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What Congress Really Told the White House About the Bowe Bergdahl Swap

Documents obtained by VICE News show that administration officials knew of lawmakers' objections for years, then failed to keep their word that they would consult Congress before taking action.

by Jason Leopold
Mar 4 2015, 12:10am

Photo by J. Scott Applewhite/AP

The Obama administration knew as far back as 2012 that numerous lawmakers had vehemently opposed a plan to swap five Guantanamo detainees for captured Army Sergeant Bowe Bergdahl before a special forces unit executed the secret operation last year to win his release in exchange for the Taliban captives.

In nearly a dozen classified and unclassified briefings the State and Defense Departments had given to individual lawmakers and congressional committees beginning in November 2011 about possible negotiations with the Taliban, "many members" — notably Senator Saxby Chambliss, then the ranking minority member on the Senate Intelligence Committee — "expressed opposition to any consideration of a deal for Bergdahl and the five Taliban."

Obama administration officials assured Chambliss and other lawmakers that they would not take any action without first consulting Congress. But they failed to keep their word.

Details about the government's discussions with Congress relating to efforts to rescue Bergdahl were contained in internal State Department documents released to VICE News in response to a Freedom of Information Act (FOIA) lawsuit filed against State last year. The documents provide the first look into the behind-the-scenes discussions between Obama administration officials and Congress leading up to the controversial prisoner swap. (The State Department withheld more than 800 pages of documents citing national security concerns and other exemptions to FOIA.)

The September 19, 2012 briefing in which Chambliss verbalized his objections to the possibility of the prisoner exchange was led by Ambassador Marc Grossman, formerly the special US envoy to Afghanistan and Pakistan. Chambliss, now retired, did not respond to requests for comment. 

Grossman provided a status update on negotiations with the Taliban to the Senate Intelligence Committee and the leadership of Senate Armed Services Committee at the request of Dianne Feinstein, the chairwoman of the Intelligence Committee.

Despite Chambliss's and other senators' concerns about the Taliban Five/Bergdahl proposal, Grossman said he was not "optimistic" about it "happening anytime soon" because the Taliban cut off "reconciliation" talks in March 2012. Grossman promised lawmakers he would "consult them before any decision was made," according to the documents. He resigned in December 2013, five months before Bergdahl was rescued.

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Bergdahl left his outpost in Afghanistan on June 30, 2009 — a month after his deployment — and was captured by the Taliban hours later. He has been promoted twice since his capture. But members of his unit said he did not deserve the promotions, accusing the 29-year-old of desertion. For the past year, the Army has been investigating the "facts and circumstances" behind Bergdahl's disappearance and capture. A report on the findings will be issued soon, Secretary of the Army John McHugh told reporters last week.

"The [punishment] range extends from… no further action to the other end of the spectrum, potential court-martial," McHugh said.

Both Republicans and Democrats reacted angrily when news broke that the US military had secured Bergdahl's release on May 31, 2014. Some lawmakers said the administration sacrificed far too much by freeing the five Taliban commanders in exchange for Bergdahl, and also broke the law by failing to notify Congress 30 days in advance about the transfer of the Guantanamo captives. Other Republican lawmakers said the US should have left Bergdahl behind because he was a deserter.

In the years preceding the prisoner swap, however, several powerful lawmakers, including current Senate Majority Leader Mitch McConnell, had called on the Obama administration to do everything in its power to ensure Bergdahl's "safe recovery."

Bergdahl's "wellbeing is of deep concern to me and my constituents," the Kentucky senator wrote in a letter sent to Secretary of State Hillary Clinton on September 28, 2011, a copy of which was included in the documents VICE News obtained from the State Department. "Over the past several months, I have received correspondence from a number of concerned Kentuckians who are asking that the United States do all they can for [Private First Class] Bergdahl."

"Just recently, the state director of the veterans group, Task Force Omega of Kentucky, reached out to me about this important matter," McConnell continued. "I have already raised this issue with the Department of Defense, but I nonetheless wanted to follow up on the diplomatic side of the ledger to ensure that in the crush of events, focus remains on the safe recovery of this service member."

McConnell sent a second letter on October 14, 2011. Clinton responded two weeks later, saying Bergdahl's "safe recovery" was a priority. She noted that because Bergdahl was captured by "terrorists known to live on both sides of the Afghanistan-Pakistan border" the US was working with the governments of Afghanistan and Pakistan to assist with Bergdahl's rescue and "with bringing his captors to justice."

Representative Duncan Hunter sent a similar letter, addressed to President Barack Obama, on March 13, 2014 in which he too said Bergdahl's "safe return" was of concern to him and his constituents. On May 6, 2014, three weeks before Bergdahl was turned over to special operations forces in Afghanistan, Hunter received a letter signed by Julie Frifield, the assistant secretary of legislative affairs at the State Department, and Elizabeth King, her counterpart at the Department of Defense, that said the US was doing all it could — including the possibility of negotiating with the Taliban — to win Bergdahl's release.

"The Departments of Defense and State are working with other US departments and agencies to pursue all possible means to return Sergeant Bergdahl home safely, including bringing to bear our military, intelligence, and diplomatic resources," Frifield and King wrote, noting that they were asked to respond to Hunter on behalf of Obama. "We have long maintained that, should we be in a position to talk directly with the Taliban, we would actively pursue Sergeant Bergdahl's return through that channel as well."

But less than a week after the rescue operation, Hunter, a former marine, appeared on Fox News and insinuated that Bergdahl was a deserter.

"Bergdahl walked away from his men, and he left them in a bad spot," Hunter told Fox News host Megyn Kelly on June 5. "People lost their lives and got hurt trying to find him…. The one real commitment that you have as a military person, especially when you're fighting and it's dirty and you're tired and you're hungry, it's not always to your flag, it's not always for your country, it's for the man or the woman standing next to you. And he betrayed that, and that is the most sacred trust that you have in the military."

A spokesman for Hunter did not respond to requests for comment.

McConnell also politicized the rescue operation, but his criticisms largely centered on the exchange of the Taliban Five, who McConnell and a bipartisan group of lawmakers said they feared would likely return to the battlefield. About two weeks after the Bergdahl operation, McConnell and several other Republican lawmakers asked the Government Accountability Office (GAO), the nonpartisan research arm of Congress, to investigate whether the release of the Taliban Five was legal.

Last August, the GAO concluded that the Obama administration broke the law in two ways. First, by violating a provision in a Defense bill restricting the use of funds for the transfer of Guantanamo detainees unless Congress receives 30 days' written notice, Second, by violating the Antideficiency Act, which "prohibits federal agencies from incurring obligations exceeding an amount available in an appropriation."

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Even though members of Congress had previously said in briefings about the Bergdahl case that they did not support the administration's proposal to release the Taliban Five, the White House was still caught off-guard by the intense backlash that ensued in the immediate aftermath of the operation, which the State Department documents say was "amplified by media reports, often inaccurate, portraying Bergdahl and the circumstances of his capture in a negative light."

A June 9, 2014 memo that special representative for Afghanistan and Pakistan James Dobbins prepared for Secretary of State John Kerry summarized classified briefings given to members of Congress after Bergdahl was rescued. It said lawmakers "who are more supportive of the deal have encouraged the Administration to be more forceful in correcting misreporting and to publicly disclose details of Bergdahl's conditions while in captivity, which they believe will positively influence public opinion."

"While the initial Congressional reaction to Bergdahl's release was largely positive (and many Members had previously written to the Administration urging greater efforts on his behalf), criticism of the transfer has grown significantly over the past week," Dobbins' note for Kerry says. "The criticism, led by Republicans but also voiced by some Democrats, has focused primarily on: the Administration's failure to inform members in advance the deal had been concluded or follow the National Defense Authorization Act's 30-day notification requirement before transfers from Guantanamo can proceed; the ostensible threat posed by the five Taliban transferred to Qatar and the prospects of their return to the battlefield… and the conduct of Bergdahl prior to his capture and during his time in captivity."

But the White House did not heed the advice from some members of Congress to release details about Bergdahl's condition, choosing to shroud the details of Bergdahl's detention in secrecy. Caitlin Hayden, a White House National Security Council spokeswoman, would only say at the time that Bergdahl's rescue was the "result of unique and exigent circumstances" and carried out absent congressional notification "due to a near-term opportunity to save his life."

The State Department documents do show that the White House sought to explain to Congress its justification for undertaking the prisoner swap and failing to abide by the law by notifying Congress 30-days in advance.

Dobbins wrote that the Departments of Defense and State, the White House National Security Council, and the Director of National Intelligence briefed members of Congress and their staffs. In addition, Dobbins called the chairmen and ranking members of the House and Senate Foreign Relations Committee shortly after Bergdahl's recovery was confirmed. He also provided a classified briefing to all senators about the operation on June 3. Dobbins' deputy briefed all House members on June 9.

According to a summary of the June 3 briefing — on hand were White House Deputy National Security Adviser Tony Blinken, Deputy Secretary of Defense Robert Work, Vice Chairman of the Joint Chiefs of Staff James Winnefeld, Department of Defense general counsel Stephen Preston, and Deputy Director of National Intelligence Robert Cardillo — a bipartisan group of Senators hammered the senior administration officials with questions about the "personal conduct of Bergdahl, which was strongly addressed by Winnefeld as irrelevant to the long-standing commitment to bring home soldiers captured on the battlefield."

Dobbins' note to Kerry about the briefing says that Congress may have been more accepting of the administration's decision to sidestep its congressional notification requirement "had there been any advance consultation." Dobbins said the lawmakers interpreted the White House's failure to inform them "as a sign of distrust from the Administration."

"Finally, several Members suggested the five Taliban transferred to Qatar pose too great a threat to US security interests, which the terms of the [Memorandum of Understanding] with Qatar are insufficient to address — criticisms the [State] Department will continue to push back against in the weeks and months ahead," Dobbins wrote.

The administration's release of the Taliban Five and its failure to notify Congress can be credited with renewed efforts by Republican lawmakers to pass legislation placing greater restrictions on the administration's efforts to release detainees from Guantanamo.

Following the Senate briefing, then-Senate Majority Leader Harry Reid told Blinken, the deputy national security adviser, that it was "serious, substantive, honest, [and] forceful," and "feedback from many senators had been very positive."

Dobbins included a detailed timeline of the Obama administration's discussions with Congress that included the status of efforts to locate Bergdahl, where he was being held, the circumstances of his capture, and proof of life.

The timeline shows that the Defense Intelligence Agency had briefed the congressional committee leaders and individual lawmakers, the majority of whom were Republicans who voiced concern about the administration's Bergdahl recovery efforts. One such briefing took place on June 17, 2013 where Republican senators Lindsey Graham, John McCain, and Bob Corker; Republican representative Ed Royce; and Democratic Senator Bob Menendez were informed that the Taliban opened an office in Doha, and the US intended to "begin direct negotiations."

"[Talking points] did not include Bergdahl, but did say we expected the Taliban to raise the issue of Gitmo detainees," according to a part of the timeline pertaining to discussions with Congress about detainee swap discussions and reconciliation/negotiation talks with the Taliban. Other lawmakers were told at a briefing that took place a month later that talks were "not moving forward," and therefore any discussion about detainee swaps was moot.

Additionally, the State Department documents say that a report was delivered to Congress on October 28, 2013 on the status and search efforts for Bergdahl as required under a Defense Department spending bill.

On January 16, 2014, the State Department's Afghanistan and Pakistan office, the Department of Defense, and the intelligence community briefed Congress and nearly a dozen congressional committees about a video on Bergdahl produced by the Taliban that the government received.

"Message [to Congress] was to confirm [the video], confirm his deteriorating physical condition, and say we continued to evaluate and consider all options to secure his safe return, including through possible talks with the Taliban in the context of our overall reconciliation efforts," a summary of the classified briefing says. "Staff appreciated the outreach and asked we keep them updated. We told them we would keep them updated and consult before taking any action."

However, the administration did not keep its word, and according to the documents provided a final update to Congressional leadership about Bergdahl on February 19, 2014.

"Message was to clarify we were not currently engaged in negotiations with the Taliban, but we believed doing so could ultimately lead to SGT Bergdahl's release," a briefing summary says. "If the Taliban agreed to meet we would pursue this and expected the Taliban would raise the issue of detainee transfers. Staff appreciated the outreach and several expressed interest in a classified briefing if/when we had additional information to share. We told them we would keep them updated and continue to consult before taking action."

Follow Jason Leopold on Twitter: @JasonLeopold