, one thing they probably did not know was the exact time. to somew the how degree. they knew the what. are sayingicians who we were blindsided, not sure. we understood the administration was working really hard for several years to secure the release of american soldiers. >> she says she was blindsided by this. it is not a partisan issue. what can the white house due to better communicate? they might have been able to communicate with some of the top

leaders in the congress that something was imminent. any leak can not only jeopardize the operation that might jeopardize the life of an american soldier. >> until you and i are in the shoes of the president of the united saves having to make the of an american soldier who has been held for five years who is in danger of not lasting much longer or giving information about the actual specific time of release are some famous members of congress are somewhat aware of. thankful's day i am

that bowe bergdahl is back in the united states and let as there are powers to oversight determine whether or not they'd did a little more to inform the public. bowe bergdahl is safe in america. >> you mentioned the la kings winning the cup. who would be celebrating after the election? --se democrats or elections republicans? >> l.a. is in the hot seat. robust thingter a we will see some elections which are good results. as a democrat i would have loved to see democrats prevail so we could start to get back to work so to create an economy that works for all americans. is a fair fight, i think

we will do well. day, we aref the all kings. >> do i get the odds of the democrats remaining? what i think we have some great candidates. it shows the internal civil war could do them some harm come november. that dark money broadsides us from the likes of the koch brothers and others. i think we will go mano a mano. >> thank you for being with us. thank you all for being with us. enjoy your sunday.

>> we are live this morning with congressman becerra. he talked about immigration and about air cantors lost in the primaries in virginia. wasmajority leader himself on cnn this morning. he talked about this loss and about immigration. here's some of what he said. my position on immigration has not changed. was before theit primary, during, and now. forve always said i am not a comprehensive amnesty bill but i've always said i'm for the find themselves here and know no other place at home. i know that makes a lot of people mad on both sides. i think it is is the only plausible way forward in terms of the way forward that we focus on the things that we agree on,

not that which we do not build the trust so we can get some and down. done. get something i'm sure it'll aggravate people on both sides of the issue. it is the principal position that i had taken. i believe it is the right one. >> you can listen to the state of the union and all the other sunday morning talk shows on c-span radio. they rebroadcast every sunday at noon eastern time. worry that when you see what is happening at a va, i think the same culture exists in other government agencies. think a number of other agencies there is a lots of accountability. there is an in difference to taxpayers.

i do not think they care about efficiency. it is a sad thing when you read , agency afterport agency after agency has the same problem year after year or year. nothing gets fixed. just my own and digital -- and to total experience. it is not just the quality of our politicians. the quality of government employees and the bureaucracy. incompetent government, stupid government. i am sure we have some great federal employees. that is not the norm. is leavingrs washington, d.c. behind. find out why tonight. week chuck hagel was on

capitol hill to testify on the recent prisoner exchange of sergeant bowe bergdahl. he talks about the circumstances that led to the decision to release five detainees from guantanamo and why congress was not informed. stevenl also hear from preston. this portion is 3.5 hours. >> this meeting will come to order.

>> at the start of this hearing, i am pleased to welcome members of the public that have such an interest in this proceedings. and aend to conduct this manner to make sure all members have an opportunity to ask questions and witnesses have the opportunity to be heard. i will not tolerate disturbances of these precedents -- proceedings including holding signs. i thank you all for your cooperation. u for testifying before the committee today on may 31 transfer of five senior taliban detainees from detention

at guantanamo bay to the government of qatar. the matter before us is deeply troubling. the committee has begun a full investigation. it is unprecedented negotiations with terrorists. the security implications and violations of national security law. and the violation of national security law. we hope for and expect the department's full cooperation. let me be clear up front on the focus of today's hearing. it is not my intention to dive into the circumstances of the disappearance of sergeant bergdahl from his base in 2009. there will be a time and a process for that. i also do not intend to use this hearing to weigh the merits of returning an american soldier to the united states. everyone who wears the uniform should be returned home.

however, the detainee transfer raises numerous national security policy and legal questions. the explanations we received from the white house officials at a housewide briefing earlier this week were misleading, and at times blatantly false. this transfer sets a dangerous precedent in negotiating with terrorists. it reverses long-standing u.s. policy and could incentivize other terrorist organizations, including al qaeda, to increase their use of kidnappings of u.s. personnel. it increases risk to our military and civilian personnel serving in afghanistan and elsewhere. as the president, yourself, and other administration officials have acknowledged, these five terrorists still pose a threat to americans, and afghans alike. and in one year they will be free to return to afghanistan, or anywhere else. what's more, although there will be fewer u.s. personnel in

afghanistan in 2015, the return of these five taliban leaders directly threatens the gains of our men and women who have fought and died -- the gains that our american women have fought and died for. the transfer is a clear violation of section 1035 of the national defense authorization act of 2014. there is no compelling reason why the department could not provide a notification to congress 30 days before the transfer. especially when it has complied with the notification requirement for all previous gitmo detainee transfers since enactment of the law. the statute is more than a notification. it requires detailed national security information, including detailed consideration of risk, and risk mitigation. that the congress and american people would expect any administration to consider before a decision is made to transfer gitmo detainees. it was designed and approved by

a bipartisan majority in congress, due to real concerns the dangerous terrorists were being released in a manner that allowed them to return to the battlefield. we're also seeing the consequences of the president's hasty afghanistan withdrawal strategy. afghanistan is at a critical juncture. at the same time we're focused on the first democratic transition of government, and supporting security and stability within the country. this negotiation has legitimized the taliban. the organization that safeguarded the 9/11 al qaeda perpetrators and ruled afghanistan through atrocities. lastly, this transfer sets dangerous precedent for how the president intends to clear out gitmo. the remaining detainees, by the obama administration's own analysis, include the most dangerous against u.s. forces and national security interests. in the president's rush to close

gitmo, are other deals in the works to release these dangerous individuals? mr. secretary, i don't envy the position you have been put in. we understand the responsibility you bear for signing these transfer agreements. but we're also aware of the immense pressure the white house has put on you to transfer these detainees so it can claim victory for closing gitmo. nevertheless, we expect the department to abide by the law and to provide its candid assessment of national security impacts of the president's decisions. this is a bipartisan committee. last month we passed our authorization act out of committee unanimously. and off the floor with well over 300 votes. that kind of bipartisanship is based on trust. members on this committee trust each other to live up to our word, and when we work with the department, and the white house, to pass legislation, the president will sign, we have to trust that he will follow those laws.

the president has broken a bipartisan law and put our troops at greater risk. and i'm eager to find out why. mr. smith. >> thank you, mr. chairman. and thank you for holding this hearing. thank you to our witnesses for being here. i think this is a very appropriate issue for congress to exercise over sight on and there are a lot of questions that need to be answered and i'm pleased the administration's here today to attempt to answer those questions. i also want to agree up front with the chairman that one thing we shouldn't talk about today is the cirques of sergeant bergdahl's -- sorry, mr. bergdahl's capture. i'm happy about that. i regrettably at the briefing we had on monday that issue did come up. there simply is no proof, no evidence, i think the way mr. bergdahl has been slaernded has been scandalous. you know, and i hope we'll take a step back and do what admiral winifield said we'll get him home, get him healthy and figure out what happened and due process will be exercised. that should not be discussed

today. what should be discussed are the circumstances of this deal. and i think the chairman raised a number of appropriate questions, and i have enormous sympathy for the president and for you, mr. secretary, over a very difficult decision that had to be made here in terms of figuring out whether or not this was an exchange that was in the best interests of the united states. ultimately, i will tell you, i think it was. we do our level best to bring our service men and women home if we possibly can. not under any circumstances. the issue was raised, you know, would we have traded khalid shaikh mohammed for him. absolutely not. totally different situation. but when you're talking about these five members of the taliban, it is a different equation. and that really raises the issues that the chairman came up with. what -- who were we negotiating with? he says we were negotiating with terrorists. but sergeant bergdahl was captured on the battlefield, in a war zone. the taliban were, until just a few months before that, the

legitimate government of afghanistan. the current afghan government has said over and over again that they want to negotiate with the taliban. any sensible person who looks at the situation in afghanistan right now understands that there is no ultimate peaceful solution if at some point you don't negotiate with some of the taliban. which ones? we don't know. so to simply dismiss this as one terrorist group in negotiating with terrorists i think totally misstates the situation. this was on the battlefield, in a war zone, a soldier who was captured by a group of people that were the legitimate government of afghanistan mere months before. i don't know the full implications of that. and i completely agree with the chairman that we need to be very, very careful about setting any precedent that we would negotiate with terrorists. but i think this raises an entirely different set of questions that need to be answered and addressed and i would be very interested, secretary hagel, in your viewpoint on that. hat does that mean going

forward? but understand the idea that under no circumstances will we negotiate with the taliban is one that has been rejected by virtually everyone. we, the afghan government, if we're going to get any sort of peaceful solution in afghanistan, are going to have to negotiate with at least some elements of the taliban. which ones? we don't know. but that has certainly been the position of the afghan government, so this is an entirely different situation than saying we simply negotiated with terrorists. the second troubling question this raises, is the situation in guantanamo. and i will disagree with the chairman on one key point. the president is not pursuing this out of some naked political goal. he wants to close guantanamo just because politically he'd like to. that's not the situation. we have over 150 people held in guantanamo, many of them in very murky status. is it the plan of the united states of america to hold these people forever, without charge, and without trial? what would that do to our

values, to precedents that we've set in a different way if we do that? now there's no easy way out of this. but to simply dismiss it and say, any effort to try to close guantanamo is purely political overlooks the fact that we're in a very difficult situation. in large part because a lot of these people were captured in the first place without a clear understanding of how or why, without a plan to try them, and now we have them. and it is not the united states of america that i believe in that says look, we're just going to grab people and hold them forever without charge, without trial, without process. how are we going to handle that? one of the interesting questions that's raised that has been -- it has been argued that these five that were captured would have to have been released at the end of hostilities with afghanistan. it's not my understanding that that's actually the status that we've given them. they are not being treated clearly as prisoners of war. in fact i believe the phrase was unlawful enemy combatants has been the phrase that has been used of them. so if they weren't being held as

prisoners of war, is it the administration's position that at the end of our full involvement in afghanistan, we would have to release them? i don't believe that it is. that's been alluded to. that really needs to be clarified. first of all, with regard to these five. but second of all, how many more inmates are there in afghanistan that might be put into that category? that at the end of 2014 we would feel like we would have to release. again, it's my understanding that it's none of them. that we didn't put them in that prisoner of war category where they would have to be released at the end of hostilities. but the category they are in is very murky and very confusing and something we have to answer if we're going to live up to our own constitutional values. now the final issue that i think is worth exploring and where i am in more substantial agreement with the chairman is on the congressional consultation issue. and there's two pieces to this. first of all, it is very important, i believe, for the white house to engage with congress, just as a way for us to work together to advance the right policies. to consult us on key issues.

and i think it is wrong that months before -- well, it's wrong that when you knew that you were thinking about doing this deal you didn't take the top leadership in congress and talk about it. now, i know the concern, the concern was that it would have been leaked. but as has been mentioned, congress has been trusted with many, many other things, including the location of osama bin laden, and not leaked it. i think that type of consultation would have helped the process, not hurt it. and the second piece that i'm concerned about is the 30-day requirement. now i know the president put a signing statement when he signed the law that had that 30-day requirement in it, saying that he was concerned about the constitutionality about it. but the law is the law. the way you challenge constitutionality is you go to court. and you figure out whether or not the courts say it's constitutional or not. and until the courts rule on that, it is the law. when president bush was in the white house, he had gosh, hundreds of signing statements. and there was, i believe, a correct amount of outrage amongst many that those signing statements were put out there as

a way to simply avoid the law. was it right for president bush to do it, it's not right for president obama to do it, so i would be very keerious to understand the argument for why that 30-day requirement wasn't in place and again i'll come back to the fact that there was no reason that 30 days notice couldn't have been given to the leadership of congress. we can, in fact, keep a secret. or i would say we're no worse at it than the administration if you go back through history in terms of how things get out. so i think better consultation with congress is something we will definitely need going forward. with that i look forward to your testimony. i thank the chairman for this hearing. >> i ask unanimous consent that noncommittee members if any be allowed to participate in today's hearing. after all committee members have had an opportunity to ask questions. is there objection? without objection, noncommittee members will be recognized at the appropriate time. mr. secretary, the time is yours. >> mr. chairman.

i thank you, ranking member smith, thank you. and to the members of this committee, i appreciate an opportunity to discuss the recovery of sergeant bowe bergdahl, and the transfer of five detainees from guantanamo bay to qatar. and i appreciate having the department of defense's general counsel steve preston here with me this morning. mr. preston was one of our negotiators throughout this process in qatar and signed on behalf of the united states the memorandum of understanding between the governments of qatar and the united states. also, here representing the joint chiefs of staff, sitting behind me, is brigadier general pat white, who was the director of the joint staffs pakistan, afghanistan coordination cell. general white helped coordinate theburg dal recovery on behalf of the chairman through the joint chiefs of staff general dempsey.

the vice president of the joint chiefs admiral winnefeld who the chairman has noted will join us later this morning in the classified closed portion of the hearing. and as you know, general dempsey and admiral winnefeld played critical roles in the feetings at the national security council leading up to sergeant bergdahl's release, and supported the decision to move forward with this prisoner exchange. in my statement today, i will address the issues of chairman mckeon and mr. smith, the issues they raised when the chairman asked me to testify. and explain why it was so urgent to pursue sergeant bergdahl's release. why we decided to move forward with the detainee transfer. and why it was fully consistent with u.s. law, our nation's interests, and our military's core values. mr. chairman, members of this committee, i want to make one fundamental point. i would never sign any document

or make any agreement, agree to any decision, that i did not feel was in the best interest of this country. nor would the president of the united states. who made the final decision with the full support of his national security team. i recognize that the speed with which we moved in this case has caused great frustration. legitimate questions, and concern. we could have done a better job. could have done a better job of keeping you informed. but i urge you to remember two things. this was an extraordinary situation. first, we weren't certain that we would transfer those detainees out of guantanamo until we had sergeant bergdahl in hand. and second, we had sergeant bergdahl in hand only a few

hours after making the final arrangements. there are legitimate questions about this prisoner exchange, and congress obviously has an important constitutional role and right and responsibility to play in all of our military and intelligence matters. as a former member, mr. chairman, of the senate select committee on intelligence, and the council on foreign relations i appreciate the vital role congress plays in our national security. and i will present to this committee within the limits of an open, unclassified hearing, and in more detail in the classified hearing, everything i can to answer your questions and assure you this committee, the american people, that this prisoner exchange was done legally, it was substantial mitigation of risk, to our country, and in the national interests. of this country. let's start with sergeant bergdahl's status as a member of

the united states army. he was held captive by the taliban in the haqqani network for almost five years. he was officially listed as missing/captured. no charges were ever brought against sergeant bergdahl, and there are no charges pending now. our entire national security apparatus, the military, the intelligence community and the state department pursued every avenue to recover sergeant bergdahl just as the american people and this congress and the congresses before you expected us to do. in fact, this committee, this committee knows there were a number of congressional resolutions introduced and referred to this committee directing the president of the united states to do everything he could to get sergeant bergdahl released from captivity. we never stopped trying to get him back. as the congress knows that. because he is a soldier in the united states army.

questions about sergeant bergdahl's capture are as mr. smith noted and you mr. chairman are separate from our effort to recover him. because we do whatever it takes to recover any and every u.s. service member held in captivity. this pledge is woven into the fabric of our nation and our military. as former central commander marine general jim matis recently put it bottom line is quote the bottom line is we don't leave people behind. that is the beginning and that is the end of what we stand for. we keep faith with the guys who sign on, and that is all there is to it. end of quote. as for the circumstances surrounding his captivity, as secretary of the army mchugh and army chief of staff odierno will review later, and they've said, clearly, last week, that the army will review, they will review this exchange, circumstance, captivity of

sergea sergeant bergdahl in a comprehensive, coordinated effort that will include speaking with sergeant bergdahl, and i think need not remind anyone on this committee, like any american sergeant bergdahl has rights. and his conduct will be judged on the facts, not politically hearsay, posturing, charges, or innuendo. we do owe that to any american, and especially those who are members of our military wand their families. like most americans i've been offended and disappointed in how the bergdahl family's been treated by some in this country. no family deserves this. i hope there will be some sober reflection on people's conduct regarding this issue, and how it relates to the bergdahl family. in 2011, the obama administration conducted talks with the taliban on a detainee exchange involving the same five taliban detainees that were ultimately transferred after the

release of sergeant bergdahl. 2011. these talks, which congress was briefed on, some of you in this room were in those briefings, i understand, which congress was briefed on in november of 2011, and in january of 2012, were broken off by the taliban in march of 2012. we have not had direct talks with the taliban since this time. in september of 2013, the government of qatar offered to serve as an intermediary, and in november of last year, we requested that the taliban provide a new proof of life video of sergeant bergdahl. in january of this year, we received that video, and it was disturbing. some of you may have seen the video. it showed a deterioration in his physical appearance and mental state compared to previous videos. our entire intelligence community carefully analyzed

every part of it. and concluded that sergeant bergdahl's health was poor, and possibly declining. this gave us growing urgency to act. in april of this year, after briefly suspending engagement with us, the taliban again signaled interest in indirect talks on an exchange. at that point we intensified our discussions with the qatar government about security assistances and assurances. particularly security assurances. on may 12th, we signed a memoranda of understanding with qatar detailing the specific security measures that would be undertaken, and enforced, and enforced by them if any taliban detainees were transferred to their custody. steve preston, who as i noted earlier, signed that memoranda of understanding on behalf of the united states government, and was included in those

negotiations. included in this mou were specific risk mitigation measures, and commitments from the government of qatar, like travel restrictions, monitoring, information sharing, and limitations on activities, as well as other significant measures, which we will detail in the closed portion of this hearing. they were described, as you know, mr. chairman, in the classified documentation and notification letter i sent to this committee last week. that memoranda of understanding has been sent to the congress, to the leadership, to the committees, and every member of congress has an opportunity to review that memoranda of understanding in a closed setting. u.s. officials received a warning. we received a warning from the qatari intermediaries that as we

proceeded, time was not on our side. and we'll go into more detail in a classified hearing on those warnings. this indicated that the risk to the sergeant bergdahl's safety were growing. we moved forward with indirect negotiations on how to carry out that exchange. that exchange of five detainees. and agreed to the mechanics of the exchange on the morning of may 27th. following three days of intensive talks. that same day president obama received a personal commitment and a personal telephone call from the emir of qatar to uphold and enforce the security arrangements and the final decision was made to move forward with that exchange on that day. as the opportunity to obtain sergeant bergdahl's release became clear, we grew increasingly concerned that any

delay or any leaks could derail the deal and further endanger sergeant bergdahl. we were told by the qataris that a leak, any kind of leak, would end the negotiation for bergdahl's release. we also knew that he would be extremely vulnerable during any movement and our military personnel conducting the handoff would be exposed to the possible ambush or other deadly scenarios in very dangerous territory that we did not control. and we'd been given no information on where the handoff would occur. for all these reasons and more, the exchange needed to take place quickly, efficiently, and quietly. we believe this exchange was our last, best opportunity to free him. after the exchange was set in motion, only 96 hours passed before sergeant bergdahl was in our hands.

throughout this period there was great uncertainty. great uncertainty about whether the deal would go forward. we did not know the general area of the handoff until 24 hours before. we did not know the precise location until one hour before. and we did not know until the moment sergeant bergdahl was handed over safely to u.s. special operations forces, that the taliban would hold up their end of the deal. so it wasn't until we recovered sergeant bergdahl on may 31st that we moved ahead with the transfer of the five guantanamo detainees. the president's decision to move forward with the transfer of these detainees was a tough call. i supported it. i stand by it. as secretary of defense i have the authority and the responsibility, as has been noted here, to determine whether

detainees, any detainees, but these specific detainees at guantanamo bay, can be transferred to the custody of another country. i take that responsibility, mr. chairman, members of this committee, damn seriously. damn seriously. as i do any responsibility i have in this job. neither i nor any member of the president's national security council are under any illusions about these five detainees. they were members of the taliban. which controlled much of afghanistan's prior, all the territory to america's invasion and overthrow of that regime. they were enemy belligerents detained under the law of war, and taken to guantanamo in late 2001 and 2002. they've been in the u.s. kid toddy at zbaun mow since then, 12, 13 years, but they have not been implicated in any attacks

against the united states, and we had no basis to prosecute them in a federal court or military commission. it was appropriate to continue to consider them for an exchange, as we had been over the last few years, as congress had been told that we were. and if any of these detainees ever try to rejoin the fight, they would be doing so at their own peril. there's also always always some risk associated with the transfer of detainees from guantanamo. this is not a risk-free business. we get that. the u.s. government has transferred 620 detainees. 620 detainees from guantanamo since may, 2002. with 532 transfers occurring during the bush administration. and 88 transfers occurring during the obama administration. in the case of these five

detainees the security measures qatar put in place led me as secretary of defense to determine consistent with the national defense authorization act that the risk they posed to the united states, our citizens and our interests, were substantially mitigated. i consulted with all of the members of the president's national security team and asked them, as they reviewed all the details, they reviewed the draft of my notification letter, the specific line by line, word by word details of that letter, i asked for their complete reviews, the risks associated, and i asked either concur or object to the transfer. the secretary of state, the attorney general, secretary of homeland security, director of national intelligence, and the chairman of the joint chiefs of staff all supported this transfer. all put their names on it.

there was complete unanimity on this decision, mr. chairman. the president and i would not have moved forward unless we in the national interests and the best traditions of our country. our operation to save sergeant bergdahl's and the u.s. laws and national security interests in at least five ways. first, we complied with the national defense authorization act of 2014 by determining that the risk of detainees posed to the united states, american citizens, and our interests was substantially mitigated. and that the transfer was in the national security interest of the united states. second, we fulfilled our commitment to recover all military personnel held captive. third, we followed the precedent of past wartime prisoner exchanges. a practice in our country that dates back to the revolutionary

war. and has occurred in most wars that we fought. fourth, because sergeant bergdahl was a detained combatant, being held by an enemy force, and not a hostage, it was fully consistent with our long-standing policy not to offer concessions to hostage takers. the taliban is our enemy. and we are engaged in an armed conflict with them. fifth, we did what was consistent with previous congressional briefings this administration has provided, as i've already noted in late 2011 and early 2012. reflecting our intent to conduct a transfer of this nature with these particular five individuals. mr. chairman, i fully understand and appreciate the concerns, the questions about our decision to transfer these five detainees to qatar without providing 30 days notice to congress. but under these exceptional

circumstances, a fleeting opportunity to protect the life of an american service member held captive and in danger for almost five years, the national security team and the president of the united states agreed that we needed to act swiftly. we were mindful that this was not simply a detainee transfer. but a military operation with very high and complicated risks and a very short window of opportunity that we didn't want to jeopardize. both for the sake of sergeant bergdahl, and our operators in the field who put themselves at great risk to secure his return. in consultation with the department of justice, the administration concluded that the transfer of the five could lawfully proceed. the options available to us to recover sergeant bergdahl were very few. and far from perfect. but they often are in wartime,

mr. chairman. and especially in a complicated war like we've been fighting in afghanistan for 13 years. wars are messy. and they're full of imperfect choices. i saw this firsthand during my service in vietnam in 1968. 1968 this committee may recall we sent home nearly 17,000 of our war dead in one year. i see it as the secretary of defense. a few of you on this committee, a few of you on this committee have experienced war, and you've seen it up close. you know there's always suffering in war. there's no glory in war. war is always about human beings. it's not about machines. war is a dirty business. and we don't like to deal with those realities. but realities, they are. and we must deal with them. those of us charged with protecting the national security

interests of this country are called upon every day to make the hard, tough, imperfect, and sometimes unpleasant choices based on the best information we have, and within the limits of our laws. and always based on america's interests. war, every part of war, like prisoner exchanges, is not some abstraction or theoretical exercise. the hard choices and options don't fit neatly into clearly defined instructions in how-to manuals. all of these decisions are part of the brutal, imperfect realities we all deal with in war. in the decision to rescue sergeant bergdahl we complied with the law. and we did what we believed was in the best interest of our country, our military, and sergea sergeant bergdahl. the president has constitutional responsibilities, and constitutional authorities to protect american citizens, and members of our armed forces. that's what he did. america does not leave its soldiers behind.

we made the right decision. and we did it for the right reasons. to bring home one of our own people. as all of you know i value the defense department's partnership, partnership with this congress, and the trust we've developed over the years. i know that trust has been broken. i know you have questions about that. but i'll tell you something else, i have always been straightforward, completely transparent about this committee since i've been secretary of defense. i will continue to do that. i will do that always with all my relationships, associations and responsibilities to the congress. that's what i always demanded, mr. chairman, of any administration when i was a member of the united states senate. i've been on your side of this equation. i understand it.

that's what i've done this morning with the statement i've made and i made the decision i did. and i've explained that in general terms. the circumstances surrounding my decisions were imperfect. and these decisions that have to lead to some kind of judgment always are. the president is in the same position. but you have to make a choice. you have to make a decision. the day after the bergdahl operation, at bagram air base in afghanistan, i met with a team of special operators that recovered sergeant bergdahl. they are the best of the best. people who didn't hesitate to put themselves at incredible personal risk to recover one of their own. and i know we all thank them. i know this committee thanks them. and we appreciate everything that they do. and we thank all of our men and women in afghanistan who make

the difficult sacrifices every day for this country. earlier this week we were reminded of the heavy costs of war. the heavy costs of war when we lost five american servicemen in afghanistan. i know our thoughts and our prayers are with their families. we're grateful for their service. but we're grateful for the service of all our men and women in uniform around the world. as i conclude mr. chairman i want to again thank this committee. this committee for what you do every day to support our men and women around the world. mr. chairman, i appreciate the opportunity to make this statement, i look forward to your questions. >> thank you very much mr. secretary. in your statement, you indicated that the president had made the final decision on this operation. i appreciate your clarifying

that. we had a briefing just a couple of days ago, and the last question asked by a member of congress of the briefers was who made the final decision, and one of the briefers stated that you had made the final decision. i think all of us understand how this place works. and a decision of this nature is always made by the commander in chief. and i think that you clarified that, and i appreciate that. mr. secretary, one of the things that has bothered me the most about this is the fact that we did pass a law last year that stated that congress should be notified 30 days before any transfer of detainees from guantanamo. just a little history. we were briefed, some of us, some of the leadership, on this committee and other pertinent committees in congress, starting

in november of '11 that there was negotiations that we were entering into negotiations with the taliban looking towards reconciliation at some point. along with that -- in that 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. 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 jus 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

against united states and that you have no basis -- we have no basis to prosecute them in federal court. i find these statements very difficult to accept, mr. secretary, given the status that these particular individuals had before they were captured. it is hard to believe that these individuals in these positions within the taliban government had no role in attacks on americans. so could you, mr. secretary, speak to this issue and explain to the people i represent and this committee and those of us who are all across this country asking these questions, why you believe the release of these men was appropriate and it does not pose a threat to our national security? >> congressman, i think i have answered the question and i think i addressed as you quoted from my testimony. let me start again. we recognize, as i said in my testimony and i think the answers i have given this morning, that there are risks. there are always risks.

there are going to be risks in a deal like this. we had to factor in every circumstance that we could factor in. our intelligence, where these guys came from, what facts we had on them, as you noted from my testimony, how big a risk would they be? how substantial could we mitigate those risks for our country, for our allies, for our citizens, our service members. we think we have done that. we think we have done it through a 12-month pretty tight enforcement of memorandum of understanding. we know that after 12 months that is another deal. but factoring everything in we all felt, everyone was secure on this in the national security council signing off on this number one and number two uniformed military, general dempsey that, in fact, we had substantially mitigated the

risks to this country. and i believe that. i would not have signed it. the president wouldn't have signed it. >> thank you, mr. secretary. let me move to a second aspect of the issue. i understand this is hard to predict. we have not been able to secure a bilateral security agreement with the afghan government. president karzai is on again off again. i was in afghanistan a couple of months ago. i was wanting to find out how our troops were reacting to this situation and particularly to the attacks, verbal attacks that president karzai has made on our troops and our country. we have an election coming up in just a few days. but my question is, do you have any sense of how the release of these detainees will impact on the ability for us to secure a

bilateral security agreement with the new administration, whoever that might be? clearly we have seen a lot of anger in afghanistan over the release and we wonder, obviously, how that might effect future agreements with the new afghan president. >> congressman, as you know, the two finalists one will presumably be the next president of afghanistan. they have both said and both reaffirmed that they, if elected president, one of the first things they would do is sign the bilateral security agreement. i have seen nothing to change that. we have heard nothing to change that. i believe that commitment is firm from either one of them, from both of them and they have made that commitment. >> thank you, mr. secretary. mr. chairman, i yield back. thank you, mr. chairman. mr. hagel, prisoner exchanges in the past for instance after the

korean war and vietnam war were done after a peace deal had been hammered out. the president recently said about the bergdahl deal this is what happens at the end of wars. how is what is happening in afghanistan the end of a car other than the president has made a unilateral decision to remove our forces next year no matter what the facts on the ground are? in other words, have we negotiated some type of peace with the taliban making this an end to the war? >> well, first part of the question, congressman, i don't think anyone would have wanted us to wait if we had a chance to get bergdahl until the so-called war is over. we had an opportunity to get him. it was a fleeting opportunity. we did it. >> so the president was wrong when he said this is what happens at the end of wars? >> that is the first part -- if you will let me finish.

this decision the president made, this wasn't a new decision. you go back to the lisbon nato conference of 2010 it was established that combat missions would come to an end at the end of 2014 for the united states. the only questions that remained up until about a month ago is how many is how many forces would the president decide to leave behind -- >> secretary -- >> so that's not new. wasn't any arbitrary -- >> the administration's position isn't new, but i don't understand how his unilateral decisions bring in the taliban and make them a negotiating partner. >> well, i'm not sure he said that about what you just said. i'm not sure what you mean. >> after vietnam, after the

korean war, prisoner exchanges were done when a peace agreement was signed. this is unprecedented to have a release like this before there's even a peace agreement. all that's happened is the president said we're withdrawing forces, and the taliban are not a party to the negotiation -- the afghan government was not brought in on this, were they? >> this was a prisoner exchange, and, again, i don't think the american people would have wanted us to wait. if we had a chance to get our p.o.w. -- >> but you keep saying that this is a prisoner release. it's not a deal with terrorists releasing a hostage. this is a negotiated prisoner release with a legitimate type of government. i don't see where the taliban -- >> i'm not sure i get your point though, congressman. >> you're saying this was not a deal with terrorists, is that correct?

>> that's correcright. >> the alternative is this is a deal with a legitimate government of some kind with a legitimate military that we're in the process of hammering out a peace agreement. none of those things are happening. >> the president didn't say we're in the process of hammering out a peace agreement. this was a prisoner exchange. i mentioned this morning in one -- in answer to one of the questions about you go back to the 2012, 2011 days, there was the larger scope of reference of reconciliation and maybe the taliban and afghan government getting to a peace agreement. that's what we were talking about in 2011-2012. taliban shut all that off, so this was a straight let's get our prisoners prisoner exchange. >> was the afghan government brought in the loop on this decision during the negotiation? >> no. >> but you said earlier that

this is an attempt to, among other things, reconcile the afghan government and the taliban. >> no, i didn't say that. >> you didn't say that? >> i said the opposite. i said this was not. i said in 2011 and 2012 there was a broad framework of reconciliation. that was 2011 and 2012. that has changed. that totally changed. >> i'm just trying to understand how this is not a deal with terrorists holding a hostage. you cast this as a legitimate prisoner swap, and yet they are a terrorist organization. we're not -- >> the taliban have never been designated by us as a terrorist organization. >> the treasury department says the pakistan taliban is a terrorist organization. >> the pakistan taliban. >> and the state department says the haqqani network -- >> we're talking about the afghani taliban. these are bad guys. there's no question that they're bad guys.

of course they are. and i laid that out and i have said that today, but, again, i go back to all the considerations that we put into play that substantially mitigate the risk to this country to get our p.o.w. back. >> thank you, mr. chairman. >> thank you. >> miss shay-porter. >> thank you. secretary hagel, thank you very much for being here and obviously it's a challenging circumstance and i want to thank you for your service and say that you probably more than most people in this room know what it's like to be in combat and could imagine what it feels like to be left behind, so i want to thank you for that very principled stand because we do have that policy and we tell our men and women that we will not leave them behind. so i want to thank you for that. i do have some concerns though, and one of the concerns is obviously the trade, and i'm particularly concerned about why

five? is that the minimum number that they would accept because looking at that, we got one, they got five, and we know that they are bad guys, like you said. and so i have some concerns about the number to begin with. then i'm also -- would like to comment, and i'll let you wrap up with this, but i'd like to comment about the reintegration process. one of my colleagues suggested that there was something going on that you didn't just quickly bring him back, but i do remember watching our p.o.w.s from vietnam coming back, and we learned a lot of lessons about dropping them right into american culture after having been isolated for so many years. and so my understanding is there's a reintegration process and there's three stages and we have to allow the former prisoner to work his or her way through these stages. so i would like you to address that and also why five, and then i'd like to put my comment in

that i do believe that congress should have been notified. i probably split the difference here between my colleagues. i understand why you might not tell all of congress because of the sensitivity and the timing and the risk, but certainly i do believe the leadership of congress should have been told. so anything else you'd like to add to that, i still have three minutes and please tell me why there's five, a little bit about the reintegration process, and any other comments you'd like to add. thank you. >> congresswoman, thank you. on the reintegration process, i think everyone agrees that the principal focus now on sergeant bergdahl should be his health. maybe someone disagrees with that, i don't know. but for us, for the military, that is. getting him healthy enough, his body, mind, spirit, and that's the point of a reintegration

process. you know, your point about what we've learned since p.o.w.s came back from vietnam is an important point. we've learned a lot, our doctors have, our health care specialists have. everybody is different to start with. every situation is different to start with. so that's the focus. let's get him healthy, mind, body, spirit, then we'll get on with the rest of it. the united states armed forces and his family agrees with this incidentally. we let the medical professionals make those calls. >> let me add, this doesn't mean that he won't have to answer questions. there are important questions that need to be answered. we're just waiting for him to be well enough. >> that's right. as i said in my testimony, both the secretary of the army and the chief of staff of the army has already said there will be a comprehensive review -- >> and there should be. >> -- of all the circumstances

surrounding his disappearance. >> and i thank you for that. now why five? >> i'll get to that. one other point on that, i remind you again, you'll have an opportunity to look at the so-called form 15-6 which does give a review at the time of his disappearance. it was signed off i believe in august of 2009. that's up here at the committee. now, the five. okay. general counsel has asked -- >> i just -- before the secretary addresses -- >> i'm sorry, we won't be able to because my time is running out. i really would like the answer from the secretary but i hope we can talk about it -- >> i give shorter answers. >> thanks. >> why five? well, first, i have addressed this in other questions about how did this all come about? it originally was six and we went back and forth over the years. they wanted all the taliban prisoners, the taliban did, wanted all in guantanamo and so on, and it settled at around

five. the sixth detainee died. so that's part of it, but i think there's a bigger issue here, too. the american people, the american society, our armed forces, have never seen life exchange of just one for one. we put a value on our american lives as the most important thing. not that other societies don't, i can't speak for any other society and i wouldn't try, but our society is every human being is important. so why wasn't it 20, why wasn't it 3? the five started to be what the taliban insisted on. they wanted more, had been six, then they wanted everything. so i don't think there's any magic to it. that's the way it developed, but, again, we don't put a one for one deal on our --

>> well, thank you. i just want to reiterate that you can trust congress to handle this. >> time has expired. >> thank you. i yield back. >> mr. whitman. >> thank you, mr. chairman. secretary hagel, thank you so much for joining us today. secretary hagel, let me go to the administration's own guantanamo task force report where they reviewed the files of these five detainees that were transferred and unanimously recommended in 2010 they continue to be held by the united states based on the specifics of their cases. the task force also said that it was conceivable with adequate security measures the five could be sent elsewhere eventually. in light of those recommendations that these detainees continue to be kept and that recommendation taking place when it did, can you tell us what extraordinary security measures can qatar offer today to allow for this transfer? >> well, again, that's the

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

our general counsel if we just had one transfer. is that right? to qatar? >> to my knowledge. >> so we've had one. i don't know all the history of that transfer, although my understanding is it wasn't particularly good generally. so what's changed? again, i addressed this here this morning. first of all, you have a new em emir. we've got more presence, assets there. their relationship with the area and with us is significantly changing. now, are these absolute guarantees? no. i mean, there are very few absolute guarantees in life, as we all know. but i think a number of things have changed enough, significantly changed, to be able to have confidence in the enforcement that the emir told the president of the united states that he would personally see to that as well as the government. and if you follow down, as you did, through your reading of

those mou requirements and then we'll get into details, we felt confident that that mou covered enough, but the enforcement was good enough. >> you did acknowledge there was an additional risk there in qatar taking those detainees, especially based on their past performance, so are you comfortable with that risk and does this willingness for the u.s. to accept that risk, does that now set the stage for the u.s. transferring detainees to other nations who have not met obligations under previous agreements in accepting these detainees from guantanamo? >> well, you said the right word, risk, and that is the essence of what we're always dealing with here and the analysis that we made, the decision that i made, as well as the national security council and ultimately the president,

again i say we believed that all of this together could substantially mitigate the risk. >> let me ask this. there is some concern, too, that of knows considerations given for the qatari government and what they will do to keep up with these detainees, is there an opportunity for these detainees to go to the qatari legal system to have these travel restrikctions lifted so under legal means they could have free rein to travel throughout qatar or elsewhere? >> i'll ask the general counsel. he signed the mou and i will ask him to handle that in particular, that question, because he negotiated it and signed it. thank you. >> i think the question is best answered in the closed session, if you would indulge us in that respect. >> let me close by asking this then. what happens to these detainees after a year?

>> as has been said, the restrictions of the mou are for a one-year period. that includes the restriction on their travel outside of qatar. so after one year -- >> so after one year, no restrictions. >> except under circumstances that we would discuss in the closed -- >> gentleman's time is expired. >> thank you, mr. chairman. >> thank you, mr. chairman. thank you very much, mr. secretary and mr. preston. i appreciate very much your service. mr. secretary, you said in your testimony that this was a -- well, first of all, let me just say that i think a lot of people have had very emotional reactions to this and what they've seen about this with incomplete information, and i certainly think that's understandable, but these are difficult circumstances to judge, and we as elected officials and you as appointed

officials have to put aside our emotions and political expediency in order to best use our professional judgment, and obviously what will be said in secret session also pertains to this. but what i'm concerned about now is the law and the notification of congress. and you said in your testimony, i believe you actually used the word unique circuits. i'm a little concerned that this isn't unique. it might be rare, but not all that unique. do you believe that congress hadn't thought this was a sort of issue that could come up when they passed the law? should we amend this law if, indeed, these kind of, you know, very rapidly evolving situations occur where you would want to have the authority to do a prisoner transfer? first the secretary and then -- either one of you. >> well, here is the way i would answer your question.

first, it was an extraordinary situation, and maybe everyone doesn't agree with that. i absolutely believe it. the president believed it, national security council leaders believed it. for the reasons we've discussed here the last three hours and actually more. so i think we're on pretty solid ground in saying that this was an extraordinary situation. i think it also gets into the constitutional issues that we have discussed here this morning. the responsibilities of the president given to him through article 2 of the constitution, what are his authorities under that article. it doesn't discount what the congress passes as laws. by the way, this is not the first challenge to a law by a

president, as has been noted here this morning. president bush, george w. bush, probably signed as many signing statements as anybody. executive/legislative differences exist probably since the beginning of the republic, so i answer your question that way, too, and then if you want to hear from the general counsel. >> well, actually let me just stick with it. i think you answered it fine, mr. secretary. i am concerned though that there was an opportunity to notify the congress. i have heard some reports that 80 or 90 people in our administration knew. i don't know if you can confirm that or not. but sort of the answer that goes back to 2011, 2012, i agree with the chairman on that. that was a different set of circumstances. it was also, by the way, a different congress. i wasn't in that congress. and it does concern me that that many people knew and there wasn't some sort of a

notification of congress. particularly given that obviously the qatari officials knew. how are we to avoid the perception that this administration trusts qatari officials more than it trusts leaders in congress? >> well, you may see it that way as a congressman, and i wouldn't question your perspective, but i would just say this. the qataris had to be a part of it because they were a part of it. they were doing the deal. we signed the memorandum of understanding with them. there would have been no prisoner exchange without the qataris. so not everybody, by the way, in the qatari government was aware of this. again, presston was there. i don't think it's a matter of we trust the qataris but we don't trust our own congress. i have already addressed this, too, in my opening statement. could we have done it better,

smarter? yes. >> yeah. i think my concern and i'm not sure if this would rest in your office or not, my concern is, okay, i understand the circumstances under which the department was not able to obey the letter of the law. my concern is whether the department even tried to obey the spirit of the law. certainly not informing myself, rank and file member, but at least the leadership of the relevant committees that this was happening. >> well, again, i'll say and i know members of this committee don't agree with this, but in explanation as to why we did what we did, and again i'll say one sentence, we were very, very concerned about the risk. we had a fleeting opportunity here. we were told there was a risk. the more people who knew about it, the more risk. i get that. i get why did you trust some in the white house and not here. i get all that, but your question, overall question about who knew and who didn't, i don't know about the 80 or 90 number. i can tell you from my

responsibility in dod, very, very few people knew about this at dod. >> gentleman's time has expired. mr. hunter. >> thank you, mr. chairman. mr. secretary, good to see you. i guess you've said there were better ways to do this, there were more precise ways to do it. i guess my first question would be, is that because do d was not in charge of this the entire time? >> congressman hunter, i'm sorry, i just read a note. >> i would ask you to add 20 seconds back on. >> take it out of my time. i'm sorry. >> was dod in on this the whole time? you have said before this could have been done better and i'm guessing that means if you were doing this from the beginning, this prisoner exchange, it would have been done better. >> well, i appreciate the comment, but, yes, it was dod involved in this from the beginning? yes, we were. >> let me interject there then. we talked in february and i said because the state department had this option on the table and

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

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

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

look at any other doors accept that one. you didn't consider any other options besides this prisoner exchange, and you only recommended to the president this one pathway? to get bergdahl back. >> congressman, this was the only pathway that was emerging that was available. there was no other pathway unless you're aware of something -- >> i am aware actually, and these are not from special briefings so i can probably mention a few of them. you at dod, your department, working concurrent options with pakistan to get bergdahl's release. you had other options that we know that at least people in your department had looked at. we won't go into those nonkinetic options, but it just astounds me for something this large you wouldn't recommend to the president any other course of action but this one and that the president of the united states would not have looked at other courses of action besides this one before he made the decision to approve this.

>> well, two issues here. one is do we always look at other courses of action? yes, we do. second issue, recommending to the president. this was the most viable, best pathway we could find, we knew that was active. the taliban were coming back. the qataris were telling us they were coming back, so we pursued that as the most immediate, viable, and possible option we had to get him back. >> in closing, i would think there were better options and i think that the president should have been better briefed by folks in your department that knew what those options were, and i hope that the dod and mr. lumpkin takes a stronger role in trying to get the rest of the americans back that were forgotten via this exchange in afghanistan. i yield back. >> mrs. duckworth. >> thank you, mr. chairman. mr. secretary, it's good to see you again and just want to say how great it is to see a member of the nco corps, the backbone of our military at the head of the dod. i served in iraq with a vietnam

veteran e-7 who went back over at 59 years old. didn't make it home and he probably is smiling and cussing at me right now and telling me i better treat you right. look, i think your background and the background of all of us who have worn a uniform and as you said been in combat informs how we feel about the release of sergeant bergdahl as well as how we feel about someone who abandons their post and exposes their buddies to attack by the enemy. however, it's never been the practice of the united states to leave one of our own behind on the battlefield regardless of the circumstances of their disappearance. we do everything we can to bring them home. you don't leave them to be dealt with by the enemy. it's not who we are as a country. it's not who we are as a military. now, that doesn't mean that there are not questions that need to be answered about the circumstances around his departure from his post, and i would hope that the military

will take appropriate action to review the circumstances again and i have full faith in the leadership of the united states army and the uniform code of military justice to conduct a thorough investigation and to carry out any justice that the result of a subsequent investigation may warrant. that said, i wanted to ask you two specific questions. first, are there any plans by the dod or the department of the army to go back and review the circumstances of his disappearance and then if it is found that he did abandon his post, so he did desert, there will be an investigation, perhaps prosecution? >> congresswoman, yes, and thank you for your service and to the other members of this committee who i didn't by name acknowledge, but i referenced as you noticed in my testimony, thank you for your service. yes. as i noted in my testimony and a couple of the answers i've given

this morning, secretary of the army, chief of staff of the army both indicated, did last week, that they intended a full comprehensive review of all the circumstances involved in the disappearance of sergeant bergdahl. the results of those reviews will determine if any action would be required based on conduct and based on the review. they feel strongly and i do, but i'm not going to get involved in trying to influence that. that's the united states army decision, as you know how this works. they are open to get the facts, and wherever the facts lead then, they'll get them and they will respond appropriately. >> thank you. >> thank you. >> you have to ask me. >> would the gentle lady yield, please? >> yes, i would like to yield

the balance of my time to the gentleman from illinois. >> thank you. mr. secretary, you have a tremendous perspective as miss duckworth has alluded to with your background as a combat infantryman. now, i'm sure that you weighed every pro and con in these decision -- in this decision-making process, and your decision was made in the best interests of this nation based on the facts you had as a whole, i'm sure. and it's really unfortunate that the toughest decision that many of your critics have been making on this is as to whether or not they should run for re-election. now, have you received a single or heard a single sound suggestion from any of these monday morning quarterbacks as to a better course of action that you might have taken in this decision?

>> the coverage has been rather bare on that account. we have a lot of experts in this town especially, but as i said, and i appreciate your service, sir, i'm well aware of it, in this town it's pretty easy or anywhere else to give analysis usually uninformed and criticize every decision. that's okay. that's the role everybody has. the country is built that way. everybody's opinion matters and counts. everybody has one. but in the end, as i said in my testimony, some of us are dealing with the responsibilities of having to make the tough choices. you make them up here in your votes, and i make them. and that's the way it is, and that will always be that way. so i just deal with it and i do the best i can and i do what i

think is right for my country, and i don't have any problem sleeping. >> thank you, mr. secretary. i yield back. >> the gentle lady's time is expired. they have called the votes about six minutes left, but about 394 haven't voted yet. so i want to thank the secretary. we've gone over what we thought we would -- it would take, but it's a very important issue, and this is the largest committee in congress, and everybody wanted to have their questions answered. the secretary has agreed, we will take one more question, then we will break for votes. i would encourage all who have not had an opportunity to ask a question that want to return. the secretary said he will stay for that, and then we will reschedule at a later time the closed session