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Live Coverage of Chuck Hagel Speaking on Bowe Bergdahl Exchange

Aired June 11, 2014 - 10:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

CHUCK HAGEL, U.S. SECRETARY OF DEFENSE: We also knew that he would be extremely vulnerable during any movement and our military personnel conducting the handoff would be exposed to the possible ambush or other deadly scenarios in very dangerous territory that we did not control. And we'd been given no information on where the handoff would occur.

For all these reasons and more, the exchange need to take place quickly, efficiently and quietly. We believed this exchange was our last, best opportunity to free him. After the exchange was set in motion, only 96 hours passed before Sergeant Bergdahl was in our hands.

Throughout this period there was great uncertainty. Great uncertainty about whether the deal would go forward. We did not know the general area of the handoff until 24 hours before. We did not know the precise location until one hour before. And we did not know until the moment Sergeant Bergdahl was handed over safely to U.S. special operations forces, that the Taliban would hold up their end of the deal.

So it wasn't until we recovered Sergeant Bergdahl on May 31st that we moved ahead with the transfer of the five Guantanamo detainees. The president's decision to move forward with the transfer of these detainees was a tough call. I supported it. I stand by it.

As secretary of defense, I have the authority and the responsibility, as has been noted here, to determine whether detainees, any detainees, but these specific detainees of Guantanamo Bay, can be transferred to the custody of another country. I take that responsibility, Mr. Chairman, members of this committee, damn seriously. Damn seriously. As I do any responsibility I have in this job.

Neither I nor any member of the president's National Security Council were under any illusions about these five detainees. They were members of the Taliban, which controlled much of Afghanistan's prior, all the territory, to America's invasion and overthrow of that regime.

They were enemy belligerents detained under the law of war and taken to Guantanamo in late 2001 and 2002. They've been in the U.S. custody at Guantanamo since then, 12, 13 years, but they have not been implicated in any attacks against the United States, and we had no basis to prosecute them in a federal court or military commission. It was appropriate to continue to consider them for an exchange,

as we had been over the last few years, as Congress had been told that we were.

And if any of these detainees ever try to rejoin the fight, they would be doing so at their own peril.

There's also always -- always -- some risk associated with the transfer of detainees from Guantanamo. This is not a risk-free business. We get that. The U.S. government has transferred 620 detainees -- 620 detainees == from Guantanamo since May, 2002, with 532 transfers occurring during the bush administration and 88 transfers occurring during the Obama administration.

In the case of these five detainees, the security measures Qatar put in place led me as secretary of defense to determine, consistent with the National Defense Authorization Act, that the risk they posed to the United States, our citizens and our interests, were substantially mitigated.

I consulted with all of the members of the president's national security team and asked them, as they reviewed all the details, they reviewed the draft of my notification letter, the specific line by line, word by word details of that letter, I asked for their complete reviews, the risks associated, and I asked either concur or object to the transfer.

The secretary of state, the attorney general, secretary of homeland security, director of national intelligence and the chairman of the Joint Chiefs of Staff all supported this transfer. All put their names on it.

There was complete unanimity on this decision, Mr. Chairman. And the president and I would not have moved forward unless we had complete confidence that we were acting lawfully, in the national interests and the best traditions of our country.

Our operation to save Sergeant Bergdahl's was fully consistent with U.S. laws and our national security interests in at least five ways.

First, we complied with the National Defense Authorization Act of 2014 by determining that the risk the detainees posed to the United States, American citizens and our interests was substantially mitigated and that the transfer was in the national security interest of the United States.

Second, we fulfilled our commitment to recover all military personnel held captive.

Third, we followed the precedent of past wartime prisoner exchanges, a practice in our country that dates back to the Revolutionary War and has occurred in most wars that we've fought.

Fourth, because Sergeant Bergdahl was a detained combatant, being held by an enemy force, and not a hostage, it was fully consistent with our long-standing policy not to offer concessions to hostage takers. The Taliban is our enemy. And we are engaged in an armed conflict with them.

Fifth, we did what was consistent with previous congressional briefings this administration had provided, as I've already noted, in late 2011 and early 2012, reflecting our intent to conduct a transfer of this nature with these particular five individuals.

Mr. Chairman, I fully understand and appreciate the concerns, the questions about our decision to transfer these five detainees to Qatar without providing 30 days notice to Congress.

But under these exceptional circumstances, a fleeting opportunity to protect the life of an American service member held captive and in danger for almost five years, the national security team and the president of the United States agreed that we needed to act swiftly.

We were mindful that this was not simply a detainee transfer. but a military operation with very high and complicated risks, and a very short window of opportunity that we didn't want to jeopardize, both for the sake of Sergeant Bergdahl and our operators in the field who put themselves at great risk to secure his return.

In consultation with the Department of Justice, the administration concluded that the transfer of the five could lawfully proceed. The options available to -- available to us to recover Sergeant Bergdahl were very few and far from perfect.

But they often are in wartime, Mr. Chairman, and especially in a complicated war like we've been fighting in Afghanistan for 13 years. Wars are messy. and they're full of imperfect choices. I saw this firsthand during my service in Vietnam in 1968 -- 1968, this committee may recall, we sent home nearly 17,000 of our war dead in one year.

I see it as the secretary of defense. A few of you on this committee -- a few of you on this committee have experienced war, and you've seen it up close. You know there's always suffering through war. There's no glory in war. War is always about human beings. It's not about machines.

War is a dirty business. And we don't like to deal with those realities. But realities, they are. And we must deal with them.

Those of us charged with protecting the national security interests of this country are called upon every day to make the hard, tough, imperfect and sometimes unpleasant choices based on the best information we have, and within the limits of our laws, and always based on America's interests.

War, every part of war, like prisoner exchanges, is not some abstraction or theoretical exercise. The hard choices and options don't fit neatly into clearly defined instructions in how-to manuals. All of these decisions are part of the brutal, imperfect realities we all deal with in war.

In the decision to rescue Sergeant Bergdahl, we complied with the law. And we did what we believed was in the best interest of our country, our military, and Sergeant Bergdahl.

The president has constitutional responsibilities and constitutional authorities to protect American citizens and members of our armed forces. That's what he did.

America does not leave its soldiers behind. We made the right decision. And we did it for the right reasons, to bring home one of our own people.

As all of you know I value the Defense Department's partnership, partnership with this Congress and the trust we've developed over the years. I know that trust has been broken. I know you have questions about that.

HAGEL: But I'll tell you something else, I have always been straightforward, completely transparent with this committee since I've been secretary of defense. I will continue to do that. I will do that always with all my relationships and associations and responsibilities to the Congress. That's what I always demanded, Mr. Chairman, of any administration when I was a member of the United States Senate. I've been on your side of this equation. I understand it.

That's what I've done this morning with the statement I have made, and I made the decision I did. And I've explained that in general terms. The circumstances surrounding my decisions were imperfect and these decisions that have to lead to some kind of judgment always are. The president is in the same position, but you have to make a choice. You have to make a decision.

The day after the Bergdahl operation at Bagram Air Base in Afghanistan I met with a team of special operators that recovered Sergeant Bergdahl. They are the best of the best, people who didn't hesitate to put themselves at incredible personal risk to recover one of their own. And I know we all thank them. I know this committee thanks them. And we appreciate everything that they do. And we thank all of our men and women in Afghanistan who make the difficult sacrifices every day for this country.

Earlier this week, we were reminded of the heavy costs of war -- the heavy costs of war when we lost five American servicemen in Afghanistan. I know our thoughts and our prayers are with their families. We're grateful for their service. And we're grateful for the service of all our men and women in uniform around the world.

As I conclude, Mr. Chairman, I want to again thank this committee -- this committee for what you do every day to support our men and women around the world.

Mr. Chairman, I appreciate the opportunity to make this statement and I look forward to your questions.

REP. HOWARD "BUCK" MCKEON, R-CALIF: Thank you very much, Mr. Secretary.

In your statement, you indicated that the president had made the final decision on this operation. I appreciate you clarifying that. We had a briefing just a couple of days ago and the last question asked by a member of Congress of the briefers was who made the final decision. And one of the briefers stated that you had made the final decision. I think all of us understand how this place works. And a

decision of this nature is always made by the commander in chief. And I think that you clarified that and I appreciate that.

Mr. Secretary, one of the things that has bothered me the most about this is the fact that we did pass a law last year that stated that Congress should be notified 30 days before any transfer of detainees from Guantanamo. Just a little history. We were briefed, some of us, some of the leadership on this committee and other pertinent committees in Congress, starting in November of '11, that there was negotiations -- that we were entering into negotiations with the Taliban looking towards reconciliation at some point.

Along with that, in that meeting, there was also mention about a potential transfer of detainees, as you mentioned, for the release of Sergeant Bergdahl. That was followed up with another briefing in January. And then the Taliban set up a headquarters in Qatar. President Karzai learned of that; everything hit the fan. And we were briefed again, saying that all of those negotiations have come to a halt; if we start those negotiations again, we will inform you. We never heard another briefing on that matter.

And so when we passed that law, we felt that we did it for a good reason. The law didn't just state that we would be given a notice. It required that the department provide numerous pieces of critical information, including how the risk posed by the detainee had been substantially mitigated; how the transfer is in the national security interests of the United States; an assessment of the capacity, willingness and past practices of the receiving country, along with the notice; along with several other pieces of information.

And previous NDAAs had also required that same thing. In fact, our language that we passed in this committee and through this body was softened some by language from the Senate that we worked out in conference, which was the final language that was passed last year.

You know, Mr. Secretary, I think you have just made a very strong case for the position taken by the president and the administration. You just left one thing out. These negotiations, as we were told in a briefing last week, started in January of this year with the tape and with the other things that went forth. And I've been told in a couple of different briefings now that somewhere -- I think the final number given to us a couple days ago -- was somewhere between 80 and 90 people in the Department of Justice, the State Department, the Homeland Security I guess was one of them, and the Department of Defense knew about this -- 80 to 90 people.

The only one I know of that was elected was the president and perhaps the vice president. We don't know who those 80 or 90 people were. Yet, in all that time, the leadership of the House that has the responsibility, a co-leadership according to the Constitution with the president of the United States, was not informed, not told of any of this.

If you had, or somebody -- I think you have the most credibility -- but if you had been able to meet with the responsible people in the Congress and give them the same story you just now gave us, the law would have been complied with. We didn't need to know the operational details. We didn't need to know anything 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 have pushed back at all. And yet, when the law is ignored and, you know, we all have -- we all feel keenly the responsibilities that we have, sometimes more than others. This is one of those times where this is a very important principle. And I wish that you, or somebody, had sat down with the leadership of the Congress, including the Senate, and told us the same things that you've just told us in your briefing here.

I think it would have done -- would have been very helpful in reestablishing or establishing or keeping the trust that we should have between the Congress, the president of the United States, the Supreme Court, all of us trying to work together to the satisfaction of the Constitution and the American people that we're all sent here to serve.

Let me just ask one -- one question, Secretary Hagel. Will the department fully cooperate with this committee's inquiry going forward with the detainee exchange, including the recent request that I sent a couple of days ago for documents?

HAGEL: Absolutely, yes.

MCKEON: Thank you very much. And thank you for your service in the military in uniform, in the Senate, and now in this very tough job that you hold.

HAGEL: Thank you.

MCKEON: Mr. Smith?

REP. ADAM SMITH, D-WASH: Thank you, Mr. Chairman.

I think two very important parts to this. One is the one the chairman just mentioned which I'll get to in a second. But the first is this whole notion that we have somehow broken precedent, that this negotiation, we negotiated with terrorists and exchanged for this and, you know, went against a long-standing U.S. policy.

And I think that has been the central criticism -- the criticism from the speaker yesterday. And I think it's just absolutely wrong, given the situation that we were in, as you described it. We went to war in Afghanistan. Sergeant Bergdahl was fighting in that war. And we were fighting directly against the Taliban. You know, for the first couple of months, they were the government. They were knocked out and they kept fighting as an insurgent force. SMITH: Could you walk us through -- and maybe, Mr. Preston, as

the lawyer, you can sort of get into this -- how you view this and whether or not this is unprecedented? Because it certainly doesn't seem to be. I mean, there are exchanges, as you mentioned, in just about every war we've fought of prisoners. And whatever one may think of the Taliban, we were fighting a war with them. It was in a battle zone. It was not, you know, a diplomat or a civilian. It was a member of the armed forces who was captured in that battle.

So, do you think that we've set some precedent here for negotiating with terrorists, or is this clearly, and as it is in my mind, in a different legal category?

HAGEL: Congressman Smith, thank you.

I've, as you noted, alluded to some of this in general terms in my -- in my statement. Two general comments to respond and then I'll ask Mr. Preston, you've suggested his thoughts.

One, this was an extraordinary situation for the reasons I have mentioned, I think, in the classified briefings that some of you have attended have heard. We'll get more into the extraordinary dynamics in a -- when we close this hearing down and go into classified. It was a very unique set of dynamics that we were dealing with. That's number one. On the precedent setting side of this, I'm not the legal person here, but I do occasionally read.

And I -- I don't think there were any precedents set by this, and as far as I know from past wars and how we have always gotten our prisoners back or attempted to get them back, time of war or after war, we can get into all the appropriate categorizations of who are combatants and who are we at war with, and who are terrorists, and we have legal definitions for all of those. But I said something at the beginning of my testimony here. I know it's imperfect, but I do think it plays into the larger scope of what we are dealing with -- what we are dealing with, still dealing with, and will be dealing with: not just in Afghanistan.

When you look at Yemen, what's going on all over the world, what is unprecedented today is the threats and what we're up against around the world. Organized, sophisticated, terrorist groups. Now, have we declared war on any of them or how have we defined them other than some as terrorist groups, but these are different dynamics and unprecedented situations that this country has never had to deal with before. I'll make one last comment, then ask Mr. Preston 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. I've got one -- one responsibility, and that's the security of this country. That's what I'm charged with. That's what the president asked me to do, the Senate confirmed me to do that. I agreed to do it. I took an oath of office. We all take the same oath of office. And that's to the Constitution and security of this country. That is my primary focus, every day. You all have your focuses. Not too dissimilar from mine, either, on some of these things. I just happen to have a more narrow gauge in what I do. The president of the United States has the ultimate responsibility to the security of this country.

So I'd just remind us of all -- all of this. It's imperfect, I know, and it might sound like an excuse, but it's not an excuse. It's reality. I'll ask Mr. Preston.

STEPHEN PRESTON, DEPARTMENT OF DEFENSE GENERAL COUNSEL: Thank you. There's of course a good deal of detail, technical legal detail in what constitutes a POW, per se, versus a detained combatant or a privileged or unprivileged belligerent. I don't think we need to get into that to answer your question. What we had here were detained combatants held by opposing forces in the same armed conflict. And as such, this exchange falls within the tradition of prisoner exchanges between opposing forces in time of war.

Now, it is true that the Taliban is not the conventional nation state that has been party to conventional armed conflict in the past, but it's not the character of the holding party, it's the character of the detainee that inspires and motivates our commitment to the recovery of service members held abroad.

We don't see this as setting a particular precedent, both because it does fall within that tradition of prisoner exchanges, and there have been in the past occasions where the United States has dealt with non-state actors who are holding a service member in order to achieve their recovery.

SMITH: Can you give us a specific example of that?

PRESTON: The one example I'm aware of is the helicopter pilot, Michael Durant, in Somalia who was held captive by the warlord, Mohammad Adid (ph) and there was the quiet, as I understand it, arrangement whereby the United States regained Durant's freedom, and functionally in exchange for individuals that were captured in the same operation.

SMITH: I just want to say again, I think any characterization of this as negotiating with terrorists totally misses the fact that we were and are at war, and Sergeant Bergdahl was a member of our military fighting that war.

On the Gitmo piece, is it your opinion that at the end, you know, let's say 2014, we consider that to be the end of hostilities which is an interesting argument, because we're still going to have 10,000 troops there. But assuming at some point there was an end of hostilities, that these five would've had to have been released as the end of hostilities. Is that -- is that the department's opinion? Are they undecided, or do they feel the opposite?

PRESTON: Sir, the way I would answer that is to say that we believe we have under domestic law, specifically the AUMF, and under international law, principles of the law of armed conflict, that we have authority to hold and had the authority to hold these five at Guantanamo as enemy belligerents.

SMITH: Even after the war would've been over? PRESTON: Well, I'll speak to that. There will come a point in

time where the armed conflicts we're engaged in with the Taliban and Al Qaida and their associates come to an end, and at that point, the law of war rationale for continuing to hold these unprivileged belligerents would end unless there were some other basis for continuing to hold them, such as prosecution.

SMITH: It is not just the war in Afghanistan...

PRESTON: That's right.

SMITH: ... it is the broader battle as defined under the AUMF.

PRESTON: And the point -- the further point I'd make is that I'm not aware of any determination as yet, that with the cessation of the current combat mission at the end of this year that the armed conflicts are determined to be over such that it would trigger the consequences that we've been discussing.

SMITH: Thank you. And the last thing I'll say, and no need to respond to this, but I'll just reemphasize a point the chairman has made, a point I made in my opening statement, it would be more helpful -- and let me just say, the Department of Defense, in my experience, has been very good about consulting with us and about working with this body, so it's not really about that.

The White House, on the other hand, has not been very good about keeping in touch with Congress, working with us, consulting with us on major policy issues. It's sort of hit or miss. And if we can do better at that, it would make my job a whole lot easier. If we could just trust Congress a little bit and have those consultations before policy decisions are finalized, I think it would make this entire town work better than it is right now.

I yield back.

MCKEON: Gentleman yields back.

There are two things I need clarified. Did you, Mr. Preston, say that at some point, conflict would end and then we would release these people, or we would have to release them, there would be no reason to hold them, and that that conflict is ending in December of this year?

PRESTON: Sir, the point was when the armed conflict ends, the international law basis for continuing to hold people who are being held on the basis of their membership in the...

SMITH: I'm sorry Mr. Preston, but you really have to point out which armed conflict you're talking about. Your answer was not the armed conflict in Afghanistan, it was the one as defined under the AUMF. In other words, as long as we're fighting Al Qaida, and as long as we're fighting their associated forces, that is the armed conflict that you were talking about being over, not Afghanistan. I believe that's the point of the chairman's question.

PRESTON: The point is, we're currently in armed conflict with the Taliban and with al Qaida. At some point the armed conflict with the Taliban ends. And at that point, for those detainees that are being held as enemy belligerents in - against our enemy the Taliban, unless there is additional basis for holding them, then we would no longer have that international law basis for holding them.

Now, it has been suggested that international law basis for holding them.