Preet Bharara:

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

Michele Flournoy:

The removal of classified information and the storage of TS/SCI, it’s potentially endangering national security. If it were anybody else but the President, a former President, they would be facing criminal charges now for this behavior.

Preet Bharara:

That’s Michele Flournoy. For over two decades, she’s been one of the country’s most widely respected voices on national security and foreign policy. During President Obama’s first term, Flournoy served as the Undersecretary of Defense for Policy. That made her, at the time, the highest ranking woman in the history of the Pentagon. I spoke with Flournoy about the most pressing foreign policy issues facing our country today, from Afghanistan to Russia and Ukraine to China and Taiwan. But she also took me back to 2011 and recounted what it was like to be inside the Situation Room during the bin Laden raid, and she shared the lessons she’s learned about Presidential leadership in crisis, both what to do and what not to do. That’s coming up. Stay tuned. Now, let’s get to your questions.

QUESTION & ANSWER:

Preet Bharara:

This question comes in a tweet from Leslie who writes, “Love the podcast. Could you please explain the difference between a magistrate signing off on the Mar-a-Lago search warrant vs. a federal judge? I’ve heard suggestions that it is a lesser level of authority and therefore shortcut by DOJ.” Leslie, thanks for your question, but that’s not right. It’s not a shortcut. The standard operating procedure in federal courts and in US attorney’s offices all around the country is that a magistrate judge is the person in the first instance who signs off on, blesses, approves a search warrant. It’s part of the magistrate’s duties and responsibilities. By the way, a magistrate is, in fact, a federal judge. The distinction is between a magistrate judge, a federal magistrate judge, and a federal district court judge. Federal district court judges are appointed by the President, have to be confirmed by the Senate, and have life tenure just like on the Supreme Court.

Preet Bharara:

Magistrate judges are not selected by the President, do not have to be confirmed by the Senate, but are instead, with some variations throughout the country, selected by the sitting federal district court judges that I just mentioned. Federal magistrate judges are extremely competent, accomplished, and have a lot of hard work to do in their jobs. Magistrate judges also often oversee guilty plea proceedings, resolve discovery disputes, and help parties negotiate resolutions in civil cases among a whole variety of other things. So, any suggestion the DOJ took a shortcut by going to a magistrate instead of a federal district court judge, those suggestions are just silly and evidence of lack of knowledge on the part of the people who are making those allegations.

Preet Bharara:

Now, there’s nothing precluding prosecutors and federal law enforcement agents from going to a life tenured federal district court judge to get signoff on a search warrant. That happens from time to time in a variety of circumstances. You may recall that it was a federal district court judge, not a magistrate, named Paul Oetken, a judge in the southern district of New York, who signed off on the search warrant with respect to Rudy Giuliani’s residences, workplaces, and electronic devices. So, it happens from time to time, but not necessary, and certainly not required.

Preet Bharara:

A related question comes in this tweet from Nathan who says, “Explain the distinction of a warrant and an affidavit with respect to a Department of Justice release of information publicly.” So, this is a question or some version of this question that comes up a lot and it can be confusing to lay people. So, the warrant itself, the search warrant itself is merely a short document, often just one page, that is the authorization granted by a judge for the performance of the execution of the search warrant. It is the thing that agents show to the owner of the premises to be searched and left behind with the owner of the premises to be searched so that that person knows there is a federal judge who has authorized the search. It doesn’t contain a lot of information. There may be an attachment or two that suggests which statutes are being investigated.

Preet Bharara:

Mostly, it just contains, with specificity, the premises to be searched and the kinds of things that the judge has blessed the searching of. So, the search warrant is signed by the magistrate judge. The affidavit is signed by a federal law enforcement officer or agent. The affidavit is not a short document. It’s a lengthy document, can run dozens of pages, scores of pages. It can even run to 100 or 200 pages, and it is the thing that sets forth the basis for the probable cause that the judge is required to find to authorize the search. So, with respect to the release of information publicly, the search warrant itself does not really compromise an ongoing investigation. In fact, it is a thing that gets given to the owner of the premises in the first place, and that person can, of course, reveal the search warrant, talk about the search warrant. So, there’s no expectation of further privacy on the part of the government with respect to the search warrant.

Preet Bharara:

With respect to the affidavit, there are lots of concerns about the release of information publicly, including the compromise of an ongoing investigation. People can find out that they might be under investigation. They might destroy or get rid of evidence. They might change their testimony. They might coordinate their testimony. It may be that there are sensitive, confidential informants or cooperating witnesses whose identities might be revealed if the affidavit became public and you want to protect them until the appropriate time, and those are some of the things that were pointed out by the Justice Department in their opposition to a request to unseal the search warrant affidavit in connection with the Mar-a-Lago search. By the time you hear this podcast, a judge may have already determined whether or not to grant the motion to unseal the affidavit. I doubt that will happen because again, it is standard operating procedure in almost every case for an affidavit, not the warrant, but the affidavit in support of a search warrant to be sealed until such time as it’s needed to be provided to the defense in case there’s a charge during ordinary discovery.

Preet Bharara:

This question comes in a tweet from, I think it’s Tennessine, who asks, “Am I remembering correctly that in a civil case, it is allowable to take an inference of guilt when a subject takes the Fifth? Not so in criminal cases, but in a civil case, yes, right?” Well, yes. You have a very good point that the Fifth Amendment right against self-incrimination is most directly related when criminal liability is in the offing, where liberty is at stake. So, in criminal cases, not only do you have the right to take the Fifth, the fact that you’ve taken the Fifth cannot be used against you. It is one of the greatest violations of trial practice on the part of the government or a prosecutor to say anything about a defendant’s right to remain silent or the fact that the defendant did not testify at trial. You can’t talk about it. You can’t draw any inference from it. You can’t assume anything from it.

Preet Bharara:

Not so in a civil matter. In a civil matter, depending on the circumstances, the enforcement party or the plaintiff can ask the jury or the judge to draw what’s called an adverse inference from the fact that the person didn’t speak or pled the Fifth Amendment. By the way, just one more little quibble. When we talk about an inference of guilt in a civil case, it’s not quite the right terminology. In criminal cases, we talk about guilty or not guilty. In civil cases, we talk about liable or not liable. It’s a small difference, but it’s an important one. We’ll be right back with my conversation with Michele Flournoy.

THE INTERVIEW:

Preet Bharara:

Michele Flournoy served as a top Pentagon official in both the Obama and Clinton administrations. She self-identifies as a Democrat, which made it a bit surprising when General James Mattis, who had just been named Secretary of Defense by President Trump, called and asked her to be his number two. She turned him down, but that’s the kind of respect she garners in Washington. It was also a preview of the kinds of tough decisions that many officials had to make in the Trump era. Work for a dangerous President or risk that he goes unchecked? Michele Flournoy, thank you so much for joining the show.

Michele Flournoy:

It’s great to be with you, Preet.

Preet Bharara:

So, I have to ask you, given that it’s what is in the news and I keep getting asked questions about it and keep talking about it, and it’s if not right in your wheelhouse, at least adjacent to your wheelhouse, given your focus and experience in national security, this whole business of the FBI search of Mar-a-Lago, the issue of whether or not President Trump, according to his allies, had a standing order or understanding that everything he took to Mar-a-Lago was automatically declassified. What do you make of all that?

Michele Flournoy:

Well, as someone who’s held a security clearance and has had to sign all the associated paperwork and go through all of the training and briefings on how you handle it correctly, the removal of classified information and the storage of TS/SCI, or top secret compartmented information, which is the most highly classified information, in a personal safe that’s not in a skiff, that’s not in a validated secure facility, to me, it’s potentially endangering national security, and I don’t believe that the President has the sort of declassification authority or that it was properly exercised to say, “Okay, we’re going to treat all of these nuclear secrets or these documents related to negotiations with North Korea or whatever else is in that stack.” I don’t think it was handled properly. If it were anybody else but the President, a former President, they would be facing criminal charges now for this behavior.

Preet Bharara:

Did you ever take such material to your home?

Michele Flournoy:

Absolutely not.

Preet Bharara:

If someone in your employ had taken such material home, what would’ve happened to them?

Michele Flournoy:

They would’ve lost their clearances and likely been fired.

Preet Bharara:

Would you have referred them to the FBI for prosecution?

Michele Flournoy:

Automatically, there would be a law enforcement investigation because it is a criminal act.

Preet Bharara:

What do you think about arguments that I’ve heard made and on certain occasions I’ve understood that we overclassify things and there’s classified and then there’s classified, and if these materials were a little bit sensitive, but weren’t really relating to nuclear secrets or ongoing national security threats, it’s not that big a deal? Do you distinguish between levels of classification?

Michele Flournoy:

Yes. We do tend to overclassify. That is a fair criticism. But I don’t think in this case, it’s relevant to … Things that are classified top secret, SCI, tend to be things that we know because of very, very sensitive sources and methods, and the revelation of that material can both cause grave harm to US national security and can compromise very sensitive sources of gathering intelligence. So, it’s not something that an individual can decide based on their own personal judgment at their convenience. It’s something that has to be done very carefully when you choose to declassify information of that nature.

Michele Flournoy:

So, I doubt that if something’s in the TS/SCI bucket that it was simply a matter of over classification. Sometimes, it’s more applied to things that are made confidential or even secret, perhaps not because of the sensitivity of the intelligence, but because an administration doesn’t want it to get out. But in this case, I think there’s ample evidence of, no kidding, truly appropriately classified information that is very, very sensitive, both in substance and in the source.

Preet Bharara:

Have you ever been part of a declassification process?

Michele Flournoy:

Yes.

Preet Bharara:

Am I right that when something is classified, either top secret or sensitive compartmented information, TS/SCI, you see that on the face of the document? That’s how people know. Right?

Michele Flournoy:

Yes, and you also see who put that classification on. A President is given pretty wide authorities to classify and declassify, but there should be a process. There’s a process where it is reviewed by various parts of the US government to validate or either say, “Yes, we have no problem with this,” or “No, we have some concerns and you should take these into consideration before you make this decision.” So, there’s a process and it looked like none of that was followed.

Preet Bharara:

Right. To be fair, so people understand as a practical matter, if a document has on its face, and I think generally on every page, if it’s TS/SCI, and then there’s a declassification process, you have to change the designation on the document.

Michele Flournoy:

Yes.

Preet Bharara:

… so that other people know that they can handle the material differently and it doesn’t have to be in a skiff and it doesn’t have to be in a safe.

Michele Flournoy:

Yes.

Preet Bharara:

Fair to say, if that didn’t happen, if the designations on the documents didn’t change, that the declassification process did not happen.

Michele Flournoy:

Not in full. Not in the correct manner.

Preet Bharara:

I want to shift gears for a moment. So, it’s been hard to believe it’s been a year since the US withdraw from Afghanistan. I think this week marks the one year anniversary. Do you have any thoughts as you look back on how that process went?

Michele Flournoy:

Well, I think the administration itself has recognized that the execution of the withdrawal did not go as well as planned. I think they were surprised by the speed with which the Afghan government collapsed and the progress that the Taliban was able to make in terms of taking over Kabul and major cities much more quickly than had been predicted by the intelligence community. One of the things that I really valued in the Pentagon culture is a culture of doing lessons learned. The military, after every exercise, after every operation, they do what’s called an AAR, an after action review, and it’s a very candid process where people at all levels of the chain of command go through what worked, what didn’t work. What can we learn? How do we do better in the future?

Michele Flournoy:

I actually personally had a chance to lead an after action review after the Battle of Mogadishu in Somalia, and we did a no kidding lessons learned from that. I would hope that there’s some process going on internally where we are learning from how the withdrawal was executed because I think that there were some very strong positives. I don’t think any other military in the world could have evacuated that many people in that short amount of time. But I think the level of chaos and some of the losses that were suffered, those were things that did not go as planned or hoped and we should be learning from that as an institution.

Preet Bharara:

Is it your view that we should have stayed longer?

Michele Flournoy:

My personal view, had I been in the administration advising, I probably would’ve been advocating for keeping a small residual presence, but I understand the President felt bound by an agreement negotiated by the Trump administration with the Taliban that created a set of expectations that would likely have escalated the war if we had chosen to stay, and he chose that he didn’t want to deal with that. It was time that he would judge the war to be unwinnable, and he’s the President, he was the elected representative, and he got to make the hard choice, and I’m sure it was a hard choice, given all that was invested in Afghanistan, given the repercussions that we’ve seen. But I think I probably would’ve weighed in on the alternative course of action, but I also think that he gets to decide and I just would’ve hoped that the execution could have been done better.

Preet Bharara:

How much should we expect military forces, intel services to predict properly how things are going to unfold? I know that’s a very broad question, but I’m just reminded that when we talk about Afghanistan, we underestimated how quickly it would fall, and then in a different location, completely different circumstances at a different time in Ukraine, we also underestimated how much resistance the Ukrainians would bring to bear against the Russians. Before we talk about Ukraine and Russia, I just wonder if you could speak generally about the difficulty of understanding and predicting what is going to happen. Or is that too obvious a question?

Michele Flournoy:

No. It is very challenging, and actually, I would give our intelligence community enormous credit for predicting that Putin was actually going to invade. They called it and many, many people, most people, most European partners were saying, “No, no, no, no. This is just an exercise. He’s bluffing. He’s not actually going to come across the border,” and they got it right. I think what’s common in underestimating both the Ukrainian resistance and the speed of the Afghan collapse is that our intelligence community does not assess our own actions as a variable in the equation. So, it didn’t assess the amount of training and advising and preparation that we and the UK and Canada and other NATO allies did with Ukrainian forces after Crimea. So, the Ukrainian military of 2022 was actually very different than the Ukrainian military of 2014, and that’s part of what we’ve seen playing out on the battlefield.

Michele Flournoy:

Similarly, with Afghanistan, when we accelerated our withdrawal instead of September 11th, which was a strange date to pick in any case, but accelerated that to July 4th and the US military pulled out much more rapidly, closed down Bagram, which I think limited freedom of action greatly once we had to get more people out, that sent a signal inadvertently to the Afghans, and I think it panicked them and it sped up the clock for their coming apart at the seams. So, we fail to take our own actions into account in these assessments too often.

Preet Bharara:

Yeah. Right. So, why do we do that is the question probably people are asking themselves.

Michele Flournoy:

I think because the intelligence community is very, very careful about not wanting to make policy or assess policy or weigh in on policy or suggest that they’re policy makers. So, they tend to say, “Look. Whatever option the US chooses, that’s sort of a policy issue for the President and the National Security Council and the interagency process. We don’t assess the US. We don’t assess US actions.”

Preet Bharara:

But you think that’s a mistake. Wouldn’t the more rational and logical and strategic thing to do, wouldn’t it be to give the President various options and say, “If everything remains static, here’s our prediction. If we engage in this policy or practice, here’s a slightly different prediction,” and so on and so forth?

Michele Flournoy:

No, I do think that you could certainly legitimately ask them to say, “If we do X, how will the Afghans react? If we do Y, how does your assessment of the Afghan reaction change?” I just don’t know whether those questions were asked.

Preet Bharara:

Yeah. Describe for people a little bit what it’s like to be the President who is a commander-in-chief, but a civilian, and he or she is weighing various option. Whether it’s withdrawal from Afghanistan, supporting Ukraine in a particular way, making certain statements to the counterpart in China, the President doesn’t really know anything. Right? Right? The President gets briefed. The President is not talking to intelligence sources. The President is getting briefed by people in his administration, including the SecDef and people below that position. How is the President of the United States, whether Democrat or Republican, supposed to assess information that is being given to the President? What are the questions that you ask? How do you weigh the different options, especially given the history, which every President must be aware of, of mistakes being made and miscalculations being made?

Michele Flournoy:

I think there are a couple things I would say. One is the President has to rely on his or her team, and that means it’s really important to create a leadership climate where people can question assumptions, voice dissent, have a contrary view, question the conventional wisdom. My example of the best version of this I ever saw in practice was President Obama, who used to not only create that dynamic with people around the table, the principles, but also go around the back of the room and actively solicit dissent. Even when something as important as the bin Laden raid, he creates a red team to look for alternative to interpretations of the intelligence to ask the open question of, “Should we even do this? Do we know enough to do this?” Not just debating different ways to do it. So, really, really important, and you see when it’s absent. Look at Putin’s strategic miscalculation in Ukraine in an authoritarian system where you can’t question assumptions or you do so at your peril.

Preet Bharara:

You don’t think all of his staff is questioning him and being devil’s advocate?

Michele Flournoy:

No.

Preet Bharara:

You don’t think?

Michele Flournoy:

I think that televise national security meeting where people were … You could see them. They were visibly terrified to be speaking to him.

Preet Bharara:

Well, maybe they are, but he can’t hear them because they’re 30 feet away.

Michele Flournoy:

Right. That’s true too. But anyway, so I think a President has to create that kind of climate and to really solicit descent and to constantly probe and ask the hard questions and to make sure that his staff, his National Security Council staff, is doing that as well. I think the other thing that often the folks in the Pentagon don’t always appreciate is the President is weighing a larger set of factors. So, the military may bring forward options to optimize lower risk and optimize an approach in a particular situation. But the President’s thinking about not only that, but how does this affect the rest of my foreign policy agenda? How does it affect my agenda on Capitol Hill? Do I have enough political capital to pursue this, as well as pursuing my economic agenda or my domestic agenda or whatever it is? So, the President has to put a particular decision in a much larger context that is really outside the boundaries of what military planners, Pentagon planners typically consider.

Preet Bharara:

So, that’s really interesting, and I saw that in practice as a member of the Justice Department. The question is should very smart and wise military advisors at the Pentagon, in formulating recommendations for the President, take into account these other things that naturally and legitimately and appropriately, the President might have to-

Michele Flournoy:

No.

Preet Bharara:

No.

Michele Flournoy:

Not their job.

Preet Bharara:

They should advocate for what they think is best.

Michele Flournoy:

Here’s my best military advice for accomplishing this mission, and then the it’s the White House’s job to come back and say, “Okay, that’s great in a totally unconstrained resource environment, but if my resources are more constrained or the timing is more limited or whatever the other constraint because of these other factors, now go reassess within that constraint and tell me what your confidence in accomplishing the mission, but also the level of risk and how that’s increased and how you view that.” So, it’s a really important dialogue, but it’s not the military’s role to try to guess what those larger factors are.

Preet Bharara:

That’s something for the President’s staff.

Michele Flournoy:

Yes. And frankly, the Office of Secretary of Defense, part of … I used to call my position as Undersecretary for Policy the ball bearing between the NSC and the Joint Staff or the military, because you kind of have a translating force coming from both sides or pressure from both sides into terms that the other could understand. So, White House guidance for planning, translating that into terms that makes sense for the military, military concerns, objections, worries, translating that back into the policy process at the White House.

Preet Bharara:

With respect to the Ukraine War, do you think it was more that we underestimated the Ukrainians or that we overestimated the Russian forces, or some combination of the two

Michele Flournoy:

It’s a combination. We certainly overestimated Russia, the Russian military. We looked at their force tables, their order of battle, if you will, the stuff they have, the units, the personnel, and we assumed that they were all exceedingly capable. What we found is that they had real trouble. They had trouble with command control. They had trouble with leadership. They had trouble with communications. They had trouble with logistics. They had trouble in an urban environment when they were meeting an unconventional sort of defense from the Ukrainians. So, I think we overestimated them. Then maybe, I think we probably did underestimate the Ukrainians a bit. The asymmetry of will when you are defending your homeland and your families and your property and your future, that counts for a lot, and again, we had done a lot of training and advising and equipping of them to be able to really challenge the Russians in some ways. Now, I think moving forward, it’s an open question as to how all of this is going to play out. But I think initially, it was a combination.

Preet Bharara:

But would the military take into account what you called the asymmetry of will, or are they only looking at numbers of tanks and munitions and that sort of thing?

Michele Flournoy:

No, I think they generally would. I think that we probably didn’t appreciate the level of popular resistance, the fact that Ukrainian’s lined up by the thousands to get a weapon and get trained on how to use it. So, that’s a hard factor to estimate if you haven’t seen it before.

Preet Bharara:

So, what’s going to happen, Michele?

Michele Flournoy:

Well, I think right now, once again, the Russian offensive is stalling. I think the Ukrainians will make some tactical gains, but I think we are heading towards somewhat of a stalemate. I do think it’s possible that the Ukrainians will take back Kherson and limit the Russians’ expansion from the East further into the heartland of Ukraine. The key factor that’s missing is Vladimir Putin has not realized that his military cannot attain his objectives, and he believes that time may be on his side, in the sense that the longer this takes, the more he’s counting on NATO cohesion to fall apart. So, he’s playing for time. But he’s got some serious problems in terms of he’s running out of people. He doesn’t want to do a national mobilization because of the political implications of that. He’s running out of replacement equipment and our export controls are really hampering his ability to produce new material. So, he’s got some serious problems on his side and, oh, by the way, the sanctions are starting to really bite in his economy. We saw a big contraction of the Russian economy in the last quarter.

Preet Bharara:

Do we need more sanctions?

Michele Flournoy:

I don’t know that it’s more sanctions. I do think we all wish that 10 years ago, Europe would’ve started to, after Crimea, or maybe seven years ago, would’ve started to wean itself off Russian oil and gas. I think they will do that, spend the next decade doing that. But right now, they’re still quite vulnerable. So, I think there are political limits to what we can ask from them. I do think we need to continue to supply and support the Ukrainians with military hardware. That is really making a difference on the battlefield, particularly some of these precision guided munitions.

Preet Bharara:

Do you think that Russia will always be able to find other buyers for oil and gas as the Europeans wean themselves off?

Michele Flournoy:

Yes I think they likely will. So, that is going to continue to be a source of revenue. But other parts of the economy are really suffering and much of that is actually affecting everyday Russians, who can’t go to the store and buy the things they’re used to buying, who have to wait in lines, who are paying higher prices and all of that.

Preet Bharara:

Do you think we underestimate or overestimate Putin himself?

Michele Flournoy:

I don’t know that we underestimate or overestimate him, but I think he has such a different calculus than the way we think. This is a legacy issue for him. This is a survival issue, political survival issue for him. He’s one of these people who keeps doubling down on bad policy, and so it becomes impossible for him to walk away from it. My one hope is that at the end of the day, if he does decide he can’t achieve his objectives, at least for now, that given his overwhelming control of propaganda and information inside Russia, he will put lipstick on a pig. He’ll dress some kind of compromise up for domestic consumption to live to fight another day. That said, I think it’s as or more likely that if he’s really got his back up against the wall, meaning all of this has led him to no gains beyond what he had when he started, then you could see that’s the scenario where we have to worry about escalation from the Russian side.

Preet Bharara:

That pig is getting mighty ugly.

Michele Flournoy:

Yeah. It’s getting really ugly.

Preet Bharara:

The more time that goes by, it gets uglier and uglier, and then that escape hatch becomes even less and less plausible. Right?

Michele Flournoy:

I think the key factor will be can he say that he’s got more than he had on February 24th when the invasion started? The problem is on the Ukraine side, I think Zelenskyy and others are still pretty committed to no territorial gains from this aggression. So, right now, if you imagine a Venn diagram where circles overlap, the interests of the two sides are the objectives of the two sides, and it’s that middle section of overlap that allows for some kind of settlement, right now, the circles don’t overlap. There is no Venn diagram.

Preet Bharara:

Yeah. What’s interesting, I keep asking the question are we underestimating or overestimating various people, and I won’t ask you that of Zelenskyy. Although I think universally, he was underestimated and there’s not a lot of data sometimes to assess how someone will step into a role that they’ve never occupied before, and some people step up very well and some people don’t. I don’t mean it compare Zelenskyy and Obama, but my question is what are the qualities of somebody who has no military experience taking over as commander-in-chief of their country? What are the qualities that make them good at being commander-in-chief if they have no training?

Michele Flournoy:

Number one is they have to be able to listen and learn.

Preet Bharara:

So, a good podcaster would be a great commander.

Michele Flournoy:

No, they have to listen and learn. One of the things that Obama really did was he got into the details and some people faulted him for micromanagement, but I actually think he was being a really responsible commander-in-chief and understanding that this is an area where I don’t have background. I’m about to make decisions that will put Americans in harm’s way or whatever, that real consequence for the nation, and I’ve got to understand what this involves and what the implications are and so forth.

Michele Flournoy:

So, I think the self-awareness to know what and what you don’t know and the openness to listen and learn so that you really are comfortable making a decision when it comes to making a decision. But also leadership. You have to be able to inspire people with a vision. You have to be able to rally people to your cause, to explain it to the American people and have them understand, or in the case of Zelenskyy, to the Ukrainian people to understand why are we doing this? Why is the sacrifice worth it? Where is this going to take us as a country? So, those communication and leadership skills are very important as well.

Preet Bharara:

What should be your risk taking profile?

Michele Flournoy:

I think it depends. I don’t think you can answer that question in general. If it’s about the survival of your Homeland, as in the case of Ukraine, you’re going to have a pretty high risk tolerance to defend that. If it’s something that is nice to do, but not a vital interest, then your risk profile should be a lot lower.

Preet Bharara:

Well, so let me ask you about that. I wanted to ask about the bin Laden raid. Am I correct that you were in the Situation Room when that was taking place?

Michele Flournoy:

Yes. Mm-hmm.

Preet Bharara:

First, just as a personal matter before we get to the decision, when you’re in that room, does time slow down? What I mean by that is are you noticing every detail and watching everyone’s face and watching the screen or is it all a blur in retrospect?

Michele Flournoy:

It’s the longest day it’s. It slows down. Minutes become hours because there’s so much on the line. Obviously, that moment when the actual operation is being executed is preceded by months and months and months of time in the Situation Room looking at the intelligence, debating whether we know enough to pursue it, debating the implications of pursuing it, looking at the different kinds of options for how you do it, debating those, then debating who do you tell, when, who do you bring in, who do you tell after the fact, the whole diplomacy of it. So, it’s hours and hours and hours to get to that point. But then once you’re there, everybody’s holding their breath and minutes are very long.

Preet Bharara:

Do you find yourself eating a lot or eating nothing? These are the things that my listeners want to know.

Michele Flournoy:

Generally don’t allow a lot of food in a Situation Room. So, we weren’t eating a whole lot.

Preet Bharara:

Oh, I guess that’s right. But I think the dining hall’s not that far from the Situation Room.

Michele Flournoy:

Yeah. Yeah. Yeah.

Preet Bharara:

We’ll be right back with more of my conversation with Michele Flournoy after this. You were saying a minute ago about risk profiles, that if something is existential, like in the case of Zelenskyy, you have to be able to take on a lot of risk, and you made a comment, I think something like, well, if something is nice to do, but not essential, then the risk profile should be lower. Is that how you would characterize the taking out of bin Laden, something nice to do, but not essential, or something different?

Michele Flournoy:

No. I think that given bin Laden’s leadership, both symbolic and operational, and his role in 9/11 and the importance of bringing him to justice as a means of offering some closure to the country, I think it was very, very important. But if you’re going to take this on, first of all, you have to debate are we really confident, A, that it’s him because the intelligence was circumstantial, not direct, B, that we can actually pull this off, and what are the risks? What happens if we fail? If we do it this way vs. that way, do we unintentionally make him more of a martyr and make this worse for ourselves?

Michele Flournoy:

There are all kinds of things that had to be weighed. But I will tell you the most memorable moment of that whole thing was at the end when, 2:00 in the morning or whatever it was, walking out of the White House and hearing thousands of people singing the national anthem-

Preet Bharara:

Oh, I remember.

Michele Flournoy:

… and America the Beautiful. At that point, with all the stress and everything else, you just have to shed a few tears. But that sense that it really did matter to Americans, to average Americans, that really mattered.

Preet Bharara:

Can you explain to people when it is during that months long process of gathering intelligence and coming up with the proper plan when the actual green light takes place? Is it at the very, very end? Does the President have the ability to say go forward or not? Or is it some days in advance and then it just takes time to put together?

Michele Flournoy:

Well, there’s a major sort of, okay, this is what we’re going to do kind of decision that happened, I would say, within weeks of the actual raid, and then there’s a tactical decision that, is the moonlight right? Is the weather right? What kind of activity are we seeing in the region? All of the tactical judgements to say that there’s higher or lower risk of going right this moment. So, that is a final recommendation that comes from the military commander as, from a tactical point of view, are all the factors lining up to make this a good window?

Preet Bharara:

So, is there a final green light?

Michele Flournoy:

Yes.

Preet Bharara:

Right at the end.

Michele Flournoy:

Yes.

Preet Bharara:

How close in time to the raid is that final green light?

Michele Flournoy:

It was pretty close.

Preet Bharara:

Yeah. Does Obama, or other people in the White House that you have known, do they ask the very annoying question that a lot of leaders ask and that is what’s the likelihood of success? What’s the percentage likelihood of success that this or that other thing will go right?

Michele Flournoy:

Yes, they do. But again, one of the key-

Preet Bharara:

I bet you’ve been asked that many times. Right?

Michele Flournoy:

Yeah. Yes, and that’s the right question to ask, but I think the other question is to say how do I buy down my risk? So, for example, one of the concerns that was raised in the planning was what if a helicopter goes down? Do our guys get stuck? Then there’s a real threat to the mission. What happens? So, we planned for that and there were other helicopters waiting close by ready to go in, only to go in if there was a problem with one of the first two. So, you do planning. You have plan A, plan B, plan C, all the way to Z or ZZ. You have contingency plans that further lower the risk and once all of that is in place, then you can amend your assessment to say, “Okay, the odds have improved or the risks have been lowered.”

Preet Bharara:

We were talking earlier in the conversation about the necessity of advisors giving military advice strictly as military advice and not taking to account politics or other constraints on the President’s decision making. The bin Laden raid, I think from a political perspective, if it had gone poorly, I think it probably would-

Michele Flournoy:

It would’ve been very, very costly.

Preet Bharara:

I think it would’ve ended the presidency. I think he would not have been reelected. It was early in his presidency. Even in that context, are the advisors on the action, the raid, part of conversations about politics or part of conversations about-

Michele Flournoy:

The NSC process, as you know from your time, it’s fully interagency. So, the military is going to be sitting in the room when someone raises, well, what if we fail? Or what if it’s not him? Or what if we do this in a way that our team gets stuck on the ground and can’t be extracted, or all of these things? My point was that it’s not the military’s job to self-constrain by guessing what those assumptions are. Its job is to offer best military advice and then to have others advise the President, the President say, “Okay, well, I’m concerned about this. So, I’m going to add this constraint or that constraint or this additional objective,” and then they go back to the drawing board and in light of those constraints, they revise. But their job is not to guess what those are or decide what those are. That’s somebody else’s job.

Preet Bharara:

What’s the role of temperament in a commander-in-chief? The reason I ask that question, and I’ve said this many times, after the fact of the bin Laden raid, what so impressed me was looking back at the Saturday night of that weekend, was the White House correspondent’s dinner where the commander-in-chief, who was really exercising his power as commander-in-chief behind the scenes, unbeknownst to all of the rest of us, and he’s calmly making jokes with pretty good timing while this thing is over his head. What was his temperament behind the scenes and how important is that?

Michele Flournoy:

President Obama, I think, had incredible sense of responsibility, but also a very strong equilibrium and ability to control how he communicated, how he’s expressing himself. This is a person who, very thoughtful, mature, responsible President. He knew the stakes and he knew that success depended on complete surprise and total secrecy and that he wasn’t going to change anything in his planned routine to suggest that something else was going on, which is why he showed up at the correspondent’s dinner as planned.

Preet Bharara:

So, I understand him showing up. I didn’t expect his comic delivery to be so good, clearly.

Michele Flournoy:

I think he’s also had the ability to compartmentalize. Okay, I’m going to deal with that later. Right now, I’m on a stage and my job is to make jokes. But you can’t imagine the contrast with a President Trump, for example, who is famous for having just watched some commentator on Fox News and then turn around and order the Pentagon to do something with no process, no weighing of options, no weighing of risks, cost benefit, etc. So, the contrast is you couldn’t get more stark in terms of the decision making and leadership style of the two Presidents.

Preet Bharara:

I want to ask you about China and Taiwan. Do you have any view of Nancy Pelosi’s visit to Taiwan?

Michele Flournoy:

Well, look. I think she had every right to go. I think it’s important that we do show support for Taiwan, given the tremendous pressure that it is under from China. But I also think that the timing was unfortunate in that Xi Jinping is heading towards his 20th Party Congress, where he will be presumably given a third term as head of the Chinese Communist party. He’s in a pretty difficult situation domestically. His handling of COVID has not won him any popularity contests. It’s been pretty botched. His economy is contracting, which is always terrifying for the Communist party, and now he’s got a crisis on his hands that we’re in a time when he really wants stability. So, the timing was unfortunate, but I don’t question her right to go and I think once it was known that she was planning to go politically here, she almost had no choice because if she backed down, she’d be bowing to Chinese coercion and threats and she’d be hammered by the Republicans and so forth. So, yeah. So, that’s what I would say.

Preet Bharara:

Yeah. One theme of this conversation as it has unfolded has been underestimating or overestimating people and countries. I noted that you said something recently in an interview about China, you said, quote, “I worry about China miscalculating because the narrative in Beijing continues to be one of US decline, that the US is turning inward. That’s very dangerous if you underestimate your potential adversary,” end quote. Are they wrong to be underestimating us?

Michele Flournoy:

They are wrong to be underestimating us.

Preet Bharara:

Why is that?

Michele Flournoy:

First of all, they’re drinking their own Kool-Aid. If you’re in Beijing right now, you watch the nightly news, state provided, and you just see video after video of January 6th, collapsing condos in Florida, all this sort of evidence of US decline, US falling apart at the seams, etc. If you really start to believe that narrative, you will think, oh, US isn’t going to show up. The US isn’t capable of helping Taiwan or helping to defend Taiwan if it’s attacked. This is our time. This is our moment. So, why don’t we just go ahead and get this over with? Now, I want to be clear. I think that Xi’s preferred approach is political coercion and economic pressure. He would like maybe at some point, some version of what we just saw exercised, some kind of blockade. He wants to pressure Taiwan into capitulation. He doesn’t want to have to invade the island.

Michele Flournoy:

That said, if those options are foreclosed and he anticipates that over time, both Taiwanese self-defense and US defense of the island will only get stronger as additional capabilities come online, there is a window where he could decide, “Okay, this is going to get harder, not easier. This is absolutely critical to my legacy and to our, quote, unquote, ‘national rejuvenation project’, and I’m going to get this done.” So, that’s what I worry about. It’s sort of the near to midterm that he could miscalculate, and you add to that, the lack of communication, the lack of mutual understanding, and the lack of dialogue, and I think the risk of miscalculation goes up.

Preet Bharara:

Right. In a lot of contexts, not in the military context, you don’t mind being underestimated by your adversary. That’s good in politics, for example. Here, it’s not good.

Michele Flournoy:

No. It’s not good because they could take a chance and start a war that they don’t really want to be in.

Preet Bharara:

Would you say that NATO is at its high watermark at this moment?

Michele Flournoy:

NATO’s had very strong moments throughout history, but I think certainly, this is one of them. I think that the alliance has really come together. I think frankly, the addition of Sweden and Finland is going to add two very capable additional members in geography that really matters. So, I do think, I think that the alliance has come together remarkably well during this Ukraine crisis.

Preet Bharara:

So, you’re an expert on many things, including these issues. If I had said to you a year ago that next summer, Sweden and Finland would be in NATO, how surprised would you have been?

Michele Flournoy:

I would’ve been surprised.

Preet Bharara:

Not shocked, but surprised.

Michele Flournoy:

I’ve been talking to them. I’ve been visiting them, talking with them. There’s always been a contingent in each country that advocated for it. But politically, it was never doable or seen as important, not seen as it’s not the right time or it’s not really necessary. We have these great bilateral relationships. I think it took this crisis to create the upswell of public support for becoming part of the alliance formally.

Preet Bharara:

I’m going to ask you a question now. What happens to the NATO alliance and maybe other alliances if Donald Trump gets reelected to the presidency in 2025?

Michele Flournoy:

I am very worried. Trump made no secret of his utter disdain for NATO, his lack of understanding of why it exists, what it’s for, why it’s a huge source of strategic advantage for us. His tendency to cozy up to Putin, to dismiss or discount Russian bad behavior, I think it’s very, very problematic, and I think the one concern I hear over and over and over again from all of our allies and partners, not just Europe, but Asia and around the world, is can we count on American leadership? Can we count on the kind of steady commitment and credible commitment if your politics are making these huge swings and particularly if Trump or someone like him with an isolationist bent returns?

Preet Bharara:

But do you think that the strength NATO has shown in connection with the conflict between Russia and Ukraine will not have moderated that view or maybe even made it worse?

Michele Flournoy:

Well, I think a lot of this could be changed under a reelected President Trump. So, this is not something that will endure forever. It takes constant tending and investment and an adaptation. I think if Trump came in and decided to change course, a lot of the progress that we’ve seen could be lost.

Preet Bharara:

You worked, as you have mentioned, in the Obama administration. But interestingly, something that maybe a lot of people who are listening don’t know is you were asked to come into the Trump administration by Trump’s first Defense Secretary, Jim Mattis, and he asked you to be his number two, which I take it as a pretty big job and a good job in an administration. Am I right about that?

Michele Flournoy:

Yes, and the only reason I even considered it was because it was Jim Mattis. I had worked with him closely when he was a combatant commander and even prior and had tremendous respect for him. I’m a public servant at heart. I’ve got the public service gene. So, when someone asks you to serve, you take it seriously. But what I figured out pretty quickly is I had almost zero overlap from a policy perspective with the Trump administration, and when I really knew that this is not possible was when Jim Mattis in his swearing in ceremony, President Trump, who was there, surprised him by taking out of his folder the Muslim ban and signing it at Jim’s swearing in ceremony.

Preet Bharara:

I forgot that.

Michele Flournoy:

At that moment, I was like-

Preet Bharara:

Goodness.

Michele Flournoy:

… “Oh, my god,” and I could not be part of this.

Preet Bharara:

How many days do you think you would’ve lasted?

Michele Flournoy:

Oh, no. I wouldn’t have. That’s the problem.

Preet Bharara:

You can toot your horn here as appropriate if you want.

Michele Flournoy:

I don’t toot my own horn.

Preet Bharara:

I know you don’t. But you should. What was Jim Mattis thinking in asking to bring in a person who, by your own description, didn’t have a lot of overlap with Trump policy?

Michele Flournoy:

Well, he didn’t either. That was the ironic thing. I think he really felt that he was trying to, even from the beginning, create a bit of a bulwark or some shock absorber between the Trump White House and the US military, and his job, he felt, was, A, to try to make the recommendations that he thought were best to support our national security, but also, B, to protect the US military as an institution from politicization.

Preet Bharara:

Do you think it was a mistake for him to take that position?

Michele Flournoy:

No. I actually think he did that for the time he was there. I don’t think he had a lot of fun doing it, and I think he had a number of difficult moments. But no. I, for one, slept better at night knowing that he was there. That said, I’m someone who has always argued that the Secretary of Defense position should be occupied by a civilian. If you look back in history, it had happened. When reporters called me at the time, I was like, “Well, when was the last time this happened?” 70 years ago with George C. Marshall. That was a pretty extraordinary moment. This is an extraordinary moment with Donald Trump coming in, given his proclivities and approach to things. So, I think as an exception, it made sense for Mattis to be there.

Preet Bharara:

I asked this question of Admiral Stavridis when he was on. Let me ask you also. Do you have a sense of what Donald Trump’s fundamental misunderstanding of the military and of generals is?

Michele Flournoy:

Well, I think he was pretty clear in some of his comments to John Kelly. He expected total subservience and loyalty.

Preet Bharara:

Like the Germans.

Michele Flournoy:

Yeah. Like the Germans, which is also a misreading of history if you actually paid attention, but nevermind. That this was his military, personal military, as opposed to what their actual oath says, which is I will support and defend the Constitution of the United States, and to the extent the commander-in-chief is part of the chain of command, if he’s giving a lawful order, then you should be obeying it or resigning if you can’t. But it’s more, I think, the concerns about Trump coloring outside the lines and trying to ask the military to do things like come into Lafayette Square and be prepared to shoot their fellow Americans, civilian protestors who were obeying the law and having a peaceful protest.

Preet Bharara:

How does the current US military in 2022 treat women?

Michele Flournoy:

Look, I think it’s made some progress. You see more women leaders coming up in the pipeline. But you still see an unacceptable level of sexual harassment and assault. It’s a leadership issue. It’s a culture issue. In some respects, it’s an institution made up of our society, volunteers from our society. So, to some degree, it’s going to reflect that society and larger trends. But I think the fact that we are still dealing with these levels of harassment and assault is completely unacceptable, and I welcome some of the legislative initiatives and frankly, the initiatives that this administration has made to really go after this issue more aggressively. Because the truth is, it’s the number one thing that hurts recruitment and retention for women serving. Who wants to have a volunteer military where you take half of the population off the table as a source of talent? Doesn’t make sense.

Preet Bharara:

Right. No, absolutely. Now, as people may know, you have been, I think at least once, if not more than once, on the shortlist to be Defense Secretary yourself. Did you think about how that would be received inside and outside of the Pentagon because you’d be the first woman’s Secretary of Defense?

Michele Flournoy:

Well, I must say in those moments of being considered, I did feel the weight of all the women who it would be opening the door for behind me. I felt that, and I also felt that as a tremendous source of support. But I didn’t worry about it in the sense that my experience in the Pentagon as Undersecretary, I had no problem from a leadership and respect perspective being a woman, and I think now you have people like Kathleen Hicks, like Christine Wormuth who are first women in their positions. At some point, people got to get over this, and they are getting over this. I think they both are very well respected and doing well in their position. So, again, we’re making progress. But I think what concerns me most is not how women leaders are being treated, because I think that’s improved enormously, but the rank and file. Women who are serving, enlisted in junior officer ranks in the force are not necessarily being treated as equal, and that’s still a problem, and the culture and the leadership climate is not what it should be.

Preet Bharara:

Are we otherwise as modern as we should be as a military?

Michele Flournoy:

I think depends on what you mean by modern. I think that we think of ourselves as the best military in the world, and we are, but that’s only remains true as long as we keep investing in the people and the capabilities to be that. I think given the period of technological disruption we’re experiencing, we have got to keep bringing on new technologies, whether it’s leveraging AI, whether it’s leveraging unmanned systems that are controlled by human beings, but some aspect is unmanned, whether it is hypersonics or directed energy, there are all these new disruptive technologies that our potential adversaries are investing enormous amounts of money in.

Michele Flournoy:

We’ve got to keep up and not only keep up, but figure out how do we preserve our advantage by leveraging these new technologies in new ways with new operational concepts that keep our advantage? Because if we just fight the last war in the old way, when a new challenge comes, that is not going to be a recipe for success. Most importantly, we have to credibly deter. The name of the game with China, a nuclear power, is not to fight a war with them. It is to deter and prevent a war with them, and that’s where we need to be focusing much more of our attention.

Preet Bharara:

Is quantum computing one of those areas, as our mutual friend, Ian Bremmer, keeps telling me?

Michele Flournoy:

Absolutely. Absolutely.

Preet Bharara:

What do you say to critics, not of you, but of the amount of money that the US spends on the Department of Defense? I’m sure there are listeners here who wonder to themselves, can’t the military do with a little bit less so we can spend more on social programs or some other things? How do you defend the budget of the Pentagon?

Michele Flournoy:

Well, first of all, I think the comparisons to other countries are misleading because no other country has the same role that the United States has in terms of having a global role and global interest to protect, and allies and so forth. So, given that role, we’re going to invest more in defense than many other countries. Number two, the biggest driver of rising costs in the Pentagon are actually not procurement. It’s people, and the fact that in terms of what we pay them and runaway healthcare costs for society, well, that shows up in our military bills as well, and those rising people costs are actually squeezing our research development and procurement costs. So, I think one of the things that we have to do is understand that really going after healthcare costs is one of the best ways to control Pentagon spending and to make room to make sure that there’s more of the budget that can actually be invested in these new technologies and concepts that will give us the edge in the future.

Preet Bharara:

You’ve been very generous with your time. Michele Flournoy, thank you for joining us and thanks for your service.

Michele Flournoy:

Happy to join you. Thanks for a great conversation.

Preet Bharara:

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Michele Flournoy. 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 @PreetBharara with the hashtag, #AskPreet, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producers are Adam Waller and Matthew Billy. The CAFE team is David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Sean Walsh, Namita Shah, and Claudia Hernandez. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.