[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]





 
                         [H.A.S.C. No. 113-111]

      THE MAY 31, 2014, TRANSFER OF FIVE SENIOR TALIBAN DETAINEES

                               __________

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                              HEARING HELD

                             JUNE 11, 2014


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                      COMMITTEE ON ARMED SERVICES
                    One Hundred Thirteenth Congress

            HOWARD P. ``BUCK'' McKEON, California, Chairman

MAC THORNBERRY, Texas                ADAM SMITH, Washington
WALTER B. JONES, North Carolina      LORETTA SANCHEZ, California
J. RANDY FORBES, Virginia            MIKE McINTYRE, North Carolina
JEFF MILLER, Florida                 ROBERT A. BRADY, Pennsylvania
JOE WILSON, South Carolina           SUSAN A. DAVIS, California
FRANK A. LoBIONDO, New Jersey        JAMES R. LANGEVIN, Rhode Island
ROB BISHOP, Utah                     RICK LARSEN, Washington
MICHAEL R. TURNER, Ohio              JIM COOPER, Tennessee
JOHN KLINE, Minnesota                MADELEINE Z. BORDALLO, Guam
MIKE ROGERS, Alabama                 JOE COURTNEY, Connecticut
TRENT FRANKS, Arizona                DAVID LOEBSACK, Iowa
BILL SHUSTER, Pennsylvania           NIKI TSONGAS, Massachusetts
K. MICHAEL CONAWAY, Texas            JOHN GARAMENDI, California
DOUG LAMBORN, Colorado               HENRY C. ``HANK'' JOHNSON, Jr., 
ROBERT J. WITTMAN, Virginia              Georgia
DUNCAN HUNTER, California            COLLEEN W. HANABUSA, Hawaii
JOHN FLEMING, Louisiana              JACKIE SPEIER, California
MIKE COFFMAN, Colorado               RON BARBER, Arizona
E. SCOTT RIGELL, Virginia            ANDREE CARSON, Indiana
CHRISTOPHER P. GIBSON, New York      CAROL SHEA-PORTER, New Hampshire
VICKY HARTZLER, Missouri             DANIEL B. MAFFEI, New York
JOSEPH J. HECK, Nevada               DEREK KILMER, Washington
JON RUNYAN, New Jersey               JOAQUIN CASTRO, Texas
AUSTIN SCOTT, Georgia                TAMMY DUCKWORTH, Illinois
STEVEN M. PALAZZO, Mississippi       SCOTT H. PETERS, California
MO BROOKS, Alabama                   WILLIAM L. ENYART, Illinois
RICHARD B. NUGENT, Florida           PETE P. GALLEGO, Texas
KRISTI L. NOEM, South Dakota         MARC A. VEASEY, Texas
PAUL COOK, California                TULSI GABBARD, Hawaii
JIM BRIDENSTINE, Oklahoma
BRAD R. WENSTRUP, Ohio
JACKIE WALORSKI, Indiana
BRADLEY BYRNE, Alabama

                  Robert L. Simmons II, Staff Director
                   Catherine McElroy, General Counsel
                Paul Arcangeli, Minority Staff Director
                           Aaron Falk, Clerk
                           
                           
                           
                           
                           
                           
                           
                           
                           
                           
                           
                           
                           
                           
                           
                           
                           
                            C O N T E N T S

                              ----------                              

                     CHRONOLOGICAL LIST OF HEARINGS
                                  2014

                                                                   Page

Hearing:

Wednesday, June 11, 2014, The May 31, 2014, Transfer of Five 
  Senior Taliban Detainees.......................................     1

Appendix:

Wednesday, June 11, 2014.........................................    89
                              ----------                              

                        WEDNESDAY, JUNE 11, 2014
      THE MAY 31, 2014, TRANSFER OF FIVE SENIOR TALIBAN DETAINEES
              STATEMENTS PRESENTED BY MEMBERS OF CONGRESS

McKeon, Hon. Howard P. ``Buck,'' a Representative from 
  California, Chairman, Committee on Armed Services..............     1
Smith, Hon. Adam, a Representative from Washington, Ranking 
  Member, Committee on Armed Services............................     3

                               WITNESSES

Hagel, Hon. Chuck, Secretary of Defense, U.S. Department of 
  Defense; accompanied by Hon. Stephen Preston, General Counsel, 
  U.S. Department of Defense.....................................     6

                                APPENDIX

Prepared Statements:

    Hagel, Hon. Chuck............................................    97
    McKeon, Hon. Howard P. ``Buck''..............................    93
    Smith, Hon. Adam.............................................    95

Documents Submitted for the Record:

    [There were no Documents submitted.]

Witness Responses to Questions Asked During the Hearing:

    Mr. Courtney.................................................   108
    Mr. Jones....................................................   107
    Mr. McKeon...................................................   107
    Mr. Scott....................................................   108
    Ms. Speier...................................................   107
    Mr. Turner...................................................   107

Questions Submitted by Members Post Hearing:

    Mr. Palazzo..................................................   111
    
    
    
    
    
    
    
    
    
      THE MAY 31, 2014, TRANSFER OF FIVE SENIOR TALIBAN DETAINEES

                              ----------                              

                          House of Representatives,
                               Committee on Armed Services,
                          Washington, DC, Wednesday, June 11, 2014.
    The committee met, pursuant to call, at 10:03 a.m., in room 
2118, Rayburn House Office Building, Hon. Howard P. ``Buck'' 
McKeon (chairman of the committee) presiding.

    OPENING STATEMENT OF HON. HOWARD P. ``BUCK'' MCKEON, A 
 REPRESENTATIVE FROM CALIFORNIA, CHAIRMAN, COMMITTEE ON ARMED 
                            SERVICES

    The Chairman. The committee will come to order. Please hold 
as we seat the public.
    At the start of this hearing, I am pleased to welcome 
members of the public who have such an interest in these 
proceedings.
    We intend to conduct this hearing in an orderly and 
efficient manner to ensure all the Members have an opportunity 
to ask questions and our witnesses have an opportunity to be 
heard. To that end, please be advised I will not tolerate 
disturbances of these proceedings, including verbal 
disruptions, photography, standing, or holding signs. And I 
thank you all for your cooperation.
    I want to thank Secretary Hagel and Mr. Preston for 
testifying before the committee today on the May 31st transfer 
of five senior Taliban detainees from detention at Guantanamo 
Bay to the Government of Qatar.
    The matter before us is deeply troubling. The committee has 
begun a full investigation into the administration's decision, 
its unprecedented negotiations with terrorists, the national 
security implications of releasing these dangerous individuals 
from U.S. custody, and the violation of national security law. 
We hope for and expect the Department's full cooperation.
    Let me be clear upfront 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 House-wide 
briefing earlier this week were misleading and at times 
blatantly false.
    This transfer sets a dangerous precedent in negotiating 
with terrorists. It reverses longstanding 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 1 year they will be free to return to 
Afghanistan or anywhere else.
    What is 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 men and 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 GTMO [Guantanamo Bay Naval Base] 
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 GTMO detainees. It was 
designed and approved by a bipartisan majority in Congress due 
to real concerns that dangerous terrorists were being released 
in a manner that allowed them to return to the battlefield.
    We are also seeing the consequences of the President's 
hasty Afghanistan withdrawal strategy. Afghanistan is at a 
critical juncture. At the same time we are 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 GTMO. 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 GTMO, 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 are also aware of the immense 
pressure the White House has put on you to transfer these 
detainees so it can claim victory for closing GTMO. 
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 am eager to find out why.
    Mr. Smith.
    [The prepared statement of Mr. McKeon can be found in the 
Appendix on page 93.]

STATEMENT OF HON. ADAM SMITH, A REPRESENTATIVE FROM WASHINGTON, 
          RANKING MEMBER, COMMITTEE ON ARMED SERVICES

    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 oversight on. And there are a lot of questions that 
need to be answered, and I am pleased the administration is 
here today to attempt to answer those questions.
    I also want to agree upfront with the chairman that one 
thing we shouldn't talk about today is the circumstances of 
Sergeant Bergdahl's--sorry--of Mr. Bergdahl's capture. And I am 
happy about that. Regrettably, at the briefing we had on 
Monday, that issue did come up. There, you know, simply is no 
proof, no evidence. I think the way Mr. Bergdahl has been 
slandered has been scandalous, you know. And I hope we will 
take a step back and do what Admiral Winnefeld said, which is 
we will bring him home, we will get him healthy, then we will 
figure out what happened, and due process will be exercised. So 
that should not be discussed today.
    What should be discussed today 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, of the 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 Sheikh Mohammed for him. 
Absolutely not. Totally different situation. But when you are 
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. 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 and 
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. What does that mean going forward?
    But understand: The idea that under no circumstances will 
we negotiate with the Taliban is one that has been rejected by 
virtually everyone. We, the Afghan Government, if we are 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 would like to. That is 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 
have set in a different way if we do that?
    Now, there is 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 are 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 are just going to grab 
people and hold them forever without charge, without trial, 
without process. How are we going to handle that?
    Now, one of the interesting questions that has been raised, 
it has been argued that these five that were captured would 
have had to have been released at the end of hostilities with 
Afghanistan. It is not my understanding that that is actually 
the status that we have given them. They are not being treated, 
clearly, as prisoners of war. As a matter of fact, I believe 
the phrase was ``unlawful enemy combatants,'' has been the 
phrase that has been used for 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 has 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 is my understanding that it is none of them, that 
we didn't put them in that law-of-war category, 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 that we have to answer if we are 
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 are two 
pieces of 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 when--
well, it is wrong that when you knew that you were thinking 
about doing this deal, you didn't take it to 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 am 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 would 
figure out whether or not the courts say it is 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. 
If it wasn't right for President Bush to do it, it is not right 
for President Obama to do it. So I would be very curious to 
understand the argument for why that 30-day requirement wasn't 
in place.
    And, again, I will come back to the fact that there was no 
reason that 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 are 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.
    [The prepared statement of Mr. Smith can be found in the 
Appendix on page 95.]
    The Chairman. I ask unanimous consent that non-committee-
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, non-committee-members will be recognized 
at the appropriate time.
    Mr. Secretary, the time is yours.

   STATEMENT OF HON. CHUCK HAGEL, SECRETARY OF DEFENSE, U.S. 
  DEPARTMENT OF DEFENSE; ACCOMPANIED BY HON. STEPHEN PRESTON, 
          GENERAL COUNSEL, U.S. DEPARTMENT OF DEFENSE

    Secretary Hagel. Mr. Chairman, 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 United 
States.
    Also here, representing the Joint Chiefs of Staff, sitting 
behind me, is Brigadier General Pat White, who is the Director 
of the Joint Staff's Pakistan/Afghanistan Coordination Cell. 
General White helped coordinate the Bergdahl recovery on behalf 
of the Chairman of the Joint Chiefs of Staff, General Dempsey.
    The Vice Chairman 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 meetings 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 and 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 interests 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 and 
the Haqqani Network for almost 5 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, 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 Command Commander Marine General Jim Mattis recently 
put it, 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 have said clearly last week that the 
Army will review--they will review this exchange, circumstance, 
captivity of Sergeant Bergdahl in a comprehensive, coordinated 
effort that will include speaking with Sergeant Bergdahl.
    And I think I need not remind anyone on this committee, 
like any American, Sergeant Bergdahl has rights. And his 
conduct will be judged on the facts, not political hearsay, 
posturing charges, or innuendo. We do owe that to any American 
and especially those who are members of our military and their 
families.
    Like most Americans, I have been offended and disappointed 
in how the Bergdahl family has been treated by some in this 
country. No family deserves this. I hope there will be some 
sober reflection on people's conduct regarding this issue and 
how it relates to the Bergdahl family.
    In 2011, the Obama administration conducted talks with the 
Taliban on a detainee exchange involving the same five Taliban 
detainees that were ultimately transferred after the release of 
Sergeant Bergdahl--2011. These talks, which Congress was 
briefed on--some of you in this room were in those briefings, I 
understand--which Congress was briefed on in November of 2011 
and in January of 2012, 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 assistance and 
assurances, particularly security assurances.
    On May 12th, we signed a memorandum of understanding [MOU] 
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, as 
I noted earlier, signed that memorandum 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 memorandum of understanding has been sent to the 
Congress, to the leadership, to the committees. And every 
Member of Congress has an opportunity to review that memorandum 
of understanding in a 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 will go into more detail in a 
classified hearing on those warnings. This indicated that the 
risks to Sergeant Bergdahl's safety were growing.
    We moved forward with indirect negotiations on how to carry 
out that exchange of five detainees and agreed to the mechanics 
of the exchange on the morning of May 27th following 3 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 
a 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 had been given no information on where the handoff would 
occur.
    For all of 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 1 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 were under any illusions about these five 
detainees. They were members of the Taliban, which controlled 
much of Afghanistan 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 had been in the U.S. 
custody at Guantanamo 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 is 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 risks 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 of 
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, the 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 
had complete confidence that we were acting lawfully, in the 
national interest, and in the best traditions of our country.
    Our operation to save Sergeant Bergdahl's life was fully 
consistent with U.S. laws and our national security interests 
in at least five ways:
    First, we complied with the National Defense Authorization 
Act of 2014 by determining that the risk the detainees posed to 
the United States, American citizens, and our interests was 
substantially mitigated and that the transfer was in the 
national security interests 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 have 
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 longstanding 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 had provided, as I 
have 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 5 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 in a very short window of opportunity that we 
didn't want to jeopardize, both for the sake of Sergeant 
Bergdahl and our operators in the field who put themselves at 
great risk to secure his return. In consultation with the 
Department of Justice, the administration concluded that a 
transfer of the five could lawfully proceed.
    The options available to us to 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 have been fighting in Afghanistan for 13 years. Wars are 
messy, and they are full of imperfect choices.
    I saw this firsthand during my service in Vietnam in 1968. 
In 1968, this committee may recall, we sent home nearly 17,000 
of our war dead in 1 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 have seen it up close. 
You know there is always suffering from war. There is no glory 
in war. War is always about human beings; it is 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 Sergeant Bergdahl. 
The President has constitutional responsibilities and 
constitutional authorities to protect American citizens and 
members of our Armed Forces. That is 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 with this Congress and the trust we have developed 
over the years. I know that trust has been broken. I know you 
have questions about that.
    But I will tell you something else. I have always been 
straightforward, completely transparent with this committee 
since I have been Secretary of Defense. I will continue to do 
that. I will do that always, with all my relationships and 
associations and responsibilities to the Congress.
    That is what I always demanded, Mr. Chairman, of any 
administration when I was a Member of the United States Senate. 
I have been on your side of this equation; I understand it.
    That is what I have done this morning with this statement I 
have made. And I made the decision I did, and I have 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 the team of special operators that 
recovered Sergeant Bergdahl. They are the best of the best, 
people who didn't hesitate to put themselves at incredible 
personal risk to recover one of their own. And I know we all 
thank them. I know this committee thanks them, and we 
appreciate everything that they do. And we thank all of our men 
and women in Afghanistan who make the difficult sacrifices 
every day for this country.
    Earlier this week, we were reminded of the heavy cost of 
war--the heavy cost of war, when we lost five American service 
men in Afghanistan. I know our thoughts and our prayers are 
with their families. We are grateful for their service, and we 
are grateful for the service of all our men and women in 
uniform around the world.
    As I conclude, Mr. Chairman, I want to again thank this 
committee--this committee for what you do every day to support 
our men and women around the world.
    Mr. Chairman, I appreciate the opportunity to make this 
statement, and I look forward to your questions.
    [The prepared statement of Secretary Hagel can be found in 
the Appendix on page 97.]
    The Chairman. Thank you very much, Mr. Secretary.
    In your statement, you indicated that the President had 
made the final decision on this operation. I appreciate you 
clarifying that. We had a briefing just a couple of days ago, 
and the last question asked by a Member of Congress 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 2011, 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 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 interests 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 [National Defense Authorization Acts] 
had also required that same thing. In fact, our language that 
we had passed in this committee and through this body was 
softened some by language from the Senate that we worked out in 
conference, which was the final language that was passed last 
year.
    You know, Mr. Secretary, I think you have just made a very 
strong case for the position taken by the President and the 
administration. You just left one thing out: These 
negotiations, as we were told in a briefing last week, started 
in January of this year, with the tape and with the other 
things that went forth. And I have 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 of that, other than the things that I have 
mentioned that the law states, and 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 is 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 have 
just told us in your briefing here.
    I think it would have gone--would have been very helpful in 
reestablishing, or establishing, or keeping the trust that we 
should have between the Congress, the President of the United 
States, the Supreme Court, all of us trying to work together to 
the satisfaction of the Constitution and the American people 
that we are all sent here to serve.
    Let me just ask one question, Secretary Hagel. Will the 
Department fully cooperate with this committee's inquiry going 
forward with the detainee exchange, including the recent 
request that I sent a couple of days ago for documents?
    Secretary Hagel. Absolutely. Yes.
    [The information referred to can be found in the Appendix 
on page 107.]
    The Chairman. 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.
    Secretary Hagel. Thank you.
    The Chairman. Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    I think, two very important parts to this. And one is one 
the chairman just mentioned, which I will 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, you know, went against a longstanding 
U.S. policy. And I think that has been the central criticism; 
it was the criticism from the Speaker yesterday. And I think it 
is 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 of get into this--how you view this and 
whether or not this is unprecedented? Because it certainly 
doesn't seem to be. I mean, there are exchanges, as you have 
mentioned, in just about every war we have fought, of 
prisoners. And whatever one may think of the Taliban, we were 
fighting a war with them. It was in a battle zone. It was not, 
you know, a diplomat or a civilian, it was a member of the 
Armed Forces who was captured in that battle.
    So do you think that we have set some precedent here for 
negotiating with terrorists? Or is this clearly, as it is in my 
mind, in a different legal category?
    Secretary Hagel. 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 
will ask Mr. Preston for, as you have suggested, his thoughts.
    One, this was an extraordinary situation, for the reasons I 
had mentioned, I think, in the classified briefings that some 
of you have attended or heard. We will get more into the 
extraordinary dynamics when we close this hearing down and go 
into classified. It was a very unique set of dynamics that we 
were dealing with. That is number one.
    On the precedent-setting side of this, I am 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 I know from 
past wars and how we have always gotten our prisoners back, or 
attempted to get them back, time of war or after war. We can 
get into all of the appropriate categorizations of who are 
combatants and who we are at war with and who are terrorists. 
We have legal definitions for all of those.
    But I said something at the beginning of my testimony here. 
I know it is 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. I mean, you look at Yemen, what is going on all 
over the world. What is unprecedented today is the threats and 
what we are up against around the world: organized, 
sophisticated terrorist groups.
    Now, have we declared war on any of them? Or how will we 
define them, other than some as terrorist groups? But these are 
different dynamics and unprecedented situations that this 
country has never had to deal with before.
    I will make one last comment and then ask Mr. Preston for 
his legal opinion on your question.
    You all have major responsibilities. We each in government 
have major responsibilities. I have the responsibility of 
getting up every morning--I have one responsibility, and that 
is the security of this country. That is what I am charged 
with. That is 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 is 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 is imperfect, I 
know, and it might sound like an excuse, but it is not an 
excuse; it is reality.
    And I will ask Mr. Preston.
    Mr. Preston. Thank you.
    There is, of course, a good deal of detail, technical legal 
detail, on what constitutes a POW per se versus a detained 
combatant or a privileged or unprivileged belligerent. I don't 
think we need to get into that to answer your question.
    What we had here were detained combatants held by opposing 
forces in the same armed conflict. And, as such, this exchange 
falls within the tradition of prisoner exchanges between 
opposing forces in time of war.
    Now, it is true that the Taliban is not the conventional 
nation-state that has been party to conventional armed conflict 
of the past. But it is not the character of the holding party, 
it is the character of the detainee that inspires and motivates 
our commitment to the recovery of service members held abroad.
    We don't see this as setting a particular precedent, both 
because it does fall within that tradition of prisoner 
exchanges and there have been in the past occasions where the 
United States has dealt with non-state actors who were holding 
a service member in order to achieve their recovery.
    Mr. Smith. Can you give us a specific example of that?
    Mr. Preston. The one example I am aware of is the 
helicopter pilot, Michael Durant, in Somalia, who was held 
captive by the warlord Mohamed Aidid. 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.
    Mr. Smith. Yeah.
    And I just want to say again, I think any characterization 
of this as negotiating with terrorists totally misses the fact 
that we were and are at war, and Sergeant Bergdahl was a member 
of our military fighting that war.
    On the GTMO piece, is it your opinion that at the end, you 
know, let's say 2014--we consider that to be the end of 
hostilities, which is an interesting argument because we still 
are going to have 10,000 troops there--but assuming at some 
point there was an end of hostilities, that these five would 
have had to have been released at the end of hostilities. Is 
that the Department's opinion? Are they undecided? Or do they 
feel the opposite?
    Mr. Preston. Sir, the way I would answer that is to say 
that we believe we have, under domestic law, specifically the 
AUMF [Authorization for Use of Military Force], 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.
    Mr. Smith. Even after the war would have ended?
    Mr. Preston. Well, I will speak to that.
    Mr. Smith. Okay.
    Mr. Preston. There will come a point in time where the 
armed conflicts we are engaged in with the Taliban and Al Qaeda 
and their associates come to an end. And, at that point, 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----
    Mr. Smith. But that is----
    Mr. Preston [continuing]. Such as prosecution.
    Mr. Smith. Not just the war in Afghanistan.
    Mr. Preston. That is right.
    Mr. Smith. I mean, it is the broader battle as defined 
under the AUMF.
    Mr. Preston. And the further point I would make is that I 
am not aware of any determination as yet that, with the 
cessation of the current combat mission at the end of this 
year, that the armed conflicts are determined to be over such 
that it would trigger the consequences that we have been 
discussing.
    Mr. Smith. Right. Thank you.
    And the last thing I will say, and no need to respond to 
this, but I will just reemphasize a point the chairman has 
made, a point I made in my opening statement. It would be, oh, 
so more helpful--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 is 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 is sort of hit-
or-miss. And 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.
    The Chairman. The gentleman yields 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?
    Mr. Preston. Sir, the point was, when the armed conflict 
ends, the international-law basis for continuing to hold people 
who are being held on the basis of their membership in a----
    Mr. Smith. I am sorry, Mr. Preston, but you really have to 
point out which armed conflict you are talking about. Your 
answer was not the armed conflict in Afghanistan. It was the 
one as defined under the AUMF.
    In other words, as long as we are fighting Al Qaeda and as 
long as we are fighting their associated forces, that is the 
armed conflict that you were talking about being over, not 
Afghanistan. I believe that is the point of the chairman's 
question.
    Mr. Preston. The point is we are currently in armed 
conflict with the Taliban and with Al Qaeda. At some point, the 
armed conflict with the Taliban ends. And, at that point, for 
those detainees that are being held as enemy belligerents 
against our enemy, the Taliban, unless there is an additional 
basis for holding them, then we would no longer have that 
international-law basis for holding them.
    Now, it has been suggested that Taliban may also be 
candidates to be held as associates of Al Qaeda as the conflict 
with Al Qaeda continues.
    The Chairman. 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?
    Mr. Preston. That is my understanding, as well, sir.
    The Chairman. I mean, we see--we thought the conflict was 
over in Iraq, and we see that it is not, that it continues to 
go on.
    Now, a second thing. I may have left the 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 
2011 and January of 2012 that there was real concerns of 
Members of Congress that those five would be released. In fact, 
there was real opposition to it.
    And that is why we are very concerned that we weren't told 
other than, if we reenter those negotiations, you would be 
told, and then we weren't. So those are things that we really 
need to have clarified and work through.
    Mr. Thornberry.
    Mr. Thornberry. Thank you, Mr. Chairman.
    Mr. Secretary, I would 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 a 
volatile, rapidly changing world and still give us the ability 
to exercise our duties under the Constitution.
    Now, the basis for all of those, in all three of those 
areas, is that we get timely, accurate information from the 
Department. And this failure, even if it was ordered by the 
White House, undermines the ability to have that sort of 
oversight structure.
    I have been a member of the Intelligence Committee for 10 
years. Our work depends on getting accurate, timely information 
from the intelligence community. If the President can violate 
the law and say, ``No, in this case, we are 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 is not just about this incident; 
it is 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 is important 
that the whole administration understands some of the 
ramifications of this.
    Let me ask a specific question. Press reports indicate that 
Sergeant Bergdahl was captured by a Haqqani Network commander 
and was held by the Haqqani Network. Is that true?
    Secretary Hagel. What I would prefer is, as I noted, in the 
classified session that we get into the specifics of that 15-6 
commander's evaluation report that was done on the 
circumstances at the time of Sergeant Bergdahl's capture. I 
believe that was done in August of 2009. That has been sent up 
here unredacted, was sent up here yesterday. And I would just 
as soon get into that in a classified briefing.
    Mr. Thornberry. Well, I am not----
    Secretary Hagel. But I would say this, though. I would say 
this. He was--in that report that the Army did, he was 
classified as missing-slash-captive. So----
    Mr. Thornberry. Yeah. I wasn't really----
    Secretary Hagel. And he was not charged with anything.
    Mr. Thornberry [continuing]. Focused on him. I am trying to 
just verify. As I understand it, administration people have 
said clearly it was the Haqqani Network that kept him.
    Secretary Hagel. Well, the Haqqani Network did have him 
through periods of time. This was another complication. Over a 
5-year period, he was moved around. We had difficulty finding 
him and knowing where he was. Different groups held him. So the 
complication of the Haqqanis being part of this, that is right.
    Mr. Thornberry. Okay. And it is also true the Haqqani 
Network is listed by the State Department as a foreign 
terrorist organization.
    Secretary Hagel. That is right.
    Mr. Thornberry. Okay.
    Secretary Hagel. That is right.
    Mr. Thornberry. Let me just turn----
    Secretary Hagel. But we didn't negotiate with Haqqani.
    Mr. Thornberry. Okay. I think that is a subject we will 
want to discuss more, if we must, in the classified session. 
But I think who----
    Secretary Hagel. Well, I want to make sure the record is 
clear on that. We engaged the Qataris, and they engaged the 
Taliban.
    Now, if the Haqqanis were subcontracting to the Taliban, or 
whatever that relationship is--you know there is the Pakistan 
Taliban and the Afghan Taliban. There is a difference there. So 
we get back into definitions of who has responsibility for 
whom.
    But I just want to make sure that that is clear on the 
record, and we can go into a lot more detail----
    Mr. Thornberry. Okay. Well, 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 Haqqanis 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 have not been implicated in any 
attacks on the United States.
    I have some unclassified summary of evidence before the 
combatant status review tribunals. For example, for Mr. Fazl, 
it says, ``The detainee engaged in hostilities against the 
United States or its coalition partners.'' Maybe there is a 
difference between us and our partners. For Mr. Wasiq, 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?
    Secretary Hagel. 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.
    Mr. Thornberry. 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----
    Secretary Hagel. That is right.
    Mr. Thornberry [continuing]. A better way do it?
    Secretary Hagel. That is right.
    Mr. Thornberry. Okay.
    Secretary Hagel. Now, as I said in my statement, 
Congressman, they were combatants. We were at war with the 
Taliban. I mean, there is no getting around that. And I had 
made that point, I thought, pretty clearly.
    Mr. Thornberry. Thank you.
    The Chairman. Just like bin Laden didn't pull a trigger but 
we went after him because he is the one that caused the 9/11.
    Ms. Davis.
    Mrs. 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 is 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?
    Secretary Hagel. 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 5 years. And we don't 
know the facts of all of that until he gets back and we are 
able to get the facts.
    The urgency of getting him, the fleeting opportunity that 
was made clear to us by the Qataris in our engagements and 
negotiations. Mr. Preston was there through those. All 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 had to get him back. There were too many things 
floating around that we didn't control, that we didn't know 
enough about. So we had to factor in all of those.
    Mrs. Davis. 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?
    Secretary Hagel. Well, Congresswoman, we were. As I said in 
my statement, since the time he went missing, we were looking 
at different ways to get him back. Our combatant commanders 
were always looking at plans, possibilities, options, rescue 
missions, and so on.
    But, as I said in my remarks, we had to factor in the risk 
to our other forces to go get him. And if he was in Pakistan--
we know he was moved in and out across the border--that would 
also affect some different dimensions.
    But, yes, we looked at all the options, had 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.
    And, as I gave you some dimension of the timeframe, we 
didn't even know where we were going to pick him up.
    Mrs. Davis. Yeah.
    Secretary Hagel. It was less than an hour. We knew the 
general area.
    Mrs. Davis. And the detainees, were there--was it always 
this five or were there others?
    Secretary Hagel. Well, it actually started with six, as 
some of you may recall.
    Mrs. Davis. Right. One of them----
    Secretary Hagel. One of them died. And there had been back-
and-forth. They wanted all the Taliban detainees at one point, 
and we said no.
    And so this was part of the whole engagement of what we 
need to do and where we draw a line saying, no, we are not 
going to do this. So, yes, there were different variations of 
that engagement over the years.
    Mrs. Davis. All right. Thank you. Thank you, Mr. Secretary.
    The Chairman. Mr. Jones.
    Mr. Jones. Mr. Chairman, thank you very much.
    Secretary Hagel, Mr. Preston, it is 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 the Afghan Government, with the United States, or 
any foreign presence as long as troops remain in Afghanistan 
and prisoners are detained 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 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?
    And maybe there is 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 were some signals 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?
    Secretary Hagel. Congressman Jones, thank you. And good to 
see you again.
    Mr. Jones. Thank you.
    Secretary Hagel. Thank you.
    First, as you know, the position of the United States 
Government regarding the Taliban has always been that we 
support a reconciliation between the Afghan Government and the 
Taliban. That has been a general position, as you know.
    As to the specific answer I gave on ``Meet the Press,'' it 
was to a specific question when we were talking about Sergeant 
Bergdahl's release. 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?'' And, as you quoted me, I said, 
well, I hope, or maybe, whatever. But, no, that wasn't any 
direct hint or wink or possibility that I know something that 
that is going to happen.
    But I would also remind us again, too, that, if you 
recall--some of you do, because you were in some of these 
meetings, briefings--in the 2011-2012 timeframe, I wasn't in 
this job at the time, but I have looked at the files on this, I 
have 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 the 
Taliban finding a reconciliation somehow, some way. But in no 
way did I--was I intending to imply in that answer that there 
is something else going on out here.
    Mr. Jones. Well, my interest was simply that the Taliban's 
history does not seem that they want to see a foreign presence 
that is going to influence the future of their country. And I 
was hopeful that maybe, in the negotiations for the sergeant, 
that maybe there had been some signal sent with the 
intermediary that maybe had been shared.
    And, again, if there has been, maybe you could, through 
your staff or maybe 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.
    So thank you, Mr. Chairman. I yield back.
    [The information referred to can be found in the Appendix 
on page 107.]
    Secretary Hagel. Thank you.
    The Chairman. Thank you.
    Secretary Hagel. And we will, Congressman Jones.
    The Chairman. Mr. Langevin.
    Mr. Langevin. Thank you, Mr. Chairman.
    Mr. Secretary and Mr. Preston, I want to thank you for 
being here today and for your testimony.
    As we were reminded just yesterday, with the loss of five 
American special operating forces, Afghanistan obviously 
remains a very dangerous battlefield for our voluntary 
military. And I join many of my colleagues, of course, in 
expressing gratitude for the return of the 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. And 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 very dangerous and disturbing 
incentives on the battlefields. 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?
    Secretary Hagel. Congressman, I would answer this way. 
First, I think everyone on this committee knows, some more than 
others, who served in war, that war is a dangerous business. 
And so a soldier is always--always at risk. That is number one.
    Two, you probably know that the Taliban has standing orders 
to capture American service members, and that has been a 
standing order for 12 years. So there is 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, if we have 
the opportunity, how can we get Bergdahl. Now that he is back, 
that frees up that obligation. I think that actually 
strengthens the point.
    And the last point I would 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 has got to be 
pretty significant. And I was told that by all of our 
commanders.
    Now, there can be issues on the specifics of Sergeant 
Bergdahl, but that is irrelevant, quite frankly. He was a 
member of our Armed Forces, and we went and we got him back 
after 5 years. I think that is pretty significant. And I think 
it also falls into the category of your question, answering 
that question.
    Thank you.
    Mr. Langevin. Mr. Secretary, thank you for that answer.
    As the chairman and the ranking member have mentioned in 
their opening statements, the 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 of regarding the number of the loss 
of soldiers who may have been involved in searches for Sergeant 
Bergdahl?
    Secretary Hagel. 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 have 
asked the question. We have all asked the question. I have seen 
no evidence, no facts presented to me when I asked that 
question.
    The Chairman. Mr. Secretary, you did say there is 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?
    Secretary Hagel. No. He was not a hostage. He was a 
prisoner of war. That is not new.
    The Chairman. Have we made other trades with the Taliban?
    Secretary Hagel. With the Taliban, I don't know. I don't 
think so. I don't think so.
    The Chairman. Thank you.
    Mr. Forbes.
    Mr. Forbes. Thank you, Mr. Chairman.
    Mr. Secretary, thank you for being here and for mentioning 
the need for transparency. And as you talked about our 
inability to prosecute the individuals that were released, this 
administration has not exactly had a stellar record on 
prosecution of people at GTMO. When you look at the fact that 
the lead prosecutor for the 9/11 terrorists had specifically 
said that he would have had a guilty plea out of all of them 
within 6 months, and this administration came in, shut down his 
prosecution, destroyed all of his pretrial work, and we have 
been 5 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 are trying to get across is that we are 
a nation of laws. You can't pick and choose, just because they 
are convenient or not convenient, which ones we are 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 some where we draw the 
line, and 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 
community-wide 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?
    Secretary Hagel. Well, Congressman, we have American lives 
at risk every day----
    Mr. Forbes. But not----
    Secretary Hagel [continuing]. In parts of the world----
    Mr. Forbes [continuing]. For individuals that we have 
released----
    Secretary Hagel [continuing]. That go after people who have 
tried to kill us.
    Mr. Forbes [continuing]. And put back out there. So my 
question is, would we put American lives at risk to go after 
them if they rejoined the fight?
    Secretary Hagel. 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. Forbes. Mr. Secretary, you have said in here that if 
they rejoin the fight, they do it at their own peril.
    Secretary Hagel. In Afghanistan.
    Mr. Forbes. My question is a pretty simple one. Would we 
put American lives at risk to go after them?
    Secretary Hagel. We have American----
    Mr. Forbes. Yes or no?
    Secretary Hagel. We have American lives put at risk every 
day to go after people trying to kill us.
    Mr. Forbes. I understand that, Mr. Secretary. My question 
is, will we put American lives at risk to go after these 
individuals if they rejoin the fight?
    Secretary Hagel. Well, yes, because----
    Mr. Forbes. Okay. If that is the case--let me ask you just 
two other questions.
    Secretary Hagel. You could use the same argument, 
Congressman, on Yemen or anywhere else.
    Mr. Forbes. 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?
    Secretary Hagel. Again, I saw no evidence, no facts--I 
asked the question about how these five found their way to 
Guantanamo. And I have in front of me the facts on the five. 
Two of them were detained by U.S. forces.
    Mr. Forbes. Mr. Secretary, I understand that.
    Secretary Hagel. And so, no.
    Mr. Forbes. And I understand--we are running out the clock. 
I only have 50-some seconds left.
    Secretary Hagel. The answer is ``no.''
    Mr. Forbes. So you didn't even make a calculus as to how 
many----
    Secretary Hagel. No, I said I did. And I said the answer 
is--you asked if there were lives lost in capturing these.
    Mr. Forbes. And you said ``no.''
    Secretary Hagel. I have no direct evidence that there 
were----
    Mr. Forbes. Did you make an assessment----
    Secretary Hagel [continuing]. Any American lives lost in 
capturing them.
    Mr. Forbes. Did you make an assessment of how many American 
lives may be put at risk if they have to be recaptured?
    Secretary Hagel. No.
    Mr. Forbes. Okay.
    Secretary Hagel. But there is risk that we have to our 
country, threats to our country every day, everywhere.
    And 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.
    Mr. Forbes. And that just flies in----
    Secretary Hagel. Partly the MOU, partly--and we were 
satisfied that we could make that determination.
    Mr. Forbes. It just flies in the face of all the other 
evidence we have.
    And, with that, Mr. Chairman, I yield back.
    The Chairman. Ms. Bordallo.
    Ms. Bordallo. 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 that 
you had in your statement, and I 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 
would 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 create a heightened security threat to our men and 
women in uniform?
    Secretary Hagel. Well, in a sense, Congresswoman, as I 
answered in a previous question about putting at risk American 
lives to capture him--I mean, 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 were at 
risk----
    Ms. Bordallo. Every day.
    Secretary Hagel [continuing]. 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 have seen very 
little recognition of that given to our forces by anybody. I 
mean, 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.
    Ms. Bordallo. I agree.
    My next question is for Mr. Preston.
    With the heightened media attention, how will you ensure 
Sergeant Bergdahl receives a fair investigation?
    Mr. Preston. 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.
    Ms. Bordallo. Thank you. 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?
    Secretary Hagel. Yes.
    Ms. Bordallo. Thank you.
    The Chairman. Thank you.
    Mr. Miller.
    Mr. Miller. Thank you, Mr. Chairman.
    Thank you, Mr. Secretary, for being here.
    I am 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-day 
timeframe, yes or no?
    Secretary Hagel. No.
    Mr. Miller. Okay.
    Secretary Hagel. What I----
    Mr. Miller. No, sir. Yes or no?
    Secretary Hagel. All right. No.
    Mr. Miller. Does the administration intend to violate the 
notice requirements of section 1035 of the NDAA and section 
8111 of the DOD Appropriations Act in future transfers?
    Secretary Hagel. Not unless there--not unless there is an 
extraordinary set of circumstances like this one would we be in 
a position to make a call like that.
    Mr. Miller. Will you assure this committee that the 
Department will not proceed with future detainee transfers 
without notifying Congress, consistent with the law?
    Secretary Hagel. We have, I believe, before my time in 
every circumstance except this one. And we intend to continue 
to do that.
    Mr. Miller. You were part of the legislative branch, as a 
Member of the United States Senate. We make the laws. You are 
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'?
    Secretary Hagel. The courts'.
    Mr. Miller. Then why did the President make the decision or 
you make the decision not to notify Congress?
    Secretary Hagel. We believed, and the Justice Department 
Office of Legal Counsel----
    Mr. Miller. Part of the executive branch.
    Secretary Hagel [continuing]. 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.
    Mr. Miller. 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 have to necessarily be on the battlefield in Afghanistan. 
Certainly we would pursue them wherever they are.
    Secretary Hagel. We would do everything we needed to do to, 
as we have said, to deal with that threat, as we are doing 
today.
    Mr. Miller. Your testimony is we are doing everything that 
we can----
    Secretary Hagel. To deal with the threats to the United 
States of America, whether they are in Afghanistan, whether 
they are in Yemen, whether they are in homeland defense. It 
isn't just limited to Afghanistan, the threats that face this 
country.
    Mr. Miller. 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?
    Secretary Hagel. 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----
    Mr. Miller. I tell you what, Mr. Secretary----
    Secretary Hagel [continuing]. The doctors--the doctors will 
make the decision.
    Mr. Miller. 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 stabilized. How long 
did Jessica Lynch wait before she was returned to the United 
States? You are trying to tell me that he is being held at 
Landstuhl, Germany, because of his medical condition?
    Secretary Hagel. Congressman, I hope you are not implying 
anything other than that. The fact is----
    Mr. Miller. I am just asking the question, Mr. Secretary.
    Secretary Hagel. I am going to give you an answer, too.
    Mr. Miller. Well, answer it.
    Secretary Hagel. And I don't like the implication of the 
question.
    Mr. Miller. Answer it. Answer it.
    Secretary Hagel. He is being held there because our medical 
professionals don't believe he is ready until they believe he 
is ready to take the next----
    Mr. Miller. Have you----
    Secretary Hagel [continuing]. Step, which is 
rehabilitation.
    Mr. Miller. 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.
    Secretary Hagel. This isn't just about a physical 
situation, Congressman. This guy was held for almost 5 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. These are----
    Mr. Miller. So you are telling me he cannot be questioned 
because of his condition.
    Secretary Hagel. I am 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 is what I am saying.
    Mr. Miller. Yeah.
    One other question. Why is the Army just now reviewing the 
circumstances of Sergeant Bergdahl's capture?
    Secretary Hagel. They are 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 
Scaparrotti, who now 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----
    Mr. Miller. Thank you, Mr. Secretary.
    Secretary Hagel [continuing]. And you are welcome to read 
it.
    Mr. Miller. Thank you.
    The Chairman. And that will be made available to all the 
Members in the proper setting to review.
    Mr. Courtney.
    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 have to weigh a lot of factors.
    And one of the factors which I just want to, kind of, maybe 
reemphasize is that, 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. I mean, 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?
    Secretary Hagel. That is exactly correct. There was no 
option.
    Mr. Courtney. Because there are Members who have been on 
some of the shows saying that, you know, well, we should have 
sent Special Forces in to get him. I mean, we actually were not 
totally clear about where he was even.
    Secretary Hagel. That is right.
    Mr. Courtney. And 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, is 
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 is not like we are totally without options 
to, you know, 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 
[congressional delegations] over to Afghanistan, most of us, 
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?
    Secretary Hagel. That is correct.
    Mr. Courtney. 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.
    Secretary Hagel. That is right.
    Mr. Courtney. Mr. Preston, you know, we have been sort of 
talking about the legal sort of consultation that was going on 
with your office and the Department of Justice [DOJ] during 
that 5- or 6-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?
    Mr. Preston. 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.
    Mr. Courtney. And was that in writing?
    Mr. Preston. It was not by means of a formal memorandum 
opinion but, rather, by email exchange principally.
    Mr. Courtney. Okay. And I know the chairman mentioned that 
he has, you know, got requests from the committee for 
documents, which it sounds like are going to be forthcoming. I 
mean, is that--I assume that is 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.
    Mr. Preston. We will certainly take that back. I am sure--
we appreciate that there is interest, and we certainly want to 
make sure that interested Members fully understand the legal 
basis on which the administration acted. As to the disposition 
of the document, we will take that back.
    Mr. Courtney. Thank you. Again, and I will follow up with 
the chairman, because I think it is important, that if the 
Department was claiming a constitutional authorities, 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 information referred to can be found in the Appendix 
on page 108.]
    The Chairman. The gentleman yields back.
    Mr. Preston, when did you consult the DOJ on the 30-day 
notification? On what date was that?
    Mr. Preston. Mr. Chairman, I don't remember the precise 
date, but it was in the timeframe 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 [NSC], 
who, in turn, engaged with the Department of Justice to ask 
them to consider the legal and constitutional implications in 
this setting.
    The Chairman. Do you recall last week, when you and 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?
    Mr. Preston. 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 
decisionmakers, 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.
    The Chairman. This is one of the things that has bothered 
me about reports we hear in the press and some of the briefings 
that we have had over a period of time, that we get different 
answers from one time to another. And we will 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--were 
you one of the briefers.
    Mr. Preston. I, frankly, don't know whether the question 
was directed to me or whether it was properly understood. I can 
tell you----
    The Chairman. 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----
    Mr. Preston. Well, 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 decisionmakers who 
addressed what the administration was going to do vis-a-vis 
congressional notification.
    The Chairman. 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.
    Mr. Preston. I can just speak for my part of it, which is, 
we foresaw the possibility that these issues would arise and 
wanted to have----
    The Chairman. 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 are 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.
    Mr. Preston. 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 in these extraordinary circumstances and----
    The Chairman. So if the circumstances are extraordinary, 
you don't have to follow the law.
    Mr. Preston. No. The way I would put it is that the 
Constitution vests in the President certain authorities and 
responsibilities, to include protecting----
    The Chairman. As it does to the Congress.
    Mr. Preston [continuing]. 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 secure the recovery of this service 
member, then, in the exercise of his constitutional authority, 
the statutory notice provision----
    The Chairman. 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.
    Mr. Preston. The courts certainly have a role, but the 
President has a responsibility to execute his----
    The Chairman. Thank you. Thank you very much.
    Mr. Preston [continuing]. Authority, and he seeks the 
counsel of the Department of Justice.
    The Chairman. Mr. Wilson.
    Mr. Wilson. Thank you, Mr. Chairman, for your strong 
efforts to uncover the truth of what is 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 the Al Qaeda to operate from 
safe havens in Afghanistan to attack the United States. And for 
the top leadership of this terrorist regime, for the President 
to release them is just incredible to the people I represent. 
Because they know that the terrorists have a goal in mind, and 
the goal is very clear: Death to America, death to Israel. And 
the thought that people like this would be released was just 
inconceivable to the people that I spoke with yesterday.
    Additionally, putting this in the context of this week, Al 
Qaeda or Taliban terrorists have attacked Karachi twice. Dozens 
of citizens have been murdered by the Taliban. It is 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 now possibly coming 
under Al Qaeda control, again 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 is 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 is growing, and it is 
growing exponentially.
    And, with that in mind, on June the 5th, Time magazine, of 
all people, reported an interview that they conducted with the 
Taliban commander in Afghanistan, where the reporter asked him 
if this deal had inspired he and others to attempt to capture 
other American military personnel. The Taliban commander 
replied, quote, ``Definitely. It is better to kidnap one person 
like Bergdahl than capturing or kidnapping hundreds of useless 
people,'' end of quote. And the quote continued, ``It has 
encouraged our people. Now everybody will work hard to capture 
such an important bird,'' end of quote.
    Can you now recognize that there is an increased risk to 
our service members because of this outrageous deal?
    Secretary Hagel. First, let me note again: Taliban policy 
for 12 years has been to do exactly what that Taliban 
representative told Time magazine, and that is to capture 
American service men. So that is not--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 believed, 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--a different world for us, as well.
    So I would give you those answers again. I know that you 
don't agree with them. But I would also remind all of us, there 
is risk to all of this. This is not a perfect situation. I know 
that; we all know that. And that is why we spent an awful lot 
of time----
    Mr. Wilson. But we really should look at what our enemies 
say.
    In the Augusta Chronicle, on Tuesday, June the 3rd, 
reported that one of the five, Mullah Mohammad Fazl, a leader 
infamous for his exceptional cruelty, according to Taliban 
commander Mullah Salim Khan, Fazl's return ``is like pouring 
10,000 Taliban fighters into the battle on the side of jihad,'' 
end of quote.
    Mr. Secretary, our country is at risk. You identified the 
homeland as if it was far away. It is not. The safe havens are 
being created to attack the American people here, and action 
should be taken. And that would not include releasing terrorist 
leaders.
    Thank you.
    Secretary Hagel. Congressman, I can assure you there is 
nobody more aware of that than this Secretary of Defense, and 
there is no one doing more to----
    Mr. Wilson. Well, please act that way, my goodness.
    Secretary Hagel. Thank you.
    The Chairman. Ms. Tsongas.
    Ms. Tsongas. 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.
    But I would like to begin by reiterating the point that we, 
as a Nation, have a solemn responsibility to bring home every 
service man 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 every one of us. It 
is the abiding promise we make, and it was the underlying 
motivator in the actions that our President has taken, with 
your guidance and advice and consent.
    I would just 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 that Member 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 has actually--
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 do think the exigent circumstances that 
you have described, the quick turn of events that necessitated 
quick action, made the 30 days' notice a tough one. But I do 
think a little heads-up, maybe a couple-hours call to the 
leaders of Congress might have served you all very well.
    And that being said, I would also note that what you have 
said, this was not a simple transfer but a military action, and 
conducted very well by our military, who was put in harm's way. 
And I commend those soldiers for pulling this off, as they did, 
without incident.
    But I would actually like to address another aspect of 
section 1035 of the NDAA, and that is the need 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, but I would like to 
hear as much as you can talk about in this context.
    Secretary Hagel. Congresswoman, 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 this 
closed session on the real most significant parts of that MOU 
assurance, which we all assessed, every agency in the 
government who signed off on this decision all agreed 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.
    Through that----
    Ms. Tsongas. The track record, though--the track record 
hasn't been great. So what do you have, you know, up your 
sleeve that you feel comfortable will allow you to carefully 
monitor the situation?
    Secretary Hagel. Well, recognizing what you just said, the 
dimensions now that we are looking at, too, 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 there. 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 that I don't want to address 
here in an open session.
    But 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 conclusion, as ultimately did the 
President, that it, in fact, was in the interest of our country 
and, in fact, did substantially mitigate the risk.
    Ms. Tsongas. Thank you. This is a legitimate and real 
concern of, I know, my constituents.
    Secretary Hagel. Well, it is a concern of ours.
    The Chairman. And the memo of understanding will be made 
available. Again, it got to us last evening. And that will be 
made available to all members of the committee in the proper 
setting.
    Mr. Turner.
    Mr. Turner. Thank you, Mr. Chairman.
    Mr. Secretary, we have had very important issues to discuss 
here: obviously, one, the issue of notice to Congress; two, the 
issue of judgment, was this a good idea; a third issue, the 
policy of whether or not this is a shift from our policy of not 
negotiating with terrorists.
    We had a briefing on Monday from Mr. Tony Blinken, Deputy 
National Security Advisor to the President; Ambassador Dobbins, 
Department of State; Mr. Work, Department of Defense; Admiral 
Winnefeld, Joint Chiefs Vice Chairman; and Robert Cardillo, 
Deputy Director for Intelligence, on Monday. I asked them this 
question: Can you cite any precedent for this nature of a swap, 
where we have swapped with a non-nation-state, in the last 40 
years?
    And, Mr. Preston, you were asked this same question by our 
ranking member, and you cited the exchange, the securing the 
release of helicopter pilot Michael Durant from warlord 
Mohammed Farah Aidid. You used the words, it was a--
functionally exchanged.
    Now, the five briefers, of course, said that they had--when 
I asked them that question, that there was no precedent, that 
we had not done any exchange with nonsovereign states within 
the last 40 years.
    Now, Mr. Preston, I want to point out to you that when 
helicopter pilot Michael Durant was released in Somalia, 
Mohammad Aidid said that he did so, he released Durant, as a 
result of a gesture of goodwill. And President Clinton 
immediately called a press conference. President Clinton stated 
that, ``I want to emphasize that we made no deals to secure the 
release of Chief Warrant Officer Durant,'' Clinton said at his 
press conference. ``We had strong resolve. We showed that we 
are willing to support the resumption of the peace process.'' 
And he goes on.
    And then he said, Clinton said, that it will be a U.N. 
decision whether to release the 32 Aidid aides captured by 
United Nations forces. Their release was demanded by Aidid, but 
Clinton says that there were absolutely no deals to secure his 
release.
    Now, you have said that Mr. Durant's release was a result 
of a functional exchange. And the five that we had, briefers, 
on Monday said there was no precedent of a nonsovereign state.
    Mr. Preston, was President Clinton lying at his press 
conference, or would you like to retract your testimony that 
Durant's release was secured as a result of an exchange by the 
United States Government of prisoners?
    Mr. Preston. Sir, I certainly wouldn't want to suggest that 
the former President lied, and I don't think I need to recant 
my statement. I was trying to be responsive.
    Mr. Turner. Okay, well, I only have 5 minutes, so, Mr. 
Preston, in your response then I would like you in writing to 
provide additional information as to the exchange that occurred 
to secure Mr. Durant, because there is no public evidence or 
discussion of anything of that nature. In fact, there are 
disclaimers, including by the President of the United States, 
Mr. Clinton. It doesn't appear that on the record, this would 
be precedent for this Taliban swap, and I would like you to 
explain that and that we can release it to the public so they 
can understand the true nature of Durant's release.
    Mr. Preston. It certainly wouldn't be on all fours, but it 
would be an example of----
    Mr. Turner. Mr. Preston, you cited that in this hearing. I 
would like the details of that exchange in writing provided to 
this committee.
    Mr. Preston. I understand.
    [The information referred to can be found in the Appendix 
on page 107.]
    Mr. Turner. Thank you, Mr. Preston.
    Now, Mr. Secretary, the confusion in this, is because of 
the issue of the policy of we don't negotiate with terrorists. 
Now, you said that you don't want to talk about who held Mr. 
Bergdahl, whether or not it was Haqqani. And unless we are in a 
classified session, which I can understand you--your preference 
to being that. However, the Haqqani Network say that they were 
the ones holding him. Time Magazine says they were the one 
holding him. The Washington Post says that they were the ones 
holding him. It is reported openly in the Washington Free 
Beacon, The Daily Beast, Newsmax, all say that it was Haqqani. 
Now, 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 a terrorist organization?
    Secretary Hagel. No, I acknowledged that earlier this 
morning.
    Mr. Turner. Excellent. Next question, Mr. Secretary, do you 
agree that it has been the standing policy of the United States 
that we do not negotiate with terrorists?
    Secretary Hagel. Yes, I agree.
    Mr. Turner. Mr. Secretary, would you please explain to me 
how then that we could have been in negotiations that included 
the Haqqani Network because they certainly were involved in the 
capture, holding, and release of Sergeant Bergdahl, how is it 
the United States could have been in negotiations with the 
Haqqani Network, a listed terrorist organization, and it not 
conflict with our policy that we do not negotiate with 
terrorists?
    Secretary Hagel. We dealt directly with the Government of 
Qatar.
    Mr. Turner. Oh, that is our footnote now. So now the new 
policy of this administration is, we don't negotiate with 
terrorists directly.
    Secretary Hagel. Well, Congressman, you didn't let me 
finish.
    Mr. Turner. Mr. Secretary, that is what you said.
    Secretary Hagel. I did say it, but you cut me off before I 
could say the other party that we were dealing with, the 
Taliban. Now, I actually--I actually dealt with this question 
earlier this morning about the Haqqani Network holding at 
different times.
    Mr. Turner. Actually, you deferred and said we would talk 
in classified session. But it is well-known, well-known----
    Secretary Hagel. But I also said that the Haqqani Network 
was holding him at different times. We don't know----
    Mr. Turner [continuing]. As long as it is not direct, that 
we will negotiate with terrorists.
    Secretary Hagel. We didn't negotiate with terrorists, 
Congressman.
    The Chairman. Mr. Cooper.
    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 think it is very important that this not become a 
political football. I don't know if my friend on the other side 
of the aisle is already running for majority leader or not, but 
it sounds like the tone here is way too political. I think, at 
least for the audience back home, people need to understand in 
case some people have forgotten 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 their patriotism.
    The chairman tried to narrow the scope of this hearing with 
his opening statement, and I think he essentially wanted to 
confine it to the 30-day notice requirement that this 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 not many members of the press have shown 
up, but many members of this committee would not have shown up.
    So let's try to de-escalate the tensions here. Let's try to 
focus on the substance. Let's try to be fair to each other, and 
hopefully bipartisan, because as the chairman correctly noted, 
this committee is noted for its bipartisanship and its 
fairness. It was a great triumph for the chairman and the Buck 
McKeon Defense Authorization Bill, for it to be passed out of 
this committee unanimously and overwhelmingly on the floor. 
That is 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, and no one wants 
to set a bad precedent for us, the greatest country in the 
history of the world, but I think that if there is any 
precedential effect of this decision, it is a vitally important 
principle that so many of our generals and admirals and others 
have reiterated, leave no man behind. That is the message of 
this possibly politically 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, once he has been presumed innocent, 
and the regular course of justice can take its place. But I am 
shocked, really, that this has become such a political 
football, and such unfairness, as the Secretary of Defense 
quite rightly pointed out, not only toward our men in uniform, 
but towards his family. You know, I don't know the particulars, 
but justice will take its course. That is the nature of this 
country. That is the nature of our constitutional guarantees, 
and as the Secretary of Defense also pointed out, not only is 
this person a U.S. citizen, he is a person who volunteered to 
wear the uniform. So 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 than some of the earlier questions, do you 
think that 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 either party, 
have the right to take action, you know, when time requires it, 
to protect the life of a service man, to perhaps circumvent 30-
day notice requirements to this body. And it was my impression 
also that the Senate Majority Leader, Mr. Reid, said that he 
had in fact been notified. I don't know the extent of 
notification.
    Mr. Preston. Thank you for the question. Sir, we believe 
the provision is constitutional. The question was the 
constitutional implications of its application in the 
particular circumstances here. And the administration 
determined that it was necessary to forego the full 30-day 
formal notice to the eight committees under the constellation 
of circumstances presented in this situation in which the 
President was seeking to free a service member in captivity and 
in peril. And the circumstance can be described in terms of the 
fragility of the negotiations and concerns about delay and 
leaks and the impact in premature ending of the negotiation, 
the circumstance of a fleeting opportunity to effectuate the 
exchange. The Secretary mentioned that from the time it was 
decided to do an exchange to the actual execution was something 
on the order of 96 hours. The potential harm to Sergeant 
Bergdahl if the deal became public, all of this in the context 
and backdrop of uncertainty as to his physical condition, and 
the realization that this might be our last best chance to get 
him. It was in that circumstance, Mr. Chairman, if I could just 
finish, it was in that circumstance, that with the deal coming 
together, and the prospect of having a decision to transfer, 
the concern was that delaying at that point for 30 days to 
effectuate notice of the transfer would scuttle the deal and 
could possibly further endanger Sergeant Bergdahl.
    Mr. Cooper. Thank you, Mr. Chairman. I see my time is 
expired.
    The Chairman. 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 2011. Neither of 
you were in your jobs then, so when I say you, I mean the 
Department, had talked to us in November of 2011. When those 
negotiations blew up in February of 2012, you came to us and 
said, if we start the 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 have got--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, but Congress was not informed. And I guess the 
reason I think they weren't informed is because when you 
originally brought it up back in November of 2011 and 
February--January and February of 2012 because you had real 
pushback from Congress. They didn't want those five guys 
released. And so then this time you just decided we will bypass 
Congress and deal with it after.
    Mr. Preston. Let me address that.
    The Chairman. That is the problem I have with all of this.
    Mr. Preston. If I could address that with reference to the 
30-day notice requirements, specifically. That is key to a 
transfer. And in this instance, there was no decision to 
transfer and could be no decision to transfer.
    The Chairman. There was, 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.
    Mr. Preston. 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 27th--excuse me, sir.
    The Chairman. Then why didn't you talk to us about it in 
November of 2011?
    Mr. Preston. I understand that there is a serious issue 
here, which the Secretary has addressed about the relationship 
and communication. What I am trying to focus on is what would 
trigger the statutory 30-day notice requirement. And that would 
be a transfer. We did not have a decision to transfer until--
until that last week.
    The Chairman. You don't need an exact date of transfer to 
begin the 30 days' notice.
    Mr. Preston. It is notice of the transfer. That means there 
has to have been a decision to transfer.
    The Chairman. Okay, we are probably not going to agree on 
this.
    Mr. Kline.
    Mr. Kline. Thank you, Mr. Chairman.
    Thank you, gentlemen, for being here.
    I was somewhat amused by the gentleman from Tennessee's 
admonition of my colleagues for taking a prosecutorial 
approach. I am amused because I remember very well a few years 
ago, when the gentleman would hold up a newspaper headline and 
address representatives of the Republican administration in 
what one could see as a prosecutorial manner.
    Nevertheless, Mr. Secretary, let me ask you a question that 
we have been around all morning. Who specifically selected the 
particular detainees that were transferred?
    Secretary Hagel. The five detainees that were transferred 
have been the subject of conversation, 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, as you note, in 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 have--I don't know all 
of the history to that, Congressman.
    Mr. Kline. Okay, I thank you for that, but let me--somebody 
made the decision that these five were going to be transferred 
at the end. Now, there could have been discussions for going on 
for months, but somebody made that decision. Who was it, in 
May?
    Secretary Hagel. The decision to transfer, if that is your 
question----
    Mr. Kline. To transfer specifically these five.
    Secretary Hagel. Well, those decisions were made ultimately 
by the President. But we all in the National Security Council 
agreed once we had all of the assurances in place, the things 
that Steve Preston has talked about, if that is your question.
    Mr. Kline. I guess we are going to talk past each other 
here, because at some point, somebody decided that it would be 
specifically these five, and I am just trying to figure out who 
that was.
    You said in response or in a conversation with Ms. Davis 
earlier, they wanted all of the Taliban detainees. Who is 
``they''?
    Secretary Hagel. The Taliban.
    Mr. Kline. The Taliban.
    Secretary Hagel. At one point in these discussions, this is 
before my time, by the way.
    Mr. Kline. Right, so you can see why there is--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 have even said you 
weren't negotiating with the Taliban because you were 
negotiating with the Emir of Qatar. And so we have had some 
pretty tortuous, I would say, tortuous legal responses to 
questions that we are trying to get at when we are just trying 
to find out the basics. And Mr. Preston, of course, he is a 
lawyer, but he has come back with--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 that was just right 
here, and therefore, the 30 days didn't start because we 
specifically hadn't made a decision.
    And Mr. Secretary, I am sorry, but these responses are 
very, very tortuous, as we are try to weave around here 
legalities. And I understand there a lot of lawyers and 
probably a lot of them here on the committee. But 
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?
    And so we are just walking around here. And 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 
well, I can't really say if it is Haqqani, who is a designated 
terrorist network, it was real Taliban, but we really weren't 
talking to Taliban either, because we were talking to Qatar, I 
am sorry, I think all of that just adds to the confusion and to 
the perception.
    I yield back, Mr. Chairman.
    Secretary Hagel. May I just quickly respond? I notice the 
Congressman has 20 seconds, just a general response.
    Mr. Kline. Sure.
    Secretary Hagel. I am taking care of your time for you.
    Mr. Kline. Seventeen seconds left.
    Secretary Hagel. Yes, there was confusion. I have said 
that. This was imperfect, imprecise. Just to go back to a 
timeline, we didn't even engage here in Qatar until April. Yes, 
just exactly what the general counsel has said, what I have 
said; sure there was confusion. There was imprecision. We 
didn't know from day to day what we had, what we didn't have. 
The questions over here about the Taliban not having a good 
track record on keeping their word. They are in; they are out. 
We had to have assurances, what Steve has talked about, what I 
have talked about, absolutely. Absolutely there was a lot of 
confusion. But through that, we had to stay focused on what the 
objective was. And that was getting an American POW back with 
the reassurances that we needed to be able to say it would 
substantially mitigate the risk and it was in the interest of 
our country. That was the objective, and that is what we tried 
to do. And I know there are differences. I know there are 
questions. I get it. But we did get him back. And we don't have 
any more POWs.
    The Chairman. Mr. Smith.
    Mr. Smith. Yeah, Mr. Chairman, if I could, just on the 
point of who we negotiated with. To clarify this, originally 
this was all worked through the Qataris, and they were talking 
with the Taliban. Originally, we had the connection. So there 
is no evidence whatsoever, that we, or even the Qataris for 
that matter, negotiated with the Haqqani Network. It was always 
the Taliban; the Taliban reaching out to Doha and then reaching 
out to us. So it is pretty straightforward that the people we 
were negotiating with were the Taliban. Who held him where, 
when, whatever, but the people we were talking about his 
release, the people who apparently controlled his release was 
the, you know, the former Taliban government, now the 
insurgents, is that not correct?
    Secretary Hagel. That is correct.
    Mr. Preston. Yeah, 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 the Taliban, and then it 
later became indirect with the Qataris. But there was never a 
point in time where, either directly or through the Qataris, we 
were negotiating with Haqqani. There were no demands made or 
concessions made by or to the Haqqanis as far as I am aware of, 
period.
    The Chairman. I was going to use an example earlier when--
but Mr. Runyan had to leave, a professional football player. He 
probably had an agent. The agent probably negotiated for him. 
The owner probably has somebody, a general manager or somebody 
negotiates for him. But at the end of the day, it is the 
football team negotiating with the player, even though the 
player and the football team aren't there; it is other people 
negotiating that. So is the Haqqani part of the Taliban? What 
is the relationship between the Haqqani and the Taliban?
    Mr. Preston. I, to tell you the truth, you are out of my 
area, and this is something the intelligence community folks 
could address better.
    The Chairman. Mine, too. And I am not an attorney, I am 
just asking the questions.
    Mr. Johnson.
    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 
way that--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 is 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, insofar 
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 GTMO 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?
    Mr. Preston. I would agree with that, sir.
    Mr. Johnson. 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?
    Mr. Preston. I understand that to be the general intent.
    Mr. Johnson. And 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 an unwarranted limitation, let me put it like 
that--not unnecessary, but he said unwarranted limitation and 
violates the constitutional power--constitutional separation of 
powers principle?
    Mr. Preston. Yes, sir. I understand that the signing 
statement, you know, served to--the President to make clear his 
view that these restrictions in application could impinge upon 
his constitutional authority.
    Mr. Johnson. Yes, and isn't it a fact also that section 
1035 of that 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?
    Mr. Preston. Not by its expressed terms. Yes, I agree.
    Mr. Johnson. 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 emerging--an emergent 
situation?
    Mr. Preston. Well, let me first point out that the 
Executive has consistently adhered to these provisions in all 
previous transfers. And 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 could imagine any number of emergent 
situations. This was driven by the particular collection of 
circumstances involved here in which the concern was that if, 
look, the--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.
    Mr. Johnson. Thank you, sir.
    I yield back.
    The Chairman. Just for the record, it probably doesn't 
matter whether we would agree that that is a restriction or an 
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, but until the Supreme Court acts 
and says it is not constitutional, it is, as Mr. Smith said 
earlier, the law.
    Mr. Franks.
    Mr. Franks. Well, 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 indeed owe it to each one of them to carry them 
from the battlefield and back to their home and families. And 
it is also my belief that these heroes, down to the last 
person, would reject gaining their release through an 
unprecedented negotiation with jihadist terrorists that would 
categorically break American law, that would return five high-
value terrorists, that would diminish the security of the 
United States, and that 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 every one 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 now telegraphed to terrorists the world 
over, that all they have to do is to kidnap or capture an 
American soldier or citizen and that the United States will 
capitulate and free some of their most dangerous terrorist 
leaders.
    Now, Mr. Secretary, I want to say this the right way, but 
for the last 5 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. And I believe the result is that somewhere in this 
world, this moment, that there are terrorists watching this 
hearing in complete jubilation. And 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 have 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?
    Secretary Hagel. Congressman, as I have said before, our 
military is always at risk, especially in war. Afghanistan is 
one such place, so those men and women are at risk and have 
been.
    Mr. Franks. But has this intensified the terrorists' 
efforts here and their policy? Has this been----
    Secretary Hagel. If I believed that that would have been 
the case, I would have never signed off on this. As I said 
earlier, the Taliban's position on trying to capture American 
service men and women have been very clear for 12 years.
    Mr. Franks. But certainly this deal has undergirded that 
policy. Certainly, this seems to be one of those things that 
would encourage them to focus on it more.
    Secretary Hagel. I don't know how that would be after, for 
12 years, it has been----
    Mr. Franks. Well, the fact that they have got the entire 
American people focused on this debate, that they brought us 
into this kind of chaos, that they have gained these gains, 
certainly, would tell me that they see that there is great 
value in doing that.
    Secretary Hagel. Well, you know, one issue that has not 
been mentioned here this morning is the tremendous progress the 
Afghan Government has made and particularly the military. And I 
think that is rather measurable. Looking at the elections, we 
have got another election, the final next week. They are doing 
all of the combat missions themselves. Yes, they have a ways to 
go. But the reason I mention that, Congressman, is because this 
is a different world than it was 5 years ago in Afghanistan or 
3 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 believed that it was going to increase the risk to 
our soldiers, I would have never ever signed off on it.
    Mr. Franks. Well, I don't doubt your sincerity in that 
regard, sir. I do profoundly, in all due respect, doubt your 
judgment on that front.
    Secretary Hagel. Well, that is fair.
    Mr. Franks. So let me finally ask you: Can you clarify for 
us, I didn't get it clear a moment ago, what is the connection 
or the relationship between the Haqqani Network and the 
Taliban?
    Secretary Hagel. I don't know exactly the relationship. And 
by the way, I said in my statement, the Haqqani Network was 
holding Bergdahl. We know that there is an affiliation. There 
is an association. We don't know if the Taliban had 
subcontracted to the Haqqanis to hold Bergdahl. We, again, can 
get down deeper in this in a classified hearing.
    Mr. Franks. Well, I think that would be important for the 
record at some point.
    Secretary Hagel. We don't know all of the pieces.
    Mr. Franks. Well, I am out of time, Mr. Secretary. Thank 
you for your answers.
    And Mr. Chairman, I do believe that this effort has 
ultimately weakened America's freedom in the world.
    The Chairman. Ms. Speier.
    Ms. Speier. Mr. Chairman, thank you.
    And thank you for the balanced way that you have handled 
this hearing. Let me just 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 
really fear for his return to this country with the kind of 
rhetoric that is being spewed in this very room.
    To you, 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 hindsight, which is 
always 20/20, do you think it would have been appropriate for 
you to have informed the leadership of both Houses?
    Secretary Hagel. Well, Congresswoman, in hindsight, I 
suppose any of us in our own lives in every decision we have 
ever made, can we do it better? I mentioned 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. We 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 6-month 
video. We did know that he had been transferred back and forth 
quite a bit. We were not sure where he was; 5 years in that 
captivity. And I don't think anybody on this committee would 
think that that was a walk in the park. And we will find out 
more and more about it. But 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? And 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 has taken on this issue, intentionally if there wasn't 
a good reason?
    Ms. Speier. All right, let's move on. Thank you.
    Secretary Hagel. I mean, 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 of 
operations. That is all.
    Ms. Speier. In open hearing, can you provide us with 
information about how these five detainees were held? Were they 
subject to waterboarding, torture or anything else when they 
were at GTMO?
    Secretary Hagel. Let me ask our counsel on this, because I 
am not aware of any kind of torture or--I don't know. I 
wasn't--I haven't been around for the 12 years they were down 
there. I am not aware of any situation that would have put them 
through any of that, but I don't know. I will ask the general 
counsel.
    Mr. Preston. I am not either, but I have not reviewed for 
that purpose.
    Ms. Speier. Would you do that for us and report back to us?
    Secretary Hagel. Yeah, we will.
    [The information referred to can be found in the Appendix 
on page 107.]
    Ms. Speier. In terms of their movement in Qatar, the first 
reports were that they were going to be housed in some secure 
location, and then word came out that, no, they were going to 
be able to freely move throughout Qatar. If in fact they are 
freely moving throughout Qatar, do we have ankle bracelets on 
them? How are we in a position to know precisely where they are 
at every moment?
    Secretary Hagel. Well, this is a--we will get into this, 
and I will answer your question, but this really needs to be in 
a classified setting. Short answer is, yes, we have the kind of 
assurances we think are meaningful and enforceable, and we 
believe the Qatar Government will enforce them. But we need to 
take this up in a classified hearing.
    Ms. Speier. All right, my time is expired.
    Thank you.
    The Chairman. Thank you. Mr. Conaway.
    Mr. Conaway. Thank you, Mr. Chairman.
    Secretary Hagel, trust is a fragile concept, and you said 
toward the end of your conversation that you broke trust with 
the committee and with Congress. And I would agree with that.
    Secretary Hagel. I didn't say I broke trust with them. I 
think I said something different.
    Mr. Conaway. Yeah, well, we can get the transcript out, and 
we will 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 is 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 self-laudatory comment that 
you would never sign anything that was not in the national 
interest of our country, et cetera, et cetera. I have to trust 
that based on your word. I now cannot do that. And so you put a 
rift in the entire system by choosing to not obey the spirit.
    Mr. Preston, it was very offensive that you tried to strain 
out a gnat on whenever that 30-day notification triggered, but, 
Mr. Hagel, under the NDAA, it is your responsibility to notify 
Congress. It is not the President's responsibility. You are to 
make that notification. Did you personally decide on your own 
to not do that?
    Secretary Hagel. I decided in consultation with the 
interagency. The President was aware of it.
    Mr. Conaway. So it was your call to not notify Congress. As 
a Senator, can you----
    Secretary Hagel. I notified Congress.
    Mr. Conaway. No, you didn't.
    Secretary Hagel [continuing]. But I notified Congress when 
we had Bergdahl.
    Mr. Conaway. That was not even within the spirit of the 30 
days. Even if you had done it on May 12, whenever the MOU was 
signed, you would not hear this pushback from us, but you did 
it.
    Secretary Hagel. Congressman, I explained why the 
notification was handled the way it was.
    Mr. Conaway. All right. Yeah, I know, and over, and over--
--
    Secretary Hagel. By the way, I never said that I don't 
trust Congress. That is your word.
    Mr. Conaway. Yes, you did. Yes you have, over and over.
    Secretary Hagel. I never said I don't trust Congress. You 
ought to check your transcript, Congressman.
    Mr. Conaway. Mr. Secretary, were any of the detainees aware 
of the negotiation for their release?
    Secretary Hagel. Let me ask the general counsel. I don't 
know.
    Mr. Preston. To the best of my knowledge, no.
    Mr. Conaway. So if we were to get the visitor logs and the 
flight manifests at GTMO, it would not show that these guys 
were conferred with as a part of this process? All right, I 
take that blank answer to----
    Secretary Hagel. I don't think so. But Congressman, I am 
sure with the investigation, we are going to turn over 
everything we have. So----
    Mr. Conaway. And we would need to be able to trust you.
    Secretary Hagel. I get that.
    Mr. Conaway. But we don't.
    Secretary Hagel. But I never said I don't trust the 
Congress. Those are your words.
    Mr. Conaway. Your actions--no, no, your actions said that.
    Secretary Hagel. No, I didn't say. You said I said it.
    Mr. Conaway. Your actions demonstrate, Mr. Secretary, that 
you do not trust Congress because you wouldn't tell the 
chairman 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?
    Secretary Hagel. Yes.
    Mr. Conaway. Would you agree that the return of these five 
individuals, once they serve their halfway house nonsense in 
Qatar and get back into Afghanistan will strengthen the Taliban 
and their efforts to do whatever it is they wanted to do in 
Afghanistan?
    Secretary Hagel. Maybe. Do you know that?
    Mr. Conaway. Maybe.
    Secretary Hagel. We don't know. We do know enough.
    Mr. Conaway. We have already had one of them say so in the 
open press that that is in fact what he will do.
    Secretary Hagel. Well, what is a fact? Somebody is 
projecting 12 months down the road and that is a fact?
    Mr. Conaway. So you think that 12 months in this halfway 
house is going to somehow cure them of their hatred of America, 
and their ability to want to not take back----
    Secretary Hagel. That is not what I said, and that is not 
what we meant. But to take it as fact when something that 
hasn't happened and won't happen for 12 months----
    Mr. Conaway. Mr. Secretary, the notification concept under 
the January of 2012 had some broad parameters that said, here 
is what we will do in the terms of negotiating with the 
Taliban--classified at this point, but there is a long list. 
The phrase we won't--nothing is agreed to until everything is 
agreed to. Somewhere between January 2012 and May 27 of 2014, 
that changed the deal that you notified Congress that you are 
trying to cling to that you are--that you in fact notified 
Congress that this was going on. When did that change occur, 
and 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 that were in those broad kind of conversations that 
you had with us, or the administration had with us in January 
of 2012. None of that appears to have been a part of this deal 
whatsoever. When did we abandon that criteria, and why weren't 
we notified that that change was made?
    Secretary Hagel. When did we abandon that criteria? What 
criteria?
    Mr. Conaway. The criteria from January of 2012.
    Secretary Hagel. But what criteria are you talking about?
    Mr. Conaway. I can't tell you that. It is open session.
    Secretary Hagel. Well, we will take it up in closed session 
then. I don't know--I can't answer a question that you can't 
give me the question to.
    Mr. Conaway. I will remember the next time we try--never 
mind, Mr. Secretary, I yield back.
    The Chairman. Mr. Barber.
    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 in district like 
I think all of us were, and I met with many veterans. I was in 
Sierra Vista, which is home to Fort Huachuca, and I had about 
70 people come to my ``Congress on Your Corner'' event that 
weekend, and over and over again--virtually every one of them 
was a veteran--they said to me, What is going on? We agree that 
we should never leave one of our Armed Forces behind. And I 
agree with that, too. But 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?''
    And in your statement, Mr. Secretary, you say that this 
transfer was a tough call--and I am sure it was--and that these 
detainees were enemy belligerents. One of the five detainees 
was the deputy minister of intelligence, and another was the 
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 the 
United States and that you have no basis, we have no basis to 
prosecute them in Federal Court. I actually 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 to 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 that it does not pose a threat to our national 
security?
    Secretary Hagel. Congressman, I mean, I think I have 
answered the question, and I think I address what you quoted 
from my testimony, but 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 the 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, our number one and our 
number two uniformed military, General Dempsey, Admiral 
Winnefeld, that in fact, we had substantially mitigated the 
risk to this country.
    And I believe that. I would not have signed it. The 
President wouldn't have signed it.
    Mr. Barber. Well, thank you, Mr. Secretary.
    Let me move to a second aspect of this issue, and I 
understand that this is hard to predict, but we, as you know, 
of course, have not been able to secure a bilateral security 
agreement with the Afghan Government. President Karzai is on 
again, off again. He has been off signing that agreement for 
some time. I was in Afghanistan a couple of months ago, and 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. Of 
course, 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, because clearly, we have seen a lot of 
anger in Afghanistan over the release, and we wonder, 
obviously, how that might affect future agreements with the new 
Afghan president?
    Secretary Hagel. Congressman, as you know, the two 
finalists, one will be presumably the next president of 
Afghanistan, either Abdullah Abdullah, or Ghani, have both said 
and both reaffirmed that, if elected president, one of the 
first things they would do is sign that 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.
    Mr. Barber. Thank you, Mr. Secretary.
    Mr. Chairman, I yield back.
    The Chairman. Mr. Lamborn.
    Mr. Lamborn. Thank you, Mr. Chairman.
    Mr. Hagel, prisoner exchanges in the past, for instance, 
after the Korean War and the 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,'' quote-unquote. How is what is happening in Afghanistan 
the end of a war 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?
    Secretary Hagel. Well, the 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.
    Mr. Lamborn. So the President was wrong when he said ``This 
is what happens at the end of wars''?
    Secretary Hagel. No, 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 [North Atlantic 
Treaty Organization] conference of 2010, it was established by 
the ISAF [International Security Assistance Force] partners in 
NATO in 2010 that combat missions would come to an end at the 
end of 2014 for the United States and our ISAF partners. The 
only questions that remained up until about a month ago, is how 
many forces would the President decide to leave behind in their 
missions to train, assist, advise if there was any terrorism. 
So that is not new. It wasn't any arbitrary----
    Mr. Lamborn. Okay, 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.
    Secretary Hagel. Well, I am not sure he said that. What you 
just said, I am not sure what you mean.
    Mr. Lamborn. After Vietnam, after the Korean War, the 
Korean War, prisoner exchanges were done when a peace agreement 
was signed. This is unprecedented to have a release like this 
before there is even a peace agreement. All that has happened 
is the President said we are withdrawing forces and the Taliban 
are not a party to the negotiation--the Afghan Government was 
not brought in on this, were they?
    Secretary Hagel. 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 POW----
    Mr. Lamborn. But you keep saying that this is a prisoner 
release. It is 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----
    Secretary Hagel. Well, I am not sure I get your point 
though, Congressman.
    Mr. Lamborn. You are saying this was not a deal with 
terrorists, is that correct?
    Secretary Hagel. That is right.
    Mr. Lamborn. You said that this--the alternative is that 
this is a deal with a legitimate government of some kind, with 
a legitimate military that we are in the process of hammering 
out a peace agreement. None of those things are happening.
    Secretary Hagel. The President didn't say we are in the 
process of hammering out a peace agreement. This was a prisoner 
exchange. I mentioned this morning in one of the--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 is what we were talking about in 2011, 2012. 
Taliban shut all of that off, so this was a straight, let's-
get-our-prisoners, prisoner exchange.
    Mr. Lamborn. Was the Afghan Government brought into the 
loop on this decision during the negotiation?
    Secretary Hagel. No.
    Mr. Lamborn. But you said earlier that this was an attempt 
to, among other things, reconcile the Afghan Government and the 
Taliban.
    Secretary Hagel. No, I didn't say that.
    Mr. Lamborn. You didn't say that?
    Secretary Hagel. I just said the opposite. I said this was 
not. I said, in 2011 and 2012, there was a broad framework of 
reconciliation. That was 2011, 2012. That has changed.
    Mr. Lamborn. I am 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 are not.
    Secretary Hagel. The Taliban have never been designated by 
us as a terrorist organization.
    Mr. Lamborn. The Treasury Department says the Pakistan 
Taliban is a terrorist organization.
    Secretary Hagel. The Pakistan Taliban.
    Mr. Lamborn. And the State Department says the Haqqani 
Network is a terrorist organization.
    Secretary Hagel. Yeah, we are talking about the Afghani 
Taliban. These are bad guys. I mean, there is no question that 
they are bad guys. Of course, they are. And I have laid that 
out, and I have said that today. But again, I go back to all of 
the considerations that we put into play to substantially 
mitigate the risk to this country to get our POW back.
    Mr. Lamborn. Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Ms. Shea-Porter.
    Ms. Shea-Porter. Thank you, and Secretary Hagel, thank you 
very much for being here under obviously challenging 
circumstances. And I want to thank you for your service and say 
that you probably more than most people in this room know what 
it is 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, you know, the 
trade. And I am particularly concerned about why five? Is that 
the minimum number that they would accept because, you know, 
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. And then I am also--would like 
to comment, and I will let you wrap up with this, but I would 
like you 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 POWs 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 is a reintegration process, and there is three stages 
and that 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 I would 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 in that 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 would like to add to that I still have 3 minutes, and 
please tell me why there is five, and a little bit about the 
reintegration process, and any other comments you would like to 
add. Thank you.
    Secretary Hagel. 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 is the point of a 
reintegration process. You know your point about what we have 
learned since POWs came back from Vietnam, is an important 
point. We have 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 is the focus. 
Let's get him healthy, mind, body, spirit, and then we will 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.
    Ms. Shea-Porter. And let me add, this doesn't mean that he 
won't have to answer questions. They are important questions 
that need to be answered. We are just waiting for him to be 
well enough.
    Secretary Hagel. That is 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----
    Ms. Shea-Porter. Right, and there should be.
    Secretary Hagel [continuing]. Of all of the circumstances 
surrounding his disappearance, every element.
    Ms. Shea-Porter. And I thank you for that. Now why five?
    Secretary Hagel. There is just one other--and I will get to 
that. One other point on that, I remind you, again, you will 
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 is up here at 
the committee.
    Now, the five. Okay. General counsel has asked----
    Mr. Preston. I just, before the Secretary addresses----
    Ms. Shea-Porter. Well, I am sorry, we won't be able to, 
because my time is running out. I really would like the answer 
from the Secretary.
    Mr. Preston. Okay, very well.
    Ms. Shea-Porter. We can talk about that in closed meeting.
    Secretary Hagel. I give shorter answers. Why five? Well, 
first, I have addressed this in other questions about how did 
that all come about. It was originally six, and then we went 
back and forth over the years. They wanted all the Taliban 
prisoners, the Taliban did, wanted all in Guantanamo.
    Ms. Shea-Porter. Right.
    Secretary Hagel. And it settled at around five. The sixth 
detainee died. So that is part. But I think there is a bigger 
issue here, too. The American people, the American society, our 
Armed Forces, has 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 
three? The five started to be what the Taliban insisted on. 
They wanted more. It had been six. Then they wanted everything. 
So I don't think there is any magic to it. It just--that is the 
way it developed. But again, we don't--we don't put a one-for-
one deal on our----
    Ms. Shea-Porter. Well, thank you. And I just want to 
reiterate that you can trust Congress to handle this.
    The Chairman. Time has expired.
    Ms. Shea-Porter. Thank you. I yield back.
    The Chairman. Mr. Wittman.
    Mr. Wittman. Thank you, Mr. Chairman.
    Secretary Hagel, Mr. Preston, 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?
    Secretary Hagel. Well, again, that is the essence of much 
of our mitigating dimension that--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 will 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.
    Mr. Wittman. Yes.
    Secretary Hagel. And we will be glad to take you down into 
the subparagraph 6 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 is okay, we will wait until----
    Mr. Wittman. Let me go back historically, then, and look at 
the history of Qatar and what they have done in receiving 
detainees. As you know, the first transfer to Qatar was in 
2008. And was that one considered a successful test case?
    Secretary Hagel. I believe--and I just asked our general 
counsel if we just had one transfer.
    Is that right? To Qatar?
    Mr. Preston. To my knowledge.
    Secretary Hagel. So we have had one.
    Mr. Wittman. Okay.
    Secretary Hagel. I don't know all the history of that 
transfer, although my understanding is it wasn't particularly 
good.
    Mr. Wittman. Uh-huh.
    Secretary Hagel. And generally--so what has changed? I, 
again, addressed this here this morning, but, first of all, you 
have a new Emir. We have 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 
the those MOU requirements--and then we will get into the 
details--we felt confident that that MOU covered enough that 
the enforcement was good enough.
    Mr. Wittman. You did acknowledge, though, that 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?
    Secretary Hagel. Well, you said the right word, ``risk,'' 
and that is the essence of what we are always dealing with 
here. And the analysis that we made, the decision I made, as 
well as the National Security Council and ultimately the 
President, again, I say, we believe that all of this together 
could substantially mitigate the risk.
    Mr. Wittman. Uh-huh.
    Let me ask this. There is some concern, too, that of those 
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 restrictions lifted so that under 
legal means they could actually have free rein to travel 
throughout Qatar or elsewhere?
    Secretary Hagel. Well, I will ask the general counsel. He 
signed the MOU. And I am going to ask him to handle that in 
particular, that question, because he negotiated and signed it. 
Thank you.
    Mr. Preston. I think the question is best answered in the 
closed session----
    Mr. Wittman. Okay.
    Mr. Preston [continuing]. If you would indulge us in that 
respect.
    Mr. Wittman. Let me close by asking this, then. What 
happens to these detainees after a year?
    Mr. Preston. As has been said, the restrictions of the MOU 
are for a 1-year period. That includes the restriction on their 
travel outside of Qatar. So, after 1 year----
    Mr. Wittman. So, after 1 year, no restrictions?
    Mr. Preston. Except under circumstances that we would 
discuss in the closed session.
    The Chairman. The gentleman's time has expired.
    Mr. Wittman. Thank you, Mr. Chairman.
    The Chairman. Mr. Maffei.
    Mr. Maffei. 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, you know, emotional reactions to this and 
what they have seen about this with incomplete information. And 
I certainly think that is 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 am 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 circumstances.'' I 
am a little concerned that this isn't unique. It might be rare 
but not all that unique.
    And do you believe that Congress hadn't thought this was 
the 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 if Mr. Preston--or either one 
of you.
    Secretary Hagel. 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, the National Security Council leaders 
believed it, for the reasons we have discussed here the last 3 
hours and actually more. So I think we are 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 II of the Constitution. 
What are his authorities under that article? That doesn't 
discount what the Congress passes as laws.
    And, 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 
since probably the beginning of the Republic.
    So I answer your question that way, too. And then if you 
want to hear from the general counsel----
    Mr. Maffei. Well, actually, let me just stick with--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?
    Secretary Hagel. 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 part of it because 
they were 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. And, again, Preston was there.
    So I don't think it is a matter of we trust the Qataris but 
we don't trust our own Congress. I have already addressed this, 
too, as you know, Congressman, in my opening statement. Could 
we have done it better, smarter? Yes.
    Mr. Maffei. Yeah. I mean, I think my concern--and I am 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, a rank-and-file Member, 
but at least the leadership of the relevant committees that 
this was happening.
    Secretary Hagel. Well, again, I will 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 will 
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, well, why do you trust some in the White House and 
not here? I get all that.
    But your 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 at DOD, very, very few people knew about this at 
DOD.
    The Chairman. The gentleman's time has expired.
    Mr. Hunter.
    Mr. Hunter. Thank you, Mr. Chairman.
    Mr. Secretary, good to see you.
    I guess you have said that 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 DOD was not in charge of 
this the entire time?
    Secretary Hagel. Congressman Hunter, I am sorry. I just 
read a note. I apologize. If you----
    Mr. Hunter. Okay. If you could add 20 seconds back on.
    Secretary Hagel. Take it out of my time.
    Would you repeat the question? I am sorry.
    Mr. Hunter. Was DOD in on this the whole time?
    You have said before that this could have been done better, 
and I am guessing that means that if you were doing this from 
the beginning, this prisoner exchange, it would have been done 
better.
    Secretary Hagel. Well, I appreciate the comment. But, yes, 
was DOD involved in this right from the beginning, yes, we 
were.
    Mr. Hunter. 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. Lumpkin as the OSD [Office of the Secretary 
of Defense] representative--this was just a few months ago--to 
the Bergdahl case.
    Secretary Hagel. Yes.
    Mr. Hunter. Which makes me think that you weren't heavily 
vested in this from the very beginning but that you did get 
vested in it a few months ago.
    Secretary Hagel. No, that is--that is not true. You are 
right, let's pick up February. And you are right, we had the 
conversation. You know; you had written me about this. I did 
appoint Lumpkin, who actually was the guy who oversaw the whole 
operation, as you know, from DOD, Mike Lumpkin.
    Congressman, this was so fast-moving. Everything you said 
here is right. There was a break, and I have the chronology 
right here----
    Mr. Hunter. Well, I don't need that from you. What I am 
asking was--okay, let me put it this way. Did you have other 
options that you looked at for approval or at least 
consideration, nonkinetic options--nonkinetic options that you 
looked at for at least consideration?
    Secretary Hagel. You mean DOD?
    Mr. Hunter. You. Yes, sir.
    Secretary Hagel. Yes. No, actually. This was the one option 
that we had.
    Mr. Hunter. This was the only option that you considered, 
the only nonkinetic option you considered?
    Secretary Hagel. We consider everything, and we are. But 
where we were in the timeframe you are 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 is what 
Lumpkin did when I--that is why I appointed him to get into it. 
You are exactly right in your----
    Mr. Hunter. Let me ask again, did you have other nonkinetic 
options that you have looked at for approval or at least 
consideration?
    Secretary Hagel. Not anything that was serious. I mean, we 
look at all kinds of things all the time----
    Mr. Hunter. Well, let me ask you, then, so you didn't pass 
any other courses of action besides this one for the 
President's consideration from the Department of Defense?
    Secretary Hagel. If you are talking about this specific 
deal with Qatar and the----
    Mr. Hunter. I am talking about getting Bergdahl back. Just 
getting Bergdahl back.
    Secretary Hagel. No. This was the one that was on the table 
that was the most realistic, viable. And, no, we didn't 
present, that I am aware of, anybody in DOD, present any 
other----
    Mr. Hunter. Okay. Well, let me ask this, then. 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 have chosen to do, and we are 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, nonkinetic options, from the Department of Defense 
that you recommended to him. Because you just said that you 
recommended no other options but this one.
    Secretary Hagel. Well, Congressman, we weren't holding all 
the cards here, as you know. If the Taliban wasn't ready to 
engage----
    Mr. Hunter. No, I--forget about the Taliban. I am not 
asking that. What I am asking is----
    Secretary Hagel. But they----
    Mr. Hunter [continuing]. 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 are 
saying is you didn't look at any other doors except 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.
    Secretary Hagel. Congressman, this was the only pathway 
that was emerging that was available. There was no other 
pathway, unless you are aware----
    Mr. Hunter. Well, here is what I----
    Secretary Hagel [continuing]. Of something.
    Mr. Hunter. I am aware, actually.
    Secretary Hagel. Okay.
    Mr. Hunter. And these are not from special briefings, so I 
can probably mention a few of them.
    Secretary Hagel. Yeah.
    Mr. Hunter. But you had 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.
    Secretary Hagel. Well----
    Mr. Hunter. And we won't go into those nonkinetic options. 
But it just astounds me that for something this large that 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.
    Secretary Hagel. Well, two issues here.
    One is, do we always look at other courses of actions? 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.
    Mr. Hunter. Well, here is--in closing, I would think that 
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 take a stronger role in trying to get the rest of 
the Americans back that were forgotten via this exchange in 
Afghanistan.
    I yield back.
    The Chairman. Ms. Duckworth.
    Ms. Duckworth. Thank you, Mr. Chairman.
    Mr. Secretary, it is good to see you again. And I just want 
to say how great it is to see a member of the NCO 
[noncommissioned officer] 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.
    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 has 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 is not who we are as a country, 
and it is 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, he did desert, that there will be an investigation and 
perhaps prosecution?
    Secretary Hagel. 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 have given this morning, the Secretary of the Army and the 
Chief of Staff of the Army have 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 am not going to get 
involved in trying to influence that. That is a United States 
Army decision, as you know how this works.
    Ms. Duckworth. Uh-huh.
    Secretary Hagel. They are open to get the facts. And 
wherever the facts lead them, they will get them and they will 
respond appropriately.
    Ms. Duckworth. Thank you.
    Secretary Hagel. Thank you.
    Mr. Enyart. Would the gentlelady yield, please?
    Ms. Duckworth. Yes.
    I would like to yield the balance of my time to the 
gentleman from Illinois, Mr. Enyart.
    Mr. Enyart. Thank you.
    Mr. Secretary, you have a tremendous perspective, as Ms. 
Duckworth has alluded to, with your background as a combat 
infantryman. Now, I am sure that you weighed every pro and con 
in this decisionmaking process and your decision was made in 
the best interests of this Nation based on the facts you had as 
a whole, I am sure. And it is 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 reelection.
    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?
    Secretary Hagel. The cupboard 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 am well aware 
of it.
    In this town, it is pretty easy, or anywhere else, to give 
analysis, usually uninformed, and criticize every decision. 
That is okay. That is 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 is 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.
    Mr. Enyart. Thank you, Mr. Secretary.
    I yield back.
    The Chairman. The gentlelady's time has expired.
    They have called the votes. About 6 minutes left, but about 
394 haven't voted yet. So I want to thank the Secretary. We 
have gone over what we thought we would--it would take, but it 
is 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 questions that want to return; 
the Secretary said he will stay for that. And then we will 
reschedule at a later time the closed-session part.
    Dr. Fleming.
    Dr. Fleming. Thank you, Mr. Chairman.
    Secretary Hagel, we have talked about this 30-day notice. 
Yesterday, the chairman told us that he received notification 
after Sergeant Bergdahl had actually been transferred. I am 
sure his Senate counterpart received that notice at the same 
time. It was really a notice after the fact.
    And I listened carefully through all the questions, all the 
legalese, the technical, the spin, everything. It is clear to 
me that really what happened here--and this goes back to the 
question from the previous gentleman as to what else could have 
been done, has there been any other offers. My understanding is 
that, back in 2011 and in 2012, when this issue was first 
brought forward, that Secretary Clinton opposed it without 
additional measures and protections, and I believe also Mr. 
Clapper and others as well. Congress, on a bipartisan basis, 
pushed back on this.
    And so it really suggests to me that when this erupted 
again this past January that the President decided he didn't 
want to hear ``no.'' All he wanted to do was to move forward, 
get it done, and whatever thing he could do here in terms of 
lawyering or end-runs around Congress or whatever. I mean, it 
has been reported by many different agencies that at least 90 
people in the executive branch knew about this, but yet the 
chairman of House Armed Services did not know about it.
    So, I mean, isn't this really just an attempt by the 
President to do an end-run around Congress, to not take ``no'' 
for an answer, or not get some pushback and maybe a little bit 
of wisdom from people who have been around here a long time and 
have been elected?
    Secretary Hagel. Congressman, the President of the United 
States, like every President of the United States, as you know, 
has not just constitutional responsibilities but moral 
responsibilities on behalf of every American. And his first 
responsibility is the security of this country. And I have 
never seen, in the time I have known him--and I have known him 
since he has been in the Senate, and I have been in this job 
about 15 months--ever a time he flinched on that. Now, you may 
disagree with decisions he has made, but----
    Dr. Fleming. Well, I appreciate that.
    Secretary Hagel [continuing]. There was no political 
decision here.
    Now, on Clinton and Clapper. The Director of National 
Intelligence [DNI] has already made a statement on his 
agreement with this----
    Dr. Fleming. Right, but he had first opposed it, is my 
understanding.
    Secretary Hagel. He did, but he explained why he has 
changed his position----
    Dr. Fleming. All right. Let me move on.
    Secretary Hagel [continuing]. As did, by the way--Secretary 
Clinton's situation was the same. It was a different world in 
2011-2012 for all----
    Dr. Fleming. Right.
    Secretary Hagel [continuing]. The reasons we have talked 
about.
    Dr. Fleming. All I am saying is there is a benefit to more 
heads, more wisdom in this. And I think the President really 
didn't want to hear ``no.'' He wanted to do this no matter 
what.
    Let's go to number two here. The other----
    Secretary Hagel. He wanted to make sure we could get our 
POW back, but not no matter what.
    Dr. Fleming. I understand.
    Secretary Hagel. I mean, you all were driving this, as the 
American people----
    Dr. Fleming. Well, I didn't say ``no matter what.'' That 
wasn't my statement.
    Now, as far as who had control of Sergeant Bergdahl, we 
keep hearing about the Taliban, but the reports have all been 
it was the Haqqani Network. You yourself, I think, suggested 
that.
    Secretary Hagel. Uh-huh.
    Dr. Fleming. We know the Haqqani Network is a terrorist--an 
international terrorist organization. We all agree with that. 
And so, ultimately, just because we have a surrogate, in this 
case Qatar, who is going between, who is acting as an agent, 
how is that not negotiating with terrorists?
    Secretary Hagel. Well, first, let's look at the objective 
here. It is to get our prisoner of war back, who is a prisoner 
of war. It was a prisoner exchange----
    Dr. Fleming. I get that. But, I mean--but, again----
    Secretary Hagel [continuing]. Between the Taliban----
    Dr. Fleming [continuing]. Aren't we violating a commitment, 
a doctrine that we have had for decades by doing that?
    Secretary Hagel. No. No.
    Dr. Fleming. How is that not negotiating with terrorists? 
Simply because we put someone in between, how is that any 
better than direct negotiations?
    Secretary Hagel. We engaged with the Government of Qatar. 
At the----
    Dr. Fleming. But wouldn't the outcome be the same?
    Secretary Hagel [continuing]. Other end of it was the 
Taliban, a combatant against us in war and----
    Dr. Fleming. But still surrogates----
    Secretary Hagel [continuing]. Was, in fact, the de facto 
government of----
    Dr. Fleming. So would the outcome have been any differently 
if we talked directly with the Haqqani----
    Secretary Hagel. Well, I mean, you and I disagree on that, 
and----
    Dr. Fleming. I don't think it would, and I don't hear you 
saying it would be any different. But anyway----
    Secretary Hagel. You didn't hear me say what?
    Dr. Fleming. I didn't hear you say that it would be any 
different. You are saying you didn't know. And I think it would 
be.
    Secretary Hagel. I am saying I didn't know what? What are 
you saying?
    Dr. Fleming. That the outcome would be any different 
whether we talked with----
    Secretary Hagel. I didn't say that.
    Dr. Fleming [continuing]. Haqqani Network directly.
    Secretary Hagel. I didn't say that. Not at all. We were 
very clear who we were talking to and why and following the 
law. That is what I said in my testimony, and I have said it 
all morning.
    Dr. Fleming. Okay. I yield back. Thank you.
    The Chairman. The gentleman's time has expired.
    Okay. We will recess for the two votes. I would encourage 
that Members return as soon as possible so we can finish up the 
questioning.
    The committee is in recess.
    [Recess.]
    The Chairman. The committee will come to order. We will 
reconvene. Thank you for your patience.
    Mr. Rigell.
    Mr. Rigell. Thank you, Mr. Chairman.
    And, Mr. Secretary, I thank you so much for being here 
today. Your patience in this entire process, I respect that.
    I want you to know that I hold you in high regard. My 
limited military service, I was never activated out of the 
Reserves, never shot at. And so I thank you for your service to 
our country, both in uniform, in public office, and as 
Secretary of Defense.
    And my respect for you will be undiminished, though we are 
going to work through a couple of tough topics here in the few 
minutes that I have with you.
    It would be helpful to me if you would review, as concisely 
as you could, the number of people who, at least within the 
Department of Defense, were aware of the impending release, up 
to and until the moment that Sergeant Bergdahl, in fact, was 
released, and then--or transferred rather, and that the five 
detainees were then given over to the representatives from 
Qatar.
    Secretary Hagel. Congressman, thank you. I appreciate your 
comments, and thank you for your service.
    First, I don't have the exact number of individuals within 
DOD who knew about the operation, but here is what I would say. 
As I have said here this morning, and I mentioned specifically 
DOD, this was ongoing as the days--as you know the timelines 
here. You start with--essentially, I start with about the 21st 
and then go down, then 27th and so on. Each day, there had to 
be some more people brought in for----
    Mr. Rigell. If you could, just out of--my time is so 
limited. If you had to just estimate that amount, how many, 
approximately?
    Secretary Hagel. I just don't know, and----
    Mr. Rigell. That is okay.
    Secretary Hagel [continuing]. It would be wrong. But----
    Mr. Rigell. The numbers that I have seen----
    Secretary Hagel. We will get it, but----
    Mr. Rigell. Okay. I appreciate that.
    Secretary Hagel [continuing]. I just don't know. But, 
again, just suffice it to say, we kept it a very, very small 
number.
    Mr. Rigell. I appreciate that.
    What is largely in the public domain has made it clear to 
me that a number of people, certainly more than 25 or 30, I am 
very safe with that, certainly on the DOD side. Perhaps if you 
are--when you come back and tell us in a definitive way how 
many.
    But the point of it is this: is that if we look at the 30-
day requirement, which is the law of the land, even if one sets 
aside a strict interpretation of the 30-day requirement, even 
if one gives every benefit of the doubt to the testimony that 
you provided here today and what other administration officials 
have provided in public statements, I remain convinced that 
really no effort whatsoever was made to comply not only with 
the letter of the law but even the spirit of the law.
    And I do not understand why no effort was made whatsoever 
to pick up the phone and to call a committee chairman, either 
on the House or the Senate side. To me, it seems like a 
repudiation and really a slap in the face to this institution 
and this equal branch of government. And I do not understand, 
even though I have listened carefully to your testimony and 
that by other officials, what compelled you to move without 
picking up the phone.
    Secretary Hagel. Well, as I have said this morning a number 
of times, we felt that the fleeting opportunity to get this 
done required an absolute minimum in people who knew.
    I have also said that if we had an opportunity to come back 
around and do this again, we didn't handle some of this right. 
So I get that. And I have taken exactly what you said.
    But the reason we didn't let anybody know right up until 
the end is because of what I said. We were concerned. We 
thought we were--we really did believe that the risk was so 
great, just one thing getting out.
    And I understand your point of view, so that----
    Mr. Rigell. Mr. Secretary, I was and remain convinced that 
you exercised your best judgment. I don't question that.
    I do believe that damage has been done to the governance 
aspect of this, to whatever trust and confidence there may have 
been in the administration's commitment to complying with a 
law, a statutory requirement. And I think it might yield and 
result in something, you know, from this institution that I 
think there ought to be some formal condemnation of it, 
frankly.
    But I appreciate your service to our country. Indeed, I do.
    And I yield back the remainder of my time.
    Secretary Hagel. Thank you.
    The Chairman. Thank you.
    Ranking Member Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    I want to revisit the issue of the threat that these five 
Taliban present. And I think you have been very straightforward 
in saying, without question, you knew there were risks. And, as 
always, if you simply look at one side of a deal, it is not 
going to look good. But the issue was, can you get Sergeant 
Bergdahl back, and how do you balance the risk of that?
    And I think this committee needs to be careful about acting 
like we got nothing out of this. We brought home one of our 
soldiers, who, you know, based on what I have seen, was in 
very, very poor health, was in a very dangerous situation, and 
we met that obligation. So we got something for this.
    That is not to say that releasing these five Taliban came 
with no risk. Of course it came with risk. But I think that 
risk has been greatly exaggerated. I think at one point one 
Member said, you know, it was like releasing 10,000 fighters, 
which is the type of exaggeration that isn't particularly 
helpful.
    These five guys, as I understand it, were mid-level 
commanders, mid- to high-level commanders in the Taliban. They 
have been out of the loop for 12 years. Presumably, in that 
timeframe, the Taliban have replaced them frequently.
    Now, this is five more that, you know, probably after a 
year will go back and help the Taliban. But how, out of the 
thousands of Taliban that are actively working against the 
Afghan Government in Afghanistan--and, also, you know, there is 
no real evidence that these five were part of attacks against 
the U.S. homeland. They were part of the Taliban government; 
they are interested in toppling the Afghan Government. But 
where is the evidence that they are interested in plotting 
attacks against the U.S.?
    So can you revisit a little bit how much is that risk? 
Admittedly, without question, that you released these five 
guys, there is risk, but how much risk, in your assessment?
    Secretary Hagel. Congressman, thank you.
    I asked the DNI, General Clapper, to give me an 
intelligence community assessment of that question that you 
asked me, to come back to me with the best assessment they 
could give me, recognizing, first, we start with there is risk. 
We get that.
    And I am going to read to you three sentences of what I got 
back. And this is, I think, unclassified, so I think we are 
fine. And then there is more classified.
    But this is one observation. This is our intelligence 
community, total. Threat if returned to Afghanistan or 
Pakistan:
    One, should these five detainees return and reintegrate 
with the Taliban, their focus would almost certainly be on 
Taliban efforts inside Afghanistan, not the homeland of the 
United States.
    Second, a few new Taliban leaders, no matter how senior, 
will not appreciably change the threat to the Afghan people, to 
the Afghan Army, but most importantly for us, to our forces. 
And I would just again go back and note, ``will not appreciably 
change the threat.'' This is the intelligence community's 
latest report to me.
    Then it is a point--third point they make is a point I made 
this morning, in pointing out the significant progress the 
Afghan military, the Army, has made over the last few years. 
And they say the same thing. ``Afghanistan's future will depend 
more upon accepted outcome to the second round of Presidential 
elections, how Afghan security forces perform against the 
Taliban over the next 18 months, and continued external donor 
support that would allow Kabul to fund civil and security 
functions.''
    So does that say there is no threat? No. But we have never 
said that. But this is the best, most recent assessment from 
our intelligence community.
    Mr. Smith. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Ms. Hartzler.
    Mrs. Hartzler. Thank you, Mr. Chairman.
    Hello.
    During the 2011-2012 consultations with Congress regarding 
a larger deal with the Taliban, the Secretary of State then, 
Secretary Clinton, told the national security chairman in 
writing and verbally that if detainees at GTMO were 
transferred, this was not an, quote, ``exchange, but rather 
these Taliban detainees would only be released as part of a 
larger diplomatic process.''
    She identified a number of prerequisites to this deal over 
and above the security assurances from Qatar. So, Mr. 
Secretary, in addition to the release of Sergeant Bergdahl, 
which of those other prerequisites were met?
    Secretary Hagel. Well, first, I start with--and this is 
really the answer to the General Clapper issue, which he had 
the same position, as you know, as Secretary Clinton in that 
year. But because things have changed, General Clapper has 
supported, signed off on this deal.
    One, the whole dimension of Afghanistan today, where the 
Afghan Army is, where the Afghan Government is, that is first. 
Second, the assurances, written assurances, that we have from 
the Qatari Government, particularly the Emir's specific 
personal commitment to the President of the United States. A 
change in leadership in Qatar. These are all differences that 
were not present in 2011 and 2012.
    Also, the framework--and I have read the letter, by the 
way, that the Secretary sent. The framework, as you recall, in 
that letter, as I mentioned earlier this morning, was a larger 
reconciliation piece. Not that Bergdahl was incidental to that, 
but Bergdahl was not the core of it. This time, Bergdahl is the 
core of it.
    So those are some of the differences and the changes that 
are pretty dramatic and, in fact, why General Clapper signed 
off on this and supports this decision.
    Mrs. Hartzler. Uh-huh. What I would like to know is, what 
else did we get for this deal? And I am not minimizing the 
impact of the sergeant himself.
    Secretary Hagel. Well, we got--we will start with the 
sergeant.
    Mrs. Hartzler. Well----
    Secretary Hagel. But what else? I mean, you mean----
    Mrs. Hartzler. There was other assurances talked about in 
that letter that was hoped to be secured as part of an overall 
deal.
    Secretary Hagel. Well, an overall deal, but this was not an 
overall deal.
    Mrs. Hartzler. Right.
    Secretary Hagel. This was a prisoner exchange----
    Mrs. Hartzler. Uh-huh.
    Secretary Hagel [continuing]. Versus 2011 and 2012, where 
the framework was of what the intent was, what the objectives 
were. Those objectives were far broader and wider, is your 
point. And we didn't have those objectives.
    Mrs. Hartzler. At the briefing on Monday, the question was 
asked whether any money was exchanged with Qatar or with other 
people for this deal. And the answer was no money was 
exchanged, but it wasn't clarified with who and if there was 
anything additional. The question wasn't answered whether there 
was anything besides, perhaps, money discussed in this.
    So did the Taliban or any of the individuals involved 
receive anything from our government----
    Secretary Hagel. No.
    Mrs. Hartzler [continuing]. Other than----
    Secretary Hagel. No.
    Mrs. Hartzler. No. Okay.
    At the House-wide Member briefing, the same briefing Monday 
night, Deputy National Security Advisor Tony Blinken was asked 
if this agreement makes American men and women in uniform and 
other officials stationed abroad safer. And I recall his 
response to be that the agreement wouldn't make Americans safer 
but that the law didn't require the administration to assess 
that.
    So do you believe that our military service members around 
the world, not just in Afghanistan, are safer because of this 
deal?
    Secretary Hagel. The way I would answer it is this way. 
First of all, the objective was to get our POW back. That was 
the objective, and we did. Mitigating risks and so on, which 
you have heard this all morning.
    But to your specific question, when you look at, first, now 
we have no POW, that means there are more resources that we can 
apply in other areas, in Afghanistan in particular.
    I think for our military--and I mentioned this this 
morning--for our military to know that we will come get them if 
they are captured, regardless of the circumstances, it may not 
translate into direct safety but I think that is pretty 
significant.
    Plus, giving our forces more of their own capacity to deal 
with what they are doing in Afghanistan without, quite frankly, 
some restrictions that did inhibit some because we knew every 
day we were trying to find ways to get our POW back.
    So, I mean, I think, again, when you add all that up, that 
is pretty significant.
    Mrs. Hartzler. Thank you.
    Secretary Hagel. Thank you.
    The Chairman. The gentlelady's time has expired.
    Mr. Secretary, I believe that these are likely already 
included in the letter that I wrote to you, but a couple of 
documents have been mentioned here today. And I would like to 
specifically request, if I didn't already, copies of those: the 
DOJ guidance to the NDAA that Mr. Preston was talking about; 
and the ODNI [Office of the Director of National Intelligence] 
assessment that you requested, that you just were referring to, 
on the threat posed by the five detainees. Please, if they are 
not on that list, if you could add them.
    Secretary Hagel. We will include them.
    [The information referred to can be found in the Appendix 
on page 107.]
    The Chairman. Thank you.
    Mr. Enyart.
    Mr. Enyart. Thank you, Mr. Chairman.
    Good afternoon again, Mr. Secretary.
    Mr. Secretary, Retired Marine General James Mattis, who is, 
of course, the former chief of U.S. Central Command, said on 
Sunday that the prisoner swap for Sergeant Bergdahl will give 
the United States military more freedom to carry out missions 
against the Taliban and the Haqqani Network.
    He went on to say that U.S. commanders in Afghanistan 
always lived with the concern that Bergdahl would be killed in 
retaliation for a U.S. offensive against the Taliban. And I am 
quoting here. Quote, ``We no longer have that concern they have 
this pawn they can play against us. It is also a military 
vulnerability the Haqqanis now face, the Taliban now faces, 
because they no longer hold a U.S. soldier in captivity,'' end 
quote.
    Now, to me, as a veteran of just over 35 years' service, 
that means to me that the United States military has increased 
its operational effectiveness.
    Mr. Secretary, would you agree with General Mattis's 
assessment? And would you agree with the assessment that this, 
in fact, has increased our operational effectiveness and 
thereby effectively rendered U.S. military personnel safer 
worldwide?
    Secretary Hagel. Well, those of you who know General Mattis 
know that you run a risk if you disagree with him. I have the 
greatest respect for General Mattis, and I agree with his 
analysis, everything that you laid out.
    And I am glad he said those things on Sunday because they 
are not things that have been said throughout this 10 days or 
less and they are important factors as to how they affect our 
military, and I believe they are real. And I think his specific 
points not only are accurate but they come from someone who 
knows a little something about this business.
    Thank you.
    Mr. Enyart. And he is not a member of the administration. 
He is now retired; is that correct? So he is an independent----
    Secretary Hagel. He is retired, fishing and hunting now 
somewhere.
    Mr. Enyart. That is a wonderful thing. I look forward to 
that day, Mr. Secretary, as I am sure you do.
    Secretary Hagel. Thank you.
    Mr. Enyart. Mr. Secretary, I have seen the proof-of-life 
video of Sergeant Bergdahl, as I am sure you have. It is 
currently classified. And my question to you is, sir, after 
having viewed that video, is there any doubt in your mind that 
his health and mental state was in very, very serious 
condition?
    Secretary Hagel. There is no doubt in my mind. I render 
that analysis not as anyone who has any medical expertise but I 
listened carefully to what our health experts did say, our 
intelligence people. And then just the--just looking at the 
past videos of him versus that video, it was pretty clear to me 
that his health was deteriorating.
    Thank you.
    Mr. Enyart. Mr. Secretary, there has been some previous 
questioning about the risk, future risk, potential future risk, 
to American service members if they were to have to recapture 
these five individuals who were swapped in the prisoner-of-war 
exchange.
    Is there any evidence whatsoever that any future risk for 
those five is any greater than the 532 folks who have 
previously been released by the Bush administration or, for 
that matter, the 88 who have been previously released by the 
Obama administration, a total of 620 previously released GTMO 
prisoners?
    Secretary Hagel. According to our intelligence community, 
the answer is ``no.''
    Mr. Enyart. And one final question for you, Mr. Secretary. 
Now, Sergeant Bergdahl, when he was captured, was a private 
first-class, correct? And for those who are not familiar, that 
would be an E-3. And today he is a sergeant, or an E-5. So he 
has been promoted twice by the Army during his period of 
captivity; isn't that correct?
    Secretary Hagel. That is correct.
    Mr. Enyart. All right. And were there overwhelming evidence 
or any evidence whatsoever that he had done something wrong, 
would those promotions have taken effect?
    Secretary Hagel. No. As I said in my testimony, there was 
never any charge brought against--by the United States Army 
against Sergeant Bergdahl.
    Mr. Enyart. So it is clearly a rush to judgment against 
this young man.
    Secretary Hagel. Well, I think it is. As we all know and I 
have said, the United States Army is going to conduct a 
complete review of all the circumstances once Sergeant Bergdahl 
is back and he can speak for himself. And that is appropriate, 
and that will happen.
    Thank you.
    Mr. Enyart. Thank you, Mr. Secretary.
    I yield back.
    Dr. Heck [presiding]. Thank you.
    Mr. Secretary, I know that one of the issues that has been 
addressed or that you have addressed in regarding the lack of 
notification to this body was the concern about potential leaks 
and the impact it may have on the operation.
    Can you tell me, was that concern over leaks so great that 
it would also prevent limited notification, as is allowed, to 
the Gang of Eight, the leadership of both the majority and 
minority party in both Chambers as well as the chairman and 
ranking member of the relevant committees?
    Secretary Hagel. Yes.
    Dr. Heck. So--and I know you weren't Secretary of Defense 
at the time, but was there any less concern over--and I know 
you mentioned that part of it was the potential for an adverse 
effect on the safety of the operators who were going to execute 
the operation.
    But was there any less concern over the safety of the 
operational personnel who were actually known to be going into 
a kinetic operation in the Osama bin Laden caper? Would there 
be any less concern about leaks and their safety?
    Secretary Hagel. No, there were--I wasn't there, but you 
are right, there were, I know, concerns about that. And it is 
equally risk--risky, both operations.
    But this one was different, though. We had some--much more 
control, quite frankly, over the Osama bin Laden exercise, and 
that operation was more within our control. This one was not. 
As I said, we didn't even know where we were going to--where he 
was going to be.
    Dr. Heck. Well, I understand that. I understand that, Mr. 
Secretary. But in the Osama bin Laden raid, the Gang of Eight 
was notified and there was no leak of information.
    Secretary Hagel. I know. I know. But, again, what I am 
saying, Congressman, is there was actually more risk in this 
because we had far less control over this in case something 
leaked out.
    Dr. Heck. And moving on to another--and I appreciate your 
answer. Thank you.
    Moving on to another question. Obviously, this issue of the 
exchange was brought to a sufficient level that it was 
addressed with Members of Congress back in the 2011-2012 
timeframe. And during testimony today, you have said that there 
was a growing urgency to act, a need to act swiftly, and that 
was the reason--one of the reasons, coupled with the leaks, why 
we weren't necessarily notified.
    But had the issue concerning leaks not necessarily been an 
issue, would you not agree that after you received the January 
video, proof-of-life video that escalated reentering 
negotiations, that that might have been a time where perhaps 
Congress could have been informed?
    Secretary Hagel. Yes, that might have been.
    Dr. Heck. Or when----
    Secretary Hagel. As I have already said, if we had a chance 
to redo this, Congressman, probably----
    Dr. Heck. Well, I understand, Mr. Secretary, but that seems 
to be an apparent pattern in this administration, is always 
coming back after something has happened to say, if we had a 
chance to do it all over again, we would have done it 
differently.
    Secretary Hagel. Well, I can only answer to this one, so--
--
    Dr. Heck. I appreciate that.
    Secretary Hagel. Yeah.
    Dr. Heck. Likewise, I would say that after you received the 
Qatari warning that the window may be closing would have been 
an opportunity, and that was in early May, to come and notify 
at least the Gang of Eight.
    Secretary Hagel. Well, I have been over this before. I 
mean, again, if we go back and replay everything. But, again, I 
say the risk, we felt, was so great that any leak--we were told 
this by the people we were negotiating with, and we were warned 
about this.
    And so, yes, it was a judgment call. We might do it 
differently again, but I don't know. But the risk was still, no 
matter what, overwhelming for us, because we thought we had--
and we were told--probably one shot at getting Bergdahl back. 
And it was a rapidly evolving opportunity that could close, as 
well.
    Dr. Heck. Well, and I would just close by making the 
statement, or asking--and I am not sure of--were you familiar, 
or have you seen the letter from various chairmen of 
jurisdiction to Secretary of State Clinton and her response 
back in 2011-2012?
    Secretary Hagel. Yes, I did.
    Dr. Heck. Okay. So, you know, obviously, in that 2011 
letter to then-Secretary of State Clinton there was significant 
nonconcurrence----
    Secretary Hagel. Yes.
    Dr. Heck [continuing]. With the thing.
    So my concern is, how much of that letter and the potential 
for pushback from this organization actually influenced the 
actions not to provide timely notification, for fear of being 
able to ask for forgiveness rather than permission and come 
back after the fact to say, if we had a chance to do it all 
over again, we would perhaps do it differently?
    Secretary Hagel. I am not sure what you mean by pushback in 
this institution----
    Dr. Heck. Well, you know that, in 2011, when this was first 
contemplated, the ranking members and the chairmen of the 
appropriate committees did not concur with the swap. But yet, 
understanding that the environment has changed, perhaps there 
was a concern by the administration of coming to notify for 
fear that that same----
    Secretary Hagel. Oh, I see. Uh-huh.
    Dr. Heck [continuing]. Pushback would have been put 
forward.
    Secretary Hagel. I understand what you are saying. Well--
and I just answered as you heard probably my answer here to Ms. 
Hartzler on this. Complete change in environment, dynamics, 
realities, objectives from 2011 to 2012, but I can tell you, 
from my perspective and what I know--and I know a lot about 
it--I was involved in only on this deal. I can't answer to 2011 
or 2012, but it wasn't because we were concerned that somehow 
the Congress wouldn't go along with it. I have given you the 
reasons why we made the decisions we did.
    Dr. Heck. Thank you. Thank you.
    Ms. Gabbard.
    Ms. Gabbard. Thank you very much, Mr. Chairman.
    Secretary Hagel, Mr. Preston, thank you very much for being 
here.
    Secretary, thank you for your service, both in uniform, 
here in Congress, and as you continue your service now to our 
country.
    Secretary Hagel. Thank you.
    Ms. Gabbard. Like you, I am a soldier, and understand at 
the core of my being that principle of leaving no man behind. 
Along with that principle goes another, which is, I will always 
place the mission first. And that mission of national security 
and the context that that provides to this whole conversation 
is really where I would like to focus and where I have the most 
concern. You have mentioned earlier about the assurance to 
service members that, regardless of circumstances, your words, 
regardless of circumstances, they will not be left behind.
    And I think that that is--that is an issue to call into 
question because there are varying circumstances. We were told, 
I think, possibly today, but in a briefing yesterday--on 
Monday, rather, that if this were a deal to be done exchanged 
with the release of Khalid Sheikh Mohammed, the deal would not 
have been done. So the circumstances do play a role in this, 
based on that mission of national security.
    So with regards to the five Taliban detainees who were 
released, your statements from DNI Director Jim Clapper, I 
would like to address that directly because we have had some 
issues with statements from Jim Clapper before Congress 
previously on a different topic with regards to his statement 
that the NSA does not collect data on Americans, which he later 
admitted to be in his words, the least untruthful answer. It 
was not a truthful answer.
    So I would like to point to the Guantanamo review task 
force that was done where it was stated that these five 
individuals, specifically, in quotes, ``pose a high level of 
threat that cannot be mitigated sufficiently except through 
continued detention.''
    And I am wondering what has changed from the time that this 
assessment was made by this President's appointed task force of 
military officers, Federal prosecutors, FBI agents, intel 
analysts, and civil litigators that has changed?
    Secretary Hagel. Well, Congresswoman, thank you for your 
service, first.
    Ms. Gabbard. Thank you.
    Secretary Hagel. A couple of things. One, obviously, is the 
reassurance that we got from Qatar, which we have gone over in 
some detail.
    Second, more to the point of I think that----
    Ms. Gabbard. I am sorry, Qatar is not detaining them 
though. They are not continuing to----
    Secretary Hagel. The reassurance from Qatar that 1 year, 
and I don't know if you have had a chance to look at the MOU on 
this on the things that they would enforce, so that these five 
transfer detainees not leave the country, so on, and so on, and 
so on----
    Ms. Gabbard. Right.
    Secretary Hagel [continuing]. Which we have covered a lot 
this morning. That is one big thing that has changed to give us 
some assurance in the United States, that these five detainees, 
we would have some control over them.
    Second, to the point that you made about the commission's 
recommendations--and I think that commission started in 2009--3 
years has passed. We looked at comments made by Guantanamo 
guards, others. I am not saying or implying that these five 
individuals all of a sudden transformed into St. Frances. That 
is not the point. But the circumstances changed in many ways. 
And we felt, again, as I have said here this morning, that when 
you take the totality of all of the new dimensions, the 
environment, the reassurances, so on and so on, and what I 
just--I don't know if you were here when I just answered 
Congressman Smith's question about the insurance or the 
Intelligence Committee's reassurance and their evaluation of 
how dangerous these five detainees would be if they went back 
to Afghanistan and joined the Taliban. That has changed 
considerably.
    Ms. Gabbard. Thank you very much.
    Before my time runs out I want to just make one quick point 
that the discussion of them returning to the battlefield seems 
to imply that return would put them as foot soldiers with boots 
on ground. We are talking about the five most senior Taliban 
leaders----
    Secretary Hagel. Well, they weren't the most senior.
    Ms. Gabbard [continuing]. Who were detained. They can 
become operational without having boots on ground in 
Afghanistan. We will have troops on the ground for the next 
couple of years, according to the President's plan, and that is 
really where my concern lies. Thank you very much.
    Secretary Hagel. And thank you, Congresswoman, and we have 
the same concerns.
    Dr. Heck. Mr. Scott.
    Mr. Scott. Thank you Mr. Chairman.
    Secretary Hagel, at the start of the committee, you made a 
statement that said, the Justice Department said the President 
had the constitutional authority to essentially do this deal 
and ignore the 30-day requirement in the law in this case. Is 
that--did I hear that correctly?
    Secretary Hagel. Someone asked the question I think on what 
basis the President made a decision and what authority he had, 
and I think my response was----
    Mr. Scott. Very similar to that.
    Secretary Hagel. Yes, yes.
    Mr. Scott. Could we get a copy of the letter from the 
Justice Department that says that the President had that 
authority?
    Mr. Preston. Sir, we have received a request for that, and 
we are taking that back. It is not entirely within our control.
    Mr. Scott. Thank you. And I look forward to seeing that.
    [The information referred to can be found in the Appendix 
on page 108.]
    Mr. Scott. And Mr. Preston, you are an attorney from Yale 
and Harvard. Which provision of the Constitution would allow 
the President to ignore the law?
    Mr. Preston. The President has authority under Article II.
    Mr. Scott. Yes, sir.
    Mr. Preston. And has a duty and responsibility to exercise 
that authority. It is not a matter of ignoring the law. It is 
where the exercise of his constitutional authority is in 
tension with the statute; where, in this case, his duty and 
authority to protect service members, to protect U.S. citizens 
abroad, where the application of this particular provision in 
this particular set of circumstances would interfere with the 
exercise of authority, then the statute yields to the 
constitutional authority either as a matter of interpretation 
or through the application of separation of powers principles.
    Mr. Scott. So is it Article II, Section 2, then that the 
Justice Department is using to justify saying that he does not 
have to comply with the law?
    Mr. Preston. It is his authority as Commander in Chief and 
Chief Executive.
    Mr. Scott. So it is Article II, Section 2?
    Mr. Preston. I believe that is right.
    Mr. Scott. Under what other circumstances would the Justice 
Department, potentially Eric Holder, simply tell the President 
that he did not have to comply with the law?
    Mr. Preston. I wouldn't really be in a position to answer 
that question.
    Mr. Scott. I think that is the key concern here for most of 
us on the committee, is that if the Attorney General can simply 
give the President of the United States, who appointed the 
Attorney General, a letter that says, Mr. President, you don't 
have to comply with the law, or the Constitution gives you the 
authority to ignore the law, then that is the law of the land 
and under which the President operates; seems to be in clear 
violation of what our forefathers gave us and the system of our 
democracy, where you have a House, and a Senate, and a 
President. The House and the Senate both passed pieces of 
legislation. The President signed that law, signed that, making 
it the law, and now he can get a letter from an appointee of 
his that says, Mr. President, you don't have to comply with 
this, which leads me to a bigger concern in what you said at 
the start, which was that today this country has had and has 
the authority to hold detainees. That would potentially change 
in the future, but it would not necessarily change at the end 
of 2014, when we essentially declare we are no longer engaged 
in hostilities in Afghanistan, but that that would continue as 
long as we were in a conflict with the Taliban and Al Qaeda. 
And I guess my question is, that is your opinion, correct?
    Mr. Preston. That is my understanding of how the 
international law principles apply.
    Mr. Scott. Yes, sir, and I agree with you. But if we follow 
this same train of thought and action which they used to 
determine they did not have to give the 30-day notice, the 
Attorney General could simply give the President a letter and 
say, you don't have to do this. And he could release everybody. 
And that is where--that is why we are here. The law required 30 
days' notice. And the idea that Eric Holder or somebody at the 
Justice Department can just give the President a letter and say 
you don't have to comply with the law, that is simply 
ridiculous.
    Mr. Preston. Well, let me just say in general, the role of 
the Department of Justice, among them, is to advise the 
President on the law. I wouldn't be in a position to talk about 
the content and I can't agree with your characterization, but 
that is normal process for the executive branch for the 
President to receive advice on the law in the execution of his 
constitutional and statutory responsibilities.
    Mr. Scott. This law is extremely clear. The law requires 30 
days' notice. And the idea that Eric Holder can give him a 
letter saying, you don't have to comply with the law and then 
that becomes the law of the land, it is a clear violation, 
separation of powers.
    Dr. Heck. Mr. Smith.
    Mr. Smith. Just following up on that just really quickly. 
Under the Bush administration, you know, there was warrantless 
wiretapping authorized. There was indefinite detention. Post 9/
11, there was a whole host of things that were clearly against 
a wide variety of laws. And the President and Vice President's 
justification at that time was that the Constitution gave them 
those powers given the circumstances. I don't recall any 
outrage on the right. I recall a great deal of outrage on the 
left. I recall a number of folks on the left, including one 
memorable gentleman who wouldn't let me go at the gym about the 
fact that I was unwilling to impeach the President over this.
    But this was not even remotely unprecedented. And I just 
wanted you to comment on that from the legal standpoint. The 
Constitution is a law. And now, I disagree, at first glance 
with the interpretation that you made here, but it is not 
unprecedented. And walk through a little bit what, you know, 
President Bush did. I mean, he justified an endless array of 
things that were clearly contrary to U.S. law based on his 
interpretation of the Constitution. And on a much smaller, more 
narrow scale, isn't that exactly what you guys are doing? I 
mean, I don't agree with it, but it is far, far from 
unprecedented.
    Mr. Preston. Congressman, I wouldn't be in a position to 
comment on what the previous administration did, but I think 
your point is a good one that in the exercise of the 
President's Article II powers, he is called upon to make 
judgments about the extent of those powers, and that is 
precisely what he does. And there will be occasions where the 
statutory law is intentioned with the constitutional 
provisions, and there are canons of interpretation that call 
for interpreting the statute so as to avoid a conflict, but 
where the conflict can't be avoided, then the Constitution 
reigns. And it is not uncommon and has happened in the history 
of Presidency.
    Mr. Smith. Just----
    Mr. Scott. If I may, if that interpretation had been 
handled by----
    Dr. Heck. The gentleman's time is expired----
    Mr. Scott [continuing]. Disagreed with it but would have 
been more accepting of it than an individual Presidential 
appointee.
    Dr. Heck. Mr. McIntyre.
    Mr. McIntyre. Thank you, Mr. Chairman.
    And thank you Mr. Secretary for your strong commitment and 
service to our country. In light of these recent questions, and 
I know it has been a long hearing, I just want to clarify for 
the record, again, as we are coming toward the end of this 
hearing. On page 4 of your testimony, you say, and I quote, 
``Consistent with previous congressional briefings this 
administration provided in late 2011 and early 2012 reflecting 
our intent to conduct a transfer of this nature with these 
particular five individuals.''
    So, now, in that quote, it sounds like you are saying that 
this met--or it is implying that it met the requirements of 
notifying, quote, ``as the law says the appropriate committees 
of Congress at least 30 days before the transfer, release of 
Guantanamo detainees.''
    Yet, in the next paragraph, again, quoting your testimony, 
you state that ``I fully understand and appreciate concerns 
about our decision to transfer the five detainees without 
providing 30 days' advance notice to Congress.'' So in that, 
are you stating and admitting that the 30 days' advance notice 
was not met?
    Secretary Hagel. No. That wasn't the point of why I put 
that in my statement. The point was to give some frame of 
reference of the history of this issue and in particular, the 
five Taliban detainees that had been discussed. But it wasn't 
anything more than that. And if I was unclear, then I am glad 
you cleared it up.
    Mr. McIntyre. Okay, so you are just saying you understand 
and appreciate the concern, but you are not stating that, in 
fact, you did not meet that 30-day advanced notice, is that 
correct?
    Secretary Hagel. Well, we didn't meet the 30 days' notice. 
Yeah, yeah.
    Mr. McIntyre. Right. Okay. That was my point. You stated 
that you did not meet that.
    Secretary Hagel. Right.
    Mr. McIntyre. All right, then, I want to clarify that you 
are saying ``exceptional circumstances'' and that was the 
phrase used in your testimony, ``allowed you to construe that 
it was not necessarily to follow the law as stated by the 
National Security Council spokesman Caitlin Hayden on June 3rd 
and, I quote from Caitlin Hayden, that ``notification 
requirement should not be construed to apply to this unique set 
of circumstances.'' And that has been your strong opinion 
today, correct?
    Secretary Hagel. Well, I agree. And I think that was 
probably the core of this conversation and exchange between 
Congressman Scott and Mr. Preston on the authority the 
President had, and I agree with that.
    Mr. McIntyre. All right, and that is why I am just trying 
to clarify this, and then for future reference, is it your 
opinion that the administration would have this same liberty to 
disregard or to construe that it is not necessary to follow the 
30 days' notice in future similar situations?
    Secretary Hagel. Well, the way I answered and I actually 
answered it again this morning, maybe once or twice, is that, 
first, the constitutional responsibilities and authorities the 
President has, which I happen to--even though when I was in the 
Senate, I would challenge the administration at the time on 
some of this, but I think that, in my opinion, the Constitution 
is clear on that. And when there are extraordinary 
circumstances and situations regarding the security of the 
American people or a service member or a citizen, I think the 
President has the authority to act.
    Mr. McIntyre. All right, so it would--this decision then in 
future situations that may be similar, you believe then would 
always be subject to the administration's interpretation of the 
situation on an ad hoc basis, actually?
    Secretary Hagel. Well, I think that is probably right, but 
I don't think, Congressman, anyone wants to ever tie the hands 
of the Commander in Chief, the President of the United States, 
on an extraordinary situation. I mean, I don't think that is 
what was intended. I am not a lawyer, but just the practicality 
of the responsibilities the President has, regardless of the 
party.
    Mr. McIntyre. Right. No, no, and I understand that.
    Secretary Hagel. Yeah.
    Mr. McIntyre. I am just simply trying to again clarify for 
the record. So, in a similar situation in the future then, in 
light of your statement you just made----
    Secretary Hagel. We would intend to continue to comply, as 
we have in almost every circumstance, with that 30-day 
notification in the future on any future transfers. But again, 
I think the--any President has to have that power, that 
authority, which I do think is in the Constitution, to deal 
with extraordinary cases.
    Mr. McIntyre. All right, that was the clarification I 
wanted. Thank you very much.
    And thank you, Mr. Chairman.
    Dr. Heck. Mr. Nugent.
    Mr. Nugent. Thank you, Mr. Chairman.
    And Secretary Hagel, I want to thank you for your service, 
having a brother in Vietnam right around the same time you 
were, and so I appreciate what you have done.
    You have mentioned a couple of things today and I will get 
to in just a second, but does the Department of Defense 
consider Taliban detainees at GTMO prisoners of war?
    Secretary Hagel. Let me ask the general counsel to give you 
the specific answer because that was the basis of what we had 
the prisoners exchange on.
    Mr. Nugent. So tell me, are they classified as prisoners of 
war?
    Mr. Preston. They are not--pardon me. They are not 
technically prisoners of war. They are detained--what we would 
call unprivileged belligerents, and as such, they are entitled 
to the basic entitlements under common article 3 of the Geneva 
Conventions, but they do not enjoy full-up POW status, and all 
of the protections of the Third Geneva Convention. It is a 
little technical, but they are detainees in armed conflict.
    Mr. Nugent. But they are not classified as a prisoner of 
war.
    Mr. Preston. They are not--they don't meet the legal 
definition for a prisoner of war.
    Mr. Nugent. And Mr. Preston, you know, I think the 
administration has referred to this as a prisoner exchange, but 
the administration never classified Sergeant Bergdahl as a 
prisoner of war.
    Mr. Preston. That is, as I understand it, for two reasons. 
And again, they tend to be technical. One is, the term, 
``prisoner of war,'' relates to a combatant detained in the 
context of an international armed conflict, whereas armed 
conflict with a Taliban is characterized as a non-international 
armed conflict. The other thing is a prisoner of war under the 
law governing prisoners of war is someone who is lawfully held 
and, in our view, very strong view, is that Bergdahl was not 
lawfully held. But again, he is a detained combatant in the 
context of an armed conflict--was.
    Mr. Nugent. So really, to any--prisoner exchange is 
probably not the correct term the administration should have 
used, but regardless, you have heard a lot here, obviously, and 
I certainly don't want to second-guess you in regards to the 
recovery of Sergeant Bergdahl. But I do have concerns about the 
administration, any administration, basically going to an 
attorney and giving me opinion that allows me to operate 
outside the law.
    Now, this was passed specifically because of concerns that 
Congress had in regards to prior notifications about these 
five. And I know Ms. Gabbard brought up about, you know, these 
are--these weren't just trigger pullers. These were planners 
and organizers, and while they may have been out of the mix for 
12 years, what they do bring, and I think you will agree with 
this, they do bring some level of expertise, particularly in 
regards to the fact that they are highly revered amongst the 
Taliban. So you have just increased their operational, at 
least, morale. Would you agree with that?
    Mr. Preston. Well, I would say that the Department of 
Justice provides to the Executive its legal guidance. The 
decision is made by the policymakers and the decisionmakers.
    Mr. Nugent. Secretary Hagel, you mentioned this, that if 
you had to do this all over again, there are some things that 
you would do differently. What would you do differently?
    Secretary Hagel. Well, I haven't spent a lot of time 
thinking about it, Congressman, quite frankly, Congressman.
    Mr. Nugent. But you have mentioned it a number of times.
    Secretary Hagel. No. Here is the way I said it. I responded 
and I said in my testimony, like anything. I don't know if I 
have ever done anything, made any big decision on anything, 
where I wouldn't go back maybe and say, well, maybe I could 
have done that better.
    Congressman, I haven't spent a lot of time on inventorying 
what I would do differently because we have got all of the 
things coming at us. But what I am saying is, sure, if we had 
an opportunity to go back, maybe we could have handled this 
differently, should have handled it differently.
    Mr. Nugent. I mean, you could have notified Congress.
    Secretary Hagel. Well, there is a lot of pieces.
    Mr. Nugent. Because otherwise, what you are saying is you 
don't trust Congress, and I am sure that is not what you are 
saying.
    Secretary Hagel. I had a little exchange on that earlier 
this morning.
    Mr. Nugent. I am sorry I missed that.
    Secretary Hagel. Well, I was told by one of your members 
that I said that, that I don't trust Congress.
    Mr. Nugent. And I am not saying that you don't.
    Secretary Hagel. I didn't say that, which I would never say 
that. But----
    Mr. Nugent. But the actions would look as if the 
administration does not----
    Secretary Hagel. I explained it. I get it. I understand it. 
I have said it, and I told you. You may not agree, but why the 
decision was made the way it was. But I understand exactly what 
you are saying.
    Mr. Nugent. Thank you, I yield back.
    Dr. Heck. Dr. Wenstrup.
    Dr. Wenstrup. Thank you, Mr. Chairman.
    Secretary, and Mr. Preston, you know, we are charged with 
the responsibility of providing security and defense for this 
country as well as you. And we take that oath.
    You said earlier, I know the trust has been broken, and I 
appreciate that you recognize that that has happened. It is 
really disturbing to me. I have a track record of being trusted 
by my government. I served in Iraq. I had secret clearance. I 
knew what battles were coming up so that as a surgeon running a 
cache, I could prepare for what may be coming our way. It 
bothers me that I am not trusted now that I am here. It bothers 
me that you are afraid that I would provide a leak with my 
record of service. And I think that stands for many others 
here. And if that is not even considered, it is really 
bothersome and should be to the American people. But I am glad 
that when I was in uniform, that I was trusted to carry out my 
mission as opposed to here by this administration, apparently.
    And you had mentioned that everyone was unanimous on the 
plan and I wonder if they were unanimous on the premise itself 
for this exchange because there is a difference between being 
in favor of what we are doing and approving the plan once it is 
decided that we are doing it. So I would be curious to know 
about that. But during the course of this, I wonder, did we 
promise any retaliation if our soldier was harmed in any way? 
Did we let our enemy know that if this soldier was harmed in 
any way, that there would be retaliation of some sort?
    Secretary Hagel. If the Taliban, the Haqqani----
    Dr. Wenstrup. In the negotiations, if--I will call him by 
name, Sergeant Bergdahl, if harm came to him under their care, 
would there be any retaliation from the United States of 
America?
    Secretary Hagel. Well, let me ask Steve Preston. He was 
there during the negotiations, so----
    Mr. Preston. I would say, sir, that in the discussions of 
the exchange, the focus was specifically on the logistics.
    Dr. Wenstrup. So no is the answer. We did not say, if you 
harm him in any way----
    Mr. Preston [continuing]. Was to engineer it so as to 
minimize the chance of harm to our----
    Dr. Wenstrup. I understand that, okay, but obviously, we 
didn't say that there would be some retaliation if he was 
harmed.
    Now, Secretary, you before said that he was a POW. You said 
that here today, that he was a POW. And now we are hearing it 
is a different name. But regardless, so do we know, did his 
captors adhere to the Geneva Conventions like we do?
    Secretary Hagel. Wait a minute. Let me just respond. First, 
when I referenced him as a POW, he was a prisoner of war. He 
was a prisoner of war.
    Dr. Wenstrup. Okay. I am okay with that.
    Secretary Hagel. And the technicality of what the general 
counsel is talking about, that is why I asked the general 
counsel to make sure the technical concept----
    Dr. Wenstrup. Going to my question, do they adhere to the 
Geneva Conventions as we do?
    Mr. Preston. I think it remains to be seen how he was 
treated, but there is a serious question of that----
    Dr. Wenstrup. Sure.
    Mr. Preston [continuing]. To say the least.
    Dr. Wenstrup. I appreciate that. And are you familiar with 
our policy for compassionate release of detainees, either of 
you? Because if you are not, I can inform you because I served 
as a surgeon at Abu Ghraib prison in 2005 and 2006. We had a 
program for some of our worst enemies, if they were to be 
fatally ill, we release them to their families. It is called a 
compassionate release. This is a policy of the United States. 
Did we ask them for a compassionate release if, indeed, our 
soldier was so sick that we had to move so quickly? Did we ask 
them for a compassionate release in the manner that we perform 
as the United States of America?
    Mr. Preston. Not to my knowledge.
    Dr. Wenstrup. Thank you. So we do it----
    Secretary Hagel. I might add, though, Congressman----
    Dr. Wenstrup. Yes, sir.
    Secretary Hagel. The Taliban, as you know, you have some 
experience, for which I thank you for that service. They don't 
play by the same rules.
    Dr. Wenstrup. That is my point. That is exactly my point, 
Mr. Secretary, and I thank you for verifying the case I am 
trying to make. We play by a set of rules as a decent people. 
And we are not dealing with decent people here, yet we acted as 
though we were. And we acted as though we were releasing decent 
people, and we are not. And I would ask you, does anyone here 
really think that the world is a safer place after we have made 
this trade? And I want to ask one other question. We had five 
American casualties yesterday. What if one of those was 
captured by the Taliban? Would we be back in Qatar at the 
negotiation table?
    Secretary Hagel. Well, you know, you served. You heard it 
all morning. We don't leave anybody behind. We do what we have 
to.
    Dr. Wenstrup. There are several ways of not leaving someone 
behind.
    Secretary Hagel. Well, that is right, but you don't send 
them chocolates and say, send him over. Tough business. Tough 
business.
    Dr. Wenstrup. I agree, and I yield back.
    Dr. Heck. Ms. Walorski.
    Mrs. Walorski. Thank you, Mr. Chairman.
    Mr. Secretary, is the administration considering the 
transfer or release of other Afghan or Taliban detainees, 
including those that have been previously assessed as not a 
candidate for release?
    Secretary Hagel. We are always assessing possible detainee 
transfers.
    Mrs. Walorski. Right, but I have a New York Times article 
right here that talks about six that are being considered right 
now to go Uruguay. So you are then considering additional 
transports and transfers of these of the detainees in 
Guantanamo?
    Secretary Hagel. Well, we are always looking at this. It is 
not new, I mean. You know----
    Mrs. Walorski. I know. I am very aware.
    Secretary Hagel [continuing]. The Bush administration 
transferred far more than the Obama administration.
    Mrs. Walorski. Are you looking at Afghan, or----
    Secretary Hagel. I am not going to get into the security 
arrangements here.
    Mrs. Walorski. Let me just ask you this, hypothetically, if 
you are releasing any more Afghan detainees, are they going 
directly back to Afghanistan after the international law 
expires and we no longer have, as Mr. Preston was saying in a 
year when the international law expires that we are holding 
those detainees under, then do they go right back to 
Afghanistan, conceivably? Could they?
    Secretary Hagel. I am not going to respond to any specific 
actions, but counsel may want to.
    Mr. Preston. I may have been misunderstood. I did not--I 
don't believe I said that the conflict would expire at the end 
of the year. So just with that clarification.
    Mrs. Walorski. You made a comment about the international 
law that they are being held under by which we are actually 
detaining them.
    Mr. Preston. Right, as belligerents in an armed conflict.
    Mrs. Walorski. And that goes on, if we are completely 
pulled out of the conflict and we are no longer involved, 
except for minimal troop level, or, in 2016, when we are 
completely pulled out----
    Mr. Preston. There will come a point in time where the 
conflict ends, and if there is not an alternative basis for 
which to hold them, the law of war basis would no longer be 
available to us.
    Mrs. Walorski. Right. What is that point in time? Is that 
point in time when we pull out our--on the drop date the 
President made and say, hey, by the end of 2015, 2016, we are 
going to be completely pulled out. They are going to be on 
their own.
    Mr. Preston. When an armed conflict comes to an end is a 
rather complex question. You can--one could answer it, as my 
predecessor did, in terms of the degradation of the enemy. This 
was in reference to Al Qaeda to the point where they no longer 
present a threat. Our view and I think, as reflected in the 
President's NDU [National Defense University] speech, is that 
this is--our government works best, our country is strongest 
when both the political branches----
    Mrs. Walorski. Right.
    Mr. Preston [continuing]. Focus on issues such as the end 
of a conflict.
    Mrs. Walorski. Yeah. My concern is, is that we are getting 
ourselves in the position because we have made an exception to 
a law that we are getting potentially ourselves into a corner 
where we could conceivably be releasing Afghans from Guantanamo 
and, by whatever means or for whatever measure, sending them 
right back into Afghanistan. Is Afghanistan a list--is 
Afghanistan on the list of potential countries that can even 
receive GTMO prisoners?
    Mr. Preston. I think you described a--whatever the 
arrangement, it would have to meet the statutory requirements 
of 1035(b), which is to say the risk is properly mitigated.
    Mrs. Walorski. Yeah, I understand that. I understand the 
list. So, right now, based upon that list and you guys are 
considering and looking at and evaluating all the time, and you 
are looking at this list of potential countries. Obviously, 
Qatar is a country that says we are going to be able to receive 
and further detain these people. Is Afghanistan on there, or 
when the drawdown continues to happen, is there going to be a 
point where Afghanistan is going to be free and clear because 
we are pulling our troops out, they are on their own, they are 
handling themselves? Are they on that list now to be able to 
receive prisoners, or is there going to come a time when they 
are on the list to receive their people?
    Secretary Hagel. I don't know. I mean, we have had--
detainees have gone to, I think, over 15 countries. And----
    Mrs. Walorski. I mean, I have seen the list. You certainly 
have the list of potential countries that are available. We 
have had conversations in other hearings about, for example----
    Secretary Hagel. Well, you asked in the future and so on, 
but you have to understand----
    Mrs. Walorski. Right now is Afghanistan on the list now 
where they can receive people back from GTMO?
    Mr. Preston. Ma'am, I am not familiar with the list, per 
se. But----
    Mrs. Walorski. Well, is Afghanistan a country that can be 
considered a country that meets the parameters?
    Mr. Preston. Afghanistan could be a candidate to receive 
detainees.
    Mrs. Walorski. But it is not now. Is it currently a country 
that we say meets the parameters and we could take Afghans from 
GTMO and send them back to Afghanistan if they met the 
criteria, and we are saying that Afghanistan does meet the 
criteria. Does Afghanistan meet the criteria today? For 
example, there is obviously a list of six that are going to 
Uruguay or potentially being looked at to go to Uruguay, so 
Uruguay qualifies as a country. I am just asking if Afghanistan 
in its current situation----
    Mr. Preston. As far as I know, Afghanistan would be a 
potential recipient country.
    Mrs. Walorski. Okay, thank you very much. I yield back my 
time.
    Mr. Gibson [presiding]. The gentlelady yields back.
    Mr. Bridenstine.
    Mr. Bridenstine. Thank you, Mr. Chairman.
    Mr. Secretary, did I hear correctly earlier you mentioned 
that when you were making the decision to release the five 
members of the Taliban, that you did not take into 
consideration whether or not they would return to the field of 
battle?
    Secretary Hagel. No, I didn't say that. We took that into 
consideration. We took everything into consideration, yes.
    Mr. Bridenstine. And was your assessment the best 
assessment from the people who advised you? Was that assessment 
that they would or would not return to the field of battle?
    Secretary Hagel. The assessment was, at first, we looked at 
the threat, whether they would or not. We can't predict, 
obviously.
    Mr. Bridenstine. You can make an assessment and I am sure 
somebody gave you an assessment.
    Secretary Hagel. I will read you what I just read this 
committee a little bit ago, and I don't think you were here, on 
the latest intelligence community assessment on the threats. I 
asked for this from General Clapper. This is the most recent 
intelligence community [IC] assessment. Threat if returned to 
Afghanistan, Pakistan after they--after the 1 year in Qatar. It 
says, Should they return and reintegrate with the Taliban, 
their focus would almost certainly be on Taliban efforts inside 
of Afghanistan, not a threat to the homeland.
    Mr. Bridenstine. Will we have troops in Afghanistan at that 
time?
    Secretary Hagel. Well, this is 12 months from May 31st, so, 
yes, we will have troops.
    Mr. Bridenstine. So they would pose a threat to American 
troops?
    Secretary Hagel. Well, that is--let me finish this.
    Mr. Bridenstine. Hold on. Let me move to Mr. Preston. I 
have only got 3 minutes left.
    Secretary Hagel. Well, I am giving you what the--if you 
want information, I am giving you what the IC says to answer 
your question.
    Mr. Bridenstine. I understand that. I think I got the 
answer I was looking for.
    Secretary Hagel. Well, it is in here.
    Mr. Bridenstine. Mr. Preston, my understanding, I am a Navy 
pilot. I flew combat in Iraq and Afghanistan. My understanding 
is that there are really two types of law. There is a law of 
war, a law of armed conflict, if you will, which is 
international law, and then there is a law of peace, which is 
how we handle things domestically. And under the law of war, 
correct me if I am wrong, but we don't detain people for 
rehabilitation and we don't detain people for purposes of, you 
know, punishing them. We detain them to keep them off the field 
of battle. Is that correct under the laws of international 
conflict?
    Mr. Preston. As I understand it, when they are held under 
those laws, it is for that purpose.
    Mr. Bridenstine. It is to keep them off the field of battle 
so if there is a judgment that there is a chance that these 
folks could go back into the field of battle, and we still have 
an authorization for use of military force indicating that we 
still are at war, the judgment, whether these people are going 
to go back and harm our troops is pretty important, is that 
correct?
    Mr. Preston. The way I would answer that is to say that it 
is clear that we have and had the authority to detain these 
people. The judgment to transfer them to the custody of another 
country is one that is governed in substantial measure by the 
NDAA provision and a judgment by the President.
    Secretary Hagel. I might just add, Congressman, in the 
second sentence of this intelligence community report to answer 
your question, it says, ``A few new Taliban leaders,'' these 
five, ``if they would return to the Taliban in Afghanistan, no 
matter how senior, will not appreciably change the threat to 
American forces, the Afghan people, or the Afghan Army.''
    Mr. Bridenstine. Is that in a physical sense or in a morale 
sense? Because if you look at what the Taliban is putting out 
right now, they are declaring victory on this. Are you aware of 
this?
    Secretary Hagel. Well, I am aware a lot of what the Taliban 
says. I can't control what the Taliban says.
    Mr. Bridenstine. Yes, you can. Because you didn't have to 
release these five people, and by releasing them, you have 
created, in essence, a victory for the Taliban. It is being 
used as propaganda against this country. And ultimately, I 
think you are aware that these people are likely to return to 
the field of battle, and our troops are going to be in harm's 
way because of it.
    Secretary Hagel. Congressman, I just gave you the best 
intelligence community assessment we have, what they say about 
that. This is an imperfect business. If we want our prisoner of 
war back, we have to make some accommodations to that. We did 
it with a substantial mitigation of risk. We thought this was 
the smartest, wisest, most responsible thing that we could do 
to protect our people, get our prisoner back.
    Mr. Bridenstine. And the Taliban feels the same way.
    Secretary Hagel. There is nothing I can do about that. They 
are going to be predictable, I suspect, and try to use this. 
But you ask whether that is physical, or is it a morale boost? 
Well, I think the first thing we ought to look at, is this a 
physical threat that they represent and you just heard what 
the----
    Mr. Bridenstine. You know, the morale boost turns into a 
physical threat.
    Secretary Hagel. Well, it is an imperfect world, 
Congressman, and you know that.
    Mr. Gibson. The gentleman's time is expired.
    Mr. Byrne.
    Mr. Byrne. Thank you, Mr. Secretary. I have been watching 
you as you have been asking--answering questions about the 
consultation with Congress, and I know that you are sensitive 
to that. And I was wondering if at any time during this process 
did you, yourself, recommend or suggest to anyone in the White 
House, the NSC, any of the parties, any of the people involved 
that they should consult or notify the Congress prior to May 
31st?
    Secretary Hagel. Congressman, through this process, which I 
have in front of me, the deputies meetings at the White House, 
principals meeting, which I am a principal, all of these things 
were discussed; notification, the risks which we have talked 
about today. I support the decision that was made on 
notification. I didn't particularly like it. I think a lot of 
people didn't, but we felt in the interest of not risking any 
further Bowe Bergdahl and the opportunity to get him back, and 
maybe even his life, this was--this was the smartest way to do 
it.
    Mr. Byrne. Well, I understand it was discussed, but did you 
yourself suggest or recommend that some notification, or 
consultation be made prior to May 31st?
    Secretary Hagel. We all made different suggestions, 
recommendations as to at least exploring what happens if we 
don't, should we, what is the downside of that, what is the 
downside if we do? So all of these things were----
    Mr. Byrne. So you did it.
    Secretary Hagel. Well, we all talked about it. It wasn't 
just a recommendation. It was, we went around the table. We 
talked about it, all of us.
    Mr. Byrne. So you suggested, maybe we should talk to 
Congress or give some notification?
    Secretary Hagel. Everybody suggested that. We talk about 
this. We look at it, go up and down. No formal recommendation 
was made by me. At the end, we discussed it. We all came out in 
the same place, that the risk was just too great. We didn't 
want to take the risk.
    Mr. Byrne. Mr. Preston, let me ask you a question. I was 
interested in the colloquy you have had with several people 
over this constitutional issue. Is it your position, is it the 
position of the Obama administration that after the President 
of the United States signs a law and it becomes law, that he 
can on his own, after consultation with legal counsel, the 
Justice Department, whoever, say I don't have to comply with a 
particular provision of that law without going to court first?
    Mr. Preston. I can only speak for myself, but I think that 
the President may act in the exercise of his constitutional 
authority as he understands it and as circumstances demand, 
without necessarily going to court.
    Mr. Byrne. How is that different from the position that 
people in the Nixon administration took during Watergate that 
if the President does it, it is legal. How is that different?
    Mr. Preston. Now, I wouldn't even know where to begin to 
answer that. I think it is----
    Mr. Byrne. Well, begin with the beginning. Can the 
President of the United States decide he can do whatever he 
wants to do because he thinks he has got some constitutional 
protection, despite a clear provision in the law to the 
contrary? Can he do that?
    Mr. Preston. Well, the way I would answer that is, this 
President faced a service member in peril and in captivity and 
exercised a constitutional duty and authority to recover that 
service member. In circumstances in which it was the judgment 
of the policy, the leading policymakers of this country, that 
the circumstances were not going to permit the 30-day 
notification. That is a very concrete response to what--a very 
compelling situation, so----
    Mr. Byrne. Well, I understand that you are saying that 
under these particular circumstances, you are not saying that 
it is a blanket thing, but you think under certain 
circumstances, the President of the United States after he has 
signed a law and it has become law, can decide that certain 
parts of it he doesn't have to comply with without going to a 
court and getting a determination about his constitutional 
basis for doing so?
    Mr. Preston. There are circumstances and this was one.
    Mr. Byrne. One final question for you, Secretary Hagel. 
Could you please provide us assurance that there will be no 
unlawful command influence related to the case of Sergeant 
Bergdahl?
    Secretary Hagel. Absolutely, and I have said it here in 
answer to a couple of questions before.
    Mr. Byrne. Thank you, sir, I yield back.
    Mr. Gibson. The gentleman yields back.
    I will recognize myself for 5 minutes, and just want to 
echo the remarks. I appreciate the panelists for being here 
today and your leadership in the DOD.
    And Mr. Secretary, thank you for your courageous and 
honorable service in Vietnam. And as a former soldier myself, I 
will start by saying that the ethos that we will leave no 
soldier behind I think is very important to the Profession of 
Arms.
    I still have deep concerns about the judgment in this 
particular case, and I want to associate myself with the 
remarks of Ms. Gabbard earlier.
    First, some context. I must say that I respectfully 
disagree with the administration's decision to keep troops in 
Afghanistan for 2 more years. I think that we have largely 
accomplished what we set out to do, decimating Al Qaeda and 
preventing them from having a safe haven in Afghanistan. I 
certainly would stipulate that we have an enduring national 
security interest to make sure that that remains the case. I 
don't think that we need to leave troops on the ground to do 
that. I believe we can do that from over the horizon with 
special operations troops, Arabian Sea or Indian Ocean, and 
evidently, the administration agrees because the administration 
is talking about departing in 2 years. And you know, if the 
administration believes that we have an interest in continuing 
to train the Afghanistan forces, I don't see why we can't bring 
them to the United States of America and train them here. And 
by the way, the Afghanistan people should pay for that.
    But you know, we are where we are today and that is that 
the administration wants to keep troops, U.S. troops there for 
2 more years, and you know, and given that, I question the 
judgment of this particular decision, and I know we have been 
over--I am not going to ask us to rehash a lot of the ground 
that we have been on, but I do want to ask this point, that at 
any point in the negotiations, sir, did it come up that we 
would want to keep these five detainees in Qatar until the last 
American troop comes home?
    Mr. Preston. Congressman, that was not the nature of the 
discussion. It was with reference to the period of time for 
which the security assurances would be in place.
    Mr. Gibson. Well, listen, and I certainly caught the 
earlier remark that said, you know, we weren't holding the best 
cards, I get that. It doesn't appear we were holding any cards. 
I am not sure that our negotiating position, we gave up very 
high-level commanders. It doesn't appear to us that, you know, 
we had any kind of leverage. And I just refuse to accept that 
we had no leverage at all. They evidently had been wanting to 
get these five leaders back. And I think at the very minimum, 
we would have pressed for the point that these five commanders 
would not return to Afghanistan until the last American troop 
had returned back to our soil.
    Let me say this, that I am interested to know in the best 
military judgment of our commanders, our ground commander in 
Afghanistan, the CENTCOM commander, and the Chairman of the 
Joint Chiefs, and I guess I am curious why the chairman is not 
with us today, but I am interested in their assessment and 
their go/no-go recommendation.
    Secretary Hagel. Thank you, Congressman, and thank you for 
your distinguished service. I know about it. And we appreciate 
it.
    Chairman Dempsey is in London. He is convening a group of 
chief military defense officers, counterparts of his from NATO. 
This was a conference that was planned months and months ago. 
He considered not going. Since Chairman McKeon asked not to 
have any uniformed military at the table for this hearing, I 
told General Dempsey not to come back because he was not 
invited to sit here.
    As to his role, I said in my testimony, as well as the Vice 
Chairman who has been very active on this, Admiral Winnefeld, 
in fact, I think has been in every briefing for the House and 
the Senate last 2 weeks. They have been very intricately 
involved in all of the meetings, all of the counseling, all of 
the steps, signed off, supported. They have not been left out 
in any dimension of this and the Vice Chairman, as I said, has 
actually been at all of the meetings.
    Mr. Gibson. And so I am understanding that both the Vice 
Chairman and the Chairman recommended ``go'' on this mission?
    Secretary Hagel. Yes.
    Mr. Gibson. And what about the ground commander and the 
CENTCOM commander?
    Secretary Hagel. They were notified on the 27th of May, 
General Dunford, General Austin. Their awareness of something 
going on was there, but again, to keep this as close as we 
could, they were not informed until 4 days before the specific 
operational plans and decisions, until 4 days before the 
operation. I believe that I am right on those days.
    Mr. Gibson. I thank the gentleman.
    I will now move to Chairman McCaul.
    Mr. McCaul. I thank you, Mr. Chairman.
    Thank you, Mr. Secretary, Mr. Preston. I chair the Homeland 
Security Committee, so I look at that from that vantage point. 
I do have concerns that this move, this swap empowers and 
emboldens our enemies. One only look at what Mullah Omari is 
saying about this when he celebrates. This is a huge triumph in 
his words, a colossal victory. For the first time, we have 
negotiated with the Taliban as equals. And we gave them 
everything they asked for, the dream team. These are the heads 
of intelligence, military, with long ties to Osama bin Laden. 
When I was in Iraq last month, I met with General Dunford and 
Ambassador Cunningham. As we were standing up the Afghans at 
this critical point in time, I am concerned about the influence 
these five could have on the process, and as the Ambassador 
told me, as we withdraw, his biggest fear is there will be a 
vacuum and then we will get hit again.
    Mr. Secretary, can you tell me how this move is in our best 
interest in terms of our security?
    Secretary Hagel. Well, to start with, as I have covered 
this ground this morning, we got our one remaining prisoner 
back. I don't think that is an incidental accomplishment.
    Second, as has been quoted here a couple of hours ago, the 
former Central Command Commander, Marine General Jim Mattis, 
what he said this Sunday, last Sunday about one of the 
significant features of this return was it frees up our forces 
in Afghanistan to not be concerned and not have any adjustments 
or realities or limitations, to always be mindful of trying to 
get our prisoner back. And I think, again, I don't think this 
is anything to be diminished either, as noted by the 
Congressman, the fact is, our military men and women know that 
we will go after them. We won't leave them behind.
    Mr. McCaul. My time is limited, but, you know, one of these 
five, they have already come out publicly, Mr. Noori, and said, 
I want to go to Afghanistan and kill Americans. That concerns 
me. And these guys are over there, reviving the movement, if 
you will, filling the vacuum, and then hitting the homeland 
again, as we saw pre-9/11. There is an old axiom in foreign 
policy and you, sir, have been in the Senate Foreign Affairs 
Committee, Armed Services, for a long time, that we don't 
negotiate with terrorists. The Haqqani Network, as I understand 
it, were responsible for holding the sergeant captive. Isn't it 
true that the Haqqani Network is designated a foreign terrorist 
organization?
    Secretary Hagel. They are designated a foreign terrorist.
    Mr. McCaul. And if so, did we just not negotiate with a 
terrorist?
    Secretary Hagel. No, we negotiated with the Government of 
Qatar. The Taliban made the deal. The Haqqani Network is, as 
far as we can tell, a subcontractor to--and they do it not just 
with the Taliban, but they do it with different groups.
    Mr. McCaul. I mean, let's be--I mean, let's be clear. Okay, 
so we negotiate with a middle man, the Qataris government, with 
the Haqqani Network, who held him captive, held the sergeant 
captive, and the Haqqani Network has been designated----
    Secretary Hagel. It was the Taliban that were represented.
    Mr. McCaul. But ultimately, it is with the Haqqani Network, 
which is a foreign terrorist organization.
    Secretary Hagel. Well, as I said, yes, they are associated 
in different ways. We know that. And as I said, I think the 
best way I can describe it is essentially a subcontractor.
    Mr. McCaul. Well, the Haqqani Network, as I understand it, 
is the most lethal force over there right now.
    Secretary Hagel. It is.
    Mr. McCaul. It is the biggest threat that is coming into 
Afghanistan after we withdraw and fill in the vacuum and then 
from a Homeland Security standpoint, potentially hitting 
Americans.
    Secretary Hagel. The Haqqani Network didn't have any role 
in this deal.
    Mr. McCaul. But they held him captive.
    Secretary Hagel. Preston can give you the specifics of 
this.
    Mr. McCaul. In my limited time, there is a New York Times 
story about--you read about a memo from Guantanamo transfers to 
you from National Security Advisor Susan Rice. What role does 
the White House play in your determination regarding the 
release of detainees from Guantanamo?
    Secretary Hagel. I have the authority and the 
responsibility to make the decisions and to notify Congress on 
whether they are going to be transferred or not.
    Mr. McCaul. Does it stop with you, or does it go to the 
White House?
    Secretary Hagel. Well, the President signs off as well. But 
you asked what role they play. My assessments are made based 
on, yes, the National Security Council, because the 
subcommittee that you chair, the Secretary of Homeland Security 
is part of that, an integral, important part of that for 
obvious reasons; so is Secretary of State; so is the National 
Director of Intelligence; so is the Chairman of the Joint 
Chiefs of Staff; so is the President's National Security 
Advisor. Sure, I want all of that. And they all signed off on 
this decision, by the way. I have got to have all of that, 
because all of them have different pieces along with our own 
internal DOD pieces.
    Mr. McCaul. And I understand that. I see my time is 
expired. Thank you so much for being here today.
    Secretary Hagel. Thank you.
    Mr. Gibson. All time is expired. We thank the gentlemen. 
They have been very gracious with their time this morning and 
this afternoon, and we thank you for your service, and this 
meeting is adjourned.
    Secretary Hagel. Thank you, Congressman.
    [Whereupon, at 3:13 p.m., the committee was adjourned.]


      
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                            A P P E N D I X

                             June 11, 2014

=======================================================================


              PREPARED STATEMENTS SUBMITTED FOR THE RECORD

                             June 11, 2014

=======================================================================

   [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
    
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              WITNESS RESPONSES TO QUESTIONS ASKED DURING

                              THE HEARING

                             June 11, 2014

=======================================================================

      
             RESPONSE TO QUESTIONS SUBMITTED BY MR. MCKEON

    Secretary Hagel. The Department is working to provide the Committee 
the documents responsive to the Chairman's document request of June 9, 
2014.   [See page 13.]
    Secretary Hagel. The Department is working to provide the Committee 
the documents responsive to the Chairman's document request of June 9, 
2014.   [See page 67.]
                                 ______
                                 
              RESPONSE TO QUESTION SUBMITTED BY MR. JONES
    Secretary Hagel. The transfers of the five detainees were decided 
in the context of the security transition in Afghanistan, as we 
approach the end of combat operations. We remain committed to an 
Afghan-led peace process and it is our hope that the events leading to 
Sgt. Bergdahl's return could potentially open the door for broader 
discussions among Afghans about the future of their country by building 
confidence that it is possible for all sides to find common ground.   
[See page 22.]
                                 ______
                                 
              RESPONSE TO QUESTION SUBMITTED BY MR. TURNER
    Mr. Preston. Thank you for your letter of June 18, 2014, to the 
Secretary of Defense, in which you express your concerns regarding the 
exchange off five Taliban detainees for Sergeant Bowe Bergdahl and 
comments I made at a House Armed Services Committee hearing on June 11, 
2014, with reference to the release of Chief Warrant Officer (CWO) 
Michael Durant from Somali militants in October 1993. I have been asked 
to respond to your letter on behalf of Secretary Hagel.
    Sergeant Bergdahl is a member of the U.S. military who was detained 
in the course of an armed conflict, and he was released in an exchange 
of detained combatants between parties to the armed conflict. Although 
there are differences between the current conflict and America's past 
wars, of course, this exchange was consistent with historical wartime 
prisoner exchanges and within the tradition of securing the safe return 
of captive U.S. service members through such exchanges.
    My comments about the release of CWO Durant sought to provide a 
previous example of functionally similar engagement with a non-state 
actor resulting in the release of a U.S. service member. In that 
instance, the discussions between the U.S. Government and the Somali 
militants' representatives were followed by the release of CWO Durant, 
which was followed some time later by the release of detained 
militants. As you note, however, there are differences between the two 
situations. Although it is possible that there was an expectation on 
the part of the Somali militants that the detained militants would be 
released once CWO Durant was released, as I understand it, there was no 
promise or agreement by the U.S. Government to effect release of the 
detained militants if CWO Durant were released.
    The Department is committed to recovering each and every U.S. 
service member held in enemy captivity. In this case, there was a 
fleeting opportunity to protect the life of a U.S. soldier held captive 
and in danger for almost five years. As Secretary Hagel testified 
during the June 11 hearing, the decision to transfer the five detainees 
in exchange for Sergeant Bergdahl was a difficult one, but it was a 
decision that he believed to be in the national security interest of 
the United States.
    Please know that the Department is fully cooperating with the 
ongoing House Armed Services Committee inquiry into the detainee 
transfer and continues to provide documents in response to the 
Committee's requests. Thank you for your continued support of our 
service men and women deployed in harm's way.   [See page 36.]
                                 ______
                                 
             RESPONSE TO QUESTIONS SUBMITTED BY MS. SPEIER
    Mr. Preston. Those detainees were held in a manner that reflects 
the best practices for detention in non-international armed conflict 
and complies with all applicable U.S. law and policy, including Common 
Article 3 of the Geneva Conventions of 1949 and the Detainee Treatment 
Act of 2005. Indeed, a review by Admiral Walsh, as requested by 
President Obama in January 2009, confirmed that conditions of detention 
at the Guantanamo Bay detention facility not only met, but frequently 
exceeded, Common Article 3 standards.   [See page 45.]
                                 ______
                                 
             RESPONSE TO QUESTION SUBMITTED BY MR. COURTNEY
    Mr. Preston. The Department is working to provide the Committee the 
documents responsive to the Chairman's document request of June 9, 
2014.   [See page 30.]
                                 ______
                                 
              RESPONSE TO QUESTION SUBMITTED BY MR. SCOTT
    Mr. Preston. The Department is working to provide the Committee the 
documents responsive to the Chairman's document request of June 9, 
2014.   [See page 72.]


      
=======================================================================


              QUESTIONS SUBMITTED BY MEMBERS POST HEARING

                             June 11, 2014

=======================================================================

      
      

                   QUESTIONS SUBMITTED BY MR. PALAZZO

    Mr. Palazzo. Mr. Secretary, I turned 21 in the desert, and I still 
serve as an NCO with the MS National Guard. Like you, I know the 
sacrifices that our soldiers make. We just celebrated Memorial Day and 
honored the 1.3 million Americans that have paid the ultimate sacrifice 
in service to our country. I believe in the military ethos of no 
soldier left behind. That doesn't mean I agree with the events that we 
are here to discuss today.
    I believe that the messages we send matter. The messages we send to 
our soldiers, the messages we send to the rest of the world. And the 
messages that we send to the American people. Mr. Secretary, I'm 
extremely concerned that we're not sending the right messages. More and 
more, it seems: Our friends don't trust us, and our enemies don't fear 
us. And the American people are tired of being ignored. I recently met 
with individuals from my district who do business every day with our 
allies overseas and in the Middle East, and I can tell you that they 
are concerned. Our allies and partners are upset. These individuals 
have faced harsh criticism because of the actions of our President and 
this administration.
    What kind of message, sir, does it send that we are now negotiating 
with terrorists?
    Secretary Hagel. In the decision to rescue Sergeant Bergdahl, the 
Administration complied with the law and did what we believed was in 
the best interests of our country, our military, and Sergeant Bergdahl.
    The United States will take reasonable steps to recover any and 
every U.S. servicemember held in captivity. Sergeant Bergdahl is a 
member of the military who was detained during the course of an armed 
conflict and held captive and in danger for almost five years. We have 
been clear that we would pursue every avenue to recover Sergeant 
Bergdahl, just as the American people and the Congress expected us to 
do.
    The United States acted upon what we believed was our last, best 
opportunity to protect Sergeant Bergdahl's life. The exchange of the 
five Taliban detainees for Sergeant Bergdahl is fully consistent with 
U.S. law and our nation's interests, as well as our military's core 
values. The Secretary of Defense, in coordination with the President's 
national security team, determined that the transfer was in the 
national security interest of the United States and that the threat 
posed by the detainees to the United States or U.S. persons or 
interests would be substantially mitigated.
    Mr. Palazzo. What kind of message does the release of five senior 
Taliban officials send to all our men in women in uniform?
    Secretary Hagel. The United States will take reasonable steps to 
recover any and every U.S. servicemember held in captivity. Sergeant 
Bowe Bergdahl is a member of the military who was detained during the 
course of an armed conflict and held captive and in danger for almost 
five years. We remain steadfast in our commitment to our men and women 
in uniform that America does not leave its servicemembers behind.
    We have been clear that we would pursue every avenue to recover 
Sergeant Bergdahl, in line with the expectations of the American people 
and Congress. By exchanging the five Taliban detainees for Sergeant 
Bergdahl, we acted upon what we believed was our last, best opportunity 
to protect Sergeant Bergdahl's life.
    The five individuals transferred from Guantanamo Bay were members 
of the Taliban, which controlled much of Afghanistan's territory prior 
to the U.S. invasion and overthrow of that regime. The United States 
detained these individuals in 2001 and 2002 and held them at Guantanamo 
Bay as unprivileged enemy belligerents. 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.
    Mr. Palazzo. What kind of message is this administration sending to 
the American people? As members of Congress and as members of this 
committee, we are the elected representatives sent here to reflect the 
voices and views of hundreds of millions of Americans. What kind of 
message should we take away, that the law was blatantly ignored because 
the President thought it was best?
    Secretary Hagel. The exchange of the five Taliban detainees for 
Sergeant Bergdahl is fully consistent with U.S. law and our nation's 
interests, as well as our military's core values. The United States 
will take reasonable steps to recover any and every U.S. servicemember 
held in captivity.

                                  [all]