The Complex

The 5 Things About Bowe Bergdahl Congress Will Not Be Afraid to Ask

Ever since President Barack Obama took to the Rose Garden last month to announce that Army Sgt. Bowe Bergdahl had been freed after five years as a prisoner of the Taliban, administration officials have been trying -- and failing -- to persuade growing numbers of skeptical lawmakers from both parties that the controversial prisoner swap was worth the return of five senior militant fighters to the battlefield. National Security Advisor Susan Rice has had to defend her public comments that Bergdahl served with "honor and distinction" amid questions about whether he deserted his post in Afghanistan. Secretary of State John Kerry has come under fire for blithely asserting that the United States could simply kill the militants if they returned to Afghanistan. Obama, meanwhile, has himself faced a steady drumbeat of questions about whether Bergdahl's health was so poor -- and that the Taliban was so close to executing him -- that the White House had no choice but to act without consulting Congress.

On Wednesday morning, Defense Secretary Chuck Hagel will have his turn in the hot seat when he appears before the House Armed Services Committee along with the Pentagon's top lawyer, Stephen Preston. Here are five questions skeptical lawmakers are likely to ask Hagel, who has had a combative relationship with Capitol Hill since assuming his post, as the Bergdahl controversy continues to heat up.

1) Do you believe that Bergdahl was a deserter? If so, will he be punished by the Army for leaving his post?

Bergdahl reportedly had a history of walking off bases, both at a training camp in California and in Afghanistan, according to a military report completed two months after he disappeared in 2009. The report concludes that Bergdahl most likely left his small post in a remote part of eastern Afghanistan of his own volition and that weak security on the base may have allowed him to leave unnoticed, but it doesn't definitively conclude that Bergdahl meant to desert, the New York Times reported.

Yet, the Times also reported, Bergdahl left behind a letter in which he explicitly stated his intention to desert and his disillusionment with the military. That letter isn't mentioned in the 2009 report. Hagel may have to explain why not and, if the letter is accurate, whether the military has concluded that Bergdahl intended to desert. So far, no one in the Obama administration has been willing to say one way or the other.

In 2010, the military completed another report into Bergdahl's disappearance. It determined that he almost certainly walked away from the base without authorization, but that there was no indication he intended to leave permanently, according to the Military Times.

The questions matter because many lawmakers are privately and -- in some cases -- publicly arguing that paying a heavy price to bring back an American prisoner of war would be justified if that soldier had been captured in combat or shot down over enemy territory. A potential deserter, they're effectively arguing, shouldn't be worth quite as much.

Bergdahl himself may be the only one who can settle the multiple and conflicting accounts about why he left his post, and the young soldier is at a military hospital in Germany with no timetable for being released. He is certain to be extensively debriefed by military investigators, and his stated intentions for leaving will be the deciding factor in whether the military treats him as a deserter. According to legal experts, Bergdahl can only be charged with desertion -- a more serious offense than leaving his post without authorization, or going "AWOL" -- if he intended never to return. But so far, the military hasn't clearly answered that question.

2) Why wasn't the Hill notified that the administration was trading five Guantánamo Bay detainees for Bergdahl? Was his health really in danger, and was the Taliban really so close to killing him?

These are among the most persistent questions that members of Congress in both parties have asked since Bergdahl was released last month. "His health was deteriorating," Hagel said on June 1, defending the administration's decision to act quickly without informing lawmakers. "It was our judgment that if we could find an opening and move very quickly with that opening, that we needed to get him out of there, essentially to save his life."

But with reports from Germany that Bergdahl is "healthier than expected," many lawmakers doubt the administration's original argument. "I think his rapid recovery now may indicate he wasn't close to death," Sen. Dianne Feinstein (D-Calif.) told CBS's Face the Nation on Sunday.

Sen. Saxby Chambliss (R-Ga.), the top Republican on the Intelligence Committee, also rejects the health argument. "No intelligence supported that," said Chambliss on Sunday. "And now they come back, and because he is in decent health considering where he's been, they've -- they've changed their story."

It also didn't help when on Monday night, administration officials told House lawmakers that some 80 to 90 members of the administration were given advance notice about the swap. To some, the high number suggested that at least a few members of Congress could've been informed of the deal.

In recent days, the administration has shifted its argument and said that it had received information that Bergdahl would be killed by the Taliban if the deal were made public, which is why notifying Congress risked the operational security of the swap. On that point, Feinstein countered that Congress is fully capable of keeping secrets. "We understand the security of that. We have never violated that," she said.

The administration can also expect lawmakers to ask whether Bergdahl was tortured. He has reportedly told military officials that he was kept in a metal cage in darkness for weeks at a time after he tried to escape. If the administration knew Bergdahl was being mistreated, that bolsters officials' claims that he was in danger and needed to be brought home at once. Then again, if officials knew he was being tortured, why didn't they tell members of Congress to support their need for secrecy?

3) Why did you sign off on the transfer of detainees from Guantánamo, and how did you determine that they were not at risk of returning to the battlefield?

This is one of the most challenging questions Hagel will have to answer, as it goes to a fundamental issue critics of the swap have: How could the White House essentially let five suspected terrorists go free? The government of Qatar has offered to monitor the Taliban members and prevent them from leaving the country for a year. The administration has been mum about details of the agreement between Washington and Doha. But Taliban members have been long been able to order, plan, and coordinate attacks in Afghanistan from their base in Quetta, Pakistan. Geographic distance doesn't ensure that the freed prisoners won't be able to sow violence, and it's arguably a lot easier to communicate with the outside world from Doha than from the remote regions of Pakistan.

When a possible prisoner swap was on the table two years ago, Hagel's predecessor, Leon Panetta, wouldn't sign off on releasing the Taliban fighters. In remarks in Pittsburgh last week, Panetta said he had "serious concerns" that the prisoners would return to hostilities. "If I send prisoners from Guantánamo, they have to guarantee they don't go back to the battlefield," Panetta said he argued at the time.

There's some reason to worry. Although the administration says formal combat operations in Afghanistan will end in December, the United States and its allies will still be conducting missions inside Afghanistan until at least 2016, when Obama has said all American troops will be out. That means the five detainees would be free to help plan or conduct operations well before the last U.S. troops leave the country. There's no guarantee they will, but there's certainly a chance. As of January, 614 detainees have been released from Guantánamo Bay. Of those, 104 are confirmed to have returned to the battlefield; and of those, 20 are dead, 27 are back in custody, and 57 remain at large, according to the Office of the Director of National Intelligence's "Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba." Hagel is sure to be asked whether he expects the five newly freed prisoners to boost the numbers of Guantánamo recidivists -- and, if so, what the Pentagon will do about it.

4) Doesn't this deal set a precedent for negotiating with terrorists?

Many former senior officials argued that the United States should never negotiate with Taliban fighters who launched attacks on U.S. forces and also Afghan civilians. Former Defense Secretary Robert Gates, for example, long opposed a Bergdahl-for-detainees swap for that very reason. A former senior defense official told Foreign Policy's Situation Report that Gates always thought it was a bad idea to negotiate with terrorists or other "hostage-takers" because it would set a precedent that puts all American personnel operating in war zones in extra danger. If the United States will negotiate over Bergdahl, won't armed groups have even more incentive to kidnap other troops -- or any other Americans they can grab?

The Pentagon, for its part, has long argued that it is duty-bound to leave no troops behind and to do whatever is necessary to bring home a missing soldier, and that Bergdahl -- despite the controversy surrounding the circumstances under which he left his base -- is no different.

Hagel will likely also respond that the United States always saw the end to the war in Afghanistan as one that would be reached through reconciliation. And the Taliban -- which is not designated by the State Department as a terrorist group, by the way -- has held the key to that kind of reconciliation. Obama has said the Bergdahl deal could "potentially open the door for broader discussions among Afghans about the future of their country by building confidence that it is possible for all sides to find common ground." That's a talking point Hagel will almost certainly repeat time and time again. But critics will argue that the White House should not have given away five detainees without at least some forward progress on a broader reconciliation deal.

5) Did any money change hands over the prisoner swap?

Current and former U.S. officials insist that the United States didn't pay a ransom or bribe to the Haqqani network holding Bergdahl. An array of Arab diplomats from other Persian Gulf states, however, are convinced that money changed hands. Few of them think the money came from Washington. More likely, they say, is that the Qatari government paid the bribe, with either tacit or explicit American approval. It's certainly not the first time the emirate has been accused of paying bribes to do business. Soccer's governing body, FIFA, has said it may reconsider its decision to award the 2022 World Cup to Qatar, following persistent allegations that Qatari officials paid off sports officials to win the hosting rights.

The Obama administration hasn't definitively stated that no money was involved in getting Bergdahl back, nor has it fully explained the role of Qatar in the negotiations. Hagel can expect to have to answer some of these questions for the record.

Photo by Alex Wong / Getty Images News

The Complex

Former Spook: Don't Believe Everything You've Heard About the NSA

The former No. 2 official at the National Security Agency defended the embattled organization Thursday, one year to the day after an article in the Guardian based on leaked documents revealed that the NSA was collecting the phone records of millions of Americans, sparking the biggest public debate over national security and civil liberties in four decades.

Chris Inglis, who retired in January after working nearly 30 years at the NSA, disputed the allegation that the spy agency cast a dragnet over the private communications of hundreds of millions of innocent Americans who aren't connected to terrorist organizations -- the agency's stated targets. "The NSA's surveillance capability is not vast. It's not what you've heard," Inglis said during a debate over NSA surveillance at the Brookings Institution.

Inglis said that the NSA doesn't know the names attached to the phone numbers it collects under the bulk records program. Nor, he said, can the agency legally use people's calling history to create a map of their behavior, including their political affiliation, sexual orientation, or fidelity, as critics of the NSA's programs have alleged. The program is also overseen by three branches of government, he said -- it's run by the NSA, authorized by Congress, and monitored by a court.

Opposing Inglis in the debate, Jameel Jaffer, the deputy legal director for the American Civil Liberties Union, said those skeptical of large-scale government surveillance don't doubt the agency's legitimate need to collect intelligence for national security. But he questioned whether the phone-records program was as useful or as tightly controlled as Inglis said.

If the system of oversight was so robust, Jaffer asked, "Why was it that only after the program was disclosed, the president determined it was unnecessary?" In January, President Obama announced that the NSA can no longer hold onto Americans' phone records. Congress is debating changing the law so that phone companies possess the data instead.

But despite legislative attempts to rein in the NSA, and a year of blistering public criticism, Inglis said the agency is generally in the same place it was before the leaks of Edward Snowden when it comes to its ability to gather intelligence to detect and prevent terrorist attacks.

"At the end of the day that data is still available" to the NSA, even if it's in the hands of phone companies, Inglis said.

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