Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Jeh Johnson:

We are a very polarized nation right now, such that if there were another 9/11, I have doubt that we could marsh a national response like we did 20 years ago. And for proof of that, you don’t need to look any further than COVID.

Preet Bharara:

That’s Jeh Johnson. He served as the secretary of Homeland Security during president Obama’s second term. Longtime listeners of Stay Tuned will be familiar with Secretary Johnson. He joined me in April of 2018 to discuss his career in public service, which began at SDNY and later included serving as the top lawyer at both the air force and the Department of Defense. This week, as we approach the 20th anniversary of 9/11, Johnson returned to the program to discuss his memories of that day and how it changed the country forever. That’s coming up, stay tuned.

Preet Bharara:

Before I get to your questions, there’s exciting news from CAFE. We’ve launched our new podcast Up Against The Mob hosted by Elie Honig. You can subscribe for free and listen wherever you get your podcasts. Search for Up Against The Mob. And now onto your questions. This question comes in a tweet for Maureen who asks, if anyone aids a Texas woman to get her abortion outside of Texas, is that person/agency able to be sued under this new law? I’ve heard differing opinions. Well, thanks for your question, Maureen. Joyce Vance and I discussed for an entire hour, the nature context and implications of the Texas abortion law, S.B. 8 on the CAFE Insider this week. But this thing that you have asked about actually didn’t come up. It’s an unusual statute in many ways as we discuss. I’m sure you’ve heard about and read about, but my view is that so long as the actual abortion itself conducted by a doctor is outside of the state of Texas, that there can’t be good faith liability criminal or otherwise.

Preet Bharara:

And in this case, it would only be civil under the Texas statute for someone who may have engaged in some conduct to assist inside of Texas. So in other words, I guess your question is if someone inside of Texas offered a ride to Oklahoma, and we’ve seen an uptick in interest at Oklahoma abortion providers, if someone did that, could they be sued appropriately under the Texas statute? Well, I guess they could be, anyone can sue for anything. And then you work out whether or not that claim should be dismissed, but I don’t think such a claim would succeed because ultimately the main conduct that is prohibited is the abortion. And as far as I understand criminal law, and this is again, not criminal law, but civil law, but the analog should be the same that if the actual conduct is not unlawful, namely, seeking and obtaining an abortion in Oklahoma, for example, then the aiding and abetting of that conduct can itself cause you to be liable. I think that’s the only common sense reading of the statute.

Preet Bharara:

I understand that there’s some people who differ with that, including very smart, legendary Harvard law professor, Lawrence Tribe, who writes in a piece in the Guardian his view. Even someone who helps a woman organize money for a plane or a bus ticket could be liable for aiding and abetting a now banned abortion, even if the procedure itself takes place out of Texas. I think his view is in an aggressive litigant in Texas could take that position, and he’s probably right about that. Maybe some people will take that position. I think it ultimately fails. I think the weight of expert opinion on that is that it fails.

Preet Bharara:

This question comes in a tweet from listener Amontiano. Sorry if I mispronounced the name, this person asks regarding Elizabeth Holmes being tried for wire fraud. I find the term wire fraud confounding. Say you lie to investors and get them to give you money under false pretenses, had these investors given the money to Theranos in cash literally, would it not have been wire fraud and illegal? Well, that’s an interesting question. Wire fraud is confounding. It’s a broad statute under the federal system title 18, United States code section 1343. It’s a broad anti-fraud statute in the same way that the feds often rely on a parallel statute called the mail fraud statute. And what they essentially prohibit are schemes to defraud. They can be an investment fraud, the Medicaid fraud, you name it, any kind of false devices and schemes to defraud can be prosecuted ordinarily by the state. And so wires are not necessary or mailings are not necessary.

Preet Bharara:

But for federal prosecutors to bring a case as they did with Elizabeth Holmes, they have to prove something called a wire, if you use that statute. Now, by way of background, most of you have probably heard of the Elizabeth Holmes’s case. She was the founder of a company called Theranos, gotten a lot of attention. She was the subject of a book called Bad Blood, multiple documentaries, other podcasts as well. She’s alleged to have defrauded to the tune of hundreds of millions of dollars, both investors in her company and also patients, based on what is alleged to be false representations about her blood testing technology. So it’s captured a lot of people’s attention. The trial is underway as we speak in the Northern District of California in San Francisco. And some of the main charges as the listener has asked relate to wire fraud.

Preet Bharara:

Now wire doesn’t necessarily mean just money. And while it is the case that in the indictment against Elizabeth Holmes, various counts enumerated relate to the payment of investor money that’s sent by wire, but wires also include under the federal statute, any kind of electronic communication that can include an email, that can include a phone call, that can include a text message, that can include radio ads and that’s contained in the statute itself. And in fact, the third superseding indictment that is operative against Elizabeth Holmes has a number of counts that don’t relate to the payment of money. The wire at issue in count nine, for example, is a phone call from a patient. The wires at issue in counts 10 and 11 of the indictment relate to the conveyance of patient lab results.

Preet Bharara:

So all of that can be part of the fraud, and it doesn’t necessarily have to be money. And by the way, as I said at the beginning, if you have a case of fraud that literally didn’t involve any email, any phone call, any text, any wire transfer of funds in an interstate way, then that fraud should presumably be prosecutable under state law. So you don’t get away scot free. In this case, the appropriate prosecuting entity is the Department of Justice.

Jeh Johnson:

Stay tuned. There’s more coming up after this.

Preet Bharara:

My guest this week is former Homeland Security, Secretary Jeh Johnson. On the eve of the 20th anniversary of 9/11, Johnson joins me to discuss what it was like to be in New York City during the attacks, how the country responded and whether we are safer today. Secretary Jeh Johnson, welcome back to the show.

Jeh Johnson:

Great, thanks for having me back. I enjoyed our prior discussion on your podcast. I’m looking forward to the discussion today.

Preet Bharara:

If you can believe it, that was over three years ago, so you got to be less of a stranger.

Jeh Johnson:

I can’t believe it. But people today still tell me, “Hey, I heard you on Preet Bharara’s podcast.” So your reach is really impressive.

Preet Bharara:

It’s far and wide, it’s global, it’s throughout the solar system. So thanks for doing this again. So just for folks to be oriented, you and I are recording, not together but remotely as is often the case on Tuesday, September 7th. I thought that given the looming 20th anniversary of 9/11, that there was really no more perfect guest than you for a lot of reasons, because of the positions you’ve held. You were in USA in the Southern District of New York, you were the general council, the Department of Defense, you were of course the secretary of Homeland Security, you’ve served in a leadership role at the 9/11 Museum. And on top of all those things, you’re just a thoughtful American citizen. There’s lots of stuff to talk about.

Preet Bharara:

I guess my first question, this may seem like an odd question is, at least for me, my experience has been in the last few days, sort of a building feeling of heaviness about the upcoming anniversary. I felt the same way in the lead up to the 10th anniversary. And lots of people are writing about their reflections. They’re writing about that day. Their TV show’s about 9/11, lots of them proliferating. Are you reading all of those and watching all of those? Are you avoiding them? I’m wondering what the psychology of people is. I found myself avoiding it until closer in time, and I’ve been reading it because you kind of know that when you begin a sober reflection and reading some of these thoughtful pieces and remembrances, your heart’s going to be very heavy. How do you think about that?

Jeh Johnson:

That’s a good question. To be honest I haven’t immersed myself yet in 9/11 retrospectives, but I’m sure I will as the day draws closer, and it’s drawing close. Now, any retrospective of 9/11 should include a retrospective of the last 20 years and the reaction to 9/11. And that could be a book, that could be a chronicle of books, that could be an op-ed, it could be many, many things about some of the lessons learned, some of the places where we’ve perhaps overreached, and hopefully we’ve learned from those lessons. And of course, the heroism on that day, 9/11. So some of it, you and I personally experienced and lived through in response to 9/11, and some of it is our very clear recollections of 9/11, 20 years ago.

Preet Bharara:

So let’s go back to the day, September 11th, 2001, many people may not realize you wake up that morning and it’s your birthday.

Jeh Johnson:

Yes, it is.

Preet Bharara:

9/11 is your birthday. And I presume …

Jeh Johnson:

Has been all my life. Yeah.

Preet Bharara:

That doesn’t change, even in leap year 9/11 is your birthday.

Jeh Johnson:

Right.

Preet Bharara:

I presume you got some good birthday wishes, you woke up in a good mood.

Jeh Johnson:

Well, I’m going to start with the last piece of the thought train here, which is as a result of the fact that 9/11 is my birthday, everybody remembers my birthday.

Preet Bharara:

That’s true.

Jeh Johnson:

I get lots of emails and well wishes on 9/10, 9/9, 9/11. And it’s usually the same 40 or 50 people who never forget that 9/11 is my birthday, but I remember the day like it was 20 days ago, not 20 years ago. I woke up that morning at my home in Montclair, New Jersey, where we still live. I had spent two years as general counsel of the Department of the air force, in the last two years of the Clinton administration. We came back to our home in Montclair, New Jersey in January 2001. And I had come back to my law firm, Paul, Weiss, Rifkind, Wharton & Garrison, the very firm that I belong to now. In fact, I’m sitting in my law office at 1285, the Avenue of the Americas, just where I was on 9/11, 2001.

Jeh Johnson:

I decided to drive to work that day. I typically then would take the bus and I decided to drive to work that day and park at a garage on Eighth Avenue in 53rd street. It’s now demolished, it’s gone. Something else is there at its place. I was going to come home and spend a quiet evening over dinner with my wife and two kids. My kids were a lot younger then, they were about seven and eight years old. I remember it was a beautiful, crisp early fall, late summer day, the sky was … I’m pretty damn sure you remember it too. The sky was, not a cloud in the sky, no humidity, seventies. It was a gorgeous day.

Jeh Johnson:

I drove in, I parked my car, came to work and I was sitting at my desk in my office and I was working on a boring court paper that I was trying to get done that morning because I had a meeting downtown in the New York state attorney general’s office later that morning. And at 8:48, I heard someone say an airplane just hit the World Trade Center. I walked next door to the office of my law partner, Theodore Sorensen, who was JFK speech writer. Ted was not in that day, but Ted’s office was a corner office. He had a clear view looking down Sixth Avenue at the Twin Towers. I looked out the window in his office and I saw this black smoke billowing out of one of the two towers. I’ll never forget the contrast of that dark black smoke against the backdrop of that beautiful blue sky.

Jeh Johnson:

I think I actually saw the second airplane hit the tower. I was going back and forth between watching it on TV in a conference room and watching it with my naked eye. I think I may have seen the second plane hit. And the moment that I will never forget of the many memorable moments that morning, sitting there watching events unfold was when the first tower collapsed. For 30 years, the World Trade Center had been a fixture on the New York City skyscraper. I used to go to windows in the world all the time. I took my son in 1994 when he was just a couple weeks old up to the observation deck. And to see that building, which was a permanent fixture on our landscape collapse in an instant was a moment when my brain could not believe what my eyes were seeing. I kept wanting to see that tower emerge from the dust and the smoke, but it didn’t.

Preet Bharara:

Were you shocked by how quickly the tower fell? My experience was similar to yours.

Jeh Johnson:

Yes, absolutely.

Preet Bharara:

I had not yet gotten to work, and I lived at the time off of Park Avenue and 22nd street and I’m watching what I’m seeing on the television. I didn’t have a vantage point from within my apartment, but I walked out of the apartment building and walked over to Fifth Avenue. I had a clear line of vision and saw the towers burning and couldn’t believe it. And not many people speculated at least on the TV program that I was watching that the towers could fall or they would fall within minutes.

Jeh Johnson:

Correct. Right. I cannot think of any similar, large permanent structure that could collapse in an instant like that. Never before seeing that happen and couldn’t believe it was happening at that moment.

Preet Bharara:

But then it happened again, it happened twice.

Jeh Johnson:

And then it happened again a few minutes later. My first instinct when I watched all this unfold, our nation was going to war, was I got to do something. What can I do to help? Frankly, it nod at me that I was not back at my desk at the Pentagon where I was eight months before. The job of general counsel of the Department of the air force at that moment was still vacant. There was an acting in the role and I was not there. I was not at the Pentagon where I felt like I should be at that moment. So the overwhelming instinct was, do something. So I went down to the street and I was looking for the nearest hospital where I could donate blood. And given the nature of the tragedy, there was not a whole lot of need for blood donations. You either escaped the World Trade Center or you were dead.

Preet Bharara:

Well, that’s one of the most tragic memories I have from that day is people lined up all around the city waiting for ambulances and the ambulances never came.

Jeh Johnson:

Yeah. After a while, I realized there’s nothing else for me to do except go home and be with my family. I went back to the same garage where I parked my car seven hours before, it was about 3:30 in the afternoon, I got in my car, drove north, got on the George Washington Bridge. And I remember-

Preet Bharara:

You were able to get on the George Washington Bridge that afternoon?

Jeh Johnson:

All the traffic was going outbound, nothing was coming inbound. I think I remember guard troops on the bridge, and it occurred to me as I was driving across the bridge that what started off as a serene beautiful day is now a war zone. I felt like we were in a war zone. I had the feeling of a war zone that afternoon as I drove home.

Preet Bharara:

And how late was it when you got home?

Jeh Johnson:

Wasn’t a whole lot of traffic outbound. It was eerily cal as I recall on the Garden State Parkway on I-80, but the world had changed in just a few hours, and I’ll come back to this in a moment, the thing that I remember about time is that time that day seemed to move very, very slow. Even though it was only mid afternoon by the time I left my office and went home, it felt like it had been a week given all that had happened.

Preet Bharara:

There are two things I remember from that day that made me feel a little calmer because there’s lots of things going on, including, obviously you must have been feeling this too, what’s next? And it kept coming. You have the one plane hitting the one tower, another plane hitting another tower. Then you have the plane hitting the Pentagon and there were rumors flying around. I remember being on the street, like I mentioned, and there were crowds of people saying the capital had been hit, or that there was a bomb uptown. I remember going to bed that night and there were rumors swirling around that seemed credible, why not that the Empire State Building was a target and would be exploding.

Preet Bharara:

And I remember thinking, [inaudible 00:18:51] many blocks from the Empire State Building, will that engulf us? So there’s a lot of fear going on at the same time. And the things that I remember are, number one, seeing a graphic on television that showed every single airplane in the United States of America was grounded, which pleased me at that time. And then second, I’ll never forget the feeling I had. I was outside briefly and I saw and heard American fighter planes over Manhattan. And that made me feel better too. Are there moments like that that during the day made you feel safer?

Jeh Johnson:

I remember the fighter planes, and I remember the shock of looking up in the sky and seeing fighter jets of the United States air force, patrolling the CONAS, the homeland. It was one of those things that before that moment could never get your head around, like watching the collapse of the towers. It was a day I’ll never forget.

Preet Bharara:

What emotions did you feel the most, as between anger, grief, fear and whatever other things you were feeling at the time? Because I remember lurching between those three.

Jeh Johnson:

I think the emotion I felt the most, and I felt a lot of emotions obviously; shock, grief, fear for what was coming next. By the way, one constant after a terrorist attack is that in the early moments after the attack, as you just pointed out, there’s lots of misinformation flying around, lots of false facts flying around. And so one has to be careful in reporting them or trying to assess them. But I have to say, and this could be just my own recreation of my emotions, but I think my recollection is my overriding emotion was I want to get in this fight, I feel like I should be in this fight. I should be back in national security. That was what I felt that day as I recall.

Preet Bharara:

For people like you and me who are not only alive and adults at the time, but on the island of Manhattan when it happened and had connections to law enforcement and were going to be part of this subsequent 20 year thing that we had to deal with in our different ways, it’s bizarre to me that not only in my own house with my young children, I had a daughter who was four months at the time. Some of the members of the CAFE team, our crack team who are on this Zoom right now and listening into the conversation between you and me were quite young back then. And I wonder if, and when you talk to young people who don’t have any personal memory of the event, what you try to convey to them and how it’s possible for young listeners who are tuning into this program to convey to them how monumental a day it was and what they should be thinking about it, not having witnessed it themselves.

Jeh Johnson:

That’s a good question. The first thing that comes to mind when you say that, my son was almost seven years old that day, my daughter was five going on six. We wondered how much of that day they had understood and absorbed. They were just in an age when you’re on the cusp between being oblivious versus taking on the grief. And I’ll never forget, a couple of weeks later, my son brought home a picture he had drawn at school of the Twin Towers with an airplane flying into it. He wrote as a caption, a sad picture. I think he had an American flag in it. My son today wears the uniform of our nation. So kids at that age, I think absorbed a lot more than we probably realize, if you have a child or someone in their late twenties now, they probably absorbed more than we appreciate.

Jeh Johnson:

In talking to people now, and it’s amazing, I work at a law firm or some associates at this law firm who were between their second and third year of law school who were 24, 25 at the time may not have any recollection of 9/11, or college students. Most college students were not born on 9/11. And the thing that I try to convey is I have a vivid recollection of events. If they’re interested, I’ll account the events, but that 9/11 changed our nation and changed our world in ways that 20 years later, we still have not fully comprehended or appreciated.

Preet Bharara:

When you saw the gaping hole in the tower and then the towers came down, did you, based on your most recent government service, understand who had done it before most Americans did?

Jeh Johnson:

When I was general counsel of the air force, 1998, ’99, 2000, we would hear almost daily about Al-Qaeda and Osama bin Laden. So I knew full well who they were, what their aims were and what they represented. I was not surprised to learn within a short period of time that it was Al-Qaeda that was responsible. Frankly, I was surprised that our intelligence community apparently had a fairly clear picture of the plot and the threat to our homeland. And we learned this after the events, but no, I was not surprised. I think we all knew that bin Laden was actively hoping and planning to do something, to attack the United States.

Preet Bharara:

And had your office, my old office, our old offices are former home in the Southern District of New York, literally that year had tried cases against members of Al-Qaeda who had blown up two American embassies in Africa. And in fact, I used to do this when I would talk to young people sometimes for career day at my old high school, I would bring a copy of the indictment. And the indictment begins with the United States versus Osama bin Laden, spelled U-S-A-M-A.

Jeh Johnson:

So were you US attorney in 2011? You were, right?

Preet Bharara:

Yeah, I was.

Jeh Johnson:

Yeah, so I was involved in the dismissal of the indictment against bin Laden. I can’t remember whether I told you that story or not, but we can get into that later.

Preet Bharara:

Well, we can talk about it for a second because you mentioned it, you must have been involved because my recollection is, if people may remember is to refresh other people’s recollection, there was supposed to be a trial of KSM, Khalid Sheikh Mohammed and others who were housed at Guantánamo Bay, Cuba. That became a political firestorm. In fact, the first major assignment I got weeks into being confirmed after August 13th, 2009, was your team is going to try KSM and four others. And then of course, the indictment that Osama bin Laden had never been dismissed because he was alive. And then after he died in 2011, he was killed by American forces, you move for his standard death nalley, what’s called a death nalley. Usually it’s a rote matter. And in some circumstances you attach the death certificate, Judge Kaplan, maybe this is why you got involved [crosstalk 00:26:33].

Preet Bharara:

Your former law partner, Paul, Weiss, said that was insufficient, that upon our say so Osama bin Laden was dead because people will recall his body was put out to sea. He was buried at sea and he wanted more proof. Maybe this is how you got involved, we had to get a sworn declaration from someone I believe in the military or the intelligence community to opine on the DNA taken from the person who was killed by the American forces and the DNA they understood to be belonging to Osama bin Laden. And only after that submission was made, was the case against Osama bin Laden dismissed. Does that sound right?

Jeh Johnson:

Okay. So we’re resuming ahead 10 years to something that, from my perspective is halfway humorous. So the bin Laden operation was May 1st, 2011, probably about a month later on a Friday, and stuff at the Pentagon always happens on Friday afternoons. I don’t know why, but there’s this massive upchuck of things that have to get done on Friday afternoon that I only hear about on Friday afternoons. And so I remember getting an email from somebody, it was unclass, somebody in the CIA, and it was one of these emails, the tone of it was don’t shoot the messenger. But the email read in so many words, the judge overseeing the bin Laden case wants proof of death before he will dismiss the indictment. Don’t shoot me, but the Department of Justice, meaning you, Preet Bharara, your office that gave the judge the impression that they will have that proof today, this afternoon. And the judge wants some form of declaration or some proof that bin Laden is actually dead.

Jeh Johnson:

So I read that and I thought, okay, I think I know what Judge Kaplan wants. He wants to see the photographs, but we’re not going to be able to get him the photographs right away. The photographs are under lock and key. I remember my reply email began, you must be kidding. Can’t the judge take judicial notice that they nationally televised address by the president of the United States that bin Laden is dead? And if that’s not good enough, what about the cover of the New York post? Isn’t that okay?

Preet Bharara:

Wasn’t good enough for your former law firm.

Jeh Johnson:

But then I went on to say, I have a better idea. Let’s do nothing and see what happens. Is he going to set a trial date? Is he going to insist that the government go to trial? Is the defense attorney pressing for a speedy trial here? If so, I hope he got his retainer up front.

Preet Bharara:

Of course there was no council for bin Laden at the time.

Jeh Johnson:

I think we ultimately delivered to Judge Kaplan what he wanted, but my weak recollection of the rules was that the government didn’t need an explanation and proof to drop its own indictment against the criminal defense. I guess I was wrong.

Preet Bharara:

Well, this leads me to the question of, with respect to who has relatively more power, you and Luke Kaplan, both alumni of prestigious law firm, Paul, Weiss, who had more power? You when you were the secretary of Homeland Security or a life-tenured federal judge in the Southern District of New York? Open question

Jeh Johnson:

Well, you might get different answers depending upon what you said. [crosstalk 00:29:52] a time when I was general counsel of DOD, where I thought I carried some weight, but apparently judges want you to do it on their timetable.

Preet Bharara:

So this is a good segue to … One of the other issues I wanted to talk about, which is our security then, our security now, as you and I have just discussed Osama bin Laden may not have been a household name in America or in the world on 9/11, 2001, but he was certainly known to the intelligence community, to the military, to the National Security Council. And then of course the commission showed all sorts of other signs that maybe the government should have acted upon. Is it your view after 20 years, given all the positions you’ve held and a chance to think about this, was 9/11 avoidable?

Jeh Johnson:

I’ve been in the situation roam enough, I’ve been in the hot seat enough that I know that unless I was in the chair at the time, I’m not going to sit in judgment of those who were, I’m not going to say yes, it was knowable. Unless I was there at the time and I remember what I knew and I remember what I thought, I remember what I was told. So I’m reluctant to sit in judgment of those who were in the jobs on 9/11 or in the days immediately preceding. I do know this, I think that given today’s capabilities, given the capabilities that existed while I was in office at the Department of Defense and at DHS, I believe that a large scale plot such as that one involving as many individuals as it did would be detectable and preventable given today’s capabilities. I can say that with a fair degree of confidence.

Jeh Johnson:

Interesting footnote to this, I was not a fan of the creation of the DNI, the Office of the Director of National Intelligence right after 9/11. The creation of it right after is one of the 9/11 recommendations as I recall, because I thought it would create an unnecessary layer of bureaucracy in our intelligence community. But having been a consumer of that work product now for close to eight years, I can say that the DNI structure, if you have a good DNI at the top, actually does work and it works well. You’ll get a whole composite of intelligence products from the alphabet soup in the intelligence community. It’s almost like an appellate court. Somebody will issue a majority opinion. Somebody made dissent with a minority view.

Jeh Johnson:

And when I got that, when I was secretary of Homeland Security, I used to summon the analyst up to my office with the dissenter to say, okay, why do you two guys disagree? Tell me where the disagreement lies? And why do you disagree? And very often you find out there was not that big of a disagreement, but there was strength and rigor in that process. And that’s why I can say with some degree of competence, it had such a large scale plot occurred or was in the works. Given today’s capabilities, I believe that we could prevent it and stop it at its earliest stages.

Preet Bharara:

We’ll be right back with more of my conversation with Jeh Johnson after this. Here’s the question that I’ve had every day since 9/11, and I’ve asked a lot of people. Maybe you and I even discussed this last time, and that is, terrorism is a certain kind of activity, which by definition is intended to strike fear in the hearts of a population. And that was successful, given the spectacular nature of the attack on 9/11, on the World Trade Center and also on the Pentagon. I kept thinking every day I walked around in the city with the smoke billowing for months and months and the scent of the disaster in people’s nostrils for months and months after the attack. Every time I heard a loud noise or there was breaking news, I worried it was another attack. It takes some doing. And obviously America was on high alert and everyone in the world was on a high alert after 9/11.

Preet Bharara:

I understand why there may not have been the wherewithal, particularly with the wars that began for Al-Qaeda or another terrorist organization to launch a gigantic attack of the nature of 9/11. And this is a good thing, and I’m glad it unfolded this way. What I’ve never understood is why one of these terrorist organizations, Al-Qaeda among them, how was New York City and the rest of the country for that matter spared small attacks, small shootings, a little bomb on a subway that? I think people in New York would not have sent their children to school. People wouldn’t have gone out on into the streets. I’m so thankful, and I think we’re so blessed that we didn’t have a follow-on of small attacks after the gargantuan attack, but as an American, as a New Yorker, I think that would’ve brought the city to its knees. How come that didn’t happen?

Jeh Johnson:

Preet, you’ve touched upon something that I don’t even like to talk about, and I would not of while I was in office. The lack of successful small-scale series of small-scale attacks by suicide bombers with backpacks or vests or pressure cooker bombs in suitcases detonating on a New York City subway in a tunnel, in a bus station has been a minor miracle, the lack of such attack. Now, you and I both know there were a few attempts. There were the pressure cooker bombs September of 2016, West 23rd Street, West 27th, I think, there was an attempt by someone in the Times Square subway station a couple years ago when I was a private citizen. It happened right at the time of day and in the place of my daily commute.

Jeh Johnson:

But you and I both know how difficult it would be to prevent a deranged individual who radicalizes in their garage or in their basement straps on. A lot of explosives gets on a subway where nobody’s noticing, nobody’s paying attention and just decides to blow himself up. That type of attempt, unless you have really, really good human, unless you have really, really good undercover work by the FBI and the NYPD is very, very difficult to prevent. And why we did not see that in the immediate aftermath of 9/11, I give credit to the incredible capabilities of our NYPD intelligence capabilities, our FBI, and I think a certain amount of good luck as well, and good fortune.

Jeh Johnson:

You talk about fear after 9/11, my big fear in the immediate aftermath of 9/11 was anthrax, because you recall we had anthrax cases popping up in random places throughout the city. My fear was that it’s one of these things where you don’t know how far it’s going to spread. Do I need to not open my us mail anymore? Do I need to evacuate my kids from my house every time the mail comes in? Because you don’t know how far it’s going to reach. One thing I found, frankly, that was not helpful in the immediate aftermath of 9/11, our government very often, they’re caught flat-footed on something and they overcompensate. And so I remember these dire warnings right after 9/11 from Cheney, Rumsfeld and some others, there’s going to be another attack. It’s going to be as big as 9/11, there’s gonna be another attack, or something. They qualified it a little bit, I’m sure.

Jeh Johnson:

But in my view, from my Homeland Security perspective, when I was secretary there’s not a whole lot of good to be done in just scaring people, unless you also say what you are doing about it to prevent it and give people some hope and confidence, but scaring people just for the sake of scaring people, just so you can say I told you, so is not particularly helpful.

Preet Bharara:

So you mentioned Dick Cheney, and so one of the things I wanted to ask you was what are the ways in which America, both in terms of how it applied its laws, how it changed its focus, how it used its intelligence capabilities. In what ways did we do a good thing? And in what ways did we do a bad thing? And since you mentioned Cheney, I’m going to start with the negative. People will recall these debates that have faded a little bit from view in very recent years, but the famous torture memos that circulated, that authorized waterboarding and other activities, the use of black sites and everything else, it’s been a while since people have talked about some of those things. Do you think it was inevitable that the pendulum would swing that aggressively given the nature and scale of the attack or could we have done better?

Jeh Johnson:

Yes. Regrettably, I believe it was inevitable, and yes, I believe we could have done better. I like to say to people, those who know history learn from the lessons of history, those who don’t know history are bound to repeat the mistakes of history. America for several years after 9/11 was in shock. We were in trauma. In many respects, we overreacted. You could never have gotten a Congress to authorize the Iraq war and had it not been in the immediate aftermath of 9/11, for example. I believe that we improved our intelligence capabilities. We improved the structure of our intelligence collection capabilities in the immediate aftermath of 9/11. We can talk about the creation of DHS, the Department of Homeland Security.

Jeh Johnson:

I think that was a long overdue step, effectively creating a department of the interior like other governments have and other nations. But in many respects, we did overreact. We’re having this debate now with the end of the Afghanistan, what did we accomplish there? And the whole Iraq war was fought on the notion that Saddam Hussein had weapons of mass instruction. And in the mood, in the climate and the atmosphere that existed at the time, a lot of politicians and a lot of Americans were prepared to accept that assumption, going into Iraq. And not enough of us viewed it with some skepticism. Now, I will say this, the Bush administration legally overstepped in a number of places largely because they were working on a blank legal pad, so to speak. By the time we in the Obama administration came in 2009, a lot of the rules for fighting this kind of war had already been crafted because we as a government had learned where the boundary lines were, the Supreme Court told us in some certain places where the boundary lines were.

Jeh Johnson:

And so by 2009 had some legal lanes in which we knew we could operate and tried to do so wisely. But in the immediate aftermath of 9/11, the Bush folks were working on a blank sheet of paper in an environment where there was a lot of anxiety about what was going to happen next, a lot of concern, a lot of fear. And that is a poor environment in which to make policy and make a new set of rules.

Preet Bharara:

Yeah, you had, you had a dramatic large-scale attack. You didn’t know if other attacks were coming. It was a young president in his first term, and it was also populated by people who terror attack or know, came into the administration and grew up in their minds with a pretty aggressive view about executive authority and about where the proper balance between liberty and security should be. And that was before the 9/11 attacks. So, maybe a perfect storm in that combination of forces and events, but a question I wonder how you react to this, do you think that the folks who were the architects of some of these policies were acting in good faith? I’m not asking, were they being careful lawyers, and maybe this answers the question. I’m asking, do you think that they did what they thought was best for the country, even if it’s the case that we all, I think many then and certainly many more now realize that they went too far?

Jeh Johnson:

Two part answer. One, I don’t believe anyone in the Bush administrative was acting with a corrupt motive, if that’s your question. I believe that many were acting in what they believed was the best interest of the country at the moment. I also believe that there were some who had an under lying agenda, like taking out Saddam Hussein and concluded that the climate was ripe for doing so, whereas the year before would not have been. So I believe that there was some taking advantage of the anxiety of the moment. From a legal point of view, one of the things I noticed when I came into office as the senior legal official for the Department of Defense in 2009, the question we always asked and the question Barack Obama wanted us to ask is what is the legal authority for doing something?

Jeh Johnson:

I noticed that lawyers who had also functioned as lawyers in the Bush years would frame the question the exact opposite way, which is, what is there that prevents me from doing something that I want to do? And I would say, “That’s the wrong question. We need to ask, is there a legal authority for doing something? International legal authority, domestic legal authority.” We shouldn’t just be asking yourself, is there anything that would stop me for doing this? Because that will lead to abuse. If you start from the point of view of, is there anything that prohibits me from doing it, you’re going to end up getting slapped down. And in the early years after 9/11, that’s exactly what happened.

Preet Bharara:

I’ll tell you one of the things that from time to time would scare me during the presidency of Donald Trump, and it was an echo of what we’re talking about now. Suppose there is a large scale 9/11 style attack during the Trump presidency. Obviously that would be terrible for all the inherent reasons for that loss of life. And then I thought to myself, well, what would be the reaction of the Trump administration be given that in retrospect there’s some consensus? But the Bush administration went too far. What would it mean for immigration policy? What would it mean for law enforcement authority? What would it mean for relationships with our allies? What would it mean also for Muslim communities in our country, assuming it was from an organization like Al-Qaeda or something else? What would that have looked like? And if there is a future massive attack on the homeland, what do you think it would look like under Biden administration?

Jeh Johnson:

Well, an answer to your first, I fear that the reaction would have been an off the charts, unfathomable reaction for people like you and me in such a climate, in such an atmosphere. I can’t begin to contemplate. Don’t forget it was in 2017, 16 years after 9/11 when we had smaller-scale attacks, what we refer to as terrorist inspired attacks here in the US, that President Trump was able to mobilize at least some support for his so-called travel ban. And that in 2015, when he first proposed barring Muslims from entering the United States, there are a lot of people that supported that. A lot of us were highly offended by it, but there was a considerable amount of support. And the person who proposed that idea got elected president of United States. So let’s not forget that

Jeh Johnson:

The lawyers in the Biden administration, I know many of them because I worked with them. There’s almost nobody who works in the Biden administration didn’t work in the Obama administration. So I think I know how they think. I believe that the legal thinking where there are crisis today would hopefully be similar to the legal thinking that went on during the Obama years. And what I used to try to do was apply traditional legal principles to a nontraditional unconventional situation, and that that would have the most credibility in terms of our efforts. So apply traditional law of armed conflict principles to an untraditional enemy law of war detention. For example, at Guantanamo Bay, there was the military commission system. I know you’re not a fan of it, and we can talk more about that.

Preet Bharara:

I’m not not a fan. Okay, I get it, but I worked in SDNY and you were with the Department of Defense. And so we different views on the best way for there to be justice.

Jeh Johnson:

By the way, I was in favor as you may recall of moving the KSM case, the 9/11 defendants to the Southern District of New York.

Preet Bharara:

Can we talk about that for a second? Because it’s a sensitive topic at the time, and I as US attorney did not speak about it much and basically kept my face out of it. But there were debates that I participated in as the new US attorney down with the attorney general, Eric Holder, and others. Time and time again, in the fall of 2009, we made the argument for civilian in the Southern District of New York court trial for KSM and the co-defendants. In fact, it was so certain after the attorney general made the decision to send the case to us. I got a tour of the metropolitan correctional center that Eric Holder came up for, the chief judge attended, the United States Marshall attended, and the warden to show us the cell in the MCC, in the metropolitan correctional center that KSM would have occupied as we expected the trial to commence in some months, how come that never happened.

Jeh Johnson:

So let’s go back to the Bush to Obama transition, 2008, 2009. The Congress had passed the military commissions of 2006 in response to the Supreme Court decision saying, this needs to be codified into law. I was impressed by the fact that our JAG leadership, the military lawyers, the military prosecutors were offended by aspects of the Military Commissions Act of 2006, the possibility that one could use against a defendant in that system, statements taken as a result of cruel inhuman integrating treatment. The JAGs were very offended by that. They felt that it impugned the integrity of their military justice system. They wanted reform, and they convinced me that with eight reformed military commission system we could make it work.

Jeh Johnson:

And we work with Congress in 2009, they got the law changed. President Obama agreed to use the military commission system for certain cases, and we would divvy up the cases, which we did. I went through the process with David Kris, who was the assistant AG for national security and we divided up the cases. I believed, I agreed that the 9/11 case should come to New York, right here in Manhattan as a new Yorker, as a former assistant from the Southern District, and because I knew the principal victims were all civilian, this case should be tried in federal district court in Manhattan. I was prepared to see that case go to Manhattan. The Nashiri case, the Cole bomber in Yemen, I believed should be prosecuted in the military commission system. And those were the two big cases at the time.

Preet Bharara:

And the decision was in fact made. It was left to —

Jeh Johnson:

And the decision was made. We agreed and …

Preet Bharara:

And then it unraveled.

Jeh Johnson:

And it unraveled because of political forces. Frankly, I don’t think we adequately prepared the battle space for the announcement. We did not adequately vet it with the mayor, with the congressional delegation up here to rule.

Preet Bharara:

I think a couple of things happened also that people tend to forget. So that decision-

Jeh Johnson:

Obama and just there was a whole —

Preet Bharara:

Yeah. No, that’s exactly … So the decision was made, I think in the second week of November. I got the call from Attorney General, Holder, announcing his decision.

Jeh Johnson:

November 13th, 2009. I remember it. Yes.

Preet Bharara:

Exactly. Right.

Jeh Johnson:

Friday, November 13th.

Preet Bharara:

It was the most momentous call I got.

Jeh Johnson:

Remember what I said, stuff happens on Fridays.

Preet Bharara:

Stuff happens on Fridays. And it was only six weeks later that you had the underwear bomber flying into Detroit, and the whole upsetness that people had about has been read as Miranda rights. Thinking back on it now, I think that just changed the dynamic and it caused people in New York City … Look, my understanding from the mayor at the time of the announcement, meaning on or about November 13th and from the police commissioner at the time, Ray Kelly, and I don’t know if that I’ve said this publicly before, but they were fine with it in communications that I had, they made no fuss about it. Ray Kelly, in typical fashion kind of shrugs, say, “We’re New York, we can handle anything.” And then things changed, I think, where some other politicians came out against and tried to implement some discord. And then you had the underwear bomber, and we hadn’t moved quickly enough as a government to get it going. And so it allowed time for opposition, from people like Lindsey Graham and others to build.

Jeh Johnson:

Preet, you were a prosecutor, you were not supposed to think about politics. Welcome to the political world. It’s fine until it’s not fine, and no politician or anyone who thinks like a politician is going to say, “Well, I’m going along with this decision because I told the US attorney earlier I was going to go along with the decision.” It’s fine until it’s not fine. And the political forces, the climate, the New York post, whoever, we’re all against it. It created an insurmountable barrier. And as you recall, there was essentially a stalemate for a year before the attorney general finally said, “Okay I agree to send this case back to Guantanamo.” Which was unfortunate, and there’s still no trial. Here we are 12 years later and still no trial. You and I can speculate about what’s going to happen to that case if there’s ever a conviction than an appeal.

Jeh Johnson:

I mean, I have to say I’m disappointed that there have been so many single points of failure in the commission system. And the virtue of a crystal ball 12 years ago, I might’ve thought differently about trying to establish that system. Meanwhile, everybody prosecuted in federal civilian court has long since been convicted and is well underway in their prison sentence.

Preet Bharara:

The track record speaks for itself. Ballpark figure, how many fights about this did you have with Rahm Emanuel?

Jeh Johnson:

My Rahm Emanuel was … I think it’s fair to say he and I were of like-mind. The principal argument and the situation room at the White House occurred between me and Greg Craig, who was then the White House counsel, who was against the commission system. I don’t want to characterize his view, but I will. I was the chief proponent of that commission system at the time. I believed-

Preet Bharara:

Right. I was talking about the specific decision to use that system or not with respect to KSM, because my understanding about that was that Rahm Emanuel was very, very opposed.

Jeh Johnson:

That I do not know, that I can not say. I don’t know that for a fact. I know that Greg was, and maybe a few others around the table and certainly the Attorney General, Eric was. But one of the things that’s easy to forget when you’re a lawyer in government, you have a client. My client was the Department of defense, and I was advocating a position of my client. We believed that we could prosecute these guys safely and effectively in a military commission system in accord with traditional law of war more time principles. And the facts speak for themselves as you said, I don’t have the benefit of a crystal ball. If I did, I’d be a multi-billionaire because that ways in the stock market.

Preet Bharara:

You’re not already?

Jeh Johnson:

Like so many of the decisions in national security, I remember what I thought at the time and what I believed at the time in 2009, that led me to the position that I advocated.

Preet Bharara:

Given where we were at 9/11 and how the country has evolved and convulsed and had all sorts of internal battles, not just about policies, but also about our values, do you think that our country is more in tune with its values today than it was right after 9/11?

Jeh Johnson:

You know that you’ve asked me a question that I’m not going to be optimistic about unfortunately, I have to say this before I answer that, 9/11/2001 was my darkest day as an American. I’m sure others feel the same way. My best day as a public servant was May 1st, 2011, the day we got bin Laden. Like a lot of people, I felt closure about that day. And you asked me about my recollections of 9/11. The one thing that May 1st, 2011 and September 11th, 2001 had in common for me was time moved very slowly, moment by moment, waiting, watching, and listening to that operation in Pakistan unfold as I sat in the basement of the Pentagon time moved very slowly, and I walked away with a feeling of closure as a New Yorker and an American that day. Preet, I have to say this about today’s climate, the threats to our homeland have evolved significantly. We have through multiple administrations through our aggressive counter-terrorism efforts, degraded Al-Qaeda’s ability to launch another large-scale attack on our homeland, like a 9/11.

Jeh Johnson:

We’ve done a significant amount to degrade the capabilities of the Islamic state, though there is a resurgence obviously with ISIS-K. The threats to our homeland today, global warming. If you ask me the top three security threats to our homeland today, I’d say global warming, and the impact of severe weather events on aging infrastructure. Number two, all forms of cyber attacks. You and I are well acquainted with those. Right up there alongside those threats and the threat of terrorism is the threat presented to our nation by a polarized paralyzed democracy. We are a very polarized nation right now, such that if there were another 9/11, I have doubt that we could marshal a national response like we did 20 years ago. And for proof of that, you don’t need to look any further than COVID, look at how we’ve responded to COVID over the last 15, 16 months.

Preet Bharara:

Which is a nonpartisan foe.

Jeh Johnson:

It’s a nonpartisan foe and the vaccine, the solution to the nonpartisan foe is non-partisan. Yet our attitudes about COVID and how to cure ourselves of it have broken down along partisan lines. You have Americans who believe that the vaccine in the face of all the science, in the face of all the messaging from the government who believe that the vaccine is dangerous and they’d rather take a treatment used to deworm cattle and horses as somehow more effective. It didn’t have to be this bad, but our attitudes have broken down along sharply partisan lines, such that in the face of another national crisis requiring a national response, I worry that we could not effectively deal with that now. And that in and of itself is a security threat. The polarization of our democracy in and of itself is one of our major security challenges today.

Jeh Johnson:

Remember, Preet, all the flags that came out after 9/11, all the young Americans were enlisted in our military after 9/11, and the sense of national unity that existed in the immediate aftermath, we have been unable to marshall a similar response in the face of a lethal pandemic that has touched every corner of America and killed hundreds of thousands of Americans, multiples of the number that were killed on 9/11. And that worries me a lot, perhaps more than any other challenge to our nation today.

Preet Bharara:

One optimistic note, Secretary Johnson. Thanks.

Jeh Johnson:

We could talk about ways to try to —

Preet Bharara:

Well, I’ll say an optimistic thing.

Jeh Johnson:

That’s my concern today.

Preet Bharara:

But the fact that you and hopefully I and others have diagnosis problem, and talk about it and spend their time professionally and their interstitial time trying to be educated about these things and talk to other folks about these things and encourage them to put the country above their party, that all of those efforts matter and they’re put to good use. And so I think the pendulum, I think in trust based on the last election is swinging back, but there’s a lot of work to do. And luckily you’re around to do some of it too. And by the way, happy birthday.

Jeh Johnson:

Well, thank you. I don’t think you’re there yet, but life begins at 60.

Preet Bharara:

I am not there yet. Thanks again for your service, and thanks again for spending time.

Jeh Johnson:

I enjoyed our discussion. Thanks a lot. Write me back.

Preet Bharara:

I will. My conversation with Jeh Johnson continues from members of the CAFE Insider community. To try out the membership free for two weeks, head to cafe.com/insider. Again, that’s cafe.com/insider. I want to end the show this week with just another word about the 20th anniversary of 9/11 as it approaches. I’ve been thinking about it a lot. I’ve been remembering a lot, maybe you have been too. I find that my recollections are not a coherent narrative. My emotions then and now are all over the place. It was not a coherent day after all. I remember after the towers fell, looking at my four month old daughter and wondering what kind of world had we brought her into. I think of how my brother asked if he could come over that morning and sit with us because he just wanted to be with family.

Preet Bharara:

I think of what I saw, smoke and flames and planes and the falling man. I think of what I felt, anger and fear and grief. I don’t pray so much, but I prayed that day. I remember that night with all air traffic grounded, amid rumors of undetonated bombs, we put our daughter to bed. I would sing to her every night at bedtime, but that night I added a new song to the rotation, God Bless America. I think I sang it more for me than for her. That song remained in the rotation at night, even after our second child was born, and then our third. I remember the following days too. I remember being at SDNY and detective Kenny Robbins walks into my office to talk about a case. He’s a plain clothes detective, but he’s in uniform that day. I asked him why? He says, “I’ve got two funerals today.”

Preet Bharara:

I saw him wear his uniform a lot, and your heart just breaks. I remember going to a makeshift center in Chelsea some weeks after the attack to volunteer, to help victims, families who might need legal or other help. I’m looking for where I’m supposed to go. I round a corner and I come face-to-face with a huge wall. On the wall are hundreds of drawings, they’re in crayon and they’re from young children all over the country, sending their thanks and good wishes to the families of the firefighters who died. Some are drawn as angels in heaven and my God, your heart just breaks. Like Secretary Johnson, I too changed after 9/11, I felt an overpowering duty to my country, to serve however I could and to serve as long as I could. I ended up doing another 16 years.

Preet Bharara:

I remember almost eight years after the attacks being sworn in as US attorney for the Southern district of New York and receiving within weeks my first major assignment, oversee the trial of five men who masterminded the attack in America on September 11th. That never came to pass, but we were ready. I remember feeling a great heaviness as the 10th anniversary of 9/11 approached back in 2011. I feel that heaviness today. I remember going to the opening of the 9/11 Memorial that morning, the first time the public was allowed in that hallowed space. The 10th anniversary happened to be a Sunday. I am not much of a church or temple goer, but I went to church that day with my deputy and best friend, Boyd Johnson. I just felt I needed to be in a house of worship. We commemorated the 10th anniversary with an event at the Court of International Trade. One place where all the lawyers and staff could fit.

Preet Bharara:

I remember struggling to find the words to fit the occasion. I decided to speak of service and the enduring force of good people. 10 years later, I hope the message still rings true. This is what I said, I respectfully submit that the lessons of 9/11 boil down to a few simple and timeless truths. There is evil in the world, but there is also good. There is cowardice in the world, but also courage. There is terrible tragedy, but also hope.

Preet Bharara:

Sometimes a world-altering tragedy is thrust upon us, epic in scale and suffering and made more shocking because it is wrong, not by nature, but by wicked men. That is when good people announce themselves with great force and in great number. That is when good people, even knowing they can never fully console the grieving or calculate the loss or even comprehend the act, dedicate themselves simply and tirelessly to healing the harmed, fighting for justice and rebuilding their city. That is when good people make a commitment lasting, not merely for a moment or a day or a year, but for as long as they have breath to dismiss the differences among them and awaken to what is important.

Preet Bharara:

It is a commitment to living life in the service, not just of oneself, but also for the benefit of other people. It is a commitment to carry whatever load one’s limbs can bear and make whatever sacrifice one spirit can tolerate. Two, in the words of Aeschylus, tame the savageness of man and make gentle the life of this world. There were many, many heroes on 9/11 and after. We have been reminded of some of their stories this week, but whoever makes that commitment, whoever holds to that pledge, even if you never had the chance to be one of the heroes who pulled the victim from the burning towers or rescued a fellow soldier on the field of battle or saved countless countrymen by choosing to crash your own plane in a field in Pennsylvania, whoever makes that commitment to service makes a contribution to the ultimate cause of peace and justice, because through each of those private pledges to do one’s part, to ease some suffering and to at least respect, if not love your fellow human beings, interwoven between millions of other like pledges made by people of every color, class, and faith is stitched the fabric of a heroic nation.

Preet Bharara:

That is the simple creed of good and justice loving people everywhere. And it is the defining creed of the men and women of this office. Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Jeh Johnson. If you like what we do rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the #askpreet, or you can call and leave me a message at 6692477338, that’s 66924, Preet. Or you can send an email to staytuned@cafe.com.

Preet Bharara:

Stay Tuned is presented by CAFE Studios and the Vox Media Podcast Network. Your host is Preet Bharara. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Chris Boylan and Sean Walsh. Our music is by Andrew Dust. I’m Preet Bharara, stay tuned.