Washington D.C. – House Armed Services Committee Ranking Member Adam Smith made the following opening statement today at the hearing on Sergeant Bergdahl:

“Thank you, Mr. Chairman.  And I would like to thank the witnesses for appearing here today to address concerns about the transfer of five Taliban detainees to Qatar in exchange for the release of Sergeant Bergdahl.

“I am certain that the decision to exchange five senior Taliban detainees for Sergeant Bergdahl was not an easy one, but it was likely the appropriate decision to make.  The concerns that will be expressed here today, including by me, about the release of members of an organization currently engaged in combat against our forces should not be taken lightly.  On balance, however, I believe the President made the right call to recover Sergeant Bergdahl and reinforce the standard that “no service member is left behind”. 

“There are those who have tried to use this decision for political purposes or to gloss over the difficult nature of the decision the President and the Secretary of Defense faced by trying Sergeant Bergdahl in the media and suggesting that we should not have exchanged the five detainees for him because he was not “worth it”.  Such statements are morally repugnant.  If Sergeant Bergdahl is to be punished for a transgression, he should receive the same due process as any other member of the military.  And in no case is it acceptable to suggest that leaving a captured U.S. service member in the hands of the Taliban is an appropriate punishment for an alleged but unproven violation of the Uniformed Code of Military Justice.

“There are, however, many difficult and legitimate questions raised by this exchange.  Many members have focused on the lack of notification to Congress about the transfer of the detainees.  The National Defense Authorization Act explicitly calls for a notice to Congress 30 days before transferring any Guantanamo detainee, among other steps. The Administration has argued that there was not time to notify Congress, that Sergeant Bergdahl’s life was at risk, and that the President’s signing statement on the NDAA noted that such restrictions may violate the separation of powers. These are factors worthy of consideration and ultimately it may be left to the courts to decide.

“Many members of Congress feel strongly that even if the administration could not provide the full 30 days notification, some head’s up about the trade would have been appropriate.  As a member of Congress and the Ranking Member of the House Armed Services Committee, it’s not hard to share that sentiment.  The Administration says they discussed some elements of such a deal as part of a larger reconciliation with the Taliban a couple years ago.  We also have to think about where we draw the line on notifying Congress about impending operations carried out in a time of war—it is, for example, clearly inappropriate and constitutionally unnecessary for the Administration to provide advance notice of a raid on a terrorist hideout.  On which operations do we expect an advance notice and how far in advance? 

“Sergeant Bergdahl was not being held by a conventional military force as defined by the Geneva Conventions.  But the Taliban is clearly not the same thing as al Qaeda or the Islamic State of Iraq and Syria.  Are there forces with whom we should not negotiate for the return of captured Americans?  If so, are we potentially dooming captured American service members to death because of the nature of the force that captured them?  How do we draw that line and how did the Administration draw it in this case? Although the “Arms for Hostages” deals of the 1980s did not seem to set a precedent or encourage the capture of more Americans, should we be concerned in this case?

“We must thoroughly explore any risk of releasing these five detainees.  They have been described as senior leaders of the Taliban.  We clearly do not want them to be engaging in the fight in Afghanistan.  What assurances have the Qataris given the United States that they can be kept from immediately returning to the folds of the Taliban?  Are we comfortable with those assurances?  What risk does the release pose to our troops and to our Afghan allies?  Some have suggested that as we draw down in Afghanistan, and certainly after 2016, we may no longer have the ability to hold Taliban detainees under international law—does the Administration agree with this view and was this considered as part of the deal for Sergeant Bergdahl?

“Again, I would like to thank out witnesses for appearing here today.  Their jobs, and the decisions regarding the Sergeant Bergdahl trade that they made or were part of were not easy, and I thank them for their service.”