Defense Secretary Chuck Hagel testified before frustrated lawmakers today, answering anger-laced questions as he provided details of the decision to exchange high-level Taliban for Army Sgt. Bowe Bergdahl's release from five years in captivity.
The June 11th hearing before the House Armed Service Committee became heated at times as lawmakers searched for answers as to why the White House and the Pentagon had not notified them of the deal until the detainees from the detention facility at Guantanamo Bay, Cuba had been released.
The May 31st release of Bergdahl touched off a firestorm of criticism across the country following allegations that President Obama had, for the first time, negotiated with terrorists and emboldened the Taliban and terrorist groups around the world to capture more Americans.
"This negotiation has legitimized the Taliban – the organization that safeguarded the 9-11 al Qaeda perpetrators and ruled Afghanistan through atrocities," said Rep. Howard P. "Buck" McKeon, R-Ca., chairman of the House Armed Services Committee. He accused the administration of violating the law that requires that Congress be notified 30 days prior to the transfer of detainees at Guantanamo.
"This transfer is a clear violation of section 1035 of the National Defense Authorization Act of 2014. There is no compelling reason why the Department could not provide a notification to Congress 30 days before the transfer, especially when it has complied with the notification requirement for all previous GTMO detainee transfers since enactment of the law."
Hagel said that the decision to move forward with the exchange without notifying Congress was lawful and necessary to ensure Bergdahl's safety. General negotiations began in January, but Hagel said that that decision to release the five Taliban leaders for Bergdahl was not made until May 27.
There was "great uncertainty" all the way up to the moment Bergdahl was handed over to U.S. forces, Hagel said.
"This was an extraordinary situation," he said. "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 Sgt. Bergdahl was handed over safely to U.S. special operations forces that the Taliban would hold up there end of the deal."
Stephen W. Preston, DoD's general counsel, told lawmakers that the Defense Department sought guidance from Department of Justice legal counsel whether President Obama was authorized to make the decision without notifying Congress.
"We did not ignore the law," he said. "We solicited legal guidance on legal issues that would apply in application of this extraordinary set of circumstances."
McKeon said he wasn't as concerned about the 30-day notification as he was that "80 or 90 people" knew about this and Congress received no notification before the exchange occurred.
"So you had time to discuss this with the Department of Justice; you probably could have used that same time to talk to Congress about it," he said.
Several lawmakers said they were concerned that this sets a precedent since the United States has never negotiated with terrorists.
Hagel and Preston disagreed.
"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 our service members held abroad," Preston said. "We don't see this as setting a particular precedent."
There have been occasions where the United States has dealt with "non-state actors" to retrieve a service member, Preston said.
"The one example I am aware of is the helicopter pilot Mike Durant in Somalia who was held captive by the warlord Mohamed Aidid. And there was a quiet arrangement ... where the United States regained Durant's freedom functionally in exchange for individuals who were capture in the same operation."
Durant was a Black Hawk helicopter pilot in the 160th Special Operations Aviation Regiment when he was shot down in a 1993 raid in Mogadishu. He was captured and held for 11 days before being released.
Preston's description of Durant's negotiated release angered Rep. Mike Turner, R-Ohio.
He scolded Preston, pointing out that Aidid released Durant as "an act of good will," Turner said. Then President Clinton held a press conference, Turner said, where Clinton announced that the United States had made no deal for Durant's release and said it would be up to the United Nations to release the 32 of Aidid's men.
Turner wouldn't let Preston answer. Instead he demanded that Preston submit a response in writing with "additional details of the exchange of Durant's release" that support his earlier claim.
"I would like you to explain that so we can then release it to the public and they can understand the true nature of your answer," Turner said.
Other lawmakers accused the administration of dealing with the Haqqani Network, the terrorist organization that held Bergdahl in Pakistan.
Hagel was steadfast in his argument that the administration negotiated with the government of Qatar and they negotiated directly with the Taliban for Bergdahl's release.
Hagel conceded early on to lawmakers that "we could have done a better job keeping you informed." But he also seemed determined to convey that he had no regrets about his involvement in Bergdahl's release.
"I would never sign any document or make any agreement – agree to any decision that I did not feel it was in the best interest of this country nor would the president of the United States. ... Our entire national security apparatus—the military, the intelligence community and the State Department – pursued every avenue to recover Sgt. Bergdahl just as the American people and this Congress and the Congresses before you expected us to," Hagel said.
"In fact, 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 Sgt. Bergdahl released from captivity."
-- Matthew Cox can be reached at firstname.lastname@example.org