the administration's own guantanamo task force report where they reviewed the files of these five detainees that were transferred and unanimously recommended in 2010 they continue to be held by the united states based on the specifics of their cases. the task force also said that it was conceivable with adequate security measures the five could be sent elsewhere eventually. in light of those recommendations that these detainees continue to be kept and that recommendation taking place when it did, can you tell us what extraordinary security measures can qatar offer today to allow for this transfer? >> well, again, that's the essence of much of our mitigating dimension, why we signed off on the deal. those assurances the first year.

congressman, again, i will say when we close this place down and go into the classified, we'll go into every one of those specifics, but i would tell you this, you may have already read the mou which we sent up here yesterday, and we'll be glad to take you down into the subparagraph six of each one of those to get to your question. but to go beyond my testimony here, i don't want to do that and if it's okay, we'll wait. >> let me go back historically then and look at the history of qatar and what they've done in receiving detainees. as you know, the first transfer to qatar was in 2008, and was that one considered a successful test case? >> i believe, and i just asked our general counsel if we just had one transfer. is that right? to qatar? >> to my knowledge. >> so we've had one. i don't know all the history of that transfer, although my understanding is it wasn't

particularly good generally. so what's changed? again, i addressed this here this morning. first of all, you have a new em emir. we've got more presence, assets there. their relationship with the area and with us is significantly changing. now, are these absolute guarantees? no. i mean, there are very few absolute guarantees in life, as we all know. but i think a number of things have changed enough, significantly changed, to be able to have confidence in the enforcement that the emir told the president of the united states that he would personally see to that as well as the government. and if you follow down, as you did, through your reading of those mou requirements and then we'll get into details, we felt confident that that mou covered

enough, but the enforcement was good enough. >> you did acknowledge there was an additional risk there in qatar taking those detainees, especially based on their past performance, so are you comfortable with that risk and does this willingness for the u.s. to accept that risk, does that now set the stage for the u.s. transferring detainees to other nations who have not met obligations under previous agreements in accepting these detainees from guantanamo? >> well, you said the right word, risk, and that is the essence of what we're always dealing with here and the analysis that we made, the decision that i made, as well as the national security council and ultimately the president, again i say we believed that all of this together could substantially mitigate the risk. >> let me ask this. there is some concern, too, that of knows considerations given for the qatari government and

what they will do to keep up with these detainees, is there an opportunity for these detainees to go to the qatari legal system to have these travel restrikctions lifted so under legal means they could have free rein to travel throughout qatar or elsewhere? >> i'll ask the general counsel. he signed the mou and i will ask him to handle that in particular, that question, because he negotiated it and signed it. thank you. >> i think the question is best answered in the closed session, if you would indulge us in that respect. >> let me close by asking this then. what happens to these detainees after a year? >> as has been said, the restrictions of the mou are for a one-year period. that includes the restriction on their travel outside of qatar.

so after one year -- >> so after one year, no restrictions. >> except under circumstances that we would discuss in the closed -- >> gentleman's time is expired. >> thank you, mr. chairman. >> thank you, mr. chairman. thank you very much, mr. secretary and mr. preston. i appreciate very much your service. mr. secretary, you said in your testimony that this was a -- well, first of all, let me just say that i think a lot of people have had very emotional reactions to this and what they've seen about this with incomplete information, and i certainly think that's understandable, but these are difficult circumstances to judge, and we as elected officials and you as appointed officials have to put aside our emotions and political expediency in order to best use our professional judgment, and obviously what will be said in secret session also pertains to this. but what i'm concerned about now

is the law and the notification of congress. and you said in your testimony, i believe you actually used the word unique circuits. i'm a little concerned that this isn't unique. it might be rare, but not all that unique. do you believe that congress hadn't thought this was a sort of issue that could come up when they passed the law? should we amend this law if, indeed, these kind of, you know, very rapidly evolving situations occur where you would want to have the authority to do a prisoner transfer? first the secretary and then -- either one of you. >> well, here is the way i would answer your question. first, it was an extraordinary situation, and maybe everyone doesn't agree with that. i absolutely believe it.

the president believed it, national security council leaders believed it. for the reasons we've discussed here the last three hours and actually more. so i think we're on pretty solid ground in saying that this was an extraordinary situation. i think it also gets into the constitutional issues that we have discussed here this morning. the responsibilities of the president given to him through article 2 of the constitution, what are his authorities under that article. it doesn't discount what the congress passes as laws. by the way, this is not the first challenge to a law by a president, as has been noted here this morning. president bush, george w. bush, probably signed as many signing statements as anybody. executive/legislative differences exist probably since

the beginning of the republic, so i answer your question that way, too, and then if you want to hear from the general counsel. >> well, actually let me just stick with it. i think you answered it fine, mr. secretary. i am concerned though that there was an opportunity to notify the congress. i have heard some reports that 80 or 90 people in our administration knew. i don't know if you can confirm that or not. but sort of the answer that goes back to 2011, 2012, i agree with the chairman on that. that was a different set of circumstances. it was also, by the way, a different congress. i wasn't in that congress. and it does concern me that that many people knew and there wasn't some sort of a notification of congress. particularly given that obviously the qatari officials knew. how are we to avoid the perception that this administration trusts qatari

officials more than it trusts leaders in congress? >> well, you may see it that way as a congressman, and i wouldn't question your perspective, but i would just say this. the qataris had to be a part of it because they were a part of it. they were doing the deal. we signed the memorandum of understanding with them. there would have been no prisoner exchange without the qataris. so not everybody, by the way, in the qatari government was aware of this. again, presston was there. i don't think it's a matter of we trust the qataris but we don't trust our own congress. i have already addressed this, too, in my opening statement. could we have done it better, smarter? yes. >> yeah. i think my concern and i'm not sure if this would rest in your office or not, my concern is, okay, i understand the circumstances under which the department was not able to obey the letter of the law. my concern is whether the

department even tried to obey the spirit of the law. certainly not informing myself, rank and file member, but at least the leadership of the relevant committees that this was happening. >> well, again, i'll say and i know members of this committee don't agree with this, but in explanation as to why we did what we did, and again i'll say one sentence, we were very, very concerned about the risk. we had a fleeting opportunity here. we were told there was a risk. the more people who knew about it, the more risk. i get that. i get why did you trust some in the white house and not here. i get all that, but your question, overall question about who knew and who didn't, i don't know about the 80 or 90 number. i can tell you from my responsibility in dod, very, very few people knew about this at dod. >> gentleman's time has expired. mr. hunter. >> thank you, mr. chairman. mr. secretary, good to see you. i guess you've said there were

better ways to do this, there were more precise ways to do it. i guess my first question would be, is that because do d was not in charge of this the entire time? >> congressman hunter, i'm sorry, i just read a note. >> i would ask you to add 20 seconds back on. >> take it out of my time. i'm sorry. >> was dod in on this the whole time? you have said before this could have been done better and i'm guessing that means if you were doing this from the beginning, this prisoner exchange, it would have been done better. >> well, i appreciate the comment, but, yes, it was dod involved in this from the beginning? yes, we were. >> let me interject there then. we talked in february and i said because the state department had this option on the table and they had preapproval from the executive to go ahead with this prisoner exchange, this was months ago, you appointed mr. lumps lumpkin as the osd

representative to the bergdahl case. >> yes. >> which makes me think you weren't heavily vested in this from the very beginning but that you did get vested in it a few months ago. >> no, that's not true. you're right, let's pick up february. you're right, we had the conversation. you know you had written me about this. i did appoint lumpkin who was the guy who oversaw the whole operation, as you know from dod, mike lumpkin. congressman, this was so fast moving, everything you said is right. there was a break, and i have got the chronology right here -- >> i don't need that from you. what i'm asking is, did you have other options you looked at for approval or at least consider, nonkinetic options. >> you mean dod? >> you, yes. >> no. this was the one -- >> this was the only option you

considered? the only nonkinetic option you considered? >> we consider everything and we are, but where we were in the time frame you're talking about in the scope of the reality here, this was the one option that we were all working toward that looked like the best. that's what lumpkin -- that's why i appointed him to get into it. you're exactly right -- >> let me ask again, did you have other nonkinetic options that you looked at for approval? or at least consideration? >> not anything that was serious. we look at all kinds of things all the time -- >> let me ask then, so you didn't pass any other courses of action besides this one for the president's consideration from the department of defense? >> if you're talking about this specific deal with qatar -- >> i'm talking about getting bergdahl back, just getting bergdahl back. >> no, this was the one on the table that was the most realistic, viable, and, no, we didn't present that i'm aware of anybody in dod present any other -- >> let me ask this thing.

why would the president approve or you approve only one course of action after seeing now self-admittedly no other courses of action? i have never heard that where you only say this is the one thing that we've chosen to do and we're not going to consider any other courses of action besides this one, and that means that the president didn't even have any other options, nonkin nettedic options from the department of defense that you recommended to him because you just said you recommended no other options but this one. >> well, congressman, we weren't holding all the cards here. you know, if the taliban wasn't ready to engage -- >> forget about the taliban. i'm not asking that -- >> but they -- >> you have different courses of action. if i want to enter this room, i can come in through that door, that door, or the door over there. what you're saying is you didn't look at any other doors accept that one. you didn't consider any other options besides this prisoner exchange, and you only recommended to the president this one pathway? to get bergdahl back. >> congressman, this was the only pathway that was emerging

that was available. there was no other pathway unless you're aware of something -- >> i am aware actually, and these are not from special briefings so i can probably mention a few of them. you at dod, your department, working concurrent options with pakistan to get bergdahl's release. you had other options that we know that at least people in your department had looked at. we won't go into those nonkinetic options, but it just astounds me for something this large you wouldn't recommend to the president any other course of action but this one and that the president of the united states would not have looked at other courses of action besides this one before he made the decision to approve this. >> well, two issues here. one is do we always look at other courses of action? yes, we do. second issue, recommending to the president. this was the most viable, best pathway we could find, we knew

that was active. the taliban were coming back. the qataris were telling us they were coming back, so we pursued that as the most immediate, viable, and possible option we had to get him back. >> in closing, i would think there were better options and i think that the president should have been better briefed by folks in your department that knew what those options were, and i hope that the dod and mr. lumpkin takes a stronger role in trying to get the rest of the americans back that were forgotten via this exchange in afghanistan. i yield back. >> mrs. duckworth. >> thank you, mr. chairman. mr. secretary, it's good to see you again and just want to say how great it is to see a member of the nco corps, the backbone of our military at the head of the dod. i served in iraq with a vietnam veteran e-7 who went back over at 59 years old. didn't make it home and he probably is smiling and cussing at me right now and telling me i better treat you right. look, i think your background

and the background of all of us who have worn a uniform and as you said been in combat informs how we feel about the release of sergeant bergdahl as well as how we feel about someone who abandons their post and exposes their buddies to attack by the enemy. however, it's never been the practice of the united states to leave one of our own behind on the battlefield regardless of the circumstances of their disappearance. we do everything we can to bring them home. you don't leave them to be dealt with by the enemy. it's not who we are as a country. it's not who we are as a military. now, that doesn't mean that there are not questions that need to be answered about the circumstances around his departure from his post, and i would hope that the military will take appropriate action to review the circumstances again and i have full faith in the leadership of the united states army and the uniform code of military justice to conduct a thorough investigation and to carry out any justice that the

result of a subsequent investigation may warrant. that said, i wanted to ask you two specific questions. first, are there any plans by the dod or the department of the army to go back and review the circumstances of his disappearance and then if it is found that he did abandon his post, so he did desert, there will be an investigation, perhaps prosecution? >> congresswoman, yes, and thank you for your service and to the other members of this committee who i didn't by name acknowledge, but i referenced as you noticed in my testimony, thank you for your service. yes. as i noted in my testimony and a couple of the answers i've given this morning, secretary of the army, chief of staff of the army both indicated, did last week, that they intended a full comprehensive review of all the circumstances involved in the disappearance of sergeant

bergdahl. the results of those reviews will determine if any action would be required based on conduct and based on the review. they feel strongly and i do, but i'm not going to get involved in trying to influence that. that's the united states army decision, as you know how this works. they are open to get the facts, and wherever the facts lead then, they'll get them and they will respond appropriately. >> thank you. >> thank you. >> you have to ask me. >> would the gentle lady yield, please? >> yes, i would like to yield the balance of my time to the gentleman from illinois. >> thank you. mr. secretary, you have a tremendous perspective as miss

duckworth has alluded to with your background as a combat infantryman. now, i'm sure that you weighed every pro and con in these decision -- in this decision-making process, and your decision was made in the best interests of this nation based on the facts you had as a whole, i'm sure. and it's really unfortunate that the toughest decision that many of your critics have been making on this is as to whether or not they should run for re-election. now, have you received a single or heard a single sound suggestion from any of these monday morning quarterbacks as to a better course of action that you might have taken in this decision? >> the coverage has been rather bare on that account. we have a lot of experts in this town especially, but as i said, and i appreciate your service,

sir, i'm well aware of it, in this town it's pretty easy or anywhere else to give analysis usually uninformed and criticize every decision. that's okay. that's the role everybody has. the country is built that way. everybody's opinion matters and counts. everybody has one. but in the end, as i said in my testimony, some of us are dealing with the responsibilities of having to make the tough choices. you make them up here in your votes, and i make them. and that's the way it is, and that will always be that way. so i just deal with it and i do the best i can and i do what i think is right for my country, and i don't have any problem sleeping. >> thank you, mr. secretary. i yield back. >> the gentle lady's time is expired. they have called the votes about six minutes left, but about 394

haven't voted yet. so i want to thank the secretary. we've gone over what we thought we would -- it would take, but it's a very important issue, and this is the largest committee in congress, and everybody wanted to have their questions answered. the secretary has agreed, we will take one more question, then we will break for votes. i would encourage all who have not had an opportunity to ask a question that want to return. the secretary said he will stay for that, and then we will reschedule at a later time the closed session part. dr. fleming. >> thank you, mr. chairman. secretary hagel, we've talked about this 30-day notice. yesterday the chairman told us that he received notification

after sergeant bergdahl had actually been transferred. i'm sure his senate counterpart received that notice at the same time. it was really a notice after the fact, and i listened carefully through all the questions, all the legalese, the technical, the spin, everything. it's clear to me that really what happened here, and this goes back to the question from the previous gentleman as to what else could have been done, has there been any other offers. my understanding is that back in 2011 and in 2012 when this issue was first brought forward that secretary clinton opposed it without additional measures and protections. and i believe also mr. clapper and others as well, congress on a bipartisan basis pushed back on this. and so it really suggests to me that when this erupted again this past january, that the president decided he didn't want

to hear no. all he wanted to do is to move forward, get it done, and whatever thing he could do here in terms of lawyering or end runs around congress or whatever -- i mean, it's been reported by many different agencies that at least 90 people in the executive branch knew about this, but yet the chairman of house armed services did not know about it. so, i mean, isn't this really just an attempt by the president to do an end run around congress to not take no for an answer or not get some pushback and maybe a little bit of wisdom from people who have been around here a long time and have been elected. >> congressman, the president of the united states, like every president of the united states, as you know, has not just constitutional responsibilities but moral responsibilities on behalf of every american, and

his first responsibility is the security of this country, and i have never seen in the time i have known him, and i have known him since he's been in the senate and i have been in this job about 15 months, ever a time he flinched on that. you may disagree with decisions he's made but there was no political decision here. now, on clinton and clapper, the director of national intelligence has already made a statement on his agreement with this -- >> but he first opposed it, is my understanding. >> he did but he explained why he has changed his position. >> but let me -- >> as did secretary clinton's situation was the same. it was a different world in 2011, 2012 for all -- >> all i'm saying is there's a benefit for more heads, more wisdom in this, and i think the president really didn't want to hear no. he wanted to do this no matter what. let's go to number two here. >> he wanted to make sure we could get our p.o.w. back but

not no matter what. >> i understand. >> you all were driving this as the american people -- >> i didn't say no matter what. that wasn't my statement. >> as far as who had control of sergeant bergdahl, we keep hearing about the taliban, but the reports have all been it was the haqqani network. you yourself i think suggested that. we know the haqqani network is an international terrorist organization. we all agree with that. and so ultimately just because we have a surrogate, in this case qatar, who is going between who is acting as an agent, how is that not negotiating with terrorists? >> well, first, let's look at the objective here. it's to get our prisoner of war back who was a prisoner of war. he was a prisoner -- >> i get that but, again, aren't we violating a commitment, a doctrine, that we've had for decades by -- >> no.

>> -- doing that? >> no. >> how is that not negotiating with terrorists simply because we put someone in between, how is that any better than direct negotiations? >> we engaged with the government of qatar -- >> wouldn't the outcome be the same? >> the other end of it was the taliban, a combatant against us in war -- >> but still surrogate nonetheless. would the outcome have been any differently if we talked directly with the ha can ni -- >> you and i disagree on that. >> i don't think it would and i don't hear you saying it would be any different. but anyway -- >> you didn't hear me say what? >> i didn't hear you say it would be any different. you're saying you didn't know and -- >> i didn't know what? what are you saying? >> that the outcome would be any different whether we talked -- >> i didn't say that. >> -- with haqqani network -- >> not at all. we were very clear who we were talking to and why and following the law. that's what i said in my testimony. i have said it all morning. >> okay.

i yield back. thank you. >> gentleman's time has expired. okay. we will recess for the two votes. i would encourage the members return as soon as possible so we can finish up the questioning. committee is in recess.

defense secretary chuck hagel has been testifying before the house armed services committee for about 3 1/2 hours. he's not done yet. he should be back shortly to answer the remaining questions as house members head to the floor. there's a series of votes under way, maybe a half hour or so, and we will have that live for you. in the meantime, we'd love to hear what you have to say about the testimony so far from chuck hagel. here are the numbers 202-585-3885 for republicans. for democrats, 202-585-3886. for i wants and others, 202-585-3887. turn down your television or radio and we welcome our c-span radio listeners. if you have called in the last 30 days, give others a chance to call. join us on twitter @c-span chat. also facebook.com/c-span.

this is the first time the administration has formally testified on the may 31st swap for army agent bowe bergdahl, who had been in taliban captivity since 2009, swapped for the five taliban detainees from guantanamo who are now under the observation of the government of qatar, and secretary hagel testifying about the process through which bowe bergdahl was released. he is not back in the united states and the secretary had a number of questions about that as well. let's get to some of your tweets. lots of comments on twitter. here is jenny who says, as a military parent, compassion for bergdahl's folks but thanks to obama administration, it's open season for kidnapping any american ransom. another says, still not sure how hagel and obama square that circle of not leaving anyone behind when one considers the men in benghazi. also this from maggie who says, hagel, this committee directed obama with numerous resolutions

to do whatever was necessary to recover sergeant bergdahl. and one more here from henry who says, what part of commander in chief don't you understand? also want to let you know about another story we're following on capitol hill, and that being the news that eric cantor after his defeat in the virginia seventh primary yesterday is apparently going to step down as majority leader. here is a tweet from politics one. they say eric cantor to resign as house majority leader at the end of july. this starts the new leadership battle and the news broke in today by chris cillizza of "the washington post." again, reaffirming july 31st. we'll know more after a meeting this afternoon, likely know more. house republicans are meeting at 4:00 p.m. eastern. the conference is meeting on capitol hill and that's again less than 24 hours after eric cantor's defeat to david brat in that primary in virginia yesterday. let's go to calls. we're with sherman from browns mill, new jersey.

sherman, go ahead with your comment. i'm going to ask my audio operator -- there we go. let's see if we can get sherman up there. sherman, are you there? >> caller: i'm up here. >> go ahead. >> caller: sir, i'm a retired army sergeant major, and my problem is with this bergdahl business, i just watched the event with secretary hagel, and some of the questions that were asked were great, but why did he not come right to san antonio. >> what was your question? >> caller: why he didn't come to one of the hospitals in san antonio. supposedly, we have some of the best doctors in the world working at san antonio, and we leave in landstuhl. landstuhl was a great hospital back in the '70s and '80s, but

it hasn't been the greatest hospital in the world since then. so why did we have to leave him in landstuhl? >> and he's been there since may 31st. let's go on to freeport, texas. pat is on the republican line. hello, pat. >> caller: hi. i would just like to know if any money was exchanged during this transaction, any other considerations? >> would that make a difference in terms -- >> caller: i just want to know. >> and you didn't hear that question asked by -- >> caller: i did not. i watched the whole thing. >> and more to come. thanks for your call. more to come. again, the secretary testifying for about 3 1/2 hours. they're in a break for the series of votes on the house floor. we will come back with live coverage. there was a mention of a closed hearing with members, and at the end of the session there, buck mckeon announcing they would reschedule that closed hearing. julian, hello, laurel, maryland,

democrats line. >> caller: i was listening to the hearing, and i decided that they did the right thing. they got the soldier out. i used to be a former army sergeant in the military and it's like we take care of our own, and this country always took care of its own. and it surprises me that some of our congressmen were more interested in getting him out and others were wondering why did we get him out, and that was a big problem for me. i always thought we always take care of our own. >> how do you feel about the -- addressing the issue of whether or not he deserted his post when he's eventually returned to the united states? >> i think that from what i've heard, he had a hand of going off post, but then they said that might have been a disciplinary thing that the commander didn't really enforce. so i'm wondering how many others went off post disobeying orders

in terms of lax in command. >> julian, thank you for your service. some news about possible legislation regarding the release of sergeant bergdahl. this is from "the washington post." they report today, the headline, quau leakers to unveil relution condemning obama for prisoner swap. they write four house lawmakers plan to introduce a resolution condemning president obama's decision to release five taliban detainees in exchange for the release of army sergeant bowe bergdahl. a -- two republicans, two democrats plan to introduce the resolution later today. according to a statement obtained first by "the washington post" and aides familiar with their plans. that story from about an hour ago or so and haven't heard anything else about it. let's go to california. bob, hello, independent line. >> caller: hello. how are you? >> fine, thanks.

>> caller: my name is bob and i'm a vietnam veteran, former marine, and, you know, what i don't hear -- i see sympathy on both sides, but being a former marine and having served in combat, i would personally myself if taken prisoner of war not want to put any of my brothers in danger in order to secure my release. there's no doubt in my mind that they would try everything possible. there's no doubt in my mind about that. yet, i would not feel comfortable knowing that my release was secured putting others in danger. >> and your sense is from the trade of the five taliban detainees, guantanamo detainees, that's putting other military personnel in danger. >> yes, sir. >> thanks for the call.

steve in irvine, california, republican line. steve, hello. >> caller: how are you doing? yeah, it's rather surprising to hear the democrats talk about how we leave no one behind suddenly because where were they during benghazi? we left two s.e.a.l.s there to fight to their deaths with absolutely no assistance coming their way whatsoever from the united states. so i find it rather comical that all of a sudden they're claiming that they leave -- they choose to leave no one behind, and we paid way too high a price in this trade by releasing five taliban commanders while we still have soldiers in the field in afghanistan. obama has put all of their lives in danger, not to mention any american and a lot of nonamericans throughout the world. these were some seriously dangerous people we let go, and perhaps even bergdahl wouldn't agree that his life was worth

placing all of our soldiers in the field in danger of losing theirs. >> as we were hearing from steve there, we were showing our c-span3 viewers some of the video of that may 31st exchange as they released sergeant bowe bergdahl at the end of may. a couple of quick tweets here. c-span chat is how you reach us. this is from mason who says remind me why such a rush to have u.s. taliban prisoner exchange hearing before main topic bowe bergdahl, is he even back in the united states? also from leo who says a bigger question is why qatar is quarterbacking this deal. that's where the five taliban detain yis are residing. today on capitol hill, the nominee to be the next ambassador to qatar was asked about the ability of that country to keep an eye on those five. here is what he had to say. >> if i am confirmed, this goes -- priorities.

we will be working very closely with the qataris. we will be engaging them very closely, verifying both their -- what they have -- the restrik restrictions they have put on these individuals and the information they will be collecting on these individuals, but also verifying from our own standpoint and we will be assessing continuously every day, every morning when i wake up, every night when i go to sleep to reassess whether these people pose any threat to our national security, and so i can guarantee you that i will be leading a country team representative of our whole government that will be working on this tirelessly if i am confi confirmed. >> can you share with us in the setting what exactly are the expectations of the u.s.' participation in that effort in terms of providing capabilities? is that something you can share with us? >> i think what i can share is we have a very good and close and productive information sharing relationship with qatar,

and obviously as secretary kerry said, qatar won't be the only one with eyes on these individuals. >> house foreign relations committee today, the testimony of donna shell smith to be the next ambassador to qatar, and we will show you all of that hearing later on a schedule. you can find that in our video library as well at cspan.org. here on c-span3, we are taking your comments, calls and comments, facebook posts and tweets about the hearing today before the house armed services committee. they will gavel back in here once the series of votes is done on the house floor. until then we get to continue the conversation. here is sara soda, florida -- excuse me, donald in philadelphia on the democrats line. >> good morning and thank you for taking my call. i'm a retired veteran, '74 to '95. we do not leave our soldiers behind, period. >> was the price too high to pay to do that? as some have suggested? >> caller: you know, i hear all

this monday morning quarterbacking, but we take care of ours. we bring ours home. if anybody has been tortured, they know the relevance of this, and what astounds me, simply astounds me, is that people are convicting him without him even being on trial. people are calling him a deserter, talking about his family and everything else, and the facts haven't come out yet. his platoon mates, they can say whatever they want to. they're americans, they can do that. >> donald thanks for your call. here is mary in sarasota on the independents line. >> caller: i'm the daughter of a world war ii korea and vietnam combat vet, and i have tohonest

ly say that i don't believe that president obama truly cares for the military. i think this was a very bad deal. i think it was a public relations opportunity for the president, and i think that he's a disgrace and he's disrespected the military. i have a 24-year-old son. i would not want him to be one of the 10,000 left in afghanistan surrounded by a now invigorated taliban for the next year and a half or one of the 3,500 children, our children in the military that would be surrounded by taliban after the president has given them their leadership back. i think that harry reid should be brought up under oath and let's tell the truth. did they inform him on friday or did they inform him after the fact? and i think that the president needs to be called to account for this decision. i have lived in europe for over

eight years, and every american now has a bull's-eye target on their back because of president obama's action, unilateral, undeclared, without consultation with congress. >> again, we're taking your comments about the hearing today, the house armed services committee regarding the release of bow borie bergdahl. the agreement that was reached last week between the veterans affair chairman, bernie sanders, and republican john mccain. that measure will get a vote apparently on the senate floor this afternoon at 4:00 p.m. we're hearing. this is the measure that would make it easier for veterans who have encountered delays for -- to get initial visits from the veterans affairs health centers. so that vote is expected this afternoon on the senate floor at 4:00 p.m. eastern. of course, you can follow that on c-span2. let's go to lucille in asbury park, new jersey, republican line. hi. >> caller: hi. i am the daughter of a first

marine division soldier who served in world war ii and honored and if he was here today, he would be totally -- the hypocrisy that was shown in this meeting by chuck hagel saying that he sleeps at night. well, if i can sleep at night, then he's as ruthless as the president of the united states who has no respect for the rule of law. if -- this administration has so many scandals, and now i don't think he has ever respected the military from the time he didn't know what side to put his hand on his heart when the pledge of allegiance is said. and i am totally disgusted. i no longer recognize the country that i grew up in, the country that my father sat with me and read his old book of guadalcanal that the first marine division served. and if he doesn't leave any men behind, i would say that he should speak to charles woods and think how he feels about his

son ty woods and shaun smith that disobeyed orders to save people that he left behind in live time, and i think it's hypocritical and disgusting that these people haven't been brought to justice. nixon was impeached for so much less. he makes nixon look like a sunday school picnic. >> secretary hagel will be back before the committee shortly. they are wrapping up some votes. here is the reporting of military times. hagel says time was running out to save bergdahl. let's get a couple of c-span chat tweets as well. terry says, tell congress rig. mariano says the hearing was so partisan, the hostility shown from every republican reveals their feelings are hurt. one from di arn who says secretary of defense hagel says he doesn't know if we ever negotiated with the taliban? omg.

the #c-span chat. kate is in glendale heights on our independent light. glendale heights is where, kate? >> caller: it's in illinois. >> okay. >> caller: yeah. right outside of chicago. >> go ahead with your comment. >> caller: well, the last two callers you had, the one from sarasota and lucille here. you know, i just think that, number one, i'm for the rescue. i believe that this gentleman that was testifying today, mr. hagel, testified i feel very clearly and concisely and told about why they did it and the way this that they did it, and i'm amazed there could be 25, 35,000 people watching the same thing i am yet come away with a completely different story. and attacking our president. i mean, it's ridiculous.

you know what? there's nothing that president obama can do that will ever be good to his detractors. they hate the man. if he would have left bergdahl there, he would have been, you know, impugned and his integrity of course would have been questioned. i guy just can't win for losing but, you know, when you go on air and you call our president a liar, you think he should be impeached or imprisoned or, you know, god, he's just the worst person that ever walked on the planet earth, i mean, come on. give me a break. >> all right, kate. more of your comments as well on facebook. facebook.com/c-span. here is one from steve who says excuse me, john scott says i think the president violated u.s. law. he in addition has established that terrorists can now trade one of ours for up to five of theirs. it's a dangerous precedent. kim says the rescue of one of our men or women should supersede the law of notifying the committee, especially when members of the committee are

known to be leakers of information. welcome your comments there on facebook as well as twitter. #c-span chat. we will come back live when the committee gavels back in for finishing up the hearing, abou maybe ten or so members that are expected to ask questions. in the meantime we'll show you some of today's hearing starting with the man who is likely to be the next chair. buck mckeon is retiring. >> mr. secretary, i'd like to begin with a brief additional observation on the notification issue. for the past several years this committee has work on a bipartisan basis to establish an oversight structure for cyber operations, for terrorism operations, and for sensitive military operations. 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, 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 are a's 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. i think it is 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 haqqani network commander and was held by the haqqani network. is that true? >> what i would prefer is, as i noted in the classified session, that we get into the specifics of that 15-6 commanders evaluation report that was done on 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 just as soon get into that. >> we're going to work through a couple of tough topics here in the few minutes i have with you. it would be helpful to me if you

would review concisely as you could the number of people who -- at least within the department of defense were aware of the impending release, up to and until the moment that sergeant bergdahl in fact was released -- or transferred, rather. and then the five detainees were then given over to the representatives from qatar. >> congressman, thank you. i appreciate your comments and thank you for your service. first, i don't have the exact number of individuals within dod who knew about the operation. but here's what i would say. as i've said here this morning, and i mentioned specifically dod, this was ongoing as the days, as you know the timelines here -- essentially i start with about the 21st, and then go down, then 27th, and so on.

each day there had to be some more people brought in for -- >> if you could, just out of my time is so limited, if you had had to just estimate that amount, how many, approximately? >> i just don't know. >> that's okay. >> it would be wrong. but the numbers that i have -- >> we'll get it. but i just don't know. just suffice to say, it kept it a very, very small number. >> i appreciate that. what's largely in the public domain has made it clear to me that a number of people, certainly more than 25 or 30 -- i'm very safe with that certainly on the dod side, perhaps when you come back and tell us in a definitive way how. many. but the point of is it is this, is that if we look at the 30-day requirement, which is the law of the land, even if one sets aside a separate interpretation of the

30-day requirement, even if one gives the benefit of the doubt to the testimony that you've provided here today and what other administration officials have provided in public statements, i remain convinced that really no effort whatsoever was made to comply, not only with the letter of the law, but even spirit of the law. i do not understand why no effort was made whatsoever to pick up the phone and to call a committee chairman, either on the house or the senate side. to me, it seems like a repudiation and really a slap in the face to this institution, this equal branch of government. and i do not understand, even though i've listened carefully to your testimony and that by other officials. what compelled you to move without picking up the phone? >> well, as i said this morning a number of times, we felt that

the fleeting opportunity to get this done required an absolute minimum in people who knew it. i also said that if we had an opportunity to come back around and do this again, we didn't handle some of this right. so i get that. i've taken exactly what you said. but, the reason we didn't let anybody know right up until the end is because of what i said, we were concerned. we really did believe that the risk was so great, just one thing getting out. and i understand your point of view. >> mr. secretary, i was, and remain, convinced that you exercised your best judgment. i don't question that. i do believe that damage has been done to the governance aspect of this, to whatever trust and confidence there may have been in the

administration's commitment to complying with a law, a statutory requirement. and i think it might yield and result in something from this institution that i think there ought to be some formal condemnation of it, frankly. but i appreciate your service to our country. indeed i do. and i yield back the remainder of my time. >> thank you. >> thank you, ranking member smith. >> thank you, mr. chairman. i want to revisit the issue of the threat these five taliban present. i think you've been very straightforward in saying, without question, you knew there was risks. and as always, if you simply look at one side of a deal, it's not going to look good. but the issue was, can you get sergeant bergdahl back and how do you balance the risk of that. i think this committee needs to be careful to act like we got nothing out of this. we brought home one of our soldiers who, based on what i have seen, was in very, very

poor health, was in a very dangerous situation an we met that obligation. so we got something for this. that's not to say that releasing these five taliban came with no risk. of course it came with risk but i think that risk has been greatly exaggerated. at one point, one member said it was like releasing 10,000 fighters which is the type of exaggeration that isn't particularly helpful. these five guys, as i understand it, were mid to high-level commanders in the taliban. they've been out of the loop for 12 years. presumably in that time frame the taliban had replaced them, frequently. now this is five more that probably after a year will go back and help the taliban. but how, out of the thousands of taliban that are actively working against the afghan government in afghanistan, and also, there's no real evidence that these five were part of

attacks against the u.s. homeland. they were part of the taliban government. they were interested in toppling the afghan government. but where is the evidence they are interested in plotting attacks against the u.s. so can you revisit a little bit how much is that risk? admittedly, without question, did you release these five guys, there's risk. but how much risk, in your assessment? >> congressman, thank you. i ask the dni, general clapper, to give me an intelligence community assessment of that question that you asked me to come back to me with the best assessment they could give me, recognizing first we start with, there is risk. we get that. i'm going to read to you three sentences what i got back -- this is, i think, unclassified, so i think we're fine. there's more classified.

but this is one observation. this is our intelligence community, total. threat, if returned to afghanistan or pakistan. one. should these five detainees return and reintegrate with the taliban, their focus would almost certainly be on taliban efforts inside afghanistan. not the homeland of the united states. second, a few new taliban leaders. no matter how senior, will not appreciably change the threat to the afghan people, to the afghan army, but most importantly, for us, to our forces. just again go back and note, will not apreeshbpreciably chan threat. this is the intelligence community's latest report to me. third point they make is a point

i made this morning in pointing out the significant progress of the afghan military, the army, has made other tover the last fw years. they say the same thing, afghan's future will depend more on accept outcome to the second round of presidential elections. how afghan security forces perform against the taliban over the next 18 months and continued external donor support that allows kabul to fund civil and security functions. so does that say there's no threat? no. but we have a's never said that. but this is the best, most recent assessment from our intelligence community. >> thank you, mr. chairman. >> thank you, mr. chairman. during the 2011-2012 consultations with congress regarding a larger deal with the taliban, the secretary of state, then secretary clinton, told the national security chairman in writing and verbally that if

detainees at gitmo were transferred, this was not an "exchange," but rather these taliban detainees would only be released as part of a larger diplomatic process. she identified a number of prerequisites to this deal over and bofr tabove the security assurances from qatar. in addition to the release of sergeant bergdahl, which of those other prerequisites were met. >> well, first i start with, this is really the answer to the general clapper issue which he had to same position, as you know, as secretary clinton in that year. but because things have changed, general clapper has supported, signed off, on this deal. one, the whole dimension of

afghanistan today -- where the afghan army is, where the afghan government is -- that's first. second, the assurances, written assurances that we have, from qatari government, particularly the emir's specific personal commitment to the united states, a change in leadership in qatar. these are all differences that were not present in 2011 and 2012. also, the framework -- and i've read the letter, by the way, that the secretary sent. the framework, you recall in that letter, as i mentioned earlier this morning, was a larger reconciliation piece. not that bergdahl was incident aal to that, but bergdahl was not the core of it. this time bergdahl is the core of it. so those are some of the

differences and the changes that are pretty dramatic. and in fact, why general clapper signed off on this and supports this decision. >> what i would like to know is, what else did we get for this deal? i'm not minimizing the impact of the sergeant himself. >> well, start with the sergeant. >> well -- >> but what else? i mean -- you mean reconciliation -- >> there were other things talked about in that letter that was hoped to be secured as part of an overall deal. >> but this was not an overyaal deal. this was a prisoner exchange, versus 2011 and '12. what the framework was, was the intent was, what the objectives were. those objectives were far wider and wider at that point. >> at the briefing on monday the question was asked whether any money was exchanged with qatar or with other people for this

deal. and the answer was, no money was exchanged, but it wasn't clarified with who. and if there was anything in addition. the question wasn't answered whether there was anything besides perhaps money discussed in this. so did the taliban or any of the individuals involved receive anything from our government other than -- >> no. no. >> okay. at the housewide member briefing monday night, the same briefing, tony lincoln was asked if this agreement makes american men and women if uniform and other officials stationed abroad safer. i recall his response to be the agreement wouldn't make americans safer. but that's a law that didn't require the administration to assess that. so do you believe that our military service mechanical bers

around the worl -- members around the world, not just in afghanistan, are safer because of this deal? >> the way i would answer is this way. first, the objective it was to get our p.o.w. back. that was the objective, and we did. mitigating risk and so on, which you've heard this all morning. but to your specific question, when you look at first -- now we have no p.o.w. that means there are more resources that we can apply in other areas in afghanistan in particular. i think for our military -- i mentioned this this morning. for our military to know that we'll come get them if they're captured, regardless of the circumstances, it may not translate into direct safety, but i think that's pretty significant. plus, getting our forces more of

their own capacity to deal with what they're doing in afghanistan without, quite frankly, some restrictions that did inhibit some because we knew every day we were trying to find ways to get our p.o.w. back. i think, again, when you add all that up, that's pretty significant. >> thank you. >> gentle lady's time expired. mr. secretary, i believe that these are likely already included in the letter that i wrote to you but a cull of documents have been mentioned here today and i'd like to specifically request, if i didn't already, copies of those. the doj guidance to the ndaa that mr. preston was talking about, and the odni assessment that you requested that you just were referring to on the threat posed by the five detainees.

please. if they're not on that list, if you can add them. >> we will include them. >> thank you. >> thank you, mr. chairman. good afternoon again, mr. secretary. mr. secretary, retired marine general james mattis, former chief of u.s. central command, said on sunday that the prisoner swap for sergeant bergdahl will give the united states military more freedom to carry out missions against the taliban and the haqqani network. he went on to say that u.s. commanders in afghanistan always lived with the concern that bergdahl would be killed in retaliation for a u.s. offensive against the taliban. i'm quoting here, "we no longer have that concern. they have this pawn they can play against us. it is also a military

vulnerability the haqqanis now face the taliban now faces because they no longer hold a u.s. soldier in captivity." now, to me, as a veteran of just over 35 years service, that means, to me, that the united states military has increased its operational effectiveness. mr. secretary, would you agree with general mattis' assessment and would you agree with the assessment this has in fact increased our operational effectiveness, and thereby, effectively rendered u.s. military personnel safer worldwide. >> well, those of you who know general mattis know that you run a risk if you disagree with him. i have the greatest respect for general mattis and i agree with

his analysis. everything that you laid out. i'm glad you said those things on sunday, because they are not things that have been said throughout this ten days, or less, and they are important factors as to how they affect our military. and i believe they're real, and i think his specific points not only are accurate but they come from someone who knows a little something about this business. >> thank you. he's not a member of the administration. he's now retired, is that correct? he's an independent -- >> retired fishing and hunting now somewhere are. >> that's a wonderful thing. i look forward to that day, mr. secretary, as i'm sure you do. mr. secretary, i've seen the proof of life video of sergeant bergdahl, as i'm sure you have. it's currently classified. and my question to you is, sir, after having viewed that video, is there any doubt in your mind that his health and mental state

was in very, very serious condition? >> there is no doubt in my mind. i rendered that analysis not as anyone who has any medical expertise, but i listened carefully to what our health expert did say, our intelligence people, and then just looking at the past videos of him versus that video. it was pretty clear to me that his health was deteriorating. >> mr. secretary, there's been some previous questioning about the risk -- future risk -- potential future risk to american service members if they were to have to recapture these five individuals who were swapped. in the prisoner of war exchange. is there any evidence whatsoever that any future risk for those

five is any greater than the 532 folks who have previously been released by the bush administration or, for that matter, the 88 that have been released from the obama administrati administration, a total of 620 prisoners. >> in one word, the answer is no. >> one final question for you, mr. secretary. sergeant bergdahl, when he was captured, was a private 1st class. correct? for those who are not familiar, that would be an e-3. and today he is a sergeant, or an e-5. so he's been promoted twice by the army during his period of captivity. isn't that correct? >> that's correct. >> were there overwhelming evidence, or any evidence whatsoever that he had done something wrong, would those promotions have taken effect? >> no.

as i said in my testimony, it was never any charge brought against -- by the united states army against sergeant bergdahl. >> so it's clearly a rush to judgment against this young man. >> well, i think it is. as we all know, and i said, the united states army is going to conduct a police complete revil the circumstances once sergeant bergdahl is back and he can speak for himself. that's appropriate. and that will happen. thank you. >> thank you, mr. secretary. i yield back. >> thank you. mr. secretary, i know that one of the issues that's been addressed, or that you have addressed in regard of lack of notification to this body was the concern about potential leaks and the impact it may have on the operation. can you tell me, was that concern over leak so great that two also prevent limited notification as is allowed to the gang of eight, the

leadership of both of majority and minority party in both chambers as well as the chairman and ranking member of the relevant committees? >> yes. >> i know you weren't secretary defense at the time, but was there any less concern -- i know you mentioned that part of it was the potential for an adverse effect on the safety of the operators who were going to execute the operation. but was there any less concern over the safety of the operational personnel who are actually known to be going into a kinetic operation in the osama bin laden caper? would there be any less concern about leaks and their safety? >> i wasn't there but you're right. there were -- i know -- concerns about that. and it is equally risky, both operations. but this one was different though. we had some much more control, quite frankly, over the osama

bin laden exercise, and that operation was more within our control. this one was not. as i said, we didn't even though where -- >> i i understand that, mr. secretary. but in the osama bin laden raid the gang of eight was notified and there was no leak of information. >> i know. i know. but what i'm saying congressman, there was actually more risk in this because we had far less control over this in case something leaked out. >> moving on to another -- i appreciate your answer. thank you. moving on to another question, obviously this issue of the exchange was brought to a sufficient level that it was addressed with congress in the 2011-2012 time frame. you said there was a growing urgency, the need to act swiftly. that's one of the reasons that we weren't necessarily notified.

but had the issue concerning looks not necessarily been an issue, would you not agree that after you received the january video, proof of life video, that escalated re-entering negotiations, that that might have been a time where perhaps congress could have been informed? >> yes, that might have been. as i've already said, if we had a chance to redo this, congressman -- >> i understand, secretary. that seems to be an apparent pattern this administration is always coming back after something happened saying if we had a chance to do it all over again, we'd have done it differently. >> well, that's the answer to this one. >> i appreciate that. likewise, i would say after you received the qatari warning that the window may be closing would have been an opportunity, in early may, to come and notify at least the gang of eight. >> well, i've been over this before. again, if we go back and replay everything. but again i say the risk we felt was so great that any leak -- we were told this by the people we

were negotiating with. we were warned about this. so, yes, it was a judgment call. we might do it differently again but i don't know. but the risk was still no matter what, overwhelming for us because we thought we had -- we were told probably one shot at getting bergdahl back. and it was a rapidly evolving opportunity that could close as well. >> i would just close by making a statement or asking -- i'm not sure, were you familiar or have you seen the letter from various chairmen of jurisdiction to secretary of state clinton and her response back in 2011-2012? >> yes, i did. >> in that 2011 letter to then-stek clintthen then-secretary of state clinton, there was significant non-concurrence. >> yes. so my concern is, how much of that letter and the potential for pushback from this organization actually influenced the action not to provide timely

notification for fear of being able to ask for forgiveness rather than permission and come back after the fact and say, if we had had a chance to do it all over again we would perhaps do it differently? >> i'm not sure what you mean by pushback with "this institution." >> you know that in 2001 when this was first contemplated the ranking members and chairmen of the appropriate committees did not concur with the swap. but yet understanding that the environment has changed, perhaps there was a concern by the administration of coming to notify for fear that that same -- >> oh, i see. >> -- pushback would have been -- >> i understand what you're saying. well, i just answered, as you heard probably my answer here, miss hartzler on this. complete change in environment, dynamics, realities, objectives from 2011-'12. but i can tell you from my

perspective and what i know -- and i know a lot about it -- was involved only on this deal. can't answer to 2011-2012. but it wasn't because we were concerned that somehow the congress wouldn't go along with it. i've given you the reasons why we made the decisions we did. thank you. >> thank you. >> thank you very much, mr. chairman. mr. secretary, mr. preston, thanks for being here. mr. secretary, thank you for your service, both in uniform, here in congress and as you continue your service now to our country. like you, i'm a soldier and understand at the core of my being that principle of leaving no man behind. along with that principle goes another, which is i will always place the mission first. and that mission national security and the context that that provides to this whole

conversation is really where i'd like to focus and where i have the most concern. you have of's mentioned earlier about the assurance to service members that regardless of circumstances, they will not be left behind. your words. regardless of shishcircumstance they will not be left behind. i think that is an issue to call into question, because there are varying circumstances. we were told i think possibly today but in a briefing yesterday on monday, rather, a that if this were a deal to be done, exchanged with the release of khalid shaikh mohammed, the deal would not have been done. so the circumstances do play a role in this based on that mission of national security. so with regards are to the five taliban detainees who were released, your statements from dni director jim clapper, i'd

like to address that directly, because we've had some issues with statements with jim clapper before congress previously on a different topic with regards to his statement that the nsa does not collect data on americans, which he later admitted to be, in his words, the least untruthful answer. it was not a truthful answer. so i'd like to point to the guantanamo review task force that was done where it was stated that these five individuals specifically, "pose a high level of threat that cannot be mitigated sufficiently except through continued detention." i'm wondering what has changed from the time that this assessment was made by this president's appointed task force of military officers, federal prosecutors, fbi agents, intel analysts, and civil litigators, that has changed? >> well, congresswoman, thank

you for your service first. a couple of things. one, obviously is the reassurance that we got from qatar which we have gone over in some detail. second, more to the point of i think that -- >> i'm sorry. qatar is not detaining them though. they are not -- >> the reassurance from qatar that one-year -- i don't know if you had a chance to look at the mou on this on the things that they would enforce so that these five transferred detainees not leave the country, so on, and so on, and so on, which we covered a lot this morning. that's one big thing that's changed to give us some assurance, united states, that these five detainees we would have some control over them. second, to the point that you made about the commission's recommendations, i think that

the commission started in 2009. three years has passed. we looked at comments made by guantanamo guards, others. now i'm not saying -- or implying that these five individuals all of a sudden transformed into st. francis. that's not the point. but the circumstances change in many ways. we felt, again, as i've said here this morning, that when you take the totality of all the new dimensions -- the environment, reassurances, so on, and so on, and what i just -- i don't know if you were here when i just answered congressman smith's question about the intelligence committee's reassurance and their evaluation of how dangerous these five detainees would be if they went whaback t

afghanistan and joined the taliban. >> thank you. before my time runs out, i want to just make one quick point that the discussion of them returning to the battlefield seems to imply that return would put them as foot soldiers with boots on ground. we are talking about the five most senior taliban leaders -- >> they weren't the most senior -- >> who were detained. who were detained. they can become operational without having boots on ground in afghanistan. we will have troops on the ground for the next couple of years, according to the president's plan, and that's really where my concern lies. thank you very much. >> thank you, congresswoman. we have the same concerns. thank you. >> mr. scott. >> thank you, mr. chairman. secretary hagel, at the start of the committee you made a statement that said the justice department said the president has constitutional authority to essentially do this deal and ignore the 30-day requirement in the law in this case. is that --dy hear that correctly? >> someone asked the question i think on what basis the

president made a decision and what authority he had. i think my response was -- >> very similar to that. >> could we get a copy of the letter from the justice department that says that the president had that authority? >> sir, we received a request for that and we're taking that back. it's not entirely within our control. >> thank you. and i look forward to see you that. mr. prescott, you are an attorney. yale and harvard. which provision of the constitution would allow the president to ignore the law? >> the president has authority under article 2 and has a duty and responsibility to exercise that authority. it is not a matter of ignoring the law, it is where the exercise of his constitutional authority is intention with the statute, where in this case his duty and authority to protect

service members, to protect u.s. citizens abroad with the application of this particular provision in this particular set of circumstances would interfere with the exercise of authority, then the statute yields to the constitutional authority either as a matter of interpretation or through the application of separation of powers principles. >> so is it article 2, section 2 then that the justice department is using to justify saying that he does not have to comply with the law? >> it's his authority as commander in chief and chief executive. >> article 2, section 2. >> i believe that's right. >> under what other circumstances would the justice department potentially eric holder, simply tell the president that he did not have to comply with the law? >> i wouldn't really be in a position to answer that question. >> i think that's the key concern here for most of us on the committee, is that if the attorney general can simply give

the president of the united states, who appointed the attorney general, a letter that says, mr. president, you don't have to comply with the law or the constitution gives you the authority to ignore the law, then that is the law of the land under which the president operates, seems to be in clear violation of what our forefathers gave us in the system of our democracy where you have a house and a senate and the president. the house and the senate both pass pieces of legislation. the president signs that law -- signs that making it the law, and now he can get a letter from an appointee of his that says, mr. president, you don't have to comply with this. which leads me to a bigger concern in what you said at the start which was that today this country has had, and has the authority to hold detainees that

would potentially change in the future but it would not necessarily change at the end of '14 when we essentially declare we're no longer engaged in hostilities in afghanistan, but that that would continue as long as we were in a conflict with the taliban and al qaeda. and i guess my question then is, that's your opinion. correct? >> that's my understanding of how the international law principles apply. >> yes, sir. and i agree with you. but if we follow the same train of thought and action which they use to determine they did not have to give the 30-day notice, the attorney general could simply give the president a letter and say, you don't have to do this, and he could release everybody. and that's where -- that's why we're here. the law requires 30 days notice

and the idea that eric holder or somebody at the justice department can just give the president a letter and say you don't have to comply with the law, that's simply ridiculous. >> well, let me just say in general, the role of the department of justice, among them, is to advise the president on the law. i wouldn't be in a position to talk about the content and i can't agree with your characterization, but that is normal process for the executive branch, for the president to receive advice on the law in the execution of his constitutional and statutory responsibilities. >> this law is extremely clear. the law requires 30 days notice and the idea that eric holder can give him a letter saying you don't have to comply with the law, then that becomes the law of the land, is a clear violation, separation of powers. >> mr. smith? >> thanks. just following up on that just really quickly, under the bush

administration, there was warrantless wiretapping authorized, there was indefinite detention. post-9/11 there was a whole host of things that were clearly against a wide variety of laws. and the president and vice president's justification at that time was that the constitution gave them those powers given the circumstances. i don't recall any outrage on the right. i recall a great deal of outrage on the left. i recall a number of folks on the left, including one memorable gentleman who wouldn't let me go at the gym about the fact that i was unwilling to impeach the president over this. but this is not even remotely unprecedented. be and i just wonder if you can comment on that from a legal standpoint. the constitution is a law. and now i disagree at first glance with the interpretation that you made here, but it is

not unprecedented. walking through what president bush did, he justified an endless array of things that were clearly contrary to u.s. law based on had his interpretation of the constitution and on a much smaller, more narrow scale. isn't that exactly what you guys are doing? i mean i don't agree with it, but it is far, far from unprecedented. >> congressman, i wouldn't be in a position to comment on what the previous administration did but i think your point is a good one, that in the exercise of the president's article 2 powers, he's called upon to make judgments about the extent of those powers and that's precisely what he does. there will be occasions where are the statute tore law is intention with the constitutional provisions and there are canons of interpretation that call for

interpreting the statute so as to avoid a conflict, but where the conflict can't be avoided, then the constitution reigns. that is not uncommon and has happened in the history of the presidency. >> first, if i may, if that interpretation had been handled by for -- >> mr. mcintyre. >> thank you, mr. chairman. thank you, mr. secretary, for your strong commitment an service to our country. in light of these recent questions, i know it's been a long hearing, i just want to clarify for the record again as we are coming toward the end of this hearing. on page four of your testimony you say, i quote, consistent with previously congressional briefingin briefings conducting our intent with these particular five

individuals. now in that quote it sounds like you are saying that this -- or it is implying that it met the requirements of notifying "the appropriate committees of congress at least 30 days before the transfer or release of guantanamo detainees." yet in the next paragraph, again quoting your testimony, you state, "i fully understand and appreciate concerns about our decision to transfer the five detainees without provides 30 days advance notice to congress." so in that are you stating and admitting that the 30 days advance notice was not met? >> no. that wasn't the point of why i put that in my statement. the point was, it gives some frame of reference of the history of this issue, and in particular the five taliban detainees that had been discussed. it wasn't anything more than that. if i was unclear, then i cleared

it up. >> you're just saying you understand and appreciate the concern but you are not stating that in fact you did not meet that 30-day advance notice. >> well, we didn't meet the 30-day -- >> that was my point. so that you stated you did not meet that. >> yeah. >> all right. then, i want to clarify that you're saying exceptional circumstances and that was the phrase used in your testimony, allowed you to construe that it was not necessarily to follow the law as stated by the national security council spokesman caitlin haden on june 3rd. i quote from caitlin haden, notification requirements should not be construed to this set of circumstances. that's your strong opinion today. correct? >> well, i agree. think that was probably the core of this conversation and exchange between congressman scott and mr. preston on the authority the president had. and i agree with that. >> i'm just trying to clarify

this. then for future reference, is it your opinion that the administration would have this same liberty to disregard or to construe that it is not necessary to follow the 30 days' notice in future similar situations? >> the way i'd answer -- i actually answered it again this morning once or twice -- is that first, the constitutional responsibilities and authorities the president has, which i happen to -- even though when i was in the senate i would challenge the administration at the time on some of this. but i think that in my opinion, the constitution is clear on that. when there are extraordinary circumstances and situations regarding the security of the american people or a service member or citizen, i think the president has the authority to act. >> all right. so it would -- this decision then -- in future situations that may be similar you believe

would always be subject to the administration's interpretation of the situation on an ad hoc basis. >> well, i think that's probably right but i don't think, congressman, anyone wants to ever tie their hands of the commander in chief, of the president of the united states, on an extraordinary situation. i don't think that's what was intended. i'm not a lawyer but just the practicality of the responsibilities a president has. regardless of the party. >> no. no, i understand that. i'm simply trying to again clarify for the record. so in a similar situation in the future then in light of your statement you just made -- >> we would intend to continue to comply, as we have in almost every circumstance with that 30-day notification in the future on any future transfers. but again, i think any president has to have that power, that

authority -- which i do think is in the constitution -- to deal with extraordinary cases. >> that was the clarification i wanted. thank you very much. thank you, mr. chairman. >> thank you, mr. chairman and secretary hagel. i want to thank you for your service. i had a brother in vietnam right around the same time you were. so i appreciate what you've done. you've mentioned a couple things today and i'll get to it in just a second but does the department of defense consider taliban detainees at gitmo prisoners of war? >> let me ask the general counsel to give you the specific answer. because that was the basis of what we had the prisoners exchanged on. >> so are they classified as prisoners of war? >> they are not -- they are not technically prisoners of war. they are detained what we would

call unprivileged belligerents. and as such, they are entitled to the basic entitlements under common article 3 of the geneva convention s. but they do not enjoy full-up p.o.w. status and all of the protections of the third geneva convention. it is a little technical but they are detainees in armed conflict. >> but they're not classified as a prisoner of war. >> they don't meet the legal definition for prisoner of war. >> mr. preston, i think the administration has referred to this as a prisoner exchange. but the administration never classified sergeant bergdahl as a prisoner of war. that's, as i understand it, for two reasons. and again, they tend to be technical.

one is the term "prisoner of war" relates to a combatant detained in the context of an international armed conflict whereas armed conflict with the taliban is characterized as a non-international armed conflict. other thing is a prisoner of war under the law governing prisoners of war is someone who is laufl awfully held. in our very strong view he was not lawfully held but he was held in the context of armed combat. >> so really doing a prisoner exchange is probably not the correct term the administration should have used. but, regardless, you've heard a lot here obviously -- i certainly don't want to second-guess you in regards to the recovery of sergeant bergdahl. but i do have concerns about the administration -- any

administration basically going to an attorney and giving me an opinion that allows me to operate outside the law. had this was passed specifically because of concerns that congress had in regards to prior notifications about these five. i know miss gabbard brought up, these weren't just trigger pullers, these were planners and organizers. and while they may have been out of the mix for 12 years, what they do bring -- and i think you will agree with this -- they do bring some level of expertise, particularly in regards to the fact that they're highly reveered amongst the taliban with so you've just increased their operational -- at least morale. would you agree with that? >> i would say that the department of justice provides to the executive its legal guidance. the decision is made by --

>> well let me ask you this. secretary hagel, you mentioned this, that if you had to do this all over again there's some things that you would do differently. what would you do differently? >> i haven't spent a lot of time thinking about it, quite honestly. >> well, you mentioned it a number of times. >> no, here's the way i said it. i said in my testimony -- i don't know if i've ever made any big decision on anything where i wouldn't go back maybe and say well maybe i could have done that better. congressman, i haven't spent a lot of time inventorying what i would do differently. we've got all the things coming at us. but what i'm saying is, sure, if we had an opportunity to go back, maybe we could have handled this differently, should have handled it differently. >> i mean you could have notified congress. >> well, there's -- >> because otherwise what you're say something you don't trust congress. i'm sure that's not what you're saying. >> i had a little exchange on that earlier this morning -- >> i'm sorry i missed that. >> well, i was told by one of

your members that i said that, that i don't trust congress. >> i know. i'm not saying that you -- >> i didn't say that. which i would never say that. but -- >> but the actions would look as if the administration does not -- >> i explained it. i get it. i understand it. i said it. i told you may not agree but why the decision was made the way it was. but i understand exactly wlaur's saying. >> thank you. i yield back. >> thank you, mr. chairman. secretary and mr. preston, we're charged with the responsibility of providing security and defense for this country, as well as you. and we take that oath. you said earlier i know the trust has been broken. and i appreciate that you recognize that that has happened. it's really disturbing to me, i have a track record of being trusted by my government. i served in iraq. i had secret clearance.

i knew what battles were coming up so as a surgeon running a cache i could prepare for what may be coming our way. it bothers me that i'm not trusted now that i'm here. it bothers me that you're afraid that i would provide a leak with my record of service. and i think that stands for many others here. and if that's not even considered, it's really bothersome and should be to the american people. but i'm glad what i was in uniform i was trusted to carry out my mission as opposed to here by this administration apparently. and you had mentioned that everyone is unanimous on the plan. i wonder if they were unanimous on the premise itself for this exchange, because there's a difference between being in favor of what we're doing and approving the plan once it's decided that we're doing it. i'd be curious to know about that. but during the course of this, i wonder did we promise any retaliation if our soldier was harmed in any way? did we let our enemy know that if this soldier was harmed in any way, that there would be

retaliation of some sort? >> if the taliban -- >> in the negotiations, if -- i'll call him by name -- sergeant bergdahl. if harm came to him under their care, would there be any retaliation from the united states of america? >> well, let me ask steve preston. he was there during the negotiation. >> i would say, sir, that in the discussions of the exchange, the focus was specifically on the logistics -- >> so no is the answer. you did not say, if you a harm him in any way -- >> it was to minimize the chance of harm. >> obviously we didn't say that there would be some retaliation if he was harmed. now secretary, you before said that he was a p.o.w. you said that here today that he was a p.o.w.

now we are hearing it is a different name. so do we know, did his captorsed a headhere to the geneva convention like we do? >> when i referenced him a p.o.w., he was a prisoner of war. he was a prisoner, of war. >> i'm okay with that. >> the technicality of what general counsel is talking about, that's why i asked the general counsel to make sure the technical -- >> to my question, do they adhere to the geneva convention as we do? >> i think it remains to be seen how he was treated. but there's a serious question. >> i appreciate that. are you familiar with our policy of compassionate release of detainees? either of you? if you're not, i can inform you because i served as surgeon at abu ghraib prison in '05-'0 6. for some of our worst enemies, if they were to be fatally ill,

we'd release them to their families. called a compassionate release. this is a policy of the united states. did we ask them for a compassate release fin deed our soldier was so sick that we had to move so quickly, did we ask them for a compassionate release in the manner that we perform as the united states of america? >> not to my knowledge. >> thank you. so we do -- >> i might add though, congressman -- >> yes, sir. >> the taliban, as you know, you have some experience, which i thank you for that service. they don't play by the same rules. >> that's my point. that is exactly my point, mr. secretary. i thank you for verifying for the case i'm trying to make. we play by a set of rules as a decent people. and we are not dealing with decent people here. yet we acted as though we were. and we acted as though we were releasing decent people. and we are not. and i would ask you, does anyone here really think that the world is a safer place after we've

made this trade? and i want to ask one other question. we have five american casualties yesterday. what if one ever those was captured? by the taliban? would we be back in qatar at the negotiation table? >> well, you know. you served. you heard all morning, we don't leave anybody behind. we do what we have to do. >> there's several ways of not leaving someone behind. >> well, that's right. but you don't send them chocolates and say send them over. tough business. tough business. >> i agree. thank you. i yield back. >> miwalorski. >> is the administration considering other taliban deteen yaez previously considered not a candidate for release? >> we're also assessing possible detainee -- >> right. but i've got a "new york times" article right here that talks about six being considered right

now to go to uruguay. so you are then considering additional transports and transfers of these other detainees at guantanamo? >> we're always looking at this. it's not new. >> i know. i'm very aware. >> this administration transferred far more than the bush administration. >> are you looking at afghanistan -- >> i'm not going to get into the security arrangements here. >> just hypothetically, if you're releasing anymore afghan detainees, are they going directly back to afghanistan after the international law expires and we no longer have, as mr. preston was saying, in a year when the international law expires that we're holding these detainees under, do they go right back to afghanistan? conceivably? could they? >> i'm not going to respond to any specific actions. but counsel may want to. >> i may have misunderstood. i did not -- i don't believe i said that the conflict would

expire at the end of the year. just with that clarification. >> you made a comment about the international law they're being held under by which we're actually detaining them. >> right. as belligerents in an armed conflict. >> and that goes on -- if we're completely pulled out of the conflict and are no longer involved except for minimal troop level or in 2016 when we're completely pulled out -- >> there will come a point in time where the conflict ends. if there is not an alternative basis for which to hold them, the law of war basis would no longer be available to us. >> right. what is that point in time? is that point in time when we pull out our -- on the drop date that the president made, say by the end of 2015-'16 we're going to be completely pulled out, they're going to be on their own? >> when an armed conflict comes to an end is a rather complex question. you can -- one could answer it as my predecessor did in terms

of the degradation of the enemy -- this was with reference to al qaeda -- to the point where they no longer present a threat. our view -- i think it is reflected in the speech, that this is -- our government works best, our country is the strongest when both political branches focus on issues such as the end of a conflict. >> my concern is, we're getting ourselves in a position because we've made an exception to a law, that we're getting into a corner where we could conceivably be releasing afghans from guantanamo, and by whatever means or for whatever measure, sending them right back into afghanistan, is afghanistan -- is the emphasis on the list of the countries that can receive gitmo prisoners? >> i think you described -- whatever the arrangement, it would have to meet the statutory

requirements 35-b, which is to say the risk is properly mitigated. >> i understand the list. so right now, based upon that list, and you guys are considering, and looking at and evaluating all the time and looking at this list of potential countries, obviously qatar is a country who said we will receive and be able to further detain these people, is afghanistan on there, or when the drawdown continues to happen, is there going to be a point where afghanistan is going to be free and clear because we're pulling our troops out, they're on their own, they're handling themselves? are they on that list now to be able to receive prisoners, or is there a time when they will be on the list to receive people? >> i don't know. i mean, we've had -- detainees have gone to over 15 countries. >> i've seen the list. you have the list of potential countries that are available. we've had conversations in other hearings about, for example -- >> you asked in the future -- >> right now, is afghanistan on the list now where they can

receive people back from gitmo? >> ma'am, i'm not familiar with a list per se. >> is afghanistan a country that could be considered -- >> afghan could receive detainees. >> but it's not now? is it currently a country that we say, meets the parameters and we could take afghans from gitmo and send them back to afghanistan, if they met the criteria, and we're saying afghanistan does meet the criteria, does afghanistan meet the criteria today? for example, there's obviously a list of six being looked at to go to uruguay. i'm just asking if afghanistan in its current situation -- >> as far as i know, afghanistan would be a potential recipient country. >> okay. thank you very much. i yield back my time. >> the gentle lady yields back. mr. bridenstine. >> thank you, mr. chairman. mr. secretary, did i hear correctly earlier, you mentioned that when you were making the decision to release the five members of the taliban, that you

did not take into consideration whether or not they would return to the field of battle? >> no, i didn't say that. we took that into consideration. we took everything into consideration. yes? >> was your assessment the best assessment from the people who advise you, was that assessment that they would or would not return to the field of battle? >> the assessment was, first, we looked at the threat. whether they would or not. we can't predict. >> you can make an assessment. >> i'll read you what i just read this committee a little bit ago and i don't think you were here on the latest intelligence community assessment on the threats. i asked for this from gem clapper. this is the most recent intelligence community assessment. threat, if returned to afghanistan, pakistan, after they -- after the one year in qatar. says, should they return and

reintegrate with the taliban, their focus would almost be on taliban threats in afghanistan, not the homeland. >> will we have troops in afghanistan at that time? >> well, 12 months from may 31st. so yes, we'll have troops. >> so they would pose a threat to american people? >> well, let me finish this. >> hold on. let me move to mr. preston. >> i'm giving you -- if you want information, i'm giving you with the ic says. >> i understand that. i think i got the answer i was looking for. >> well, you didn't hear it all. >> my understanding -- i'm a navy pilot, i flew combat in iraq and afghanistan. my understanding is there are really two types of law, there's a law of war, a law of armed conflict, if you will, which is international law, then there's a law of peace, which is how we handle things domestically. under the law of war, correct me if i'm wrong, but we don't detain people for rehabilitation, and we don't detain people for purposes of,

you know, punishing them. we detain them to keep them off the field of battle, is that correct, under the laws of international conflict? >> as i understand it, when they're held under those laws, it's for that purpose. >> it is to keep them off the field of battle. so if there is a judgment that there is a chance that these folks could go back into the field of battle, and we still have an authorization for use of military force indicating that we still are at war, the judgment, whether these people are going to go back and harm our troops is pretty important, is that correct? >> the way i would answer that is to say that it is clear that we have, and had the authority to detain these people. the judgment to transfer them to the custody of another country is one that is governed in substantial measure by the ndaa provision and by a judgment by

the president. >> i might just add, congressman, in the second sentence of this intelligence community report, to answer your question, it says, a few new taliban leaders, these five, if they would return to the taliban, in afghanistan, no matter how senior, will not appreciably change the threat to american forces, the afghan people, and the afghan army. >> is that in a physical sense or morale sense? if you look at what the taliban is putting out right now, they're declaring victory on this. are you aware of this? >> well, i'm aware of a lot of what the taliban says. we can't control what the taliban says. >> yes, you can. because you didn't have to release these five people. by releasing them, you have created in essence a victory for the taliban. it is being used as propaganda against this country, and ultimately, i think you are aware, that these people are likely to return to the field of battle. and our troops are going to be in harm's way because of it. >> korngsm congressman, i just

gave you what they say about that. this is an imperfect business. if we want our prisoner of war back, we have to make some accommodations to that. we did it with a substantial mitigation of risk. we thought this was the smartest, wisest, most responsible thing that we could do to protect our people, get our prisoner back. >> the taliban feels the same way. >> there's nothing i can do about that. they're going to be predictable, i suspect, and try to use this. but you asked whether that's physical. or is it a morale boost. i think the first thick we ought to look at, is this a physical threat that they represent. and you just heard what the -- >> the morale boost turns into a physical threat. >> well, it's an imperfect world, congressman, and you know that. >> gentleman's time is expired. mr. burn? >> thank you, mr. secretary. i've been watching you, you've been answering questions about

the consultation with congress. i know you're sensitive to that. i was wondering if at any time during this process, did you, yourself, recommend or suggest to anyone at the white house, the embassy, any of the parties, any of the people involved, that they should consult or notify the congress prior to may 31st? >> congressman, through this process, which i have in front of me, the deputies' meetings at the white house, the principal meetings, which i'm a principal, all of these things were discussed. notification, the risks which we've talked about today. i support the decision that was made on notification. i didn't particularly like it, i think a lot of people didn't, but we felt in the interest of not risking any further -- bowe bergdahl and the opportunity to get him back, and maybe even his

life, this was the smartest way to do it. >> well, i understand it was discussed. but did you yourself suggest or recommend that some notification or consultation be made prior to may 31st? >> we all made suggestions, recommendations to at least exploring what happens if we don't, what's the down side of that, what's the down side if we do. all these things were -- >> so you did. >> we all talked about it. it wasn't a recommendation. we went around the table and talked about it, all of us. >> you suggested maybe we should talk to congress and give them some notification? >> we talked about it, look at it, go up and down. no formal recommendation was made by me. at the end, we discussed it. we came -- all came out in the same place. that the risk was just too great. we didn't want to take the risk. >> let me ask you a question. i was interested in the colloquy you had with several people over this constitutional issue. is it your position, is it the

position of the obama administration that after the president of the united states signs a law, and it becomes law, that he can on his own after consultation with legal counsel, the justice department, whoever, say, i don't have to comply with a particular provision of that law without going to court first? >> i can only speak for myself. but i think that the president may act in the exercise of his constitutional authority as he understands it, and as circumstances demand, without necessarily going to court. >> how is that different from the position that people in the nixon administration took during watergate, that the president does it, it's legal? how is that different? >> i wouldn't even know where to begin to answer that. >> well, begin with the beginning. can the president of the united states decide he can do whatever he wants to do, because he thinks