>> c-span2 providing live coverage of the u.s. senate floor proceedings and key public policy events, and every weekend booktv, now for 15 years the only television network devoted to nonfiction books and authors. c-span2 created by the cable tv industry and brought to you as a public service by her local, cable or satellite provider. watch us in hd, like us on facebook and follow us on twitter. >> next, the house armed services committee looks into the release of american pow bowe bergdahl. defense secretary chuck hagel defended the administration's decision to not notify congress or days prior to the prisoner exchange with the taliban. the may 31 swap involved five guantánamo bay detainees. sergeant bergdahl was captured in june 2009 but some fellow soldiers accused him of deserting his unit first. representative buck mckeon chairs the committee.

this portion is one hour 25 minutes. >> meeting will come to order. 20. >> 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 to witnesses have the opportunity to be heard. to that end please be advised i will not tolerate disturbances with these proceedings, including verbal destructions, photography, standing or holding signs. i thank you all for your cooperation. i want to thank secretary hagel and mr. preston for testifying before the committee today on the may 31 transfer of five senior taliban detainees from detention at guantánamo bay to the government of qatar. the matter before this 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 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 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 risks 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. what's more, although there will be fewer u.s. personnel in afghanistan in 2015, the return of the site taliban leaders directly threatens the games of our men and women who have fought and died, the games are american women have fought and died for. the transfer is a clear violation of section 1035 of the nine show -- 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 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 before a decision is made to transfer it no detainees. it was designed and approved by a bipartisan majority in congress due to real concerns that dangerous terrorists were being released in a manner that allowed them to return to the battlefield. we are 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 in rural afghanistan through atrocities. lastly this transfer sets a 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 and national security interests. in the president's rush to close gitmo, our 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 sunday's transfer agreements but we're also aware of the immense pressure the white house is putting you to transfer the detainees so they can claim victory for closing gitmo. nevertheless, we expect the department to abide by the law and provide its candidates has been of national security and

tax 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 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 witnesses for being here. i think this is a very appropriate issue for congress to exercise oversight on and there are a lot of questions a lot of questions that need answered am pleased these ministries here today to attempt to answer those questions. i also want to agree up front with chairman that one thing we shouldn't talk about today is the circumstances of sergeant

bergdahl's -- site, mr. bergdahl's capture. i'm happy about that. regrettably that issue did come up monday. there simply is no proof, no evidence. i think the way mr. bergdahl has been slandered has been scandalous. i hope we'll take a step back and do what admiral winnefeld said which is will bring him home, getting healthy, then we'll figure out what happened and due process will be exercise. that should that be disgusted at what should be are the circumstances of this deal. i think the chairman raised a number of appropriate questions, and i have enormous sympathy for the president and for you, mr. secretary, at the very difficult decisions have to be made in terms of figuring out whether this was an exchange that was in the best interest of the united states. ultimately, i will take i think it was. we do our level best to bring our servicemen and women home if we possibly can. not under any circumstances. the issue was raised, would we

have traded khalid sheikh mohammed for them? out fully not. totally different situation. but when you're talking about he's five members of the taliban it is a different equation. that raises the issues that the chairman came up with. who were we negotiating with? he says we're negotiating with terrorists. sergeant bergdahl was captured on the battlefield in 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 can we do know. so to dismiss this as one terrorist group and negotiating with terrorists i think totally mistakes 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 mayor months before. i don't know the full implicationimplications of thati 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. i would be interested, secretary hagel, in your viewpoint on the. what 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. that has been the position of the afghan government. this is a different situation than saying we simply negotiate with terrorists. the second troubling question this raises is the situation in

guantánamo but i will disagree with each other on one key point. the president is not pursuing this out of some naked political goal. if he wants to close guantánamo just because politically he would like to, that's not the situation. we have over 150 people held in guantánamo, many of them in very murky status. is it the plan of the united states of america to hold these people for ever without charge and without trial? what would that do to our values, the president was in a different way if we do that? there's no easy way out of this but to simply dismiss it and say to any effort to try to close guantánamo 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 first place without a clear understanding of how or why, without a plan to try them, and now we have them. it is not the united states of america that i believe in this is look, we're just going to grab people and hold them forever without charge, without

trial. how are we going and let? one question this raises 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's actually the status that we've given them. they're not being treated as prisoners of war. in fact, i believe the phrase was unlawful enemy combatants has been the phrase that's been used. if they want -- 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 the? i don't believe that it is. that's been alluded to. that 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? it's my understanding it's none of them that we didn't put them in that law or category, prison

or category with it would have to be released. the category is murky and confusing and something that we have to answer if we're going to live up to our own constitutional value. the final issue i think where i am more substantial agreement with the chairman is on the congressional confrontation issue. there's two pieces to this. first of all it is important i believe to the widest engage with 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 when you think about doing this deal didn't take the top leadership in congress and talk about it. i know you're concerned was it would've been late but as has been mentioned congress has been trusted with many, many other things including the location of osama bin laden and not leak it. i think that type of consultation would'v would haved the process, not hurt it. the second piece i'm concerned that is the 30 day requirement. i know the president put a signing statement when he signed

the law that had a 30 day requirement in its saying he was concerned about the constitutionality about it. but the law is the law. the way you challenge constitutionality is you go to court energy figure out whether or not the courts say it's constitutional or not. until the courts rule on that it is the law. when president bush was in the white house jihad, gosh, hundreds of signing statements and the signing statements and the was signing statements and there was a signing statements and the was i believe a great amount of outrage amongst many that the signing statements were put out there as way to simply avoid the law. it wasn't right for president bush to do. it's not right for president obama to do. so i would be choose to understand why that requirement was in place and again i'll come back to the fact there was a reason the notice could have been given to the leadership of congress. we can, in fact, keep a secret, or i would say we are no worse added and the administration if you go back through history in terms of how things get out. better consultation with congress is something we will need going forward.

without i look forward to just one and i thank the chairman for this hearing. >> i ask unanimous consent non-sitting members be allowed to purchase but in today's hearing after all committee members have that opportunity ask questions. is there objection? without objection on committee members will be recognize at the appropriate time. mr. secretary, the time is you yours. >> mr. chairman, thank you, ranking member smith, thank you, 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 guantánamo bay to qatar. i appreciate having the department of defense's the department of defense's general counsel, stephen preston come here with me this morning. mr. preston was one of our negotiators throughout this process in qatar and signed on half of the united states, the

memorandum of understanding between the governments of qatar in the united states. also get represent the joint chiefs of staff sitting behind me is brigadier general pat white who is the director of the joint staff's pakistan-afghanistan coordination cell. general wyatt help coordinate the bergdahl recovery on half of the chairman of the joint chiefs of staff, general dempsey. the vice chairman of the joint chiefs, admiral winnefeld, as 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 meetings of the national student 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 the chairman mckeon and mr. smith, 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 decide to move forward with the detainee transfer, and why it is fully consistent with u.s. law, our nation's interests, and our militaries core values. mr. chairman, members of this committee, i want to make one 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

concerns. 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 guantánamo until we had sergeant bergdahl in hand. and second, we had sergeant 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 intelligence matters. as a former member, mr. chairman, of the senate select committee on intelligence, council on foreign relations, i appreciate the vital role congress plays it on our national security. i will present to this committee

within the limits of an open, unclassified hearing, and in more detail in a classified hearing, everything i can to answer your questions and assure you, this committee, the american people that this prisoner exchange was done legally, with substantial mitigation of risk to our country, and a national interest 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 to as the congress knows that. because he is a soldier in the united states army. questions about sergeant bergdahl's capture are as mr. smith noted and you, mr. chairman, are separate from her 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 command, commander marine general jim mattis easily put it, bottom line, quote, the bottom line is we don't need leave people behind. that is the beginning and that is the end of what we stand for.

we keep faith with the guys who signed on, and that is all there is to it. end of quote. for the circumstances surrounding his captivity, as secretary armin mccue and army chief of staff odierno will review later, and they have said clearly last week that the army will review, they will review this exchange, circumstance, captivity of sergeant bergdahl in a comprehensive coordinated effort that will include speaking with sergeant bergdahl. and i think i need not remind anyone on this committee, like any american, sergeant bergdahl has rights. and his conduct will be judged on the facts, not political hearsay, posturing charges or innuendo. we do owe that to any american, and especially those were members of our military and their families. like most americans i have been offended and disappointed in how

the bergdahl family has 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 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. they were broken up by the taliban in march of 2012. we have not had direct talks with the taliban since this time. in september 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 the view of sergeant bergdahl. in january of this year, we received the video, and it was disturbing to some of you may have seen the video. it showed a deterioration in his physical appearance and mental state, compared to previous videos. our entire intelligence community carefully analyzed every part of it, and conclude that sergeant bergdahl's health was poor, and possibly decline. this gave us great urgency to act. in april of this year, after briefly suspending engagement with the taliban again, signaled interest in and direct talks on an exchange. at that point we intensified our discussions with the qatar a government about security assistance and assurances. particularly security

assurances. on may 12, we signed a memorandum 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 country. steve preston who as i noted earlier signed that memorandum of understanding on the half of the united states government. and was included in those negotiations. included in this m.o.u. were specific risk mitigation measures and commitments with the government of qatar, like our restrictions, monitoring, information sharing and limitations on activities as well as other significant measures which we will detailed 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 memorandum 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 memorandum of understanding in a close second. u.s. officials received a warning -- we received a warning from the qatari intermediaries that as we proceeded, time was not on our side and we will go into more detail in a classified hearing on those warnings. this indicated that the risk to sergeant bergdahl's safety were growing. we move forward with and direct negotiations on how to carry out that exchange, exchange of five detainees, and agree to the mechanics of the exchange in the morning of may 27, following three days of intensive talks.

that same day, president obama received a personal commitment and a personal telephone call from the veneer of qatar to uphold and enforce the security arrangements in the final decision was made to move forward with that exchange on that day. as the operating to obtain sergeant bergdahl's release became clear, weaker increase in the concern that any delay or any leaks could derail the deal and further endanger sergeant bergdahl. we were told by the qataris that elite, any kind of leak, which ended the negotiation for bergdahl release the we also knew that he would be extremely volvo 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 have 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 motion, only 96 hours past the for 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 of sergeant bergdahl was handed over safely the u.s. special operation forces that the taliban would hold up their end of the deal.

so it wasn't until we recovered sergeant bergdahl on may 31 that we moved ahead with the transfer of the five guantánamo 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. as secretary of defense i the authority and responsibility, as has been noted here, to determine whether detainees, that the detainees, but these specific detainees of guantánamo 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 with this job. neither i nor any member of the president's national security council were under any illusions about these five detainees. they were members of the

taliban, which control much of afghanistan's -- afghanistan prior, all the territory of america's invasion and overthrow of the regime. there any belligerents detained under the law of war and taken to guantánamo in late 2001 and 2002. they had been in u.s. custody -- custody since then, 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 have been over the last few years, as congress had been told that we were. and if any of these detainees ever tried to rejoin the fight, they would be doing so at their own peril. there's also always, always some risk associate with the transfer of detainees from guantánamo.

this is not a risk-free business. we get back. the u.s. government has transferred 620 detainees, 620 detainees from guantánamo since may 2002. with 532 transfers occurring during the bush administration, and 88 transfers occurring during the obama administration. in the case of the site detainees, the security measures qatar put in place let me as secretary of defense to determine consistent with the national defense authorization, that the risk they pose 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 the 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 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 and less with complete confidence that we are acting lawfully and the national interest and the best traditions of her country. our operation to save sergeant bergdahl's life was fully consistent with u.s. laws and our national security interest in at least five ways. first, we complied with the national defense authorization act of 2014 by determining that

the risks of detainees posed to the united states, american citizens, and our interests were substantially mitigated. and that the transfer was in the nationals could interest of the united states. second, we will build a commitment to recover all military personnel held captive. third, we followed the president of past wartime prisoner exchanges, a practice in the country that dates back to the revolutionary war and has occurred in most wars that we have fought. forth, 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 noted in late 2011 in early 2012, reflecting our tent 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 qatar without providing 30 days notice to congress. but under these exceptional circumstances of fleeting opportunity to protect the life of an american service members held captive and endanger 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 the 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 a transfer of the five could lawfully proceed. the options available to us to recovered sergeant bergdahl were very few. and far from perfect. but they often are in wartime, mr. chairman, and especially in a complicated war like we 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, few of you on this committee, a few of you on this

committee have experienced war, and you have seen it up close. you know there's always suffering to war. there is no glory in war. war is always that human beings but it's not about machines. war is a dirty business. we don't like to deal with those realities. but realities they are. and we must deal with them. those of us charged with protecting the national study interest of this country are called upon every day to make the hard, tough, imperfect, sometimes unpleasant choices based on the best information we have, and within limits of our law. and always based on america's interest. war, every part of war, like prisoner exchanges, is that some abstraction or theoretical exercise. hard choices and options don't fit into clergy defined instructions in a how-to manual. all of these decisions are part of a brutal imperfect realities

we all deal with in warfare in the decision to rescue sergeant bergdahl we complied with the law. and we did what we believe was in the best interest of our country, our military, and sergeant bergdahl. the president has constitutional responsibilities, and constitutional authority to protect american citizens and members of our armed forces. that's what he did. america does not leave its soldiers behind. we made the right decision come and we did it for the right reasons. to bring home one of our own people. that's all of you know i value the defense department partnership, partnership with this congress, and the trust we have 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 with 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. i have been on your side of this equation. i understand it. that's why i have done -- that's what i've done this but 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 had 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 the bagram air force base i afghanistan, i met with the 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 them, and we appreciate everything that they do. and we thank all of our men and women in afghanistan to make the difficult sacrifices every day. to this country. earlier this week we were reminded of the heavy costs of war, the heavy costs of war when we lost life american servicemen in afghanistan. i know our thoughts and our prayers are with their families. we are grateful for their service. we are 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 everyday to support our men and women around the world. mr. chairman, i appreciate the opportunity to make the statement, i look forward to your questions. >> thank you very much, mr. secretary. in your statement you indicated that the president had made the final decision on this operation. i appreciate you clarifying that. we had a briefing just a couple of days ago, and the last question asked by a member of congress was who made the final decision, and one of the briefers stated that you have made the final decision but i think all of us understand how this place works, and, and the decision of this nature is always made by the commander-in-chief. and i think you clarify that and i appreciate that. mr. secretary, one for 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 guantánamo. just a little history. we were briefed, some of us, some of the leadership on this committee and other pertinent committees in congress, starting in november of 2011, that there was negotiations that we are entering into negotiations with the taliban looking towards reconciliation at some point. along with that, in that meeting, there was also mention about a potential transfer of detainees, as you mentioned, for the release of sergeant

bergdahl. that was followed up with another briefing in january, and then the taliban set up the 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 halt. if we start those negotiations again, we will inform you. we never heard another briefing on the 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 could be given a notice. it required that the department provide numerous pieces of critical information, including how the risks posed by the

detainee had beaten substantially mitigated, how the transfers in a national study 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 in the aas had also required that same thing. in fact, our language that we passed in this committee answer this body will soften some by language from the senate that we worked out in conference which was the final language which was passed last year. you know, mr. chairman, that i think you just made a very strong case for the position taken by the president, the administration. you just left one thing out. these negotiations, as we were told in a briefing last week, started in january of this year with the tape and with the other things that went forth, and i've

been told in a couple of different briefings now that somewhere, i think the final number given to us a couple days ago, 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 department of defense knew about this, 80 to 90 people. the only one i know of who was elected the president and perhaps the vice president but we don't have those 80 or 90 people were. yet in all that time, the leadership of the house that has the responsibility, total leadership 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 did need to know anything of that, other than the things that i mentioned that the law states. and full compliance with the law would have been met. and i don't think we would've pushed back at all. and yet, when the law is ignored and, you know, we all have, we all feel keenly the responsible is 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 congress, including the senate, and told us the same things that you just told us in your briefing here.

i think it would have gone, would have been very helpful in reestablishing, 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 for the satisfaction of the constitution and the american people, that we are 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 that in this very tough job that you hold. mr. smith. >> thank you, mr. chairman. i think there are two very important parts to this, and one is one the challenges mentioned which i will get to in a second, that the first is this whole notion that we had somehow broken precedent, that this negotiation, we negotiate with terrorists in exchange for this, and went against the long-standing u.s. policy. and i got criticism from speaker yesterday and i think it's 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. we were fighting directly against the taliban. 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 allergic absorbed into this, how you do this and whether or not -- as a

lawyer, you mentioned you to every war we thought with pressure. and whatever one may think about the taliban we were fighting a war with them, in a battle zone to it was not a diplomat or a civilian. he was a member of the armed forces who was captured in that battle. so do you think that we've set some precedent here for negotiate with terrorists, or is this clearly as it is in my mind, in a different legal category? >> congressman smith, thank you. i come as you noted, alluded to some of his in general terms in my statement. to general comments to respond, and then i will pass 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, we 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 sight of this, i'm not a legal person here, but i do occasionally read, and i don't think there were any precedents set by the end as far as i know from past wars and now we have always gotten our prisoners back, or attempted to get him back, time before or after war. we can get into all the appropriate categorizations of who are combatants and who we are at war with, and there are

terrorists. we have a 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. we are dealing with, still dealing with and will be dealing with. not just in afghanistan. look at yemen, what's going on all over the world. what is unprecedented today is that threats -- is the threats and what we're up against around the world. organized, sophisticated terrorist groups. now, had we declared war on any of them are how will we define them other than some as terrorist groups, but these are different dynamics and unprecedented situations that this country has never had to deal with before. i will 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 responsibility i have the responsible of getting up every morning. i've got one responsibility and that's the secret of this country. that's what i'm charged with. that's what the president asked me to do. the senate confirming to do that. i agreed to do it. i took an office -- i took an oath of office and that's the constitutionality security of this country. that's why 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 has the ultimate responsibility which is the secret of this country, so i just remind us all, all of this, it's imperfect i know, and it might sound like an excuse but it's not an excuse. is reality. i will ask mr. preston. >> thank you.

there's of course a good deal of detail, technical legal detail on what constitutes a pow per se versus a detained combatant or privilege or unprivileged belligerent. i don't think we need to get into that to answer your question. what we had here were detained combatants held by of opposing forces in the same armed conflict. and 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 nationstate 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

abroad. we don't see this as having a particular precedent because it does fall within the tradition of prisoner exchanges, and there have been in the past occasions where the united states has dealt with nonstate actors who were holding service members in order to achieve the recovery. >> can you give us a specific example speak with the one example i'm aware of is a helicopter pilot will come michael to come in somalia who was held captive by the warlord mohamed, and there was a quiet, as i understand, arrangement whereby the united states regained his freedom and functionally in exchange for individuals that were captured in the same operation. >> i just watched it again, i think any characterization of this negotiate with terrorists totally misses the fact that we were at and are at war and

sergeant bergdahl was a member our military fighting that war. on the gitmo peace, is it your opinion that at the end of communism that they 2014 we consider to be the end of hostilities which is interesting are your customers to 10,000 troops there, but it's a me at some point there will was an end to hostilities, that these five would've had to been released at the end of hostilities. is that the department's opinion? on the undecided or do they feel the opposite? >> the way i would answer that is to say that we believe we have under domestic law, specifically the aumf and under international law, principles of the law of armed conflict, that we have authority to hold and have the authority to hold these five at guantánamo as any belligerent spirit even after the war ended? >> i'll speak to that. there will come a point in time

with the armed conflicts we are engaged in with the taliban, and their associates come to an end. and at that point the law of war rationale we are continuing to hold these unprivileged belligerents would end, unless there were some other basis for continuing to hold them, such as prosecution. >> not just the war in afghanistan, the broader battle as defined under the aumf. >> and the further point i would make is this. 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 it would trigger the consequences that we've been discussing. >> the last thing i will say, and no need to respond to this but i will just re-emphasize a point to chip in may, a made in my opening statement, it would

be more helpful -- let me say the department of defense in my experience has been very good about consulting and with working with this body. so it's really not 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 but if we could do better at that, it would make my job a whole lot 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. >> gentleman yields back. there are two things i need clarified. did you, mr. preston, say that at some point conflict within and then we would release these people are we would have to release them? it would be no reason to hold them? and that's that conflict is in

december of this year? >> server, a point was when the armed conflict ends, the international law basis for continuing to hold people who are being held on the basis of their membership -- >> i'm sorry, mr. preston, but you really have to point at which armed conflict you are talking about. your answer was that the armed conflict in afghanistan but it was the one defined under the aumf. in other words, as long as we're fighting al-qaeda and as long as we're fighting associate forces, that is the armed conflict you are talking about being over, not afghanistan. that's the point of the chairman's question. >> the point is we are currently in armed conflict with the taliban and al-qaeda. at some point the armed conflict with the taliban ins, and at that point for those detainees that are being held as any 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 be, candidates held as associates of al-qaeda and the conflict with al-qaeda continues. >> the point that mr. smith made is that this conflict may not end in december just because the majority of our troops are pulled out. is better at getting? >> that is my understanding as well. >> we thought the conflict was over in iraq, and we see that it is not. it continues to go on to now, the second thing, i may have left wrong impression when it was talking to secretary, saying that if you're given the same report that that probably would have just solve everything. we still have big concerns about

the five come and they didn't mention that when we were briefed in november of 2011 in january of 2012 that there was real concerned of members of congress that those five would be released. in fact, it was real opposition to it. and that's why we are very concerned that we weren't told that if we reentered those negotiations you would be told and then we work. 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 began with a brief additional observation on the notification issued. 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 a volatile rapidly changing world and still give us the ability to exercise 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, undermined the ability to have that sort of oversight structure. i have been a member of the intelligence committee for 10 years. our work depends on getting accurate, timely information from the intelligence community. it 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 but and i think it's important that the whole administration understands some of the ramifications of this. let me ask a specific question to press reports indicate that sergeant bergdahl was captured by a haqqani network command and was held by the haqqani network. is that true? >> what i would prefer is, as i noted, in a classified session that we get into the specifics of that commanders if i wish report that was done on the circumstances at the time of sergeant bergdahl's capture. ..

complication of haqqanis being part of this, that's right. >> it is also true the haqqani network is listed by the state department as a foreign terrorist organization? >> that's right. we didn't negotiate with haqqani >> okay. i think that is a subject we'll want to discuss more if we must

in the classified session but i -- >> i want to make sure the record's clear. we engaged the qataris and they engaged the taliban. now if haqqanis were subcontracting to the taliban or whatever that relationship is, you know there is the pakistan taliban and the afghan 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's clear on the record. we can go into a lot more detail. >> i think that you just pointed out some of difficulty making categorical statements that we don't negotiate with statements when at least for some period the haqqanis were the ones who had him. let me ask about one other thing and that is the five detainees that were released. you said that there's always

some risk associated with releasing someone from guantanamo but you also said they have 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, for mr. faust sal, it said the detainee engaged in hostilities against the united states or its coalition partners, maybe there is a difference between us and our partners for mr. was i.q., said the detainee participated in military operations against the coalition. at some point there was evidence they were involved in hostilities, military operations against the coalition, western there? >> yes, they were mid to high-ranking members 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 you, captured two, but yes they were combatants. >> your point was they didn't pull the trigger but they were senior commanders of the taliban military who directed operations against the united states and coalition partners, is that a better way to do it? >> that's right. as i said in my statement, congressman, they were combatants. we were at war with the taliban. there is no getting around that. 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 is 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 and, how people feel in terms of notice but i wanted 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 whether or not his life was in danger, would have made any difference in terms of the 30-day notice? it is difficult for me to imagine that members would have included that within the language of that bill. how, 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 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 and negotiations. mr. preston was there through those. all of these were factors.

the concern about leaks. we were warned about. everyone of these different dimensions we had to think through and we did believe, as i said, we have information to support this, that this effort 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, that we didn't know enough about. so we had to factor in all of those. >> did you have any other, 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 tile 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 risk to 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, this, 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. and 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, generalized area. >> the detainees, was it always this five or were there others? >> actually started with six some of you may recall. >> i understand. >> one of them died. and there have been back and forth. they wanted all taliban detainees at one point and we said no. so this is part of the whole engagement of what we need to do, where we do draw lines, saying no, that we're not going to do this. so yes there were different variations of that engagement over the years. >> all right. thank you, mr. secretary. >> mr. jones. >> mr. chairman, thank you very much. secretary hagel, mr. president,

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 united states, or any foreign presence as long as troops remain in afghanistan and prisoners 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, we can all have hope, that there would 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 is something you want to say in the classified setting that you can't say here today but this me, your statement was received by many of the people that i represent in the third district ever north carolina, that maybe there was in this negotiation about the sergeant that maybe there were some signals sent to you, sir, or to the administration, that there might be a opportunity for direct negotiations with the taliban. knowing the history of the taliban, knowing how they fault the russians -- fought, the russians, alexander the great and the brits and fighting americans, i hope you do know something you can share with us if not in public setting but 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, we support a reconciliation between the calf began government and the taliban. that has been a general position 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 that 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? and, as you quoted me i said, well, i hope maybe, whatever but no, 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 too that if you recall some you do because you were in some of these meetings, briefings, in the 2011-2012 time frame, i wasn't in this job at time but i 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 this answer that there is 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 is going to influence the future of their country. and i was hopeful in the negotiations for the sergeant there were some signals sent with the mediary that may have been shared and again if there has been maybe, you could through your staff or maybe in the classified let me know there are some possibilities because my marines down in camp lejeune are tired of going to afghanistan and getting their legs blown off. thank you, mr. chairman. >> i will, congressman jones. >> thank you, mr. chairman,

mr. secretary and mr. president, i want to thank you for you being here today, for your testimony. as we are reminded just yesterday, with the loss of five american special operating forces afghanistan obviously remains very dangerous and battlefield for our voluntary military and i join many of my colleagues of course in expressing the gratitude of the return of an american prisoner of war, 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 and sergeant bergdahl is an american soldier and we're certainly grateful he has been freed. that said this whole situation raises many troubling concerns, among them, of course this committee has significant oversight role, there are legitimate questions regarding both congressional notification

as well as long-term incentives for the taliban and al qaeda. certainly significant personnel and in other resources have been expended to conduct, what could result very dangerous and disturbing incentives on the battlefield. as one taliban commander said, and i quote, it has encouraged our people. now everybody will work hard to capture such an important birth, end quote. mr. secretary, how do you anticipate this will impact the incentives and 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 who served in war, that war is a dangerous business and 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 servicemen and that has been a standing order for 12 years. there is nothing new about where the taliban have been and continue to be. 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 those that served in uniform on this committee know this basic milted terri and expressed it by quoting sifter senior members of our military and retire, to have our men and women in uniform all over the world who some are more at risk than others every day, have them be reassured that this country will come get them or will make every effort to go get them, has to be pretty significant. i was told that by all of our commanders. there could be issues on the specifics of sergeant bergdahl but that is irrelevant quite frankly. he was you a member of our armed forces and we went and got him back after five years. i think that is pretty significant. around i think it also falls into the category of your question, answering that question.

thank you. >> mr. secretary, thank you for that answer. the, as the chairman and ranking member have mentioned in their opening statements there are questions about sergeant bergdahl's conduct should be addressed with due process at the appropriate time and, and such, but could you settle one conflicting report at least in terms of regarding the number of 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, 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. i have asked the question. we have all asked the question. i have seen no evidence, no facts presented to me when i asked that question. >> mr. secretary, so, you did say there is nothing new here, that the taliban is always out to try to capture us, but isn't it true 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 is not new. >> with very made other trades with the taliban? >> with the taliban, i don't know, i don't think so. 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 and 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 terrorists had specifically said 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 we're going to enforce and which ones we aren't. the third thing is this, you said this, there are limits to trade where 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 releasing deputy secretary of defense, deputy secretary of intelligence, a deputy secretary of interior, a governor and a commander and when the president was asked if there was possibility of them returning to activities detrimental to the u.s. his answer was, absolutely. our deputy director of national intelligence was even harsher. he said the latest communitywide u.s. intelligence assessment on these five tariffs said he expected four out of the five taliban leaders would return to the battlefield. this assessment was in accord with the 2008 pent gone dossier that said all five of individuals released were considered to be high-risk to launch attacks against the united states and its allies if they were liberated. you state in your testimony if any of these detainees ever try to destroy the fight would do so at their own peril, my first question to you, would you put

american lives at risk to go after them? >> well, congressman, we have american lives at risk every day -- >> not individuals that we have released put back out there. so my question is, would put american lives at risk to go after them if they rejoin the fight. >> depending on the threat. also let me remind you of the other pieces that you didn't mention in our analysis of these five. intelligence community has said clearly that, that these five are not a threat to the homeland. >> mr. secretary, you have said it here, that if they rejoin the fight, they do it at their own peril. my question -- >> in afghanistan. >> my question is pretty simple one. would we put american lives at risk to go after them? yes or no? >> we have american lives put at risk -- >> i asked that. my question would we put american lives at risk to go after these individuals if they rejoin the fight?

>> well, yes. >> okay. >> because -- >> if that is the case. >> if you ask two questions. >> you could use the same arguments on yemen and anywhere else. >> i could do that but not because of individuals we released. >> 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 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 detained by u.s. forces. >> mr. secretary i understand that.

i understand, we're running out the clock. i have only 50 some seconds. >> the answer is no. >> so you didn't even make a come cuelous -- >> i said i did. i asked the answer if there were lives lost in capturing these. >> and you said no. >> i have no direct evidence that there was any american lives -- >> did you make an assessment how many american lives may be put at risk if they have to be recaptured? >> no. >> okay. >> there is risk that we have to our country, threats to our country every day, everywhere. and the other part i would make on this, we determine that there was substantial mitigation of risk for this country, for our interests, for our citizens and our servicemembers when we mid that decision. >> that just flies in -- >> we were satisfied. we could make that determination. >> just flies in the face of all the other evidence we have and with that, mr. chairman, i yield

back. >> here is what is ahead today on c-span2. next from the recent supreme court term, oral argument in the case of mr. such shun fer just the -- mccutcheon. which deals with campaign finance issues. they look into economic espionage. and later, today's edition of "washington journal." later today, booktv is live at politics & prose in washington for author hampton sides. his book is called, in the kingdom of ice, which recounts the u.s. naval expedition to the north pole in 1879. then it gets underway live on c-span2's booktv at 7:00 p.m. eastern. join us tonight for more booktv prime time programing. our focus will be living in the tech age. authors include, craig debt wiler, and his book, i-gods, how

technology shapes our spirit all and social lives that. starts at 8:00 p.m. eastern. on c-span3 at 8:00, more american history programing. our focus tonight is the civil war. specifically the 1864 battle of the crater in petersburg, virginia. and on c-span tonight, the new york ideas festival. speakers include, cancer biologist, andrew hassel among others. that starts at 8:00 too. >> in october 2013 the u.s.

supreme court heard oral argument in the case of mccutcheon versus is the federal election commission. the case dealt with campaign financing laws. next the hour-long oral argument. but first some background on the issues involved. >> next up is oral argument in the case mccutcheon vfec. this dealt with a wealthy republican donor in alabama who challenged overall limits to political contradictions. joining us is mcclatchy legal correspondent mike doyle. what will we hear about? >> fec in this case stands for the federal election commission which implemented rules following campaign finance reform law passed in the 1970s. they imposed several types of limits. one is on what you can give to a candidate and other at stake in this case is the aggregate