Defense Secretary Faces Tough Questions on Capitol Hill

Chuck Hagel tells representatives the opportunity to get Bergdahl was, "the last real effort" available to get soldier back.
59:06 | 06/11/14

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Transcript for Defense Secretary Faces Tough Questions on Capitol Hill
This is a special room. The firestorm over this man -- -- dolls released Defense Secretary Chuck Hagel facing in the heat today on Capitol Hill. -- be able to calm the controversy an answer all the questions I'm Michelle Franzen in New York more fallout today over the prisoner swap. That -- army sergeant vogue -- -- free. -- looking at a live picture today its Defense Secretary Chuck Hagel on the hot seat he's before house arms services committee this morning. It is the first public congressional hearing on the controversy. We want to bring in ABC's digital journalist Louis Martinez first though watch it all for us at the Pentagon today -- thanks for joining us. A tough day of questioning ahead for -- -- A former Republican himself but Republicans ready to grill him on the prisoner exchange what are some of the things they will be demanding answers on. But they really want to know is why congress was not notified in advance that this deal is actually gonna take place. They -- the hidden in the administrations are legally bound to notify congress of the given thirty days notice. That detainees in Guantanamo are going to be transferred that didn't happen here. With the possible exception of some senate majority -- majority leader Harry Reid who says that he was told 24 hours in advance. But knowing nothing cutters -- -- -- that notification and there are kind of up in arms about this. On the other concerns of course are these five Taliban detainees were released from Guantanamo are they going to return to the fight or they too dangerous. There is overwhelming support to bring -- -- back but once the details of this deal came out. There was outrage that these five Taliban detainees were too high ranking that they had too much blood on their hands that they would return to the fight. And that's what you've heard from members of congress they want to know from sent a second secretary Cagle. What was the administration's thinking what was a rationale. The the rationality given so far is unacceptable to them and that is that there was an urgent need to bring Sargent -- go back. Because his health was deteriorating because he was -- -- and because there is a threat to his life. The administration has shown videos two members of congress trying to make their case as proof of -- video that showed him in bad shape -- earlier this year. But you heard members of congress coming out after that briefing basically saying they weren't convinced so hate -- gonna have a tough time. To try to convince these members of congress on the house side that the administration. Had a valid argument valid reasons in bringing back both herself and humans as you know the that you mentioned that the questions will probably surround that notification give us a little background. A few years back of how this process had been working. Well the -- this works is that the secretary of defense has the authority it's up to him to sign off to certify using the term. That the detainees that are going to be released from Guantanamo when they are transferred actually is the -- of the -- To a third country that they will not that you're no longer considered -- it's considered to be a threat to US national security. In this case that you heard members of congress coming out after one of the briefings earlier this week saying that. It wasn't the president made the prefers are saying was the president has signed up on this it was Chuck -- I think that's just dislike mr. -- interpretation of the legal authority that -- hats. The releasing detainees is a very complicated process. Remember one time there -- 750 detainees in Guantanamo are now 149. I think of went through review boards that determine their status. And then now there's a full -- -- Effort to determine whether the remaining detainees. Our threats and if -- -- threat that they are put into this pool of detainees who are awaiting transfer to third countries. Country have to agree to take them and sometimes it's their home country other times it is an. But ultimately it's the Defense Secretary who once he has all the paperwork has to sign off. On whether these detainees can go back to their country where -- their country and that's what happened with these detainees from tal the Taliban. And -- number adult deal as Defense Secretary Cagle was the one had to sign off on it and we've heard from his spokesman that he was confident. That -- their release meant the national security needs to the United States as we watch him getting ready to feel these questions is he the first member of the Obama cabinet to testify on the divisive and controversial move we know that this the first. Public. Meeting that's ray -- this is the first public meeting the first public testimony were gonna hear from Union -- about the rationale behind the deal. We've had classified briefings by government and the members of the administration from here at the Pentagon. From members of national security team going up -- the hill trying to make their case. We heard it was a mentioned before they didn't play videos he's proof of life videos that were provided by the Taliban. That showed per gallon and deteriorating. State of health and -- of mine apparently. They've come up with they've gone up -- also provided details classified details about how is that the Qatar Qatar -- Are going to maintain. A vigilance over these five release Taliban detainees publicly the administration has not wanted to get into the details. Of how Qatar is going to do that. Other than the fact that they've gotten personal assurances from their -- cutter that this is going to happen we might get some more details. And of course Republicans and both Democrats have been critical of the administration for not informing them. Give me an idea is that really -- the heart of what these questions might be centered around today is they release of those five. Once high risk. Terrorists that there's no data -- that that is exactly what is going to be a focus of these members the chairman of this committee but -- and. Has been a vocal advocate -- -- release. And then once he came out once he heard the details he was he's been very very vocal. -- if you put he's opposed the deal he doesn't see why congress should not have been notified. He. -- insinuation being that congress can't keep a secret. This thirty day notification process. Seems to -- That the fact that the administration didn't do this they take umbrage at that. And because -- seems to them that the what can be so pressing that you can't follow the law. And and come to us and tell us that you're gonna do this I think that's going to be a one of their top questions yet when of course it is. Why did the administration agreed to give up such high ranking officials. I think you're -- hear hey -- say back you have been briefed on this for several years this is not a new deal. This has been on the table since that early 2011 when the US and Taliban engaged -- secret talks. And and members of congress are -- that yes we. Potentially as part of a bird -- deal we may release five individuals and in fact it was the same five individuals. Who were released from Guantanamo last week and Lewis except -- already this notification when -- else when those tests or rather when those conversations were going on before what was the consensus what was the feedback that the administration is getting time. Well V8 from what we've heard from various members of congress they they were some concerns that were raised at the time. That the the presentations -- -- back I think it late to 2011 early 2012. That this fight for -- deal was in the works. The minute a nutritionist but people we've heard the last couple of days -- that those concerns are duly noted. And that they felt that they had been met. With that with a final deal that was worked out last week. -- so they note that there were concerns at the time and that the administration. Acknowledge them and that they were they -- path forward. And give us an idea of course Defense Secretary Cagle has also been in touch with -- -- family. Give us an idea the latest. Over on his house. Global -- remains at that medical facility in Germany we are told that his health is improving that he's interacting more and more with the people that are treating him. -- ultimately any decision on contact with his family's going to be up to him. So far we've been told that he is not that made contact with his family. This is part of the integration process says it's called it can be very lengthy it all depends on the individual. We have to remember these these are people who have gone through very traumatic experiences. And everyone has their own pace for readjusting back. To society. So making contact with the family is something that is part of an integration process. But they do so at their own pace it's unclear when -- -- is going to return to the United States. -- initially until seven -- within 72 hours then media week. Now we're hearing that because this is an open ended process and it's on -- schedule. And could be some time before he returns to the United States and continues his treatment. At a medical facility in San Antonio. And and as regards to -- making reaching out to the family yes he did he said he waited a couple of days before the news right he wanted to give families some time. When he did speak to them he basically said that bird -- health is arm the most important priority. And that's what we're focused on right now -- he said -- the family's very grateful for that. And and they they appreciated the fact that everything that the United States had done thinking Israelis and of course along with for -- help the military is tasked with. Also investigating whether or not he may have deserted his post as some reports claim what is that process going to be like. While the army has said -- they're gonna conduct a comprehensive review of -- circumstances surrounding -- -- disappearance back in June of 2000 night. But they say that is not going to start until after Byrd tells medical treatment his psychological assessments are all done. They -- focused on him returning. Tuesday it has health and regaining. But read his abilities. They -- everything's gonna take it's own time. So that has not begun. -- you know yesterday we had a news conference with rear admiral John Kirby he's the chief spokesman here at the Pentagon. And he was asked repeatedly about this what we call your -- 156 report this in initial investigation. In Q well upper -- -- who cares which by the way concluded there was no conclusion that he had deserted. It was just more a fact finding investigation gather the facts and made no assessment as to whether he was this or not and thirty -- of that assessment which remains classified. -- played no role in -- determining whether the US should go after hiking bird -- release. Or not he said that remains an open investigation. And but that the key priority is bringing back an American soldier who had been. Captured five years ago and that's what this is all out. And certainly a political firestorm even though the military has yet to conclude its investigation a lot of lawmakers are -- speaking out on that as well as the public. I think privately years depending -- officials here griping that what we're hearing on the hill is political posturing. Because they know that -- -- -- lawmakers who are the ones. Crittenton being most critical of the steel were the same ones who are most local. In advocating for -- -- released by a couple of years ago. And so they don't quite understand this -- You might here's a little push back from -- on that note that today I know for. A couple of days ago we heard the State Department spokesperson say that she was what she heard. Comments about the negative comments about the forgot release -- found them to be defensive and appalling. So there's that sense now it's obviously -- think. The members of the -- have some legitimate complaints. -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- On their support of the prisoner exchange give us an idea what -- what they've been fielding there last week. Well they've been did the same that there was a very brief window of opportunity to do this deal they said that there is an urgent need to get it done. Because -- -- health was concerned they have been vague about precisely what health concerns they'd -- they witnessed other than that -- -- But. They they've also been making the case. That his safety was a major concern. The safety from whom all potentially. There may have been other Taliban factions that many more may have not agreed with the deal that the Haqqani Network. Was working out with the US so potentially this Sunday in fighting there may have led two potential harm pervert. City administration's been very very strong. And and making their case that this is a deal had to be done. On this timetable and that that urgent timetable meant that congress could be notified in time because -- just couldn't wait for that thirty days -- to be concluded. For the detainees to be released. And of course -- as we get ready to hear from Defense Secretary Cagle sitting there listening to. Lawmakers. For an introduction before their questioning give us an idea is this the big test for Defense Secretary Cagle and -- what does he need to do. This is a very unique tester Cagle because he's the main voice for the administration on this right now he's the first administration official to go up on the hill to explain his case. And and it's going to be very -- -- an important piece of testimony took very good Louis thank you very much and we do -- to take this hearing live listening to Defense Secretary accounts. Steve Preston here with me this morning. Mr. Preston was one of our negotiators. Throughout this process and -- and signed. On behalf of the United States. The memorandum of understanding between the governments of Carter. And United States. Also here representing the Joint Chiefs of Staff sitting behind me. He is brigadeer general Pat White. Who is a director. Of the joint staffs Pakistan Afghanistan coordination -- General white helped coordinate. The -- -- recovery on behalf of the chairman of the Joint Chiefs of Staff general Dempsey. The vice chairman of the joint chiefs admiral -- felt that the chairman has said noted. Will join us. Later this morning in the classified. Closed portion of the hearing. And as you know general Dempsey and admiral when -- -- Played critical roles in the meetings at the National Security Council leading up. To Sargent bird -- release. And supported the decision to move forward with this prisoner exchange. In my statement today I will address the issues of chairman -- and mr. Schmidt. The issues they raised. When the chairman asked me to testify -- and explain why it was so urgent. To pursue -- -- Bergdorf release. Why we decided to move forward with the detainee transfer. And -- was fully consistent with US law our nation's interest and our military's core values. Mr. chairman members of this committee. I want to make one fundamental point. I would never sign. Any document or make any agreement. Agree to any decision. That I did not feel was in the best interest of this country. Nor would the president of the United States. Who made the final decision. With the full support of his national security team. I recognize -- to speed. We which we moved. In this case has caused great frustration. Legitimate questions and concern. We could've done a better job -- 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 -- -- -- hands. And second. We had -- -- on hand only a few hours after making the final arrangements. There are legitimate questions. About this prisoner exchange in congress obviously as an important. Constitutional rule and right and responsibility. To play in all of our military intelligence matters. As a former member of mr. chairman of the senate select committee on intelligence the council on foreign relations. I appreciate the vital role congress plays -- our national security. And -- present to this committee. Within the limits of an open unclassified hearing. And in more detail in the classified hearing. Everything I can't. -- your questions and assure you. This committee the American people at this prisoner exchange was done legally. It was substantial mitigation of risk -- our country. And in the national interest of this country. Let's start with Sargent -- -- status as a member the united states army. He was held captive by the Taliban and the haqqani network for almost five -- He was officially listed as missing captured. No charges. Were ever brought against -- bird -- And there are no charges pending now. Our entire national security apparatus the military the intelligence community in the State Department pursued every avenue. To recover Sargent -- -- just as the American people and this congress. And the congress has before you expected us to -- 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 Sargent -- -- release from captivity. We never stop trying to get him back as -- congress knows that. Because he is a soldier in the united states army. Questions about Sargent Burgos captured are as mr. Smith noted in you mr. chairman are separate from our effort to recovery. Because we do whatever it takes to recover any and every US service member held in captivity. This pledges wall and into the fabric of our nation and our military. As former Central Command commander marine general Jim Mattis recently put it bottom line 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 you sign on. And that is all there is too. In -- quote as for the circumstances surrounding his captivity as secretary of the army McHugh. In army chief of staff Odierno will review. Later and they've said. Clearly last week that the army will review. They will review this. Exchange circumstance captivity of Sargent -- -- In a comprehensive coordinated effort that will include speaking with Sargent bird -- And I think I. Need not remind anyone on this committee. Like any American sergeant -- -- has rights. And his conduct will be judged on the facts not political -- say posturing charges or innuendo. We do all that any American. And especially those who are members of our military and -- -- Like most Americans I've been offended. And disappointed. And how the -- -- family's been treated by some in this country. No family deserves this. I hope there will be some sober reflection. On people's conduct regarding this issue and are relates to the -- -- In 2011. The Obama administration conducted talks with the Taliban on -- -- exchange. Involving. The same five. Taliban detainees. That were ultimately transferred after release. The sergeant -- -- out. These talks which congress was briefed on. Some -- you in this room were in those briefings I understand. Which congress is briefed on in November of 2011 and in January 2012. Were broken off by the Taliban and mark to 2012. We have not had direct talks with the Taliban -- this time. In September of 2013. The government of Carter offered to serve as an intermediary. In November of last year we requested. That the Taliban provide a new proof of life video Sargent -- In January of this year. We receive that video. And it was disturbing some of you may have seen the video. It -- 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 -- Dole's health was poor. And possibly declining. This game is growing urgency to act in April. Of this year after briefly suspending engagement -- -- the Taliban again. Signaled interest in in direct talks on an exchange. At that point we intensified our discussions with the Carter government about security assistance in assurances. Particularly. Security assurances. On May twelfth. We signed a memorandum of understanding with -- -- detailing the specific security measures that would be undertaken. And enforced. And enforced by them. If any Taliban detainees were transferred to their custody. Steve Preston who -- I noted earlier signed that memorandum of understanding on behalf the United States government. And was included in those negotiations. Included in this some all you were specific risk mitigation measures. And commitments from the government of Carter. Like travel restrictions monitoring. Information sharing and limitations on activities as well as other significant measures. Which we will -- -- in the closed portion of this here. They were described. As you know mister 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. As an opportunity to review. That member -- memoranda of understanding. In a -- closed setting. US officials received a warning. We received a warning. From the qatari intermediaries. That as we proceeded time was not on our side. And will go into more detail in a classified hearing on those warnings. This indicated that the risks to the sergeant bird dolls based deep safety. Were growing. We move forward within direct negotiations on how to carry out that exchange. Exchange of five detainees. And agreed to the mechanics of the exchange on the morning of may 27. Following three days. Of intensive talks. That same day. President Obama. Received a personal commitment. In a personal telephone call from the -- of cutter to uphold and enforce the security arrangements in the final decision was made. To move forward with that exchange on that day. Has the opportunity to obtain Sargent -- -- release became clear. We grew increasingly concerned that any delay. Or any leaks. Could derail the deal and for their endangered Sargent -- bill. We were told by the qatari news that a leak. -- in the negotiation for bird -- 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 their deadly -- -- In very dangerous territory that we did not control. And we've been given no information on where the handoff. Would occur. For all these reasons and more. The exchange needed to take place quickly. Efficiently and quietly. We believe this exchange was our last. Best opportunity. To free him. After the exchange was set in motion. Only 96 hours passed before sergeant -- doll 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 the hand off until 24 hours before. We did not know the precise location. Until one hour before. And we did not know until the moment Sargent -- always handed over safely to US special operations forces. That the Taliban would hold up their -- of the deal. -- -- wasn't until we recover. Charge -- Bordeaux on May 31. 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. -- sector defense I have the authority and responsibility as has been noted here. To determine whether detainees. Any detainees but these specific detainees of Guantanamo Bay can be transferred to the custody of another country. I take that responsibility mr. chairman members 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 remembers the Taliban. Which controlled much of Afghanistan's prior. All the territory to America's invasion and overthrow that regime. There enemy belligerents. Detained under the law war. And taken to Guantanamo on late 2001 and 2002. They've been in US custody in Guantanamo cents at 1213 years. But they have not been implicated. In any attacks against United States. And we had no basis. To prosecute him and a federal court or military commission. He 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 war. In at any of these detainees ever try to rejoin the fight. They would be doing so at their -- -- There's also always always some risk associated with a transfer detainees from Guantanamo. This is not a risk free business. We get them. US government has transferred 620. Detainees. 620 detainees from Guantanamo since may 2002. With 532. Transfers occurring during the Bush Administration. An 88 transfers occurring during the Obama the administration. The case to these five detainees the security measures Carter put in place led me as secretary defense. To determine. Consistent with the national defense authorization act that the risks they opposed to the United States are citizens in our interest. -- substantially mitigated. I consulted with all the members of the president's national security team and ask them. As they review all the details. They reviewed -- draft of my notification letter to specific line by line word by word details of that letter. I asked for their complete reviews. The risks. Associated. And I asked either concurrent or object to the transfer. The secretary of state. The attorney general. Secretary of Homeland Security. Director of National Intelligence. And the chairman of the Joint Chiefs of Staff. All supported this transfer. All put their names are. There was complete unanimity. On this decision as chairman. And president and I would not have moved four. And -- we -- complete confidence that we were acting lawfully. The national interest in the best traditions of our country. Our our operation to say sergeant -- -- life. Was fully consistent with US laws and our national security interest in at least five ways. First. We complied with the national defense authorization act for -- fourteen by determining. That the risk of detainees -- to the United States American citizens in our interest. Was substantially mitigate. -- the transfer was in the national security interest 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 the dates back to the revolutionary war. As occurred in most wars. That we fought. Fourth because Sargent -- dole was detained combat. Being held by an enemy force. And not a hostage. It was fully consistent -- a longstanding policy not to offer concessions to hostage takers. The Taliban as 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 -- already noted. In late 2011 and early 2012. Reflecting our intent to conduct a transfer of this nature -- these particular five individuals. Mr. chairman I fully understand. And appreciate. The concerns the questions about our decision to transfer these five detainees to Carter. Without providing thirty days notice to cars. But under these exceptional circumstances. A fleeting opportunity to protect the life of an American service member held captive and in danger for almost five years. The national security team in the president of United States agreed that we needed to act swiftly. We were mindful that this was not simply a detainee transfer. But a military operation with very high and complicated risks and a very short window of opportunity. That we didn't want to jeopardize. Both for the sake of Sargent -- deal. 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 as a transfer of the five could lawfully proceed. The options available to available to us. To recover Sargent -- -- were very few. And far from perfect. But they often aren't work time mister chairman. And especially in a complicated war like we've been fighting in Afghanistan for thirteen years. Words -- Massey. And their full of imperfect choices. I saw this firsthand. During my service in Vietnam in 19681968. This committee may were called we sent home nearly 171000. Of our war dead in one year. I see it as a -- defense a few view on this committee. True view on this committee. Have experienced war. And you've seen it up close. You know there's always suffering the war there's no glory in war wars always about human beings it's not about machines. -- a dirty business. When -- -- to deal with those realities. Are realities they are. And we do it must deal with. Those of -- charged with protecting the national security interest in this country are called upon every day. To make the -- 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 interest. War every part a war. Like prisoner exchanges. Is not some abstraction. -- theoretical exercise the hard choices and options don't fit neatly and a clearly defined instructions. In how to manuals. All these decisions are part of the brutal imperfect realities we all deal with the war. In the decision to rescue Sargent bird always complied with the law. And we did what we believed was in the best interest of our country our military. And sort of verbal. The president is constitutional responsibilities. And constitutional authorities. To protect American citizens. And members of our armed forces. That's what he did. America does not leave -- soldier's mind. We made the right decision. And we did it for the right reasons. To bring home one of our own people. As all of you know I value the defense department's partnership. Partnership with this congress. And the trust we developed over the years I know that trust has been broken. I know you have questions about that. Not a Trace -- -- I have always. Been straightforward. Completely -- -- fair parent with this committee. Since I've been secretary defense I will continue to do that. I will do that always. -- all my relationships and associations -- responsibilities. To the congress. That's what I always demanded mr. chairman. Any administration. When I was a member the United States senate. I bet on your side of this equation I understand. That's -- I've done this morning. With the statement -- made nine made the decision I did and I've explained that in general terms. The circumstances surrounding my decisions. Were imperfect. And these decisions. That have to lead to some kind of judgment always -- The president is in the same position. But you have to make a choice you have to make a decision. The day after of the -- -- operation. Bob from air base in Afghanistan. I met with the -- special operators -- sort of verbal. They are the best of the best. People who didn't hesitate to put themselves -- an incredible personal risk. -- recover one of their own. And I know we all thanked him I noticed committee thanks. We appreciate everything that they do. And we thank all of our men and women and Afghanistan who make the difficult sacrifices. Every day this country. Earlier this week we reminded. Of the heavy costs of war. -- costs of war when we lost five American servicemen. In Afghanistan. I -- our thoughts and our prayers go with their families. We're grateful for their service. We're grateful for the service of all our men and women in uniform around the world. As I conclude mr. chairman I want to again thank this committee. This committee for what you do every day. To support our men and women. Around the world as chairman I appreciate the opportunity to make this statement. Look forward your questions. Thank you -- 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 to. A briefing just a couple of days ago -- the last question asked. By a member of congress of the -- first was who made the final decision then one of the brief first stated that you had made the -- and this -- I think all of us understand. How this place works and and a decision of this nature is always made by the commander in chief and I think that. You clarified that and I appreciate. The secretary -- One of the things -- this bothered me the most about this is the fact that we did pass a law. Last year that state did. The congress should be notified thirty days before any transfer. Of detainees from Guantanamo. Just a little history we were briefed some lists some of the leadership. On this committee and other pertinent committees in congress. It's a starting in November of eleven. That there was. Negotiations. That we were entering into negotiations with the Taliban. Looking towards reconciliation. At some point. Along without in the -- Meeting. There was also mentioned about. A reap potential. Transfer of detainees. As you mentioned for the release of -- bomb Sargent Bert doll. That was followed up with another briefing in January. And then the Taliban set up -- headquarters and cutter. President Karzai learned about 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 soul. When we passed that law. We felt that that we were fitted 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 transfers in the national security interest of the United States. An assessment of the capacity willingness and past practices. Of the receiving country along with the notice along with several other. Pieces of information and previous NBA's. -- also required that same thing in fact. Our language that we have passed in this committee and that 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 the -- -- that I think you have just made a very strong. Case for the position taken by the president and administration. You just have one thing out. These negotiations. As we were told in a briefing last week started. In January of this year. -- that with the tape and with with the other things that went forth. Emma and I've been told him a couple of different briefings now. That. Somewhere. And but I think the final number given to us a couple days ago was somewhere between eighty and ninety people. In this Department of Justice. The State Department. This sector of the Homeland Security I guess was one of them and the Department of Defense. Knew about us AD to ninety people. The only one I know all of -- was elected it was a present perhaps the vice president we don't know who those they -- -- ninety people work. Yet it all let time. The leadership of the house that has the responsibility. -- leadership. According to the constitution with the -- the United States. Was not informed. Not told of any of the -- if you had. Or somebody -- you have the most credibility but if you had been able to. Meet with the 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've mentioned that the law states. And full compliance with the law would have been met. And I don't think we would've pushed back at all. And yet when the laws ignored. And you know. We all have we all feel keenly the responsibilities. That we -- sometimes more than others this is one of those times where this is a very important. Principal. And -- I wish that you -- somebody. Had sat down with them. Leadership. Of the congress. Including the senate. And and told us -- saying things you just told us in in your briefing here. It -- I think you would've c'mon. Would have been very. Helpful. In re establishing or establishing or keeping the trust that we should -- out. Between the congress the president United States. The Supreme Court all of us trying to work together. To the satisfaction the constitution. And the American people of the world center to serve. Let me just tell us one what question secretary. -- will will the department fully cooperate with this committee's inquiry going forward with the detainee exchange including. The recent request that I that I sent a couple of days ago for documents. Absolutely yes. Thank you very much and thank -- for your service. In the military in uniform. In the senate and now in this very tough job the -- -- -- Thank chairman I think two very important parts to this one is one the chairman just mentioned -- it -- -- second. But -- the first is this whole notion that we -- somehow broken precedent. That this negotiation we negotiate with terrorists in exchange for this that you know when against a longstanding. US policy. And I think -- has -- the central presents the criticism from the speaker yesterday. And I think it's just absolutely wrong. Given the situation that we are in as you described it. We went to war in Afghanistan sergeant -- all was fighting in that war. We were fighting directly against the Taliban. For the first couple months they were the government. They were knocked out they kept fighting as an insurgent force. Could you walk as soon maybe mr. Preston's lawyer -- you can sort of get into this. How you view this and whether or not. This is -- prestigious -- didn't seem to mean there are exchanges that you managed as you've mentioned just about every war we 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 would diplomat or civilian -- a member of the armed forces who was captured. In that battle so how. Do you think that we've set some precedent here for negotiating with terrorists serious is clearly and as it is in my mind. In a different legal category. Congressman Smith thank you. -- as you noted alluded to some of this in general terms in my in my statement. It two to general. Comments to respond and then Alaska -- present for you suggested his thoughts. One. This was. An extraordinary situation. Before. The reasons I mentioned I think in the classified briefings that some of you've attended the -- will get more into that. Extraordinary dynamics in -- when we close this hearing down and go into class right. It was a very unique set of dynamics. That we were dealing that's number one on the precedent setting side of this. I'm not that the legal person here but. I do occasionally read. And I I don't think there there were any precedent set by this and Florida I know from past wars and how we of always. Gotten our prisoners back or attempted to get him back. Time of war -- after -- war. We can get into. All the appropriate. Categories nations. Of who were combatants and who we at war with. And who were terrorists. And we have. Legal definitions for all of those but I said something -- -- and in my testimony here I know it's your perfect. But I do think it it plays into the larger scope of what we were dealing with what we are dealing with still dealing and will be dealing with -- -- and Afghanistan. -- -- -- what's going on all over the world. What is unprecedented. Today. Is there is the threats and what were up against. Around the world. -- sophisticated. Terrorist groups now we declared war on any album or. How will we define them others than some. As the terrorist groups. But that these are different dynamics in unprecedented situations in this country has never had to deal with before. I'll make one last comment and asked. -- pressing for his legal opinion on on your question. You all have major responsibilities we each in government have major responsibilities. I have the responsibility of getting up every morning. -- -- 11 responsibility and that's -- security of this country that's what -- charged with. That's what the president asked me do senate confirming to do that I agree -- do it took an oath of office we all take the same -- -- office. And that's to the constitution security of this country that is my primary focus every day you all have your focuses. Not. Not too dissimilar from -- either. On some of these things I just -- to have a more narrow gauge -- what I do the president -- the United States as the ultimate responsibility. It's a security of this country so I just remind us of all. All of this it's imperfect I know. And in it might sound like an excuse but is not an excuse. It's reality. The last mr. Preston. Thank you. There's of course good deal of detail the technical legal detail what constitutes a POW -- -- -- Detained combatant or -- privileged -- on privileged belligerents. I don't thing we need to get into that -- into your question what we had here were. Detained combatants held by opposing forces in the same armed conflict. The -- as such. This exchange -- within the tradition of prisoner exchanges. Between opposing forces in time of war. Now it is true that the Taliban. Is not. Conventional nation state. That has been party to conventional armed conflict in the past. But it's not -- character of the holding party it's a character of the detainees. That inspires and motivates our commitment. To the recovery of service members. Held abroad. We don't see this is setting a particular precedent both because it does fall within that tradition a prisoner exchanges. And there have been in the past. Occasions where the United States has filled -- -- -- non state actors. Who were holding service a service member. In order to achieve their recovery can you give -- a specific example the one example I'm aware is the helicopter pilot Michael Durant. In Somalia. Who was held captive by. The warlord Mohamed indeed. And there was a -- client -- I understand it arrangement whereby the United States regained. It's. The -- freedom and the functionally in exchange for individuals who were captured in the same operation. I had just once again I think in any characterization. Of this is negotiating with terrorists totally misses the fact that we were -- we were and are at war insurgent burned all. Oh as a member of our military fighting that war. On the get on the -- peace he. Is -- your opinion. -- at the in new you know let's say 2014 we consider that the the end of hostilities which is -- argument is we're still gonna have 101000 troops there. -- assuming at some point -- there was an end of hostilities. That these five. Would have had to have been released as as the end of hostilities was that is that the department's opinion they undecided -- they feel the opposite. -- -- evidence of that is to say that we believe we have. Under domestic law specifically the -- enough. And under international law principles of law of armed conflict that we have authority to hold. And had the authority to hold these five at Guantanamo. As enemy belligerents even after the forward for us I'll speak to that -- there will come a point in time where the armed conflicts we -- engaged -- 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. On privileged belligerents. Would the end. Unless there were some other basis for continuing to hold them but that's such -- prosecution does not just not just the war in Afghanistan that's right the broader battle as defined under the -- your -- -- and and the point -- -- point I'd make is that. I'm not aware of any determination. As yet that -- the cessation of the current combat mission at the end of this year that the that the armed conflicts. -- determined to be over such that it would trigger the consequences -- we've been discussing. -- -- they'll last thing I'll say no need to respond to this but I'll just re a size point the chairman is made a point -- made my opening statement. It would be. Both sell more helpful -- to say the Department of Defense in my experience has been very good. Com about consulting -- in about working -- with this body so it's not really about that out. The White House and the other hand has not. Very good com about keeping in touch with congress working with us consulting with us -- major policy issues -- sort of -- -- And if we could do better at that. He 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. Hmmm I think would make this entire town work better than it is right now I -- back. Tell my -- back there -- two things -- -- clarified. Did did you. Mistrust and say that. That at some point. Conflict -- -- around and then we would release these people are we would have to release -- the original reason to hold them. And that that conflict is ending in December of this year. Certain a point was the win that the armed conflict ends. The. International law basis for continuing to hold people who -- being held. On the basis of their membership in these are mr. precedent that could you really have to point out which armed conflict are talking about. -- answer was not the armed conflict in Afghanistan. He was the one as defined under the UN math and -- the words as longs for -- al-Qaeda. And his -- were -- their associated forces that. Act is the armed conflict that you were talking about being over not Afghanistan but that's the point of the chairman's question that the point -- -- Only in armed conflict with the Taliban and with -- al-Qaeda. At some point. The armed conflict. With the Taliban influence. And yet at that point. For those detainees are being held as enemy belligerence. Is 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. The candidates to be held as associates of al-Qaeda as the conflict -- al-Qaeda continues. But the point that mr. -- made is that. This this conflict. May not end in December. Just because the majority of our troops are pulled out. That said here understand my understanding is well sir. I mean we see we we thought the conflict was over in Iraq and we we see that is not. That it continues to go on now second second thing I may have left. Wrong impression when I was. Talking secretary. Saying that if you would give in the same report that that probably would have just -- Everything weight we still have big concerns about the five. And I didn't mention that when we were briefed. In. November of eleven and January of twelve. That there was. Real concerns of members of congress that those five would be released in fact it was real opposition to it. And that's why we're very concerned that we weren't told. Other than that. If if we do reenter those negotiations you would be told and that we weren't. So those are things so that we really need to have -- clarified and worked through. -- -- Thank you mr. chairman of the secretary -- collected just begin with a brief additional observation on the notification issue. For past several years this committee has worked on a bipartisan basis to establish an oversight structure -- cyber operations. For terrorism operations. And for sensitive military operations. And and -- 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 is that we get timely. Accurate information. From that apartment. And this failure even if it was ordered by the White House undermines. The ability to have that sort of or oversight structure. I've been a member of the intelligence committee for ten years our work depends on getting accurate timely information from the intelligence community. If the president can. Violate the law and say no in this case we're not gonna give you the information. It undermines the oversight process that we have with the intelligence community. So my point to you is it's not just about this incidents. It's not just about somebody having their feelings -- This decision. Undermines. A lot of the working relationship and all these areas of of national security and I think it's important. That that the whole administration understands. Some of the ramifications of this. Let me ask a specific question press reports indicate that -- -- bird doll was captured by Connie network commander and was held by the Haqqani Network is that true. What I would prefer is as I noted. In the classified. Session that we get into the specifics of that 156. Commanders evaluation report that was done. On the circumstances. At the time charge -- -- captured. -- that was done in August of 2009. That's been set up here and redacted -- appeared yesterday. And I just as soon get -- that in in the classified two. Well I'm not but I I would say this -- Let's say this. He was in that report. That the army did. He was classified as missing. -- captive. But. It's all about what really -- -- on are you are bonded just an understated to verify it as as I understand administration people had said clearly it was the Haqqani Network that kept him. Well the Haqqani Network -- it did have arranged through periods of time. This was another complication -- over five year period he was moved around. -- we had difficulty finding him in knowing -- was. Different groups held it so that that -- complication of a bit of it is headed bodies being part of this that's right. OK and and it's also true that Connie network is listed by the State Department as a foreign tourist attraction. Country. Let me just turn but we didn't negotiate with. -- -- Think -- I think that's a subject will want to discuss more Italy if we must in the classified session but I think through all hell yeah I want to make sure the records clearing out. We engage the Qatar news. And they engaged a Taliban. Now. If the economies -- subcontracting. To the Taliban or whatever that relationship as you know. There is the Pakistan. Taliban and the Afghan Taliban there's a difference there are so we get. Back into definitions of the who's who's who has responsibility for home but. I just want to make sure that that's a clear on the record we can go into a lot more detail. I'm 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. Other economies were the ones news -- -- Adam let me just ask about one other thing and that is the -- five detainees there were released. You said. That there is always some risk associated with -- with releasing someone from Guantanamo but she also said that they have not been implicated in any attacks on the United States. I -- some unclassified. Summary of evidence before the combatant status review truck tribunals. For example for mr. fossil it says the detained he engaged in hostilities against the United States. Or its coalition partners. Maybe there's a difference between us and our partners. -- for mr. was seek it says the detained he participated in military operations against the coalition. So at least at some point there was evidence that -- were involved in hostilities. Military operations against the coalition weren't there. Yes they were mid to high ranking members of the Taliban. -- government of the Taliban so yes they were part of planning but it would my point was. We have no direct evidence of any direct involvement. In -- direct attacks on the United States or any of our troops they were part of the Taliban. At the time. Some. We're given to us we picked two of -- -- captured two but yes they were combatants. So your point was they didn't pull the trigger but they -- senior commanders of the Taliban military. Who directed operations against United States and its coalition partners that's right better way to do it. That's that's that's right now -- I said in my statement congressman they were combatants. There we were at war with the Taliban -- there's there's no getting around that night and made that point I thought pretty -- thank. Just like bin Laden. Didn't pull a trigger. But we went after him because he's -- on the cause the nine elevenths. Ms. Davis. Thank you mr. chairman and thank you both for being here. Mr. secretary I I do think that. Your presentation our own. Did provide -- -- -- additional. Ways have really looking at at the discussion night I do understand and how people feel. In terms of notice but I wanted to -- you have an opportunity to. -- to just look at. -- that issue and and whether or not. The circumstances. Under which she was captured or the fact -- com. Regardless of whether or not his life is in danger. Would have made any difference. -- in terms the thirty day notice you know it's difficult for me to imagine that members would have included that. On within the language of that bill how to what extent. For those situations. -- weighing on the decision of whether or not. 22. -- that discussion during the imminent danger period. Well all of those. We're factors that do we had to consider. As we were thinking through this. His deteriorating health which was clear to us from from last. Proof of life video we had the uncertainty of -- was who exactly held him. Again I remind everybody this that. Is this. Service member was held. And pretty difficult circumstances for almost five years. And we don't know the facts of all of that and until he gets back and were able to get the friends. The urgency of getting him. The fleeting opportunity that was made clear to us. By the -- in aren't engagements negotiations mr. Preston was was there. Through -- All these were -- factors. The concern about leaks we we were warned about. And every one of these different dimensions. We had to think true. And do what we did believe as I said we had information. Two support to us. This effort that might might be the last real effort that we have to get him back. There were too many things floating around that we didn't control. That we that we didn't know enough about so we had that factor in all those did you. Have any other did you -- guess entertain. Either approaches. Two he is. Rescued. -- You were looking out at that particular time and why were -- any of those not -- Well congress when we were as I said in my statement. Since the time he. We were looking at different ways to get him back. Our combatant commanders were always looking at its plants possibilities. Options rescue missions and so -- But. And as I said in my remarks. We had to factor in the risk to our other forces to go getting. And if he was in Pakistan need 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 -- had all the possibilities. But up until this last time. When we got it. -- this in our opinion our intelligence community's opinion. Our military. Everyone who was involved this was the best possibility that we had. To get him out and we were concerned we might lose it do it and as I gave you some dimension of the time -- would even -- we're gonna pick him up. It was less than an hour. And the general they area. And deed that detainees were their. Or was it always this five or were there others well it actually started with six. It is some of you -- -- all of them and one of them and died. And there have been back and forth they they wanted to all. The Taliban detainees at one point and we should know in so that this is part of the whole. -- engagement of of what we need to do and where we where we do. We draw a line saying no we're news we're not gonna do this so yes there -- there were different variations of of that engagement over the years. Thank you thank you mr. secretary of the. Mr. Jones mr. chairman thank you very much secretary hagel mr. -- could see both of you thank you for being here today. Mr. secretary on -- 1 you'll on meet the press and you expressed hope that the release of sergeant Bert doll. Would lead to direct US talks with the Taliban. -- sector the Taliban have stated. There will be no peace with Afghan government. With the United States or any foreign presents as long as troops remain in Afghanistan. And prisons are contained at Guantanamo Bay. They have repeated these statements time and time again and have proven they do not bizarre -- with the United States force airlines. With this known. Why did you at that point. On Meet the Press. Expressed hope I -- we can all have hope. That there were at the release of the Sargent would lead to some type -- -- -- -- direct negotiations. With the United States. And do you today. Feel. That that is still a real possibility. And maybe there's something you wanna say in the class -- setting that -- say here today but. This to me. Your statement. Was. It received by many of the people that I've represented in the third district -- North Carolina. That may be there where it's in this negotiation. About the sergeant that may be there with some signal sent. To you sir or to the administration net there might be a opportunity. For direct negotiations with the Taliban. Knowing the history of the Taliban. Knowing how they fault the Russians Alexander the Great the brits in their fighting the Americans. I would hope that maybe you do know something that you can share with us -- nod and a public setting but in a private setting. Can you comment -- Congressman Jones thank you good to see you again thank you thank you. First is you know the position of the news the United States government regarding. The Taliban has always been we support a reconciliation. Between the Afghan. Government. And the Taliban. That's been a general. Position as you know as to specific answer right -- -- to press it was to a specific question. When we were talking about Sargent bird -- release that I don't we're called exactly that is the question. But if if if -- can piece together. Enough to respond. I think the question was set up world could this lead to. Talks with the Taliban -- reconciliation. And as you quoted me I said well I hope -- maybe whatever. But. -- That. That was in any. Direct. Hand or or wink or possibility that I know something that that's going to happen but I I would also. Remind us again. Two that. If you if you were called some of you do could be -- in some of these of these meetings briefings. In the 20112012. Time for him I wasn't in this job at the time. But I've looked to files on this to -- -- If there was a larger scope and framework of a larger reconciliation. Which included. -- -- release. The two current situation that we were -- was a straight get burned off. Now that hasn't dismissed congressman. The hope. That there they're there can be. Some possibility. The -- Government and Taliban finding. A reconciliation. Somehow -- but. In no way did did I was I attending to implied in that answer that there's something else going on out here. Well might -- interest was simply -- the Taliban's history does not seem that they want to see a foreign presence that's going to influence the future of their country. And I was hopeful that may be in the negotiations for the sergeant that maybe -- been some signal sent. With the intermediary. That may be have been shared and again if there has been maybe. You created through your staff for maybe in the art class class setting let me. Know that there are some possibilities because -- Marines down enough. Camp Lejeune and quite frankly to -- out of going to Afghanistan and get their legs blown off -- thank you mr. chairman are you about affecting humans and we are well congressman Jones. This thing. -- Swanson has the thank you mr. Hammond the secretary -- And -- prescilla thank you for being here today if you testimony. As we -- reminded just. Just yesterday the with a loss of five American special operating. Forces. Afghanistan -- remains very dangerous and battlefield for about -- in military and I -- many of my my college of course expressing gratitude the return of American Prisoner of War and the return of any US service member. From enemy captivity -- should be a priority for his or her. Fellow soldiers in of course for our country. And -- to Virgo is an American soldier in -- grateful. That he's been free. That said that this whole situation raises many troubling concern said. Among them course this this committee has says significant oversight role and there -- legitimate questions regarding both congressional notification. As well as so long term incentives for the Taliban. And dead and al-Qaeda. Certainly significant. Personnel and in other resources. -- had been expended. I had to conduct what could result. Very dangerous and and disturbing. Incentives on the battlefields. As one Taliban commander said and I quote it has encourage stop people. It now everybody will work hard to capture. Such an important -- And quote. So mr. secretary. How do you anticipate. This transfer will impact the incentives. And behavior for the Taliban and al-Qaeda we prepared to counter any new behavior. Congressman I would answer this way first. I think everyone on this committee knows some more than others. Who served in war. That. Wars a -- business and so a soldier is always. Always at risk. That's number one. To you probably know that the Taliban has standing orders to capture American. Service members and that's been -- standing order for twelve years. There's nothing new here. About where the Taliban have been and where they've. Continued 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. -- -- -- -- Now that he's back that frees up that obligation I think that actually strengthens. The point and the last point I'd make. -- I've mentioned this in my comments and again those who served in uniform -- this committee -- this pretty basic to military. -- 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 -- more rest and others every day. To have them be reassured. That this country. Will come get them or make every effort to go get. It's going to be pretty significant. And I was told that by all of our commanders. He can be issues on the specifics as Sargent -- -- But that's irrelevant quite frankly. I think that's pretty significant. And I think it it also -- falls into the category of your question -- question thank you. And as secretary. Think that answer the as the chairman and the ranking member -- have been mentioned -- opening statements to the questions about. Seidenberg -- conduct. Should be addressed him to process at the appropriate time. And and -- and such but could you settle one. -- a -- conflicting reportedly -- terms regarding. The number of the the loss soldiers who may have been involved in searches for Seidenberg don't. -- first. In eight loss of -- any soldier. Is a terrible loss to their family to our country. And I think we've we should note that. First second. Your question has been asked. A number of times I've personally gone back and ask that question inside the Pentagon. In the army in all of our reports. I have seen no evidence. That directly linked to any American combat. Death. To the -- rescue or finding -- search. -- -- -- -- I've asked a question we were all asked the question. I have seen no evidence. No facts presented to me. I when I asked that question. The secretary. You did say there's nothing new here that the -- always out to try to capture -- but. But isn't it true that there is one thing new that we have now made to trade for -- hostage. No he was not a hostage he was a prisoner -- war. That's not news. Have we made other trades. With the Taliban. With the Taliban I don't know -- thanks. Thanks thank you. Mr. Forbes. -- mr. chairman secretary thank you for being here for mentioning the need for transparency and as -- Talked about our inability prosecute the individuals that were released this administration eggs not. Exactly had a stellar record on prosecution of people would get -- when you look at. The fact that the lead prosecutor for -- -- eleven terrorist. Head and specifically said that he would -- had a guilty plea out of all of them within six months in this administration came in. Shut down his prosecution destroyed all this pretrial work and we've been five years and still haven't brought and Trout. Secondly I don't think even you would argue that the conversations that took place in 2011 complied with the law. And basically what we're trying to get across is that we're a nation of laws she can't pick and she's just because -- convenient or not convenient which ones we're going to enforce. And which ones we aren't but the third thing is -- you said this that there are limits to traits that we would make -- somewhere we draw the line. Now we'll talk about were we drew the line. The individuals we released were essentially equivalent to releasing a deputy secretary of defense. A deputy secretary of intelligence -- 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 US his answer was absolutely. Our deputy Director of National Intelligence was even harsher he said the latest community wide US intelligence assessment on these five terrorist. Said he expected for 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 wrist to launch attacks against the United States. And its allies if they were liberated. -- you state your testimony that if any of these detainees ever try to rejoined the fight. They would be doing so at their own apparel. So my first question EU is does this mean you would put American lives at risk to go after them. Who congressman. We have American lives at risk every day. But -- not -- -- -- vigils that we've raised -- -- back out there so my question is would we put American lives at risk to go after them if they rejoined the fight. Well. Depending on the threat -- also let me remind you of the other pieces that you didn't mention. In our analysis of these five. Intelligence community has said very clearly that that these five are not a threat to the homeless. -- secretary the you have said it here that if they rejoined the fight they do it at their on apparel mart and -- just thirty some -- questions for example went. Would we put American lives at risk to go after them. We have -- matter of we we have American lives put -- risk I understand that being a secretary my question is will we put American lives at risk to go after these. Individuals if they rejoin the fight. Well yes OK you guys that's the case let me -- just took what you use the same argument congressman on -- -- -- or anywhere else might extend acknowledges that. But not because of individuals we released an -- -- second question I would ask you this is two parts. In the calculus that you make for releasing these individuals. -- you ask 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 -- could be put at risk if we have to go to recaptured them again. It again. I saw no evidence no facts I asked a question. About how these five. Found their way to Guantanamo. And I have. In front of me the facts on the 52 -- Were detained by US force sector I understand that an adult then we run out the clock going have fifty some seconds gestures no so you'd need to make a calculus as to have -- -- idea and I said the -- you asked if there were lives. Lost in capturing these and you said no I have no direct evidence. The editor of the if you make an assessment India and make an assessment of how many American lives may be put at risk. If they have to be recaptured. No. -- that there's there's risk that we have to our country threats our country every day. Everywhere. And the the other part I would make on this we determine. That there was substantial mitigation of risk for this country for our interest for our citizens our service members. When we made this decision and in my dizzying rise in group are great and and we were satisfied. That we meant we could we could make that determination just flies in the face of all the other evidence we have -- with them as chairman I yield back. -- -- -- -- -- Thank you very much am mister chairman secretary hazel and mr. Preston thank you. For appearing today in providing us with your testimony. Secretary -- -- I appreciate that detailed information. And that you had in your statement and I support your position. I AM. -- I do appreciate also your continued commitment to our men and women in uniform in your stead for the steadfast leadership during these challenging times. My first question is for you mr. secretary what impact would Sargent bergalis continued imprisonment. If we had not -- -- exchange he 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. Well in this sense the congresswoman that. As I answered in -- previous question. About. Putting at risk American lives to capture. May not capture -- 22. Get him back. And -- two. Do that if it would have taken another. Course of action or we would've taken other option. That would have put. Our men and women at risk our men and Norman or risk in fact carrying out this one submission. But fortunately it was done the right way and I don't think again that every effort has gotten enough attention. This was all done in less than sixty seconds that one death. That one issue not one problem that I I've seen very little recognition of that given to our forces. By anybody. -- I mean that that -- this was a significant. Effort by -- armed forces knowing. As little as they did it planning it as well as they did. And having the outcome. As positive and was so thank you I agree. My next question is for mister Preston with titan media attention. How will you -- Sargent bird -- receives a fair investigation. Thank you. -- we will pursue our. Usual policies and practices with respect to. Investigations and follow on -- actions a a key element of that is avoiding the what is referred to is unlawful -- undue command influence. So you'll see that the leadership military and civilian at the department. Have been entirely neutral in their discussion of this and focused on insuring due process without pre judging what the outcome. Should be one way or the other. Those dealing with Sargent -- more directly. And the army more generally. Are believe sensitive to. Insuring 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. Of his capture. That is dead fairness be preserved and that his rights be preserved. Thank you thank you and my final question is for secretary hazel prior to securing the recovery of Sargent very -- Had -- received correspondence from members of congress. Requesting that you take action to obtain Sargent -- -- release. Yes. Thank you mr. -- -- Thank you mr. chairman thank you mr. secretary for being here I'm looking at your testimony and on the first third page excuse me it says that. We complied with the national defense authorization act -- fourteen. Did you or did you not notify congress within the thirty day time -- -- astronaut. No okay what I it was -- shirt yesterday right now does the administration intend to violate the notice requirements of section 1035 of the NBA and section eight. 8111 of the DOD appropriations act in future -- first. Not unless -- In not unless there's an extraordinary set of circumstances like this one would we have. Would we be in a position where you make sure where you're assure this committee that the department will not proceed with future detain -- transfers without notifying congress consistent with the law. We have I believe in any. Before my time in every circumstance. Except this one and we can't we intend to continue to do you were part of the legislative branch is a member of the United States senate we make the laws. Your part of the executive branch now which the responsibility to is enforce the law whose responsibility is it to interpret the law. Is -- the president's responsibility. Or is that the courts. The courts. Then why did the president make the decision or you make the decision not to notify congress. We believe in Justice Department -- office of legal counsel -- -- the -- branch told the president to he had. The constitutional authority to do that. He had under his constitutional powers the authority to make the decision to he did. You said that you would put American lives are at risk if that if the Taliban prisoners that were swapped in the secret deal. Who would rejoin the fight if they rejoin the fight in Afghanistan what they rejoinder from somewhere else they don't have to necessarily be on the battlefield in Afghanistan and certainly we would pursue the war. We would do everything we needed to do. Two. As we have said to deal with that threat as we are doing today. You. Your testimony is we're doing everything that we can to deal with the threats to the United States of America. Whether there and Afghanistan whether he -- and their homeland. Defense. Isn't just limited to Afghanistan. The threats that face -- -- searcher -- you keep saying we can't get the facts from Sargent bird doll until he returns home. Have you ever thought about going to landstuhl. And talking during there grow well I don't know. How much medical training you had congressman I haven't had much. In what we're doing is we're allow they what mr. dockers mr. -- they -- the numbers as a secretary way to minute wait a minute. Why hasn't -- been returned to the United States we have seriously wounded soldiers. That are returned to the United States almost immediately after they -- stabilized. How -- -- Jessica Lynch. Wait before she was returned to the United States -- try to tell me that he's being held. -- landstuhl Germany because of his medical condition. Congressman I hope you're not implying anything other than that. The fab capacity to question mr. secretary nominee won't answer to and I -- -- -- implication of anti. Answer he's being held there -- because our medical professionals. Don't believe he's ready until -- they believe he is ready. -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- Upon being stabilized at -- -- we do it all the time. This isn't just about -- physical situation congressman this -- I was held for almost five years. In god knows what kind of conditions we do know some of the conditions from our intelligence community not from by the way -- This is not just about Kenny get on his feet and walking get to -- so you're telling me she cannot be questioned because of his condition I'm telling you is that -- the medical professionals who rely on their judgment for his health. Which I assume everybody respects. They have made the determination. And will make the determination -- when he is ready to move and move to the next step which would most likely be in San Antonio then we can proceed that's what I'm saying. One other question -- -- armory just now reviewing the circumstances of Sargent bird dolls capture. They're not I -- I said in my testimony and I said in my comments they -- -- back after he. When missing. In 2009. That 156 report was filed completed. By general -- Roddy who now is our commanding general Korea. In August of 2009. That 156. Report review complete. Not not redacted. Was sent out to the -- yesterday to the committee's -- you're welcome to read thank you. And we -- that will be made available to all all members in the proper setting. To review mr. Courtney thank you thank you are -- -- and I want to thank the witnesses after being here today in and secretary table for your powerful testimony. Which again laid out the fact that this is. Not every choice in in your position is always black and white you've got away a lot of factors and then one of the factors which had just won him a kind of maybe reemphasizes that in terms of when you were. Deciding this back on May 27. I mean. It wasn't like you have a lot of other options mean there was no plan B or plan C that -- -- was sitting on your desk in terms of fire however how to get this. American soldier back. In our in our to jurisdiction is that correct. That's exactly correct is that there was no harm no option there there -- members who have been on some of the shows saying that you know what we should have sent special forces and took to get them. Mean we actually we're -- totally clear about -- wise. That's correct -- and so there really was even a place to send. Special forces tended to recover him. He you also again in the this has been alluded to earlier is that in terms of the risk mitigation of the five -- transfer -- Taliban chance trees that if they do and get back into the conflict they do so -- that their own peril secretary Kerry I think in some. Public setting also made the comment that it's not like were totally without options. 22. If you don't. Raise their risks in terms of getting back involved in the fight. Again they don't always involve the the -- -- some of military personnel and and we involvement on the court -- over to Afghanistan most of us and -- -- the availability of unmanned. Assets that we have to -- to take out targets that again have been identified through the chain of command -- an -- correct that's correct. And -- certainly that would be -- available to us. Again if if a situation rose that. Would not put soldiers or airmen or anyone necessarily a risk. That's right. Mr. Preston. -- -- week we've been sort of talking about the legal sort of consultation that was going on with your office and the Department of Justice during that. Five or six day period when when the decisions were being made. -- DOJ address in terms of the legal opinions that you were given to the question of consultation with congress. The thirty day requirement. Yes -- the -- the administration. Sought the guidance from the Department of Justice on the applicability. It impact of the thirty day notice requirement under these circumstances. And received guidance. From the department of justice and was that in writing. It it was not by means of formal. Memorandum opinion but but rather by. Email exchange principal. -- -- -- the chairman mentioned that he's you know got requests from the committee. For documents which it sounds like are going to be forthcoming I -- is that I assume that's one of the requests in terms of make 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 sure -- I hope -- would. But will certainly take that back I'm sure we appreciate that there's interest -- and we. Certainly want to make sure that. Interest to members fully understand the legal basis on which the administration acted. As for the disposition of the document -- take that. Thank you -- again. Now follow up with the chairman because I I don't think it it is important that. If -- if it department was claiming a constitutional authorities which the secretary mentioned in terms of -- that issue I think we would like to see that analysis. -- -- In the that I would -- back -- chairman. -- -- -- -- -- -- Oh when did you consult the DOJ. On the thirty day notification on what date was set. Mr. chairman I don't remember the precise date but it was at the end the timeframe. In which we head completed. Our. And the discussions with the qatari over the -- But before it was signed. We. An anticipated. That these issues would rise and I engaged -- is my counterparts -- National Security Council. Who in turn engaged with the Department of Justice. Two asked them to. Consider. -- legal and constitutional implications in this setting. You recall last week when you in other members were -- Other members of the administration were briefing the staff I attended and mr. Thornburgh attendant. That briefing. -- I asked the question -- at any time since the January discussions started. You hadn't talked about the thirty day requirement. And and nobody said at that time. That there ever was a discussion about. I don't recall that exchange sir but I can assure you that that the the thirty day requirement was discussed. Though part of the lawyers in this and -- -- was in working with my counterpart at the NSC to solicit the department justices guidance. That guidance was then. Provided to the decision makers. Who made a judgment about. Whether the circumstances. Would. The particular circumstances in this case. Would permit the thirty days of formal thirty day -- notice. This is -- one of the things it's bothered me about. Reports weaker in the press and some of the briefings. That we've had over a period of time. That we get different answers from one time to another and -- We'll go back and chuck -- notes from that meeting but but when -- assets for civic questions. They -- it was. Nobody respond and you were in that you were one of the brief first. I I frankly don't know. Whether the question was directed to me or whether it was properly understood I can I have to all of the -- -- said at any time in any of these meetings. Did you discuss the law that pertain to the thirty day notice to congress and. But I I can only say it -- No on such a certain terms that we set in motion an effort to get it. Authoritative guidance from the Department of Justice on the legal issues and -- guidance was -- laws. Part on -- provided to decision makers who addressed. What the administration was going to do vis -- -- congressional notification. So you -- time. To discuss this with the Department of Justice. You probably could use that same time to talk to congress. About it. I mean just speak for my part of it which -- we force all the possibility. That these issues would rise and wanted to have what I was what I was trying to determine when -- 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 -- 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. -- and 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 repeat repatriate. Service member who is in captivity and imperil. Whether Indies extraordinary circumstances. And -- -- -- -- if the circumstances are extraordinary. You don't have to follow the law. No. The way I would put it is that the constitution vests in the president. Certain authorities and responsibilities. To include. And acting as as it does to the congress it does indeed protecting Americans abroad and protecting service members in particular. And to the extent -- the application of the thirty day. Notice in this application -- would interfere with the war. Undermine the president's efforts to seek to secure the recovery of the service member. Then in the exercise of his constitutional authority. The statutory noticed that was that was your interpretation think somebody talked earlier about the interpretation. Should be made by the courts not by a couple of attorneys talking about the law. The courts certainly have a role but the president has a responsibility to excuse -- -- -- they think anybody the counsel of the of the Department of Justice. Mr. Wilson. Thank you mr. chairman for -- on strong efforts to uncover the truth of what's occurring before us today. On the secretary it to appreciate you being here today -- yesterday I had the opportunity to stand in -- polling locations during a primary. Where hundreds of concerned citizens of both political parties. On expressed to me they're on shock and outrage. That the president would release five terrorist who'd and they believe on it will. Have a background of having been -- facilitators. Of the attacks of September 11 2001. We know the -- -- allowed. The al-Qaeda to operate from safe -- -- Afghanistan to attack the United States. Into the top leadership. This armed terrorist regime. For the president to release them is just incredible to the people are percent because they know. That the terrorists have a goal in mind. And the goal is very clear. Death to America death to Israel. And that thought that people like this to be release it was just inconceivable. Let's of the people that -- spoke with just today additionally I'm putting this in the context of this week. Al-Qaeda or -- on -- have attacked crotchety twice. Dozens of citizens have been murdered. On by the tell bond on -- it's not just Americans at risk. Additionally in Baghdad -- -- car bombings with again. On dozens of people on being -- this week we had this circumstance of Mosul. And now possibly coming under -- kind of 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 -- stages to provide more terrorist leadership. As -- -- during the president was wrong. Last year he announced that terrorism was being diminished around the world in fact is growing and is growing -- financially. And with that in mind on June the fifth time magazine of all people. Reported an interview that they conductor with the tell -- 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 tell -- commander replied quote definitely. It's better to kidnap one person like per adult and capturing or kidnapping. Hundreds of useless people end of quote. In the quote continued it is encouraged our people now everybody will work hard to capture such an important bird end of quote. Continue now recognize that there is an increase -- tourist service members because of this outrageous deal. -- first -- -- note again. Taliban policy for twelve years -- been to do exactly what that Taliban representative told time magazine. And that is to capture American servicemen so that's not that's 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 interest and we believe. The analysis of the in. The intelligence community all who had a role in this. -- week could substantially mitigate the risks through the twelve month memoranda of understanding. The cutter provided the enforcement of the security there. The other follow on the dynamics of and threats and realities which we factored in. We believed were mitigated enough these are five individuals who have been off the battlefield for 1213. Years. Doesn't mean they won't go back. This is a -- a different world different world for us as well so. I would give you those answers -- I -- that you don't agree with them but I also remind all of us -- -- all of this. This is not a perfect situation. I I know that we all know that and that's why we spent an awful. At a time midweek we really should look at -- enemies say in the Augusta chronicle on Tuesday June the third reported. That one of the five mullah Mohammed fossil. Leader infamous for his exceptional cruelty according to tell -- commander mullah solemn -- -- return is like pouring 101000 -- -- fighters into the battle on the side of Jihad. -- -- -- -- secretary Arab countries at risk aren't at used -- identified the homeland is if there was. Far away. It's not the safe havens are being created to attacked American people here. And action should be taken in and that would not include releasing terrorists leaders thank you. Congressman there I can assure you nobody more. Aware of that in this sector defense. And are now why -- -- -- -- will please act that way my goodness. Thank you. Ms. Tsongas. Thank you mr. chairman and a welcome secretary -- go and mr. pat Preston its. Great to have you here today I think the issues even talking about today. Really do merit the serious discussion that we've been having here. But I'd like to begin by reiterating a 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 -- a year in on behalf of each and every one of us it's C abiding promise we make. And it was the underlying motive later in the action set our president has taken with your guidance and advice and a consent. I just briefly like to address the issue of notice set to receive so much discussion. It's clear -- as we look at this the actions it took place in 20112012. In the context of a possible reconciliation process. There was indeed generalized notice I think that members of congress news that their might be five Taliban. Who would be exchanged for senate sergeant bird -- bird -- in an effort to bring him home so on that front I don't think. There's Steve surprise that this that this has this is this is actually a possible. But possibly take place. But a lot of the concern has been on the issue of specific notice and they think it troubles all of us given. -- -- -- -- -- -- -- On the other hand I do think the exits in circumstances that you've described. -- quick turn of the band said necessitated quick action. Made the thirty days notice a tough one. But I do think a little heads up may -- a couple of hours call two leaders of the congress might have a served you all very well. And that beings said. I also note that what you have said it was not a simple transfer but the military action. And conducted very well by our military who was put in harm's way in I commend those soldiers. For -- for for pulling this off as they did -- out. In -- attempt. That I'd actually like to address another aspect of section 1035 that the NDA and that is in 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 occur quickly put back in the battle -- -- talk about that. A bit I know some of that you'll -- visitor visit in a classified setting. But I'd like to hear as much as you can talk about in this context. A congresswoman thank you as you would note I mentioned. About four general areas. That are included in the specifics of the memorandum of understanding. On the end enforcement commitments made by the government of cutter. Personally made in a telephone. Conversation with president Obama. How old I can't get into the specifics until we get into this closed session on. Are 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 agree. The -- were those were strong enforcement mechanisms. That. Would give us some significant reassurance. That those five individuals. Would be kept in Carter. And all the other assurances as to their art activity. And again we can go into -- specifics of that and got. -- the track record hasn't been great to sell. And you what do you have to you know up your -- that you and you feel comfortable -- allow you to carefully well for their -- Recognizing what you just said. The dimensions now that we're looking at two they've changed a bit in cutter. You have a new leader -- Carter and knew him there. Over the last year. We have a significant. United States force presence and Carter many viewed visited our base there. We have thousands of people -- What we have. Some significant relationship. With the government of a car. They've had difficulties with their neighbors. I think that 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 out a different face on this as well. And there are some other assurances that I want to address -- in an open session but. Suffice it to say they were all. Strong enough. -- to get the commitments that we each individually each leader of -- agency. Came to the same conclusion. -- ultimately did the president. Did it in fact was in the interest of our country and in fact. Did substantially mitigate congress. Thank you this is legitimate and real concern of I know my constituent well it's a concern of ours. And the memo of understanding will be made available again -- it. Got to us last evening and that'll be made available to all members of the committee in the proper setting mr. turner. They -- chairman. Mr. secretary we've had very important to -- senior obviously won the armed services committee hearing news issue -- where Defense Secretary -- is fielding questions from committee members there are one of brilliantly Martinez again at the Pentagon who has been watching all of -- along with us we. -- give me an idea. What Defense Secretary hagel very strong statements frightened by him before the questioning began what was the crux of his statement. He laid out the explanation as to why what the urgency was behind the release for -- doll and Hawaii -- -- congress was in ninety be given that thirty day. Notification. Basically he said the urgency was that. They were getting indications from the intermediaries in the talks with the Taliban -- -- parties they're getting indications that if there was a single leak. -- a compromise says that the bird -- safety. -- in huge danger. -- they also provided nonspecific information that that just three days before the deal before it transfers to take place. Or after hitting included they got information from the Qatar raised that they had to rush things because things are moving very quickly and they couldn't guarantee current policies the so that was why we here we found out that -- had 24 hours before. The release on that Saturday was when it became fairly certain that. They had an idea of even a location where this is beginning take place and it wasn't until an hour before the actual release. That did the US side and they had definitive idea of where this transfer was going to take place. And it wasn't until after the United States was in possession of Bloomberg that then they initiated transfer of the four detainees -- for the five detainees from Guantanamo. How we understand -- that took place about four hours later. I said he made a very strong case for why. The administration be what it did decently in the right thing we follow the law he noted how there was consultation with -- Justice Department and the office of legal counsel at the White House. To determine that they were filed acting within. The lot and he said you know the -- taken the responsibility of certifying that these individuals. Are not a threat to the US -- -- very seriously actually went away from his prepared remarks and said I'd take that responsibility damn seriously repeated himself. Several times so now he's on message making the case here as to why the administration. Had to proceed with such haste. Such secrecy. And trying to prevent -- And but a lot of the committee members still had questions about. Whether or not this was legal of course referring to that thirty day notification law that was put into place a year ago can you explain that. -- in their opening statements this and the congressman were very critical of why there is no identification had taken place. That they pointed out to -- that -- lot that was enacted last year and has called you may have heard it India. In the talks here inequality. And -- that's the national defense authorization act. That is a law that it goes into effect every single year and under that lot. The specific requirement was made that big congressional notification had to take place for the release. The Tinny from one title but it was beyond that. As retire from congress and -- Keyon. It requires specific documentation. Assessments in other words they wanted the full. The for the full range of documentation as to why. At gitmo detainee was being transferred to his home country and other countries. What we heard from both sides of the -- was that there was concern that the trust between congress and the administration has broken down. In his opening statement Cagle said that he was the -- he understood those concerns and that he wanted to rebuild the trust. What members of congress are also but it was interesting because the key -- at once he started with -- key Renee and after he occurred. -- opening statement he said I now see why you -- did. You made a very strong case for the administration and why this happened. But if you had only told us what you just told us now in closed session. That would have made things so much better and you kind of got agreement from that from Adam Smith -- -- ranking Democrat on the committee. Well yes across the board. Concerns about that trust of this committee not been informed -- And certainly a couple of time lines that they were referring to that some of these negotiations or talks began back in January and then -- Google himself given -- timeline. That began with cutter beginning on May twelfth. -- -- -- -- This these talks had developed -- very very quickly they had been ongoing since late last year. And again we should he heard the members of congress say you know -- and said. We had been briefed very early on Bakken -- -- twenty -- in early 2012 in the talks fell apart. We have been told that there was some kind. A transfer involving -- Guantanamo detainees. But can what we did find out that it was from hate himself was that these talks -- -- -- greater sense of urgency. Around April so that about mid may may twelfth that he said all of a sudden. A deal. Was worked out and finalized just days before the transfer actually took place. -- and that was all the result of a very. Detailed negotiation where that Qatar is really intermediaries. And they were the ones that of this memo this and -- -- memo of understanding with thick tires that they would guarantee. That these Taliban. Detainees would not return to the fight which was the trigger for the US. To proceed with the deal. And then very quickly everything and took on a more secret operational talent a military -- because personal safety was not -- Louis Martinez from the Pentagon thank you for joining us and for talking with us about this issue. You of course can continue to watch the hearing as it streams on abcnews.com. This has been an ABC news digital special report you can't of course keep up with the story in real time by downloading the ABC news that. And starring this story for exclusive updates. On the -- For now I'm Michelle Franzen a New York.

This transcript has been automatically generated and may not be 100% accurate.

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