram air base in afghanistan, i met with a team of special operators that recovered sergeant bergdahl. they are the best of the best. people who didn't hesitate to put themselves at incredible personal risk to recover one of their own. and i know we all thank them. i know this committee thanks
3:58 am
them. and we appreciate everything that they do. and we thank all of our men and women in afghanistan who make the difficult sacrifices every day for this country. earlier this week we were reminded of the heavy costs of war. the heavy costs of war when we lost five american servicemen in afghanistan. i know our thoughts and our prayers are with their families. we're grateful for their service. but we're grateful for the service of all our men and women in uniform around the world. as i conclude mr. chairman i want to again thank this committee. this committee for what you do every day to support our men and women around the world. mr. chairman, i appreciate the opportunity to make this statement, i look forward to your questions. >> thank you very much mr. secretary. in your statement, you indicated that the president had made the
3:59 am
final decision on this operation. i appreciate your clarifying that. we had a briefing just a couple of days ago, and the last question asked by a member of congress of the briefers was who made the final decision, and one of the briefers stated that you had made the final decision. i think all of us understand how this place works. and a decision of this nature is always made by the commander in chief. and i think that you clarified that, and i appreciate that. mr. secretary, one of the things that has bothered me the most about this is the fact that we did pass a law last year that stated that congress should be notified 30 days before any transfer of detainees from guantanamo. just a little history. we were briefed, some of us, some of the leadership, on this committee and other pertinent
4:00 am
committees in congress, starting in november of '11 that there was negotiations that we were entering into negotiations with the taliban looking towards reconciliation at some point. along with that -- in that headquarters in qatar. president karzai learned of that. everything hit the fan. and we were briefed again, saying that all of those negotiations have come to a
4:01 am
halt. if we start those negotiations again, we will inform you. we never heard another briefing on that matter. and so when we passed that law, we felt that we did it for a good reason. the law didn't just state that we would be given a notice. it required that the department would provide numerous pieces of critical information, including how the risk posed by the detainee had been substantially mitigated, how the transfer is in the national security interest of the united states, an assessment of the capacity, willingness, and past practices of the receiving country, along with the notice, along with several other pieces of information. and previous ndaas
4:02 am
with the tape, and with the other things that went forth. and i' ven told in a couple of different briefings now that somewhere, i think the final number given to us a couple days ago was somewhere between 80 and 90 people in the department of justice, the state department, the homeland security, i guess was one of them, and the
4:03 am
department of defense, knew about this, 80 to 90 people. the only one i know of that was elected was the president, and perhaps the vice president. we don't know who those 80 or 90 people were. yet, in all that time, the leadership of the house that has the responsibility, a co-leadership, according to the constitution, with the president of the united states, was not informed, not told of any of this. if you had -- or somebody, i think you have the most credibility, but if you had been able to meet with the responsible people in the congress, and give them the same story you just now gave us, the law would have been complied with. we didn't need to know the operational details. we didn't need to know anything than that other than the things that i've mentioned that the law states. in full compliance with the law would have been met. and i don't think we would have
4:04 am
pushed back at all. and yet when the law's ignored, and, you know, we all have -- we all feel keenly the responsibilities that we have. sometimes more than others. this is one of those times where this is a very important principle, and i wish that you, or somebody, had sat down with the leadership of the congress, including the senate, and told us the same things that you've just told us in your briefing here. i think it would have gone -- would have been very helpful in re-establishing, or establishing, or keeping, the trust that we should have between the congress, the president of the united states, the supreme court, all of us trying to work together to the
4:05 am
satisfaction of the constitution, and the american people that were all sent here to serve. let me just ask one question, secretary hagel, will the department fully cooperate with this committee's inquiry going forward with the detainee exchange, including the recent request that i sent a couple of days ago for documents? >> absolutely. yes. >> thank you very much. and thank you for your service in the military in uniform, in the senate, and now in this very tough job that you hold. >> thank you. >> mr. smith? >> thank you, mr. chairman. i think two very important parts to this. one is the one the chairman just mentioned which i'll get to in a second. but the first is this whole notion that we have somehow broken precedent. that this negotiation, we negotiated with terrorists, in
4:06 am
exchange for this, and that you know, went against a long-standing u.s. policy. and i think that has been the central criticism, the criticism from the speaker yesterday, and i think it's just absolutely wrong given the situation that we were in. as you described it. we went to war in afghanistan. sergeant bergdahl was fighting in that war. and we were fighting directly against the taliban. you know for the first couple of months they were the government. they were knocked out and they kept fighting as an insurgent force. could you walk us through, and maybe mr. preston, as the lawyer, you can sort maybe, mr. preston, as the lawyer you can get into this, how you view this and whether or not this is unprecedented. there certainly doesn't seem to be. there's been schaenexchanges in about every war we fought of prisoners. whatever we thought of the taliban, we were fighting a war with them. it was a battle zone. it was not a diplomat or a civil van, it was a member of the armed forces who was captured in
4:07 am
that battle so do you think that we've set some precedent for negotiating with terrorists or is it clearly, as it is in my mind, in a different legal category? >> congressman smith, thank you. i as you noted, alluded to some of this in general terms in my statement. two general comments to respond and then i'll ask mr. preston, you suggested his thoughts. one, this was an extraordinary situation. for the reasons i mentioned, i think in the classified briefings that some of you have attended or heard will get more into the extraordinary dynamics when we close this hearing down and go into classified. it was a very unique set of dynamics that we were dealing with, that's number one. on the precedent-setting side of
4:08 am
this, i'm not the legal person here, but i do occasionally read, and i don't think there were any precedents set by this. as far as from what i know from past wars and the way we've always gotten our prisoners back or attempted to get back at the time of war or after war, we can get into all the appropriate categorizations of who are combatants and who are we at war with and who are terrorists. and we have legal definitions for all of those. but i said something at the beginning of my testimony here. i know it's imperfect, but i do think it plays into the larger scope of what we were dealing with, what we are dealing, with still dealing with and will be dealing with not just in afghanistan. but you look at yemen, what's going on all over the world. what is unprecedented today is
4:09 am
the threats and what we're up against around the world. organized, sophisticated terrorist groups. now, have we declared on war on any of them or how would we define them other than some as terrorist groups, but these are different dynamics in unprecedented situations that this country has never had to deal with before. i'll make one last comment and then ask mr. preston for his legal opinion on your question. you all have major responsibilities. we each in government have major responsibilities. i have the responsibility of getting up every morning, i've got one responsibility and that's the security of this country. that's what i'm charged with. that's what the president asked me to do, the senate confirmed me to do that, i agreed to do it, i took an oath of office.
4:10 am
we all take the same oath of office and that's to the constitution and security of this country. that is my primary focus every day. you all have your focuses. not too dissimilar from mine either on some of these things. i just happen to have a more narrow gauge in what i do. the president of the united states has the ultimate responsibility for the security of this country. so i just remind us of all of this. it's imperfect, i know, and it might sound like an excuse but it's not an excuse, it's reality. i'll ask mr. preston. >> thank you. there's, of course, a good deal of technical legal detail in what constitutes a p.o.w. per se versus a detained combatant or privileged or unprivileged belligerent. i don't think we need to get into that to answer your question. what we had were detained combatants held by opposing
4:11 am
forces in the samd armed conflict. as such this exchange falls within the tradition of prisoner exchanges between opposing forces in time of war. now, it is true that the taliban is not the conventional nation state that has been party to conventional armed conflict in the past, but it's not the character of the holding party. it's the character of the detainee that inspires and motivates our commitment to the recovery of service members held abro abroad. we don't see those as setting a particular precedent both because it does ball within that tradition of prisoner exchanges and there have been in the past occasions where the united states has dealt with nonstate actors who are holding a service member in order to achieve their recovery. >> can you give us a specific
4:12 am
example of that? >> the one example i'm aware of is the helicopter pilot, michael durant, in somalia who was held captive by the war lord mohammed adid and there was a quiet, as i understand it, arrangement whereby the united states regained durant's freedom and functionally in exchange for individuals that were captured in the same operation. >> and i just want to say again any characterization of this as negotiating with terrorists totally misses the fact that we were and are at war. sergeant bergdahl was a member of our military fighting that war. on the gitmo piece, is it your opinion that at the end -- say 2014 we consider that to be the end of hostilities, which is an interesting argument because we're still going to have 10,000 troops there, that assuming there was an end of hostilities
4:13 am
that these five would have had to have been released as the end of hostilities? is that the department's opinion? are they undecided or do they feel the opposite? >> sir, the way i would answer that is to say that we believe we have under domestic law, specifically the aomf, and under international law principles of the law of armed conflict that we have authority to hold and had the authority to hold these five at guantanamo as enemy belligerents. >> even after the war would have been over? >> i will speak to that. there will come a point in time where the armed engagements we're engaged in with the taliban come to an end. at that pointing the law of war rationale for continuing to hold these unprivileged belligerents would end unless there were some other basis for continuing to hold them such as prosecution. >> it's not just -- not just the
4:14 am
war in afghanistan. >> that's right. >> it's the broader battle as defined under the aumf. >> and the further point is i'm not aware of any determination as yet that with the cessation of the current combat mission at the end of this year that the armed conflicts are determined to be over such that would determine the circumstances we've been discussing. >> and the last thing i'll say and no need to respond to this but i'll just reemphasize a pointing the chairman has made and i made in my opening statement, let me just say the department of defense in my experience has been very good about consulting with us and about working with this body. so it's not really about that. the white house on the other hand has not been very good about keeping in touch with congress, working with us, consulting with us on major policy issues. it's sort of hit or miss. if we could do better at that, it would make my job a whole lot
4:15 am
easier if we could just trust congress a little bit and have those consultations before policy decisions are finalized. i think it would make this entire town work better than it is right now. i yield back. >> there are two things i need clarified. did you, mr. preston, say that at some point conflict would end and then we would release these people or we would have to release them, there would be no reason to hold them and that that conflict is ending in december of this year? >> sir, the point was when the conflict ends the international law basis for continuing to hold people who are being held on the basis of their membership in the -- >> i'm sorry, mr. preston, but you have to point out which armed conflict you're talking about. your answer was not the armed
4:16 am
conflict in the afghanistan, it was the one as defined under the aumf. as long as we're fighting al qaeda and as long as we're fighting their associated forces, that is the armed conflict that you were talking about being over, not afghanistan. i believe that's the point of the chairman's question. >> the point is we're currently in armed conflict with the taliban and with al qaeda. at some point the armed conflict with the taliban ends. at that point for those detainees who are being held as enemy belligerents against our enemy, the taliban, unless there is additional basis for holding them, then we would no longer have that international law basis for holding them. now, it has been suggested that taliban may also held as associates of al qaeda as the conflict with al qaeda continues. >> the point that mr. smith made
4:17 am
is that this conflict may not end in december, just because the majority of our troops are pulled out. is that your understanding? >> that is my understanding as well, sir. >> we thought the conflict was over in iraq and we see that it is not. it continues to go on. now, the second thing, i may have left a wrong impression when i was talking to the secretary saying that if you had given the same report that that probably would have just solved everything. we still have big concerns about the five. and i didn't mention that when we were briefed in november of '11 and january of '12 that there was real concern of members of congress that those five be released, in fact there was real opposition to it. and that's why we were real
4:18 am
concerned that we weren't told other than if we'd re-enter those negotiations you'd be told and then we weren't. so those are things that we really need to have clarified and worked through. mr. thornberry. >> thank you, mr. chairman. mr. secretary, i'd like to just begin with a brief additional observation on the notification issue. for the past several years, this committee has worked on a bipartisan basis to establish an oversight structure for cyber operations, for terrorism operations and for sensitive military operations. and an oversight structure that allows the department to have the flexibility it needs to operate in arapidly changing world and still give us a chance to execute our duties under the constitution. now, the basis for all of those in all three of those areas is that we get timely, accurate information from the department. and this failure, even if it was ordered by the white house,
4:19 am
undermines the ability to have that sort of oversight structure. i've been a member of the intelligence committee for ten years. our work depends on getting accurate, timely information from the intelligence community. if the president can violate the law and say, no, in this case we're not going to give you the information, it undermines the oversight process that we have with the intelligence community. so my point to you is it's not just about this incident, it's not just about somebody having their feelings hurt, this decision undermines a lot of the working relationship in all these areas of national security. and i think it's important that the whole administration understands some of the ramifications of this. let me ask a specific question. press reports indicate that sergeant bergdahl was captured by a network commander and was held by the hakani network.
4:20 am
is that true? >> what i noted is in the classified section that we get into, the specifics of that 15-6 commander's evaluation report that was done of the circumstances at the time of sergeant bergdahl's capture, i believe that was done in august of 2009. that's been sent up here unredacted, sent up here yesterday, and i'd just as soon get into that in a classified hearing, but i would say this, though. i would say this. he was in that report that the army did, he was classified as missing/captive. >> i wasn't really focused on him, i was just trying to verify, as i understand it, administration people have said clearly it was the hakani network that kept him. >> well, the hakani network did
4:21 am
have him through periods of time. this was another complication over a five-year period he was moved around. we had difficulty finding him, knowing where he was. different groups held him. so the complication of the hakanis being part of this, that's right. >> and it's also true the hakani network is listed as a foreign terrorist organization. >> that's right. but we didn't negotiate with hakani. >> i think that's a subject we'll want to discuss if we must in the classified discussion -- >> well, i want to make sure the record is clear on that. we engaged the qataris and they engaged the taliban. notic now, if the hakanis were
4:22 am
subcontracting to the taliban or whatever that relationship is, you know there's the pakistan taliban and the afghanistan taliban, there's a difference there so we get back into definitions of who has responsibility for whom. but i just want to make sure that that's clear on the record and we can go into a lot more detail. >> i think that you just pointed out some of the difficulty in making categorical statements that we don't negotiate with terrorists when at least for some period the hakanis were the ones who had him. let me just ask about one other thing and that is the five detainees that were released. you said that there is always some risk associated with releasing someone from guantanamo, but you also said that they had not been implicated in any attacks on the united states. i have some unclassified summary of evidence before the combatant status review tribunals. for example, it says the detainee engaged in hostilities
4:23 am
against the united states or its coalition partners. maybe there's a difference between us and our partners. for mr. wazik it says the detainee participated in military operations against the coalition. so at least at some point there was evidence that they were involved in hostilities, military operations against the coalition, weren't there? >> yes. they were mid to high-ranking members of the taliban government, of the taliban. so, yes, they were part of planning. but what my point was, we have no direct evidence of any direct involvement in their direct attacks on the united states or any of our troops. they were part of the taliban at the time some were given to us. we picked two of them up, captured two, but yes, they were combatants. >> so your point was they didn't pull the trigger, but they were senior commanders of the taliban
4:24 am
military who directed operations against the united states and its coalition partners, would that be a better way to do it. >> that's right. that's right. now, as i said in my statement, congressman, they were combatants. we were at war with the taliban. there's no getting around that and i made that point, i thought, pretty clearly. >> thank you. >> just like bin laden didn't pull a trigger but we went after him because he's the one that caused the 9/11. ms. davis. >> thank you, mr. chairman, and thank you both for being here. mr. secretary, i do think that your presentation did provide us i think additional ways of really looking at the discussion. i do understand how people feel in terms of notice, but i wanted
4:25 am
to have an opportunity to just look at that issue and whether or not the circumstances under which he was captured or the fact that regardless of whether or not his life was in danger would have made any difference in terms of the 30-day notice. you know, it's difficult for me to imagine that members would have included that within the language of that bill. to what extent were those situations weighing on the decision of whether or not to engage in that discussion during the imminent danger period? >> well, all of those were factors that we had to consider as we were thinking through this. his deteriorating health, which was clear to us from the last
4:26 am
proof of life video we had, the uncertainty of where he was, who exactly held him. again, i remind everybody, this service member was held in pretty difficult circumstances for almost five years, and we don't know the facts of all of that until he gets back and we're able to get the facts. the urgency of getting him, the fleeting opportunity that was made clear to us by the qataris in our engagements, negotiations, mr. preston was there through those. all these were factors. the concern about leaks, we were warned about. every one of these different dimensions we had to think through, and we did believe, as i said, and we had information to support this that this effort
4:27 am
might be the last real effort that we have to get him back. there were too many things floating around that we didn't control. we didn't know enough about. so we had to factor in all of those. >> did you have any other -- did you, i guess, entertain other approaches to his rescue that you were looking at at that particular time, and why were any of those not followed? >> well, congresswoman, we were, as i said in my statement. since the time that he went missing we were looking at different ways to get him back. our combatant commanders were always looking at plans, possibilities, options, rescue missions and so on. but as i said in my remarks, we had to factor in the risks to
4:28 am
our other forces to go get him. and if he was in pakistan, we know he was moved in and out, across the border. that would also affect some different dimensions. but yes, we looked at all the options, at all the possibilities. but up until this last time when we got him, in our opinion, our intelligence community's opinion, our military, everyone who was involved, this was the best possibility that we had to get him out and we were concerned we might lose it. as i gave you some dimension of the time frame, we didn't even know where we were going to pick him up. it was less than an hour and the general area. >> and the detainees, were there -- was it always this five or were there others? >> well, it actually started with six. some of you may recall.
4:29 am
one of them died. and there had been back and forth, they wanted all of the taliban detainees at one appointed we said no. so this is part of the whole engagement of what we need to do and where we draw lines, say no, we're not going to do this. so, yes, there were different variations of that engagement over the years. >> all right. thank you. thank you, mr. secretary. >> mr. jones. >> mr. chairman, thank you very much. secretary hagel, mr. preston, it's good to see both of you. thank you for being here today. mr. secretary, on june 1, you were on "meet the press" and you expressed hope that the release of sergeant bergdahl would lead to direct u.s. talks with the taliban. mr. secretary, the taliban have stated there will be no peace with afghan government with the
4:30 am
united states or any foreign presence as long as troops remain in afghanistan and prisons are contained at guantanamo bay. they have repeated these statements time and time again and have proven they do not desire peace with the united states or its allies. with this known, why did you at that point on "meet the press" express hope, and we can all have hope, that there would -- the release of the sergeant would lead to some type of direct negotiations with the united states? and do you today feel that that is still a real possibility? maybe there's something you want to say in the classified setting that you can't say here today, but this, to me, your statement was received by many of the people that i represent in the third district of north carolina
4:31 am
that maybe there was in this negotiation about the sergeant, that maybe there was some signal sent to you, sir, or to the administration that there might be an opportunity for direct negotiations with the taliban. knowing the history of the taliban, knowing how they fought the russians, alexander the great, the brits and then fighting the americans, i would hope that maybe you do know something that you can share with us, if not in a public setting but in a private setting. can you comment, sir? >> congressman jones, thank you. good to see you again. thank you. first, as you know, the position of the united states government regarding the taliban has always been we support a reconciliation between the afghan government and the taliban. that's been a general position,
4:32 am
as you know. as to the specific answer i gave on "meet the press" it was to a specific question when we were talking about sergeant bergdahl's release, and i don't recall exactly the question. but if i can piece it together enough to respond, i think the question was set up, well, could this lead to talks with the taliban or reconciliation. as you quoted me, i said, well, i hope, maybe, whatever. but, no, that -- that wasn't any direct hint or wink or possibility that i know something that that's going to happen. but i would also remind us again that if you recall, some of you do because you were in some of these meetings, briefings, in the 2011-2012 time frame, i wasn't in this job at the time,
4:33 am
but i've looked at the files on this, i've seen it all. there was a larger scope and framework of a larger reconciliation which included bergdahl's release. but the current situation that we were in was a straight get bergdahl. now, that doesn't dismiss, congressman, the hope that there can be some possibility of the afghan government and taliban finding a reconciliation somehow some way, but in no way did i -- was i intending to imply in that answer that there's something else going on out here. >> well, my interest was simply that the taliban's history does not seem that they want to see a foreign presence that's going to influence the future of their country. i was hopeful that maybe in the
4:34 am
negotiations for the sergeant that maybe there had been some signal sent with the mediary that maybe had been shared and if there had been maybe you could through your staff or in the classified setting let me know that there are some possibilities, because my marines down in camp lejeune, quite frankly, are tired of going to afghanistan and getting their legs blown off. thank you, mr. chairman. i yield back. >> and we will. >> congressman jones, thank you. >> thank you, mr. chairman. mr. secretary and mr. preston, i want to thank you for being here today for your testimony. as we were reminded just yesterday with the loss of five american special operating forces, afghanistan obviously remains very dangerous and a battlefield for our military.
4:35 am
i join many of my colleagues in the expression of gratitude at the return of an american prisoner of war and the return of any u.s. service member from enemy captivity should be a priority for his or her fellow soldiers and of course for our country. sergeant bergdahl is an american soldier and we are certainly grateful that he has been freed. that said, this whole situation raises many troubling concerns and among them, of course, this committee has a significant oversight role and there are legitimate questions regarding both congressional notification as well as the long-term incentives for the taliban and al qaeda. certainly significant personnel and other resources have been expended to conduct what could result in dangerous and disturbing incentives on the battlefield, as one taliban
4:36 am
commander said, and i quote, it has encouraged our people, now everybody will work hard to capture such an important bird, end quote. so, mr. secretary, how do you anticipate this transfer will impact the incentives and the behavior for the taliban and al qaeda? are we prepared to counter any new behavior? >> congressman, i would answer this way. first, i think everyone on this committee knows, some more than others, those who served in war, that war is a dangerous business. so a soldier is always, always at risk. that's number one. two, you probably know that the taliban has standing orders to capture american service members and that's been a standing order for 12 years. so there's nothing new here about where the taliban have been and where they continue to
4:37 am
be. but i would say this also. now that we have our last prisoner back, this very much gives us more flexibility quite frankly to free up resources that every day we were thinking about our commanders on the ground in that area, how -- if we have the opportunity how can we get bergdahl. now that he's back, that frees up that obligation. i think that actually strengthens the point. and the last point i'd make, i mentioned this in my comments, and again those who have served in uniform on this committee know this, pretty basic to military. and i expressed it in different ways by quoting different senior members of our military and retired. that to have our men and women in uniform all over the world
4:38 am
who some are more at risk than others every day, to have them be reassured that this country will come get them or will make every effort to go get them, it's got to be pretty significant. and i was told that by all of our commanders. now, it can be issues on the specifics of sergeant bergdahl, but that's irrelevant, quite frankly. he was a member of our armed forces and we went and we got him back after five years. i think that's pretty significant. and i think it also falls into the category of your question, answering your question. thank you. >> mr. secretary, thank you for that answer. as the chairman and the ranking member have mentioned in their opening statements, questions about sergeant bergdahl's conduct should be addressed with due process at the appropriate time and such, but could you
4:39 am
settle one conflicting report, at least, in terms regarding the number of -- the loss of soldiers who may have been involved in searches for sergeant bergdahl? >> first, any loss of any soldier is a terrible loss to their family and to our country, and i think we should note that first. second, your question has been asked a number of times. i have personally gone back and asked that question inside the pentagon. in the army, in all of our reports, i have seen no evidence that directly links any american combat death to the rescue or finding or search of sergeant bergdahl. and i've asked the question. we've all asked the question.
4:40 am
i have seen no evidence, no facts presented to me when i ask that question. >> mr. secretary, you did say there's nothing new here that the taliban is always out to try to capture us, but isn't it true that there is one thing new, that we have now made a trade for a hostage? >> no, he was not a hostage, he was a prisoner of war. that's not new. >> have we made other trades with the taliban? >> with the taliban, i don't know. i don't think so. >> thank you. mr. forbes. >> thank you, mr. chairman. mr. secretary, thank you for being here and for mentioning the need for transparency. as you talked about, our inability to prosecute the individuals that were released, this administration is not exactly had a stellar record on prosecution of people at gitmo when you look at the fact that the lead prosecutor for the 9/11
4:41 am
terrorist had specifically said that he would have had a guilty plea out of all of them within six months and this administration came in, shut down his prosecution, destroyed all of his pretrial work and we've been five years and still haven't brought them to trial. secondly, i don't think even you would argue that the conversations that took place in 2011 complied with the law. and basically what we're trying to get across is that we're a nation of laws. you can't pick and choose just because they're convenient or not convenient which ones we're going to enforce and which ones we aren't. but the third thing is, and you said this, that there are limits to trades that we would make and somewhere we draw the line. i want to talk about where we drew the line. the individuals we released were essentially equivalent to releasing a deputy secretary of defense, a deputy secretary of intelligence, a deputy secretary of interior, a governor and a commander. and when the president was asked if there was a possibility of them returning to activities that are detrimental to the u.s., his answer was absolutely.
4:42 am
our deputy director of national intelligence was even harsher. he said the latest communitywide u.s. intelligence assessment on these five terrorists said he expected four out of the five taliban leaders would return to the battlefield. and this assessment was in accord with the 2008 pentagon dossier that said that all five of the individuals released were considered to be a high risk to launch attacks against the united states and its allies if they were liberated. now, you state in your testimony that if any of these detainees ever try to rejoin the fight, they would be doing so at their own peril. so my first question to you is does this mean you would put american lives at risk to go after them? >> congressman, we have american lives at risk every day. >> but not for individuals that we have released and put back out there. so my question is would we put american lives at risk to go after them if they rejoin the fight? >> well, depending on the
4:43 am
threat. but also let me remind you of the other pieces that you didn't mention in our analysis of these five. the intelligence community has said clearly that these five are not a threat to the homeland. >> mr. secretary, you have said in here that if they rejoin the fight, they do it at their own peril. >> in afghanistan. >> my question is a pretty simple one. would we put american lives at risk to go after them? yes or no? >> we have american lives put at risk every day to go after -- >> i understand. my question is will we put american lives at risk to go after these individuals if they rejoin the fight? >> well, yes. because -- >> if that's the case. >> you could use the same argument, congressman, on yemen or anywhere else. >> i could do that but not because of individuals we released. and the second question i would ask you is two parts. in the calculus that you made for releasing these individuals, were you asked or did you make
4:44 am
an assessment of the number of american lives that were lost or put at risk in capturing these individuals in the first place, and did you make an assessment of the number of american lives that may be put at risk if we have to go recapture them again? >> again, i saw no evidence, no facts, i asked the question about how these five found their way to guantanamo. and i have in front of me the facts on the five. two of them were retained by u.s. forces. >> i understand that and i understand we're running out the clock. >> the answer is no. >> so you didn't even make a calculus -- >> i said i did and i said the answer is -- you asked if there were lives lost in capturing these. >> and you said no. >> i have no direct evidence there were any american lives in capturing them. >> did you make an assessment of
4:45 am
how many american lives may be put at risk if they have to be recaptured? >> no. >> okay. >> but there's risk we have to our country, threats to our country every day, everywhere. the other point i would make on this, we determined that there was a substantial mitigation of risk for this country, for our interests, for our citizens and our service members when we made this decision. and we were satisfied that we could make that determination. >> it just flies in the face of all the other evidence we have. and with that, mr. chairman, i yield back. >> ms. bordalio. >> thank you very much, mr. chairman. secretary hagel and mr. preston, thank you for appearing today and providing us with your testimony. secretary hagel, i appreciate the detailed information you had
4:46 am
in your statement and you support your position. i do appreciate also your continued commitment to our men and women in uniform and your steadfast leadership during these challenging times. my first question is for you, mr. secretary, what impact with sergeant bergdahl's continued imprisonment, if we had not engaged in his exchange, have had on the security situation in afghanistan as we draw down forces? did his continued imprisonment include a heightened security threat to our men and women in uniform? >> well, in the sense, congresswoman, that as i answered in a previous question about putting at risk american lives to capture him -- not to capture him, but to get him back, and to do that if it would have taken another course of action or if we would have taken
4:47 am
another option, that would have put our men and women at risk. our men and women who are at risk in fact carrying out this one mission, but fortunately it was done the right way. and i don't think -- again, that effort has gotten enough attention. this was all done in less than 60 seconds. not one death, not one issue, not one problem. and i've seen very little recognition of that given to our forces by anybody. that was a significant effort by our armed forces, knowing as little as they did but planning it as well as they did and having the outcome as positive as it was, so thank you. >> i agree. my next question is for mr. preston. with the heightened media attention, how will you ensure that sergeant bergdahl receives a fair investigation? >> thank you. we will pursue our usual
4:48 am
policies and practices with respect to investigations and follow-on actions. a key element of that is avoiding what is referred to as unlawful or undue command influence, so you will see that the leadership, military and civilian, at the department have been entirely neutral in their discussion of this and focused on ensuring due process without prejudging what the outcome should be one way or the other. those dealing with sergeant bergdahl more directly and the army more generally are, i believe, sensitive to ensuring that in the process of bringing him home, restoring him to health, debriefing him for intelligence purposes and then ultimately reviewing the circumstances of his capture that fairness be preserved and
4:49 am
that his rights be preserved. >> thank you. and my final question is for secretary hagel. prior to securing the recovery of sergeant bergdahl, had you received correspondence from members of congress requesting that you take action to obtain sergeant bergdahl's release? >> yes. >> thank you. >> thank you. mr. miller. >> thank you, mr. chairman. thank you, mr. secretary, for being here. i'm looking at your testimony and on the first -- third page, excuse me, it says that we complied with the national defense authorization act of 2014. did you or did you not notify congress within the 30-daytime frame, yes or no. >> no. >> okay. >> what i was -- >> no, sir, yes or no. >> all right, no. >> does the administration intend to violate the notice requirements of section 1035 of the ndaa and section 8 -- 81-11 in future transfers?
4:50 am
>> not unless -- not unless there's an extraordinary set of circumstances like this one would we have -- would we be in a position to make a call like that. >> will you assure this committee that the department will not proceed with future detainee transfers without notifying congress, consistent with the law? >> we have, i believe, before my time in every circumstance except this one. and we intend to continue to do so that. >> you were part of the legislative branch as a member of the united states senate. we make the laws. you're part of the executive branch now, which the responsibility is to enforce the law. whose responsibility is it to interpret the law? is it the president's responsibility or is it the courts? >> the courts. >> then why did the president make the decision or you make the decision not to notify congress? >> we believed and the justice department office of legal counsel -- >> part of the executive branch.
4:51 am
>> told the president that he had the constitutional authority to do that. that he had under his constitutional powers the authority to make the decision that he did. >> you said that you would put american lives at risk if the taliban prisoners that were swapped in the secret deal would rejoin the fight -- if they rejoin the fight in afghanistan. what if they rejoined it from somewhere else? they don't necessarily have to be on the battlefield in afghanistan. certainly we would pursue them wherever they are. >> we would do everything we needed to do to, as we have said, to deal with that threat, as we are doing today. >> your testimony is we're doing everything that we can -- >> to deal with the threats to the united states of america, whether they're in afghanistan, whether they're in yemen, whether they're in homeland defense. it isn't just limited to
4:52 am
afghanistan, the threats that face this country. >> mr. secretary, you keep saying we can't get the facts from sergeant bergdahl until he returns home. have you ever thought about going to landstuhl and talking to him there? >> well, i don't know how much medical training you had, congressman. i haven't had much. and what we are doing is we are allowing -- >> i tell you, mr. secretary. >> we are allowing the doctors to make the decision -- >> no, mr. secretary, wait a minute. wait a minute. why hasn't he been returned to the united states? we have seriously wounded soldiers that are returned to the united states almost immediately after they are stagize stage i -- stabilized. how long did jessica lynch wait before she was returned to the united states? you're trying to tell me that he's being held at landstuhl, germany, because of his medical condition? >> congressman, i hope you're not implying anything other than that. >> i'm just asking the question, mr. secretary. that you won't -- >> i'm going to answer. i don't like the implication.
4:53 am
>> answer it. >> he's being held there because our medical professionals don't believe he's ready. until they believe he is ready to take the next step to rehabilitation. >> have you ever seen a traumatically injured service member brought to the united states immediately upon being stabilized at landstuhl? we do it all the time. >> this isn't just about a physical situation, congressman. this guy was held for almost five years in god knows what kind of conditions. we do know some of the conditions from our intelligence community. not from, by the way, bergdahl. this is not just about can he get on his feet and walk and get to a plane. >> so you're telling me he cannot be questioned because of his condition? >> i'm telling you that the medical professionals that we rely on their judgment for his health, which i assume everybody respects, have made the determination and will make the determination that when he is ready to move and move to the next step, which will most likely be in san antonio, then
4:54 am
we can proceed. that's what i'm saying. >> one other question. why is the army just now reviewing the circumstances of sergeant bergdahl's capture? >> they're not. i said in my testimony and i said in my comments they did it back after he went missing in 2009. that 15-6 report was filed, completed by general scaparotti who is our commanding general in korea, in august of 2009. that 15-6 report, review, complete, not redacted, was sent up to the hill yesterday, to the committees. >> thank you, mr. secretary. >> and you're welcome to read it. >> thank you. >> and that will be made available to all the members in the proper setting to review. mr. courtney. >> thank you, mr. chairman. i want to thank the witnesses for being here today and, secretary hagel, for your powerful testimony which, again, laid out the fact that this
4:55 am
is -- not every choice in your position is always black and white. you've got to weigh a lot of factors. one of the factors which i just want to kind of maybe reemphasize is in terms of when you were deciding this back on may 27th, i mean it wasn't like you had a lot of other options. there was no plan b or plan c that was sitting on your desk in terms of how to get this american soldier back in our jurisdiction, isn't that correct? >> that's exactly correct. there was no other option. >> there are members who have been on some of the shows saying, well, we should have sent special forces in to get him. we actually were not totally clear about where he was. >> that's right. >> so there really wasn't even a place to send special forces to recover him. you also, again, and this has been alluded to earlier, that in terms of the risk mitigation of the five transferees, taliban
4:56 am
transferees, that if they do get back into the conflict, they do so at their own peril. secretary kerry, i think, in some public setting also made the comment that it's not like we're totally without options to raise their risks in terms of getting back involved in the fight. again, they don't always involve the use of military personnel. i mean we have all been on the codels over to afghanistan and have seen the availability of unmanned assets that we have to take out targets that, again, have been identified through the chain of command. isn't that correct? >> that's correct. >> and certainly that would be available to us, again, if a situation arose that would not put soldiers or airmen or anyone necessarily at risk? >> that's right. >> mr. preston, we've been sort
4:57 am
of talking about the legal sort of consultation that was going on with your office and the department of justice during that five or six-day period when the decisions were being made. did doj address in terms of the legal opinions that you were given the question of consultation with congress, the 30-day requirement? >> yes, sir. the administration sought the guidance from the department of justice on the applicability and impact of the 30-day notice requirement under these circumstances and received guidance from the department of justice. >> and was that in writing? >> it was not by means of a formal memorandum opinion, but rather by e-mail exchange principally. >> i know the chairman mentioned that he's got requests from the
4:58 am
committee for documents, which it sounds like are going to be forthcoming. is that -- i assume that's one of the requests in terms of making any sort of legal analysis that you requested and received or offered from doj, that that would be one of the documents that you would share with us. i hope you would. >> we'll certainly take that back. i'm sure we appreciate that there's interest and we certainly want to make sure that interested members fully understand the legal basis on which the administration acted. as for the disposition of the document, we'll take that back. >> thank you. again, and i'll follow up with the chairman, because i think it is important that if the department was claiming a constitutional authority, which the secretary mentioned in terms of that issue, i think we would like to see that analysis. and with that i would yield back, mr. chairman. >> the gentleman yields back.
4:59 am
mr. preston, when did you consult the doj on the 30-day notification? on what date was that? >> mr. chairman, i don't remember the precise date, but it was in the time frame in which we had completed our discussions with the qataris over the mou but before it was signed. we anticipated that these issues would arise and i engaged with my counterpart at the national security council who in turn engaged with the department of justice to ask them to consider the legal and constitutional implications in this setting. >> do you recall last week when you and other members were -- other members of the administration were briefing the staff, i attended and mr.
5:00 am
thornberry attended that briefing. and i asked the question if at any time since the january discussion started you had talked about the 30-day requirement and nobody said at that time that there ever was a discussion about it. >> i don't recall that exchange, sir, but i can assure you that the 30-day requirement was discussed. the part of the lawyers in this and my part was in working with my counterpart at the nsc to solicit the department of justice's guidance. that guidance was then provided to the decision-makers who made the judgment about whether the circumstances would -- the particular circumstances in this case would permit the 30-day -- the formal 30-day notice. >>


info Stream Only

Uploaded by TV Archive on