was negotiations that we were entering into negotiations with the taliban looking towards reconciliation at some point. along with that -- in that meeting, there was also mention about a potential transfer of detainees, as you mentioned, for the release of sergeant bergdahl. that was followed up with another briefing in january. and then the taliban set up a headquarters in qatar. president karzai learned of that. everything hit the fan. and we were briefed again, saying that all of those negotiations have come to a halt. if we start those negotiations again, we will inform you.

we never heard another briefing on that matter. and so when we passed that law, we felt that we did it for a good reason. the law didn't just state that we would be given a notice. it required that the department would provide numerous pieces of critical information, including how the risk posed by the detainee had been substantially mitigated, how the transfer is in the national security interest of the united states, an assessment of the capacity, willingness, and past practices of the receiving country, along with the notice, along with several other pieces of information. and previous ndaas

with the tape, and with the other things that went forth. and i've been told in a couple of different briefings now that somewhere, i think the final number given to us a couple days ago was somewhere between 80 and 90 people in the department of justice, the state department, the homeland security, i guess was one of them, and the department of defense, knew about this, 80 to 90 people. the only one i know of that was

elected was the president, and perhaps the vice president. we don't know who those 80 or 90 people were. yet, in all that time, the leadership of the house that has the responsibility, a co-leadership, according to the constitution, with the president of the united states, was not informed, not told of any of this. if you had -- or somebody, i think you have the most credibility, but if you had been able to meet with the responsible people in the congress, and give them the same story you just now gave us, the law would have been complied with. we didn't need to know the operational details. we didn't need to know anything than that other than the things that i've mentioned that the law states. in full compliance with the law would have been met. and i don't think we would have pushed back at all. and yet when the law's ignored,

and, you know, we all have -- we all feel keenly the responsibilities that we have. sometimes more than others. this is one of those times where this is a very important principle, and i wish that you, or somebody, had sat down with the leadership of the congress, including the senate, and told us the same things that you've just told us in your briefing here. i think it would have gone -- would have been very helpful in re-establishing, or establishing, or keeping, the trust that we should have between the congress, the president of the united states, the supreme court, all of us trying to work together to the satisfaction of the constitution, and the american people that were all sent here to serve.

let me just ask one question, secretary hagel, will the department fully cooperate with this committee's inquiry going forward with the detainee exchange, including the recent request that i sent a couple of days ago for documents? >> absolutely. yes. >> thank you very much. and thank you for your service in the military in uniform, in the senate, and now in this very tough job that you hold. >> thank you. >> mr. smith? >> thank you, mr. chairman. i think two very important parts to this. one is the one the chairman just mentioned which i'll get to in a second. but the first is this whole notion that we have somehow broken precedent. that this negotiation, we negotiated with terrorists, in exchange for this, and that you know, went against a long-standing u.s. policy. and i think that has been the central criticism, the criticism

from the speaker yesterday, and i think it's just absolutely wrong given the situation that we were in. as you described it. we went to war in afghanistan. sergeant bergdahl was fighting in that war. and we were fighting directly against the taliban. you know for the first couple of months they were the government. they were knocked out and they kept fighting as an insurgent force. could you walk us through, and maybe mr. preston, as the lawyer, you can sort maybe, mr. preston, as the lawyer you can get into this, how you view this and whether or not this is unprecedented. there certainly doesn't seem to be. there's been schaenexchanges in about every war we fought of prisoners. whatever we thought of the taliban, we were fighting a war with them. it was a battle zone. it was not a diplomat or a civil van, it was a member of the armed forces who was captured in that battle so do you think that we've set some precedent for negotiating with terrorists or is it clearly, as it is in my

mind, in a different legal category? >> congressman smith, thank you. i as you noted, alluded to some of this in general terms in my statement. two general comments to respond and then i'll ask mr. preston, you suggested his thoughts. one, this was an extraordinary situation. for the reasons i mentioned, i think in the classified briefings that some of you have attended or heard will get more into the extraordinary dynamics when we close this hearing down and go into classified. it was a very unique set of dynamics that we were dealing with, that's number one. on the precedent-setting side of this, i'm not the legal person here, but i do occasionally

read, and i don't think there were any precedents set by this. as far as from what i know from past wars and the way we've always gotten our prisoners back or attempted to get back at the time of war or after war, we can get into all the appropriate categorizations of who are combatants and who are we at war with and who are terrorists. and we have legal definitions for all of those. but i said something at the beginning of my testimony here. i know it's imperfect, but i do think it plays into the larger scope of what we were dealing with, what we are dealing, with still dealing with and will be dealing with not just in afghanistan. but you look at yemen, what's going on all over the world. what is unprecedented today is the threats and what we're up against around the world.

organized, sophisticated terrorist groups. now, have we declared on war on any of them or how would we define them other than some as terrorist groups, but these are different dynamics in unprecedented situations that this country has never had to deal with before. i'll make one last comment and then ask mr. preston for his legal opinion on your question. you all have major responsibilities. we each in government have major responsibilities. i have the responsibility of getting up every morning, i've got one responsibility and that's the security of this country. that's what i'm charged with. that's what the president asked me to do, the senate confirmed me to do that, i agreed to do it, i took an oath of office. we all take the same oath of office and that's to the constitution and security of this country. that is my primary focus every day.

you all have your focuses. not too dissimilar from mine either on some of these things. i just happen to have a more narrow gauge in what i do. the president of the united states has the ultimate responsibility for the security of this country. so i just remind us of all of this. it's imperfect, i know, and it might sound like an excuse but it's not an excuse, it's reality. i'll ask mr. preston. >> thank you. there's, of course, a good deal of technical legal detail in what constitutes a p.o.w. per se versus a detained combatant or privileged or unprivileged belligerent. i don't think we need to get into that to answer your question. what we had were detained combatants held by opposing forces in the samd armed conflict. as such this exchange falls within the tradition of prisoner

exchanges between opposing forces in time of war. now, it is true that the taliban is not the conventional nation state that has been party to conventional armed conflict in the past, but it's not the character of the holding party. it's the character of the detainee that inspires and motivates our commitment to the recovery of service members held abro abroad. we don't see those as setting a particular precedent both because it does ball within that tradition of prisoner exchanges and there have been in the past occasions where the united states has dealt with nonstate actors who are holding a service member in order to achieve their recovery. >> can you give us a specific example of that? >> the one example i'm aware of is the helicopter pilot, michael durant, in somalia who was held

captive by the war lord mohammed adid and there was a quiet, as i understand it, arrangement whereby the united states regained durant's freedom and functionally in exchange for individuals that were captured in the same operation. >> and i just want to say again any characterization of this as negotiating with terrorists totally misses the fact that we were and are at war. sergeant bergdahl was a member of our military fighting that war. on the gitmo piece, is it your opinion that at the end -- say 2014 we consider that to be the end of hostilities, which is an interesting argument because we're still going to have 10,000 troops there, that assuming there was an end of hostilities that these five would have had to have been released as the end of hostilities? is that the department's opinion? are they undecided or do they

feel the opposite? >> sir, the way i would answer that is to say that we believe we have under domestic law, specifically the aomf, and under international law principles of the law of armed conflict that we have authority to hold and had the authority to hold these five at guantanamo as enemy belligerents. >> even after the war would have been over? >> i will speak to that. there will come a point in time where the armed engagements we're engaged in with the taliban come to an end. at that pointing the law of war rationale for continuing to hold these unprivileged belligerents would end unless there were some other basis for continuing to hold them such as prosecution. >> it's not just -- not just the war in afghanistan. >> that's right. >> it's the broader battle as defined under the aumf. >> and the further point is i'm

not aware of any determination as yet that with the cessation of the current combat mission at the end of this year that the armed conflicts are determined to be over such that would determine the circumstances we've been discussing. >> and the last thing i'll say and no need to respond to this but i'll just reemphasize a pointing the chairman has made and i made in my opening statement, let me just say the department of defense in my experience has been very good about consulting with us and about working with this body. so it's not really about that. the white house on the other hand has not been very good about keeping in touch with congress, working with us, consulting with us on major policy issues. it's sort of hit or miss. if we could do better at that, it would make my job a whole lot easier if we could just trust congress a little bit and have those consultations before policy decisions are finalized.

i think it would make this entire town work better than it is right now. i yield back. >> there are two things i need clarified. did you, mr. preston, say that at some point conflict would end and then we would release these people or we would have to release them, there would be no reason to hold them and that that conflict is ending in december of this year? >> sir, the point was when the conflict ends the international law basis for continuing to hold people who are being held on the basis of their membership in the -- >> i'm sorry, mr. preston, but you have to point out which armed conflict you're talking about. your answer was not the armed conflict in the afghanistan, it was the one as defined under the aumf. as long as we're fighting al qaeda and as long as we're fighting their associated

forces, that is the armed conflict that you were talking about being over, not afghanistan. i believe that's the point of the chairman's question. >> the point is we're currently in armed conflict with the taliban and with al qaeda. at some point the armed conflict with the taliban ends. at that point for those detainees who are being held as enemy belligerents against our enemy, the taliban, unless there is additional basis for holding them, then we would no longer have that international law basis for holding them. now, it has been suggested that taliban may also held as associates of al qaeda as the conflict with al qaeda continues. >> the point that mr. smith made is that this conflict may not end in december, just because

the majority of our troops are pulled out. is that your understanding? >> that is my understanding as well, sir. >> we thought the conflict was over in iraq and we see that it is not. it continues to go on. now, the second thing, i may have left a wrong impression when i was talking to the secretary saying that if you had given the same report that that probably would have just solved everything. we still have big concerns about the five. and i didn't mention that when we were briefed in november of '11 and january of '12 that there was real concern of members of congress that those five be released, in fact there was real opposition to it. and that's why we were real concerned that we weren't told other than if we'd re-enter those negotiations you'd be told and then we weren't. so those are things that we

really need to have clarified and worked through. mr. thornberry. >> thank you, mr. chairman. mr. secretary, i'd like to just begin with a brief additional observation on the notification issue. for the past several years, this committee has worked on a bipartisan basis to establish an oversight structure for cyber operations, for terrorism operations and for sensitive military operations. and an oversight structure that allows the department to have the flexibility it needs to operate in arapidly changing world and still give us a chance to execute our duties under the constitution. now, the basis for all of those in all three of those areas is that we get timely, accurate information from the department. and this failure, even if it was ordered by the white house, undermines the ability to have that sort of oversight structure. i've been a member of the intelligence committee for ten

years. our work depends on getting accurate, timely information from the intelligence community. if the president can violate the law and say, no, in this case we're not going to give you the information, it undermines the oversight process that we have with the intelligence community. so my point to you is it's not just about this incident, it's not just about somebody having their feelings hurt, this decision undermines a lot of the working relationship in all these areas of national security. and i think it's important that the whole administration understands some of the ramifications of this. let me ask a specific question. press reports indicate that sergeant bergdahl was captured by a network commander and was held by the hakani network. is that true? >> what i noted is in the classified section that we get

into, the specifics of that 15-6 commander's evaluation report that was done of the circumstances at the time of sergeant bergdahl's capture, i believe that was done in august of 2009. that's been sent up here unredacted, sent up here yesterday, and i'd just as soon get into that in a classified hearing, but i would say this, though. i would say this. he was in that report that the army did, he was classified as missing/captive. >> i wasn't really focused on him, i was just trying to verify, as i understand it, administration people have said clearly it was the hakani network that kept him. >> well, the hakani network did have him through periods of time. this was another complication over a five-year period he was

moved around. we had difficulty finding him, knowing where he was. different groups held him. so the complication of the hakanis being part of this, that's right. >> and it's also true the hakani network is listed as a foreign terrorist organization. >> that's right. but we didn't negotiate with hakani. >> i think that's a subject we'll want to discuss if we must in the classified discussion -- >> well, i want to make sure the record is clear on that. we engaged the qataris and they engaged the taliban. notic now, if the hakanis were subcontracting to the taliban or whatever that relationship is, you know there's the pakistan taliban and the afghanistan taliban, there's a difference there so we get back into

definitions of who has responsibility for whom. but i just want to make sure that that's clear on the record and we can go into a lot more detail. >> i think that you just pointed out some of the difficulty in making categorical statements that we don't negotiate with terrorists when at least for some period the hakanis were the ones who had him. let me just ask about one other thing and that is the five detainees that were released. you said that there is always some risk associated with releasing someone from guantanamo, but you also said that they had not been implicated in any attacks on the united states. i have some unclassified summary of evidence before the combatant status review tribunals. for example, it says the detainee engaged in hostilities against the united states or its coalition partners. maybe there's a difference between us and our partners. for mr. wazik it says the

detainee participated in military operations against the coalition. so at least at some point there was evidence that they were involved in hostilities, military operations against the coalition, weren't there? >> yes. they were mid to high-ranking members of the taliban government, of the taliban. so, yes, they were part of planning. but what my point was, we have no direct evidence of any direct involvement in their direct attacks on the united states or any of our troops. they were part of the taliban at the time some were given to us. we picked two of them up, captured two, but yes, they were combatants. >> so your point was they didn't pull the trigger, but they were senior commanders of the taliban military who directed operations against the united states and its coalition partners, would that be a better way to do it. >> that's right.

that's right. now, as i said in my statement, congressman, they were combatants. we were at war with the taliban. there's no getting around that and i made that point, i thought, pretty clearly. >> thank you. >> just like bin laden didn't pull a trigger but we went after him because he's the one that caused the 9/11. ms. davis. >> thank you, mr. chairman, and thank you both for being here. mr. secretary, i do think that your presentation did provide us i think additional ways of really looking at the discussion. i do understand how people feel in terms of notice, but i wanted to have an opportunity to just look at that issue and whether

or not the circumstances under which he was captured or the fact that regardless of whether or not his life was in danger would have made any difference in terms of the 30-day notice. you know, it's difficult for me to imagine that members would have included that within the language of that bill. to what extent were those situations weighing on the decision of whether or not to engage in that discussion during the imminent danger period? >> well, all of those were factors that we had to consider as we were thinking through this. his deteriorating health, which was clear to us from the last proof of life video we had, the uncertainty of where he was, who exactly held him.

again, i remind everybody, this service member was held in pretty difficult circumstances for almost five years, and we don't know the facts of all of that until he gets back and we're able to get the facts. the urgency of getting him, the fleeting opportunity that was made clear to us by the qataris in our engagements, negotiations, mr. preston was there through those. all these were factors. the concern about leaks, we were warned about. every one of these different dimensions we had to think through, and we did believe, as i said, and we had information to support this that this effort might be the last real effort that we have to get him back. there were too many things floating around that we didn't

control. we didn't know enough about. so we had to factor in all of those. >> did you have any other -- did you, i guess, entertain other approaches to his rescue that you were looking at at that particular time, and why were any of those not followed? >> well, congresswoman, we were, as i said in my statement. since the time that he went missing we were looking at different ways to get him back. our combatant commanders were always looking at plans, possibilities, options, rescue missions and so on. but as i said in my remarks, we had to factor in the risks to our other forces to go get him. and if he was in pakistan, we know he was moved in and out, across the border.

that would also affect some different dimensions. but yes, we looked at all the options, at all the possibilities. but up until this last time when we got him, in our opinion, our intelligence community's opinion, our military, everyone who was involved, this was the best possibility that we had to get him out and we were concerned we might lose it. as i gave you some dimension of the time frame, we didn't even know where we were going to pick him up. it was less than an hour and the general area. >> and the detainees, were there -- was it always this five or were there others? >> well, it actually started with six. some of you may recall. one of them died. and there had been back and forth, they wanted all of the taliban detainees at one

appointed we said no. so this is part of the whole engagement of what we need to do and where we draw lines, say no, we're not going to do this. so, yes, there were different variations of that engagement over the years. >> all right. thank you. thank you, mr. secretary. >> mr. jones. >> mr. chairman, thank you very much. secretary hagel, mr. preston, it's good to see both of you. thank you for being here today. mr. secretary, on june 1, you were on "meet the press" and you expressed hope that the release of sergeant bergdahl would lead to direct u.s. talks with the taliban. mr. secretary, the taliban have stated there will be no peace with afghan government with the united states or any foreign presence as long as troops remain in afghanistan and

prisons are contained at guantanamo bay. they have repeated these statements time and time again and have proven they do not desire peace with the united states or its allies. with this known, why did you at that point on "meet the press" express hope, and we can all have hope, that there would -- the release of the sergeant would lead to some type of direct negotiations with the united states? and do you today feel that that is still a real possibility? maybe there's something you want to say in the classified setting that you can't say here today, but this, to me, your statement was received by many of the people that i represent in the third district of north carolina that maybe there was in this negotiation about the sergeant, that maybe there was some signal

sent to you, sir, or to the administration that there might be an opportunity for direct negotiations with the taliban. knowing the history of the taliban, knowing how they fought the russians, alexander the great, the brits and then fighting the americans, i would hope that maybe you do know something that you can share with us, if not in a public setting but in a private setting. can you comment, sir? >> congressman jones, thank you. good to see you again. thank you. first, as you know, the position of the united states government regarding the taliban has always been we support a reconciliation between the afghan government and the taliban. that's been a general position, as you know. as to the specific answer i gave on "meet the press" it was to a specific question when we were talking about sergeant

bergdahl's release, and i don't recall exactly the question. but if i can piece it together enough to respond, i think the question was set up, well, could this lead to talks with the taliban or reconciliation. as you quoted me, i said, well, i hope, maybe, whatever. but, no, that -- that wasn't any direct hint or wink or possibility that i know something that that's going to happen. but i would also remind us again that if you recall, some of you do because you were in some of these meetings, briefings, in the 2011-2012 time frame, i wasn't in this job at the time, but i've looked at the files on this, i've seen it all. there was a larger scope and

framework of a larger reconciliation which included bergdahl's release. but the current situation that we were in was a straight get bergdahl. now, that doesn't dismiss, congressman, the hope that there can be some possibility of the afghan government and taliban finding a reconciliation somehow some way, but in no way did i -- was i intending to imply in that answer that there's something else going on out here. >> well, my interest was simply that the taliban's history does not seem that they want to see a foreign presence that's going to influence the future of their country. i was hopeful that maybe in the negotiations for the sergeant that maybe there had been some signal sent with the mediary

that maybe had been shared and if there had been maybe you could through your staff or in the classified setting let me know that there are some possibilities, because my marines down in camp lejeune, quite frankly, are tired of going to afghanistan and getting their legs blown off. thank you, mr. chairman. i yield back. >> and we will. >> congressman jones, thank you. >> thank you, mr. chairman. mr. secretary and mr. preston, i want to thank you for being here today for your testimony. as we were reminded just yesterday with the loss of five american special operating forces, afghanistan obviously remains very dangerous and a battlefield for our military. i join many of my colleagues in the expression of gratitude at the return of an american

prisoner of war and the return of any u.s. service member from enemy captivity should be a priority for his or her fellow soldiers and of course for our country. sergeant bergdahl is an american soldier and we are certainly grateful that he has been freed. that said, this whole situation raises many troubling concerns and among them, of course, this committee has a significant oversight role and there are legitimate questions regarding both congressional notification as well as the long-term incentives for the taliban and al qaeda. certainly significant personnel and other resources have been expended to conduct what could result in dangerous and disturbing incentives on the battlefield, as one taliban commander said, and i quote, it has encouraged our people, now everybody will work hard to capture such an important bird,

end quote. so, mr. secretary, how do you anticipate this transfer will impact the incentives and the behavior for the taliban and al qaeda? are we prepared to counter any new behavior? >> congressman, i would answer this way. first, i think everyone on this committee knows, some more than others, those who served in war, that war is a dangerous business. so a soldier is always, always at risk. that's number one. two, you probably know that the taliban has standing orders to capture american service members and that's been a standing order for 12 years. so there's nothing new here about where the taliban have been and where they continue to be. but i would say this also. now that we have our last prisoner back, this very much

gives us more flexibility quite frankly to free up resources that every day we were thinking about our commanders on the ground in that area, how -- if we have the opportunity how can we get bergdahl. now that he's back, that frees up that obligation. i think that actually strengthens the point. and the last point i'd make, i mentioned this in my comments, and again those who have served in uniform on this committee know this, pretty basic to military. and i expressed it in different ways by quoting different senior members of our military and retired. that to have our men and women in uniform all over the world who some are more at risk than others every day, to have them be reassured that this country will come get them or will make

every effort to go get them, it's got to be pretty significant. and i was told that by all of our commanders. now, it can be issues on the specifics of sergeant bergdahl, but that's irrelevant, quite frankly. he was a member of our armed forces and we went and we got him back after five years. i think that's pretty significant. and i think it also falls into the category of your question, answering your question. thank you. >> mr. secretary, thank you for that answer. as the chairman and the ranking member have mentioned in their opening statements, questions about sergeant bergdahl's conduct should be addressed with due process at the appropriate time and such, but could you settle one conflicting report, at least, in terms regarding the

number of -- the loss of soldiers who may have been involved in searches for sergeant bergdahl? >> first, any loss of any soldier is a terrible loss to their family and to our country, and i think we should note that first. second, your question has been asked a number of times. i have personally gone back and asked that question inside the pentagon. in the army, in all of our reports, i have seen no evidence that directly links any american combat death to the rescue or finding or search of sergeant bergdahl. and i've asked the question. we've all asked the question. i have seen no evidence, no facts presented to me when i ask that question. >> mr. secretary, you did say

there's nothing new here that the taliban is always out to try to capture us, but isn't it true that there is one thing new, that we have now made a trade for a hostage? >> no, he was not a hostage, he was a prisoner of war. that's not new. >> have we made other trades with the taliban? >> with the taliban, i don't know. i don't think so. >> thank you. mr. forbes. >> thank you, mr. chairman. mr. secretary, thank you for being here and for mentioning the need for transparency. as you talked about, our inability to prosecute the individuals that were released, this administration is not exactly had a stellar record on prosecution of people at gitmo when you look at the fact that the lead prosecutor for the 9/11 terrorist had specifically said that he would have had a guilty plea out of all of them within six months and this administration came in, shut

down his prosecution, destroyed all of his pretrial work and we've been five years and still haven't brought them to trial. secondly, i don't think even you would argue that the conversations that took place in 2011 complied with the law. and basically what we're trying to get across is that we're a nation of laws. you can't pick and choose just because they're convenient or not convenient which ones we're going to enforce and which ones we aren't. but the third thing is, and you said this, that there are limits to trades that we would make and somewhere we draw the line. i want to talk about where we drew the line. the individuals we released were essentially equivalent to releasing a deputy secretary of defense, a deputy secretary of intelligence, a deputy secretary of interior, a governor and a commander. and when the president was asked if there was a possibility of them returning to activities that are detrimental to the u.s., his answer was absolutely. our deputy director of national intelligence was even harsher. he said the latest communitywide u.s. intelligence assessment on

these five terrorists said he expected four out of the five taliban leaders would return to the battlefield. and this assessment was in accord with the 2008 pentagon dossier that said that all five of the individuals released were considered to be a high risk to launch attacks against the united states and its allies if they were liberated. now, you state in your testimony that if any of these detainees ever try to rejoin the fight, they would be doing so at their own peril. so my first question to you is does this mean you would put american lives at risk to go after them? >> congressman, we have american lives at risk every day. >> but not for individuals that we have released and put back out there. so my question is would we put american lives at risk to go after them if they rejoin the fight? >> well, depending on the threat. but also let me remind you of the other pieces that you didn't mention in our analysis of these five. the intelligence community has

said clearly that these five are not a threat to the homeland. >> mr. secretary, you have said in here that if they rejoin the fight, they do it at their own peril. >> in afghanistan. >> my question is a pretty simple one. would we put american lives at risk to go after them? yes or no? >> we have american lives put at risk every day to go after -- >> i understand. my question is will we put american lives at risk to go after these individuals if they rejoin the fight? >> well, yes. because -- >> if that's the case. >> you could use the same argument, congressman, on yemen or anywhere else. >> i could do that but not because of individuals we released. and the second question i would ask you is two parts. in the calculus that you made for releasing these individuals, were you asked or did you make an assessment of the number of american lives that were lost or put at risk in capturing these individuals in the first place,

and did you make an assessment of the number of american lives that may be put at risk if we have to go recapture them again? >> again, i saw no evidence, no facts, i asked the question about how these five found their way to guantanamo. and i have in front of me the facts on the five. two of them were retained by u.s. forces. >> i understand that and i understand we're running out the clock. >> the answer is no. >> so you didn't even make a calculus -- >> i said i did and i said the answer is -- you asked if there were lives lost in capturing these. >> and you said no. >> i have no direct evidence there were any american lives in capturing them. >> did you make an assessment of how many american lives may be put at risk if they have to be recaptured? >> no. >> okay. >> but there's risk we have to

our country, threats to our country every day, everywhere. the other point i would make on this, we determined that there was a substantial mitigation of risk for this country, for our interests, for our citizens and our service members when we made this decision. and we were satisfied that we could make that determination. >> it just flies in the face of all the other evidence we have. and with that, mr. chairman, i yield back. >> ms. bordalio. >> thank you very much, mr. chairman. secretary hagel and mr. preston, thank you for appearing today and providing us with your testimony. secretary hagel, i appreciate the detailed information you had in your statement and you support your position. i do appreciate also your continued commitment to our men and women in uniform and your

steadfast leadership during these challenging times. my first question is for you, mr. secretary, what impact with sergeant bergdahl's continued imprisonment, if we had not engaged in his exchange, have had on the security situation in afghanistan as we draw down forces? did his continued imprisonment include a heightened security threat to our men and women in uniform? >> well, in the sense, congresswoman, that as i answered in a previous question about putting at risk american lives to capture him -- not to capture him, but to get him back, and to do that if it would have taken another course of action or if we would have taken another option, that would have put our men and women at risk. our men and women who are at risk in fact carrying out this

one mission, but fortunately it was done the right way. and i don't think -- again, that effort has gotten enough attention. this was all done in less than 60 seconds. not one death, not one issue, not one problem. and i've seen very little recognition of that given to our forces by anybody. that was a significant effort by our armed forces, knowing as little as they did but planning it as well as they did and having the outcome as positive as it was, so thank you. >> i agree. my next question is for mr. preston. with the heightened media attention, how will you ensure that sergeant bergdahl receives a fair investigation? >> thank you. we will pursue our usual policies and practices with respect to investigations and

follow-on actions. a key element of that is avoiding what is referred to as unlawful or undue command influence, so you will see that the leadership, military and civilian, at the department have been entirely neutral in their discussion of this and focused on ensuring due process without prejudging what the outcome should be one way or the other. those dealing with sergeant bergdahl more directly and the army more generally are, i believe, sensitive to ensuring that in the process of bringing him home, restoring him to health, debriefing him for intelligence purposes and then ultimately reviewing the circumstances of his capture that fairness be preserved and that his rights be preserved. >> thank you. and my final question is for secretary hagel. prior to securing the recovery

of sergeant bergdahl, had you received correspondence from members of congress requesting that you take action to obtain sergeant bergdahl's release? >> yes. >> thank you. >> thank you. mr. miller. >> thank you, mr. chairman. thank you, mr. secretary, for being here. i'm looking at your testimony and on the first -- third page, excuse me, it says that we complied with the national defense authorization act of 2014. did you or did you not notify congress within the 30-daytime frame, yes or no. >> no. >> okay. >> what i was -- >> no, sir, yes or no. >> all right, no. >> does the administration intend to violate the notice requirements of section 1035 of the ndaa and section 8 -- 81-11 in future transfers? >> not unless -- not unless there's an extraordinary set of circumstances like this one would we have -- would we be in

a position to make a call like that. >> will you assure this committee that the department will not proceed with future detainee transfers without notifying congress, consistent with the law? >> we have, i believe, before my time in every circumstance except this one. and we intend to continue to do so that. >> you were part of the legislative branch as a member of the united states senate. we make the laws. you're part of the executive branch now, which the responsibility is to enforce the law. whose responsibility is it to interpret the law? is it the president's responsibility or is it the courts? >> the courts. >> then why did the president make the decision or you make the decision not to notify congress? >> we believed and the justice department office of legal counsel -- >> part of the executive branch. >> told the president that he had the constitutional authority to do that. that he had under his constitutional powers the

authority to make the decision that he did. >> you said that you would put american lives at risk if the taliban prisoners that were swapped in the secret deal would rejoin the fight -- if they rejoin the fight in afghanistan. what if they rejoined it from somewhere else? they don't necessarily have to be on the battlefield in afghanistan. certainly we would pursue them wherever they are. >> we would do everything we needed to do to, as we have said, to deal with that threat, as we are doing today. >> your testimony is we're doing everything that we can -- >> to deal with the threats to the united states of america, whether they're in afghanistan, whether they're in yemen, whether they're in homeland defense. it isn't just limited to afghanistan, the threats that face this country. >> mr. secretary, you keep saying we can't get the facts from sergeant bergdahl until he returns home. have you ever thought about

going to landstuhl and talking to him there? >> well, i don't know how much medical training you had, congressman. i haven't had much. and what we are doing is we are allowing -- >> i tell you, mr. secretary. >> we are allowing the doctors to make the decision -- >> no, mr. secretary, wait a minute. wait a minute. why hasn't he been returned to the united states? we have seriously wounded soldiers that are returned to the united states almost immediately after they are stagize stage i -- stabilized. how long did jessica lynch wait before she was returned to the united states? you're trying to tell me that he's being held at landstuhl, germany, because of his medical condition? >> congressman, i hope you're not implying anything other than that. >> i'm just asking the question, mr. secretary. that you won't -- >> i'm going to answer. i don't like the implication. >> answer it. >> he's being held there because our medical professionals don't believe he's ready. until they believe he is ready to take the next step to

rehabilitation. >> have you ever seen a traumatically injured service member brought to the united states immediately upon being stabilized at landstuhl? we do it all the time. >> this isn't just about a physical situation, congressman. this guy was held for almost five years in god knows what kind of conditions. we do know some of the conditions from our intelligence community. not from, by the way, bergdahl. this is not just about can he get on his feet and walk and get to a plane. >> so you're telling me he cannot be questioned because of his condition? >> i'm telling you that the medical professionals that we rely on their judgment for his health, which i assume everybody respects, have made the determination and will make the determination that when he is ready to move and move to the next step, which will most likely be in san antonio, then we can proceed. that's what i'm saying. >> one other question. why is the army just now reviewing the circumstances of sergeant bergdahl's capture?

>> they're not. i said in my testimony and i said in my comments they did it back after he went missing in 2009. that 15-6 report was filed, completed by general scaparotti who is our commanding general in korea, in august of 2009. that 15-6 report, review, complete, not redacted, was sent up to the hill yesterday, to the committees. >> thank you, mr. secretary. >> and you're welcome to read it. >> thank you. >> and that will be made available to all the members in the proper setting to review. mr. courtney. >> thank you, mr. chairman. i want to thank the witnesses for being here today and, secretary hagel, for your powerful testimony which, again, laid out the fact that this is -- not every choice in your position is always black and white. you've got to weigh a lot of factors.

one of the factors which i just want to kind of maybe reemphasize is in terms of when you were deciding this back on may 27th, i mean it wasn't like you had a lot of other options. there was no plan b or plan c that was sitting on your desk in terms of how to get this american soldier back in our jurisdiction, isn't that correct? >> that's exactly correct. there was no other option. >> there are members who have been on some of the shows saying, well, we should have sent special forces in to get him. we actually were not totally clear about where he was. >> that's right. >> so there really wasn't even a place to send special forces to recover him. you also, again, and this has been alluded to earlier, that in terms of the risk mitigation of the five transferees, taliban transferees, that if they do get back into the conflict, they do so at their own peril. secretary kerry, i think, in

some public setting also made the comment that it's not like we're totally without options to raise their risks in terms of getting back involved in the fight. again, they don't always involve the use of military personnel. i mean we have all been on the codels over to afghanistan and have seen the availability of unmanned assets that we have to take out targets that, again, have been identified through the chain of command. isn't that correct? >> that's correct. >> and certainly that would be available to us, again, if a situation arose that would not put soldiers or airmen or anyone necessarily at risk? >> that's right. >> mr. preston, we've been sort of talking about the legal sort of consultation that was going on with your office and the department of justice during

that five or six-day period when the decisions were being made. did doj address in terms of the legal opinions that you were given the question of consultation with congress, the 30-day requirement? >> yes, sir. the administration sought the guidance from the department of justice on the applicability and impact of the 30-day notice requirement under these circumstances and received guidance from the department of justice. >> and was that in writing? >> it was not by means of a formal memorandum opinion, but rather by e-mail exchange principally. >> i know the chairman mentioned that he's got requests from the committee for documents, which it sounds like are going to be forthcoming. is that -- i assume that's one of the requests in terms of making any sort of legal

analysis that you requested and received or offered from doj, that that would be one of the documents that you would share with us. i hope you would. >> we'll certainly take that back. i'm sure we appreciate that there's interest and we certainly want to make sure that interested members fully understand the legal basis on which the administration acted. as for the disposition of the document, we'll take that back. >> thank you. again, and i'll follow up with the chairman, because i think it is important that if the department was claiming a constitutional authority, which the secretary mentioned in terms of that issue, i think we would like to see that analysis. and with that i would yield back, mr. chairman. >> the gentleman yields back. mr. preston, when did you consult the doj on the 30-day notification? on what date was that?

>> mr. chairman, i don't remember the precise date, but it was in the time frame in which we had completed our discussions with the qataris over the mou but before it was signed. we anticipated that these issues would arise and i engaged with my counterpart at the national security council who in turn engaged with the department of justice to ask them to consider the legal and constitutional implications in this setting. >> do you recall last week when you and other members were -- other members of the administration were briefing the staff, i attended and mr. thornberry attended that briefing. and i asked the question if at any time since the january

discussion started you had talked about the 30-day requirement and nobody said at that time that there ever was a discussion about it. >> i don't recall that exchange, sir, but i can assure you that the 30-day requirement was discussed. the part of the lawyers in this and my part was in working with my counterpart at the nsc to solicit the department of justice's guidance. that guidance was then provided to the decision-makers who made the judgment about whether the circumstances would -- the particular circumstances in this case would permit the 30-day -- the formal 30-day notice. >> this is one of the things that's bothered me about reports we hear in the press and some of the briefings that we've had over a period of time, that we

get different answers from one time to another. we'll go back and check our notes from that meeting, but when i asked that specific question, it was -- nobody responded, and you were in that -- you were one of the briefers. >> i frankly don't know whether the question was directed to me or whether it was properly understood. i can tell you -- >> i asked all of the briefers, i said at any time in any of these meetings did you discuss the law that pertained to the 30-day notice to congress. and -- >> i can only say in no uncertain terms that we set in motion an effort to get authoritative guidance from the department of justice on the legal issues and that that guidance was part of and provided to decision-makers who addressed what the administration was going to do vis-a-vis congressional notification. >> so you had time to discuss

this with the department of justice. you probably could have used that same time to talk to congress about it. >> i can just speak for my part of it, which is we foresaw the possibility that these issues would arise and wanted to have legal -- >> what i was trying to determine when i asked the question last week was if you had just forgotten the law or if you had purposely decided not to address it, it sounds like what you're saying right now is that you thought about it, you were aware of it and you had a discussion about it and decided that the law didn't apply. >> we certainly thought about it. we did not ignore the law and we solicited legal guidance on the legal issues that would apply in application in this extraordinary set of circumstances in which the president was seeking to

repatriate a service member who was in captivity and in peril. whether this these extraordinary circumstances -- >> so if the circumstances are extraordinary, you don't have to follow the law? >> no. the way i would put it is that the constitution vests in the president certain authorities and responsibilities to include -- >> and as it does to the congress. >> it does indeed, protecting americans abroad and protecting service members in particular. and to the extent that the application of the 30-day notice in this application would interfere with or undermine the president's efforts to seek to secure the recovery of this service member, then in the exercise of his constitutional authority the statutory notice -- >> that was your interpretation. i think somebody talked earlier about the interpretation should be made by the courts not by a couple of attorneys talking about the law. >> the courts certainly have a

role but the president has a responsibility to execute his authority and he seeks the counsel of the department of justice. >> mr. wilson. >> thank you, mr. chairman, for your strong efforts to uncover the truth of what's occurring before us today. mr. secretary, i appreciate your being here today. yesterday i had the opportunity to stand in front of polling locations during a primary where hundreds of concerned citizens of both political parties expressed to me their shock and outrage that the president would release five terrorists who they believe will have a background of having been facilitators of the attacks of september the 11th, 2001. we know the taliban allowed al qaeda to operate from safe havens in afghanistan to attack the united states. and for the top leadership of

this terrorist regime, for the president to release them is just incredible to the people i represent because they know that the terrorists have a goal in mind, and the goal is very clear, death to america, death to israel. and the thought that people like this would be released was just inconceivable to the people that i spoke with yesterday. additionally, putting this in the context of this week, al qaeda or taliban terrorists have attacked karachi twice. dozens of citizens have been murdered by the taliban. it's not just americans at risk. additionally in baghdad, there have been car bombings with, again, dozens of people being murdered. this week we had the circumstance of mosul possibly coming under al qaeda control, creating a safe haven which will affect american families in the homeland because the safe havens will be used for attacks on america. the safe havens are growing

across north africa, middle east, central asia. i believe it's dangerous to provide more terrorist leadership as this is occurring. the president was wrong. last year he announced that terrorism was being diminished around the world. in fact it's growing and it's growing exponentially. and with that in mind, on june the 5th, "time" magazine of on "time" magazine reported an interview that they reported with the taliban commander in afghanistan where the reporter asked him if this deal inspired he and others to capture other american military personnel. the taliban commander replied definitely. it is better to kidnap one person like bergdahl than kidnapping hundreds of useless people, end of quote. the quote continued. it encouraged our people. now we will work hard to capture

such an important bird. do you recognize there is an increased risk to our service members because of this outrageous deal? >> first, let me note, again, taliban policy for 12 years is to do exactly what the representative told "time" magazine. that is to capture american service men. that is not new. i go back again to the factors that we all looked at to be able to substantially mitigate the risk to this country to our allies to our interests. and we believe the analysis of the intelligence community, all who had a role in this, that we could substantially mitigate the risks through the 12-month memorandum of understanding that qatar provided the enforcement of the security there. the other follow on dynamics and

threats and realities which we factored in we believed were mitigated enough. these are five individuals who have been off the battlefield for 12, 13 years. doesn't mean they won't go back. this is a different world, different world for us, as well. so i would give you those answers. again, i know you don't agree with them. i also remind you there are risks to all of this. this is not a perfect situation. i know that. we all know that. this is why we spend an awful lot of time. >> we should look at what our enemies say. in the augusta chronicle reported one of the five leading infamous for exceptional cruelty according to military commander his return is like pouring 10,000 taliban fighters into the battle on the side of jihad.

mr. secretary, our country is at risk. you identified the homeland as if it is far away. it is not. the safe havens are being created to attack the american people here and actions should be taken. and that would not include releasing terrorist leaders. thank you. >> congressman, i can assure you there is nobody more aware of that than this secretary of defense. >> please act that way, my goodness. >> thank you. ms. songas. >> thank you mr. chairman and welcome secretary hagel and mr. preston. it is great to have you here today. i think the issues we have been talking about today really do merit the serious discussion that we have been having here. i would like to begin by reiterating the point that we as a nation have a solemn responsibility to bring home every serviceman or woman who volunteers to put on the uniform and places themselves in harm's

way on behalf of the values our nation holds dear and on behalf of each and everyone of us it is the abiding promise we make and is the underlying motivator in the actions our president has taken with your guidance and advice and consent. i would briefly like to address the issue of notice that has received so much discussion. it is clear that as we look at the actions that took place in 2011, 2012 in the context of a possible reconciliation process there was indeed generalized notice. i think members of congress knew that there might be five taliban who would be exchanged for sergeant bergdahl in an effort to bring him home. so on that front i don't think there is deep surprise that this would possibly take place. but a lot of the concern has been on the issue of specific notice. and i think it troubles all of

us given the 2014 ndaa. on the other hand i think the exigent circumstances you described, quick turn of events that necessitated quick action made the 30-day notice a tough one. i think a little heads up, a couple of hours call to leaders of congress might have served you all very well. that being said i also note that what you have said that was not a simple transfer but a military action and conducted very well by our military put in harm's way. i commend the soldiers for pulling this off as they did without incident. i would actually like to address another aspect of section 1035 of the ndaa and that is to put in place mitigating circumstances that do have a level of comfort that these released detainees will be held

as promised and not quickly put back in the battle place. can you talk about that a bit? i know some of it you will revisit or visit in a classified setting. i would like to hear as much as you can talk about in this context. >> congress woman, thank you. as you note i mentioned about four general areas that are included in the specifics of the memorandum of understanding on the enforcement commitments made by the government of qatar personally made in a telephone conversation with president obama. i can't get into the specifics until we get into the closed session on the real most significant parts of that m.o.u.

assurance which we all assessed. every agency in the government who signed off on this decision all agree that those were strong enforcement mechanisms that would give us some significant reassurance that those five individuals would be kept in qatar and all the other assurances as to their activity. and, again, we can go into the specifics of that. >> the track record hasn't been great. so what do you have up your sleeve that you feel comfortable will allow you to carefully monitor the situation? >> recognizing what you just said, the dimensions now that we are looking at that have changed a bit in qatar. you have a new leader in qatar, a new emir over the last year. we have a significant united states force presence in qatar. many of you have visited our base there. we have thousands of people.

we have some significant relationship with the government of qatar. they have had difficulties with their neighbors. i think the geopolitical arrangements that they would like to see change i can't speak for them but you asked me some of my thoughts. i think put a different face on this, as well. and there are some other assurances. and i don't want to address here in an open session. suffice it to say they are all strong enough to get the commitments that we each individually, each leader of each agency came to the same conclusions as ultimately did the president that it, in fact, was in the interest of our country and, in fact, did substantially mitigate the risks. >> thank you. this is a legitimate and real concern i know of my constituents.

>> well, it is a concern of ours. >> and the memo of understanding will be made available. it got to us last evening. it will be made available to all members of the committee in the proper setting. mr. turner. >> thank you mr. chairman. mr. secretary, we have had very important issues to discuss here. obviously one the issue of notice to the congress and was this a good idea and the policy of whether or not this is a shift from the policy of not negotiating with terrorists. we had a briefing on monday department of state, mr. work, department of defense. joint chiefs. i asked them this question. can you cite any precedent for this nature of a swap where we have swapped with a nonnation

state. you were asked this question by a ranking member and you cited the exchange of securing the release of helicopter pilot michael durant. you used the words it was a functionally exchanged. now, the five briefers, of course, when i asked them that question said there was no precedent and we had not done exchange with nonsovereign states within the last 40 years. i want to point out to you that when helicopter pilot michael durant was released in somalia it was said he was released as a gesture of good will. president clinton immediately called a press conference stating we did not make deals for the release. he said we have strong resolve and show we are willing resort the peace process. he said it will be a u.n.

decision but clinton said there were no deals to secure his release. you have said that mr. durant's release was the result of a functional exchange. and the five briefers that we had on monday said there was no precedent of a nonsovereign state. mr. preston, was mr. clinton lying at his testimony or would you like to retract your statements? >> sir, i certainly wouldn't want to suggest that the former president lied. i don't think i need to recant my statement. i was trying to be responsive. >> i only have five minutes. in your response i would like in writing to provide additional information as to the exchange that occurred to secure mr. dur ant because there is no public evidence or discussion of anything in that nature. there are disclaimers including by the president of the united states, mr. clinton.

it doesn't appear this would be precedent for this taliban swap. i would like you to explain that so we can release it to the public. >> it certainly wouldn't be on all fours. it would be an example of -- >> you cited that in this hearing. i would like the details in that exchange in writing provided to the committee. >> i understand. >> thank you. the confusion in this is because of the issue of the policy that we don't negotiate with terrorists. you said that you don't want to talk about who held mr. bergdahl unless we are in classified session. i can understand your preference to being that. however, the hnetwork says they were holding them. it is reported that it was

haqqani. the state department lists the haqqani network as an international terrorist organization. mr. secretary, do you disagree with the state department's designation of the haqqani network as terrorist organization? >> no. i acknowledged that this morning. >> do you agree that we do not negotiate with terrorists? >> i agree. >> you would please explain to me how we could have been in negotiation that included the haqqani network because they were involved in the capture and release of sergeant bergdahl and it not conflict with our policy that we not negotiate with terrorists? >> we dealt directly with the government of qatar. >> that is our foot note now. >> now the new policy of this administration is we don't negotiate with terrorists directly? >> congressman, you didn't let

me finish. >> that is what you said. >> i did say that but you cut me off before i could say the other part that we were dealing with the taliban. now, i actually dealt with this question earlier this morning about the haqqani network holding at -- >> you deferred and said we would talk in classified session. it is well known. >> i said the haqqani network was holding him in different times. >> as long as it is not direct that we will negotiate with terrorists in this administration. >> we didn't negotiate with terrorists, mr. congressman. mr. cooper. >> thank you mr. chairman and thanks to our distinguished witnesses. i wish that this committee would not be so prosecutorial in its tone. i don't know if my friend on the other side of the aisle is already running for majority

leader or not. it sounds like the tone is way too political. i think for the audience back home people need to understand that our secretary of defense is a distinguished former united states senator of the republican party with a distinguished war record in vietnam. so hopefully this committee will not cast aspersions on anyone and certainly not impugn on their patriotism. the chairman tried to narrow the scope of the testimony with his opening statement and i think he wanted to confine it to the 30-day notice requirement that the congress perhaps should have received on this prisoner transfer. i think that if the committee hearing were, in fact, narrowed to that point it would not be the near media circus that it has become. not only would many members of the epress not have shown up but many members of this committee might not have shown up.

let's try to focus on the substance. let's try to be fair to each other. hopefully bipartisan because as the chairman noted this committee is known for fairness. that's the way our nation should approach its national defense, in unity there is strength. so hopefully my colleagues will focus on what is really important here. there has been a lot of discussion about precedent. no one wants to set a bad precedent for us, the greatest country in the history of the world. i think if there is a precedential effect of this decision it is the vitally important principle that so many have reiterated, leave no man behind. that's the message of this possibly politicly unpopular

decision. that is leave no man behind. we can investigate what he did or didn't do once he is safely back in our custody and once he has been presumed innocent and the regular course of justice can take its place. but i'm shocked, really, that this has become such a political football and such unfairness as the secretary of defense rightfully pointed out not only towards our man in uniform but his family. i don't know the particulars but justice will take its course. that is the nature of this country and our constitutional guarantees. as the secretary of defense pointed out not only is this person a u.s. citizen but a person who volunteered to wear the uniform. he should be given the benefit of the doubt. let justice take its course. i would like to ask mr. preston in a much less prosecutorial tone, do you think the 30-day notice requirement for congress

that was in the last ndaa was, in fact, a constitutional provision? does the commander in chief, any commander in chief of any party have the right to take action when time requires it to protect the life of a serviceman, to perhaps circumvent 30-day notice requirements to this body? it was my impression that mr. reid said he had been notified. i don't know the extent of the notification. >> thank you for the question. sir, we believe the provision was constitutional. the question is the constitutional implications and the application in the particular circumstances here. and the administration determined that it was necessary to forego under the consolation of circumstances presented in this situation in which the president was seeking to free a

service member in captivity and peril. and the circumstances can be described in terms of the f fragility in the negotiations and delays and leaks in impact of premature ending of negotiation, the circumstance of fleeing opportunity to effect the exchange. from the time it was decided to do the exchange to the execution was somewhere along 96 hours. the potential harm to sergeant bergdahl if the deal became public, all of this in the context and back drop of uncertainty as to his physical condition and realization that this might be our last best chance to get him. it was in that circumstance, mr. chairman if i can finish, it was in that circumstance that with the deal coming together and the prospect of having a decision to

transfer the concern was delaying at that point for 30 days to effect notice of the transfer would scuttle the deal and could possibly further endanger sergeant bergdahl. >> thank you, mr. chairman. i see my time has expired. you know, we can hammer on this and hammer on it, but the point is those negotiations started last january. you had talked to us about it in november of '11. neither of you were in your jobs here. so when i say you i mean the department had talked to us in november of 2011. when the negotiations blew up in 2012 you came to us and said if we start negotiations again we will come back to you. that didn't happen. and so i understand when you are down to the final days and you are planning the operation itself and putting those things

together, yeah, that is real crunch time when you are down to a few days. but that was the end of may. what about january, february, march, april? there was plenty of time. you had time to talk to the department of justice. 80 or 90 people were informed and knew about this. congress was not informed. i guess the reason i think they weren't informed is because when you originally brought it up back in november of '11 and january, february of '12 because you had pushback from congress. they didn't want those five guys released. so this time you just decided we will by pass congress and deal with it after. that's the problem i have with all of this. >> if i can address that with reference to the 30-day notice requirement specifically, that is key to a transfer. and in this instance there was

no decision to transfer and could be no decision to transfer -- >> when you started the negotiations in january and february as a result of the tape that you saw of sergeant bergdahl you entered into a negotiation just as you had been a few years before. it was transferring five detainees for the one prisoner or hostage or whatever we are going to call him. that didn't change. all that changed was you got closer to an actual deal. >> we did not have a decision to transfer and could not have a decision to transfer until we had security assurances in place which was may 12. and until there was an agreement to exchange which was may 27. >> why didn you talk to us abou it in november of '11. >> i understand there is a serious issue about the relationship and communication. what i am trying to focus on is

what would trigger the statutory 30-day notice rierm. that would be a transfer. we did not have a decision to transfer until that last week. >> you don't need an exact date of transfer to begin the 30 days notice? >> it is notice of the transfer. that means there has to have been a decision to transfer. >> we are probably not going to agree on this. mr. klein. >> thank you, mr. chairman. thank you gentlemen for being here. i was somewhat amused by the gentleman from tennessee's comments. amused because i remember when the gentleman would hold up a

newspaper headline and address representatives of a republican administration and what one could see as a prosecute orial manner. nevertheless, let me ask you a question that we have been around all morning. who specifically selected the particular detainees that were transferred? >> the five detainees that were transferred have been the subject of conversation and negotiation over a period of time. they just didn't appear on anybody's scope. these are individuals that we have been talking about, as the chairman noted and i mentioned, i wasn't there at the time in 2011 and 2012. but i am aware that members that were briefed on these five individuals, members of the

congress disagreed with these five individuals. where those five individuals initially came from i don't know the history to that. >> i thank you for that. somebody made the decision that these five were going to transferred at the end. there could have been discussions going on for months. somebody made that decision. who was it in may? >> the decision to transfer, if that is your question -- >> to transfer specifically these five? >> those decisions were made ultimately by the president but we all in the national security council agreed once we had all the assurances in place and things that steve preston has talked about if that is your question. >> i guess we are going to talk past each other here because at some point somebody decided it would be specifically these five and i am trying to figure out who that was. you said in response or in a conversation with ms. davis

earlier they wanted all the taliban detainees. who is they? >> the taliban. >> the taliban. >> at one point in these discussions before my time -- >> you can see why -- i hope you can see why there is a lot of confusion here because you have been very careful to say on more than one occasion that you were not negotiating with terrorists. you said you were not negotiating with the taliban because you were negotiating with the emir of qatar. we have had some pretty tortuous legal responses to questions we are trying to get at and trying to figure out the basics here. mr. preston is a lawyer. he has come back in response to the chairman and others, well, we didn't know because we didn't have a decision date. i think that was the answer right here. therefore 30 days didn't start

because we specifically hadn't made a decision. mr. secretary, i'm sorry but these responses are very, very tortuous as we are trying to weave around here legalities. and i understand there are a lot of lawyers and probably a lot here on the committee. fundamentally i am just trying to understand who made the decision, when it was made to do the transfer and who made the decision on the notification and why. we are just walking around here. i will just close because my time is rapidly running out, by saying that this confusion leads to this belief that was expressed by mr. turner and others that, in fact, the united states did set a precedent, did break the policy of negotiating with terrorists because despite the maneuvering of the little pieces about i can't really say

if it is haqqani who is a designated terrorist network or really taliban but not taliban because we are talking to qatar. i think that adds to the confusion and the perception. i yield back mr. chairman. >> the congress man has 20 seconds. -- >> yes, there was confusion. i said that this was imperfect, imprecise. we didn't even engage here in qatar until april. yes, just exactly what general council has said, sure there was confusion. there was imprecision. we didn't know from day to day what we had or didn't have. questions here about the taliban not having a good track record on keeping their word. they are in and out.

we had assurances. absolutely. absolutely there was. a lot of confusion. through that we had to stay focused on what the objective was. and that was getting an american p.o.w. back with the reassurances that we needed to be able to say it would substantially mitigate the risks and it was in the interest of our country. that was the objective and that is what we tried to do. i know there are differences and questions. i get it. we did get him back and we don't have anymore p.o.w.s. >> mr. smith? >> mr. chairman, if i could just on the point of who we negotiated with. originally this was worked through the qataris and they were talking to the taliban. there is no evidence that we negotiated with the haqqani network. it was always the taliban.

it was the taliban reaching out. it is pretty straightforward that the people we were negotiating with were the taliban. who held, when, where, wherever? the people we were talking to about the release and the people who apparently controlled the release is the former taliban government and now the insurgents. is that not correct? >> that is correct. >> my only gloss on that would be my understanding is in the very early going there were direct talks between the u.s. government and taliban and later became indirect with the qataris. there was never a direct time we were negotiating with the haqqani. there were no demands or concessions made by or to the haqqanis as far as i am aware of. >> i was going to use an example earlier but mr. ronion had to

leave. professional football player. i probably had an agent. the agent probably negotiated for him. the owner probably has somebody, general manager that negotiates for him. but at the end of the day it's the football team negotiating with the player even though the player and the football team aren't there. so is the haqqani part of the taliban? what is the relationship between the haqqani and the taliban? >> to tell you the truth you are out of my area. this is something the intelligence community folks could address better. >> i'm not an attorney. i'm just asking the question. mr. johnson? >> thank you, mr. chairman. i want to commend you, mr.

chairman, for your effort to set the scope and the tone of this hearing which i think most members have adhered to. and i want to thank you for that. and i think this is the tone that we should have in this hearing because this is a legitimate issue of legislative oversight. and secretary hagel i am apologetic to you for not having been able to repeat your first answer to the question about whether or not we negotiated with terrorists. it's clear that we did not do so. and i want to ask you some questions, mr. preston. you are the attorney so you are

familiar with the constitution and the separation of powers and the power of the executive inso far as being the commander in chief. and those duties and obligations are not specifically set forth in the constitution or limited in any way. would you agree with me that section 1035 of the defense authorization act for fiscal year 2014 restricted the transfer of gitmo detainees by the commander in chief without giving 30 days notice? would you agree that that restriction is on the power of the commander in chief? >> i would agree with that, sir.

>> and would you also agree that the purpose of that provision was to, in effect, require congressional approval before the president could utilize the power of commander in chief to transfer a detainee without giving 30 days notice to congress? would you agree? >> i understand that to be the general intent. >> would you further agree with the signing statement that president obama issued in signing the national defense authorization act that this was an unnecessary limitation or unwarranted limitation. let me put it like that. not unnecessary but unwarranted

limitation? finally the constitutional separation of powers principle. >> i understand that the signing statement served for the president to make clear his view that these restrictions in application could impinge upon his constitutional authority. >> isn't it a fact that section 1035 of the national defense authorization act does not make any provisions for a time sensitive prisoner exchange negotiation of the sort that we have with mr. bergdahl? would you agree that the ndaa does not provide for that circumstance? >> not by its expressed terms,

yes, i agree. >> what would be the effect on the nation, on the institution of the presidency if the president were to comply with this undue restriction and seek 30 day approval from congress before dealing with an emergent situation? >> well, let me first point out that the executive has consistently adhered to these provisions in all previous transfers. i wouldn't want this transfer in connection with the bergdahl exchange to be interpreted as an exception to the statute whenever there are emergent situations. you can imagine any number of

emergent situations. this was driven by the particular collection of circumstances involved here in which the concern was that if in the process of finalizing this deal and executing on the exchange there had to be a delay for formal notice that it would stand to scuttle the deal and quite possibly endanger the individual. >> thank you, sir. i yield back. just for the record it probably doesn't matter whether we would agree that that is a restriction or unnecessary restriction. it was the law. it was passed out of this committee. it was passed on the floor of the house. it was passed on the senate and the house in a final form and signed by the president. granted, he did write a note that he didn't think it was constitutional.

until the supreme court acts and says it is not constitutional, it is, as mr. smith said earlier, the law. mr. franks. thank you mr. chairman and thank both of you for being here. mr. secretary i believe as i know you do that one of america's greatest and most sacred treasures is the men and women in uniform who risk and sometimes sacrifice their lives for the cause of american freedom. and further that as a nation we do owe it to each one of them to carry them from the battlefield and back to their home and families. it is also my belief that these heroes down to the last person would reject gaining their release through an unprecedented negotiation with the jihaddist terrorists that would categorically break american law that would return five high value terrorists that would diminish the security of the

united states and it would place a bounty on all of our men and women in uniform and ultimately essentially weaken america's hold on this priceless freedom for which generations have fought and died. mr. secretary, i also agree with you that everyone of our military personnel should know that if they are captured by the enemy that we will come and get them. but that isn't what happened here. what happened here is that the obama administration has telegraphed to terrorists the world over that all they have to do is kidnap or capture an american soldier or citizen and the united states will capitulate and free some of their most dangerous terrorist leaders. for the last five years the american people and terrorists themselves have watched in astonishment and disbelief as this administration has handed back blood bought gains to our enemies.

i believe the result is somewhere in this world in this moment that there are terrorists watching this hearing in complete jubilation. so my question is, do you believe that this, what i believe to be an illegal trade, is going to intensify the terrorist policy that you mentioned and their efforts to kidnap american citizens and personnel of our military forces across the world that would afford them the obvious leverage that they have gained here in this case? >> congressman, as i said before our military is always at risk especially in war. afghanistan is one such place. those men and women are at risk and have been. >> have this intensified the terrorist efforts and their policy? >> if i believed that was the case i would never sign off on this. as i said earlier the taliban's position on trying to capture american service men and women

had been clear for 12 years. >> certainly this deal has encouraged them to focus on it more. >> i don't know how that would be after 12 years -- >> the fact that they have the entire american people focused on this debate that they brought us into this chaos would tell me there is great value in doing that. >> one issue that has not been mentioned here this morning is a tremendous progress the afghan government has made in particularly to the military. i think that is rather measurable looking at the elections. we have another election, the final next week. they are doing all of the combat missions themselves. yes, they have a way to go. the reason i mention that, congressman, is because this is a different world than it was five years ago in afghanistan or three years ago. and the increased strength of

the afghan army and all of the institutions of afghanistan is a significant part of this. if i believe that it was going to increase the risk to our soldiers i would have never, ever signed off on this. >> i don't doubt your sincerity in that regard. i do profoundly in all respect doubt your judgment in that front. >> that is fair. >> let me finally ask you can you clarify for us what is the connection or the relationship between the haqqani network and the taliban? >> i don't know exactly the relationship. by the way, i said in my statement the haqqani network was holding bergdahl. we know that there is an affiliation, an association. we don't know if they subcontracted to the haqqanis to hold bergdahl. >> that would be important for

the record. >> we don't know all of the pieces. >> i'm out of time, mr. secretary. thank you for your answers. mr. chairman, i do believe this effort has ultimately weakened america's freedom in the world. >> mr. chairman, thank you. thank you for the balanced way that you have handled this hearing. let me say at the outset to my colleagues. i was somewhat stunned by one of the earlier questioners about bowe bergdahl. and i would just ask us to think for a moment how we would be responding if bowe bergdahl was our son.

i fear for the future of this country with the kind of rhetoric that is being spewed in this very room. to secretary hagel, thank you for your very persuasive presentation this morning and for your leadership. i would like to ask kind of a fundamental question. in hind sight which is always 20/20, do you think it would have been appropriate for you to have informed the leadership of both houses? >> well, congresswoman, in hind sight i suppose each of us in our lives in every decision we made could we have done it better, i mention that in my opening statement, yes we could have done this better. but, i also said that we thought we had one shot here.

and we were told by people that we were engaged with, this gentleman right here was on the ground in qatar and can go into more of the details, that any risk of any leak in anything, any security operations break would jeopardize the deal. we didn't know what kind of health bergdahl was in, for sure. all we had was a six-month video. we did know that he had been transferred back and forth quite a bit. we were not sure where he was. five years in that captivity. i don't think anybody on this committee would think that was a walk in the park. we will find out more and more about it. we do have some intelligence that is clear on this on some of the conditions he was held in. so you factor it all in and we were told that this may be your last shot at this.

it was a judgment. that is right. could we have done it better? could we have done it smarter? i would just add this. does anybody on this committee really believe that i would want to come up to this committee, the president of the united states would want to take the criticism that he is taking on this issue intentionally if there wasn't a good reason? >> let's move on, thank you. >> come on. you can question our judgment on it. that is fair, but we did this because we were concerned enough with the fleeting opportunity we might miss it and we just didn't want to risk any further security operations. >> in open hearing, can you provide us with how the five detainees were held? were they subject to water boarding, torture or anything else at gitmo? >> let me ask our council on

this because i am not aware of torture. i don't know. i hadn't been around for the 12 years they were down there. i'm not aware of any situation that would put them through any of that but i don't know. >> i have not reviewed for that purpose? >> can you review that? >> in terms of the move the first reports they would be housed in some location and then word came out that they were going to be able to freely move throughout qatar. if they are freely moving throughout qatar, do they have ankle bracelets? how are we in a position to know precisely where they are at every moment? >> we will get into this and will answer the question. this needs to be in a classified

setting. short answer is we have the kind of assurances we think are meaningful and enforceable. we believe the government will enforce them. we need to take it up in a classified hearing. >> my time is expired. thank you. >> thank you. secretary hagel, trust is a fragile concept. you said towards the end of your conversation that you broke trust with the committee and with congress. i would agree with that. >> i did not say i broke trust. >> we can get the transcript out and read it back to you. over and over and over you and mr. preston both have said we don't trust congress. we don't trust congress. it's insulting. it is disrespectful. and i get it. and so our system of trying to deal with you and deal with us

demands trust. you made a comment that you would never sign anything that wasn't in the national interest of our country. i have to trust you based on your word. i cannot do that. you put a rift in the system. it is offensive that you -- [ inaudible ] mr. hagel it is your responsibility to notify congress, not the president's responsibility. you are to make the notification. did you personally decide on your own to not do that? >> i decided in consultation with the inner agency. the president was aware of it. >> it was your call to not notify congress. >> i notified congress but i notified congress when -- >> not even within the spirit of the 30 days. even if you would have done it may 12 when the m.o.u. was signed you would not hear this pushback from us.

>> i explained why the notification was handled the way it was. i never said i don't trust congress. that is your words. >> yes you did over and over. >> i never said i don't trust congress. you ought to check your transcript. >> were any of the detainees aware of the negotiation if their release? >> let me ask the general council. i don't know. >> to the best of my knowledge, no. >> if we were to get visitor logs and flight manifests from gitmo it would not show these guys were conferred with as -- >> i'm sure with the investigation we are going to turn over everything we have. >> we need to be able to trust you. >> i get that. >> we don't. with respect to -- >> i never said i don't trust the congress. those are your words. >> your actions said -- your actions demonstrate, mr. secretary, that you do not trust

congress. >> now it is my actions. >> and the ranking member something like this. your actions say you don't trust congress. i get it. with respect to the release of these five and the overall impact it has on the ability of the taliban to work their mischief in afghanistan would you agree or disagree that a weakened taliban would be better for afghanistan than a stronger taliban? >> yes. >> would you agree that the return of these five individuals once they serve their half way house nonsense in qatar and get back to afghanistan will strengthen the taliban and their efforts to do whatever it is they do in afghanistan? >> maybe. do you know that? >> maybe? >> we don't know. >> in the open press that that is in fact what -- >> what is a fact? somebody is projecting 12 months down the road and that is a fact. >> you think the 12 months in

this half way house is going to cure them of their hatred of america and their ability to want to not take back -- >> that is not what i said and that is not what we meant. taking as fact something that hasn't happened and won't happen for 12 months is a bit of a -- >> had broad parameters that said here is what we will do. classified at this point but there was a long list. the phrase we won't -- nothing is agreed to until everything is agreed to. somewhere between january 12 and may 27 of 2014 that changed the deal that you are trying to cling to that you notified congress that this was going on. when did that change occur? were you a part of that decision? because the way i understand it all we got was sergeant bergdahl as important and wonderful as that is, that is it. we got no other agreements in

those broad conversations that you had with us in january of 2012. none of that appears to be a part of that deal. when do we abandon those criteria and why weren't we notified that the change was made? >> when did we abandon that criteria? i can't tell you that. it is open session. >> we will take it up at closed session. i can't answer a question that you can't give me the question to. >> i will remember that next time we try -- never mind. >> mr. barber. >> thank you, mr. chairman. thank you, mr. secretary and mr. preston for being here today. last week during our recess i was home at district like i think all of us were. i met with many veterans. i was in sierra vista. i had about 70 people come to my

congressman in your corner event. over and over again virtually everyone was a veteran and said what is going on? we agree we should never leave one of our armed forces behind. i agree with that, too. they wanted me to know if it was appropriate that we released these detainees from guantanamo in exchange for sergeant bergdahl. they asked couldn't we have gotten a better deal? you say this transfer was a tough deal. another was a deputy minister of defense for the taliban. and yet you also stated that these detainees were appropriate in exchange because they had not been implicated in any attacks ag