This week’s “Note From Preet” has been adapted from Preet’s concluding remarks closing out today’s Stay Tuned episode.

Dear Reader,

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.

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 plainclothes detective but he’s in uniform that day. I ask him why. He says, “I’ve got two funerals today.” 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. And I’m looking for where I’m supposed to go. I round a corner and I come face-to-face with a huge wall. And on the wall are hundreds of drawings. They’re in crayon. And they are 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.

I remember, almost eight years after the attacks, being sworn in as U.S. 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 on America on September 11th. That never came to pass but we were ready.

I remember feeling a great heaviness as the tenth anniversary of 9/11 approached, back in 2011. And 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 tenth 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 felt I needed to be in a house of worship.

At SDNY, we commemorated the 10th anniversary with an event at the Court of International Trade, one place where all the lawyers and staff could fit. I remember struggling to find the words to fit the occasion. I decided to speak of service and the enduring force of good people. Ten 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.

Sometimes a world-altering tragedy is thrust upon us – epic in scale and suffering and made more shocking because it is wrought 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.

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’s spirit can tolerate to, 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 a 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.

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.”

My Best,

Preet

In Body Image

The KSM Trial

By Sam Ozer-Staton

On the eve of the 20th anniversary of 9/11, Preet was joined on Stay Tuned by former Secretary of Homeland Security Jeh Johnson. They discussed a topic that gets little media attention today, but was a source of political and legal wrangling for much of the early 2010s: the trial of 9/11 architect Khalid Sheikh Mohammed (known as KSM) and four other defendants involved in the attacks.

Two decades after 9/11 and 11 years after war crimes charges were filed, there has still not been a trial held for the men who plotted the attacks. And no trial date has been set.

How did we get here?

Before the pandemic, in 2019, a judge had set January 11, 2021 to start the selection of the military commission that will hear the case, and estimated that the trial could last a year. Since then, the trial has been delayed by the pandemic and the retirement or transfer of judges.

But those challenges pale in comparison to another long-running cause of delays: the admissibility of evidence gathered through the use of torture. KSM and four other defendants were captured in 2002 and 2003 in Pakistan, held and subjected to so-called “enhanced interrogation techniques” at secret CIA black sites, and then brought to Guantanamo Bay, Cuba, for trial in 2006. (After President Obama took office in 2009, the Department of Justice released a 2005 memo that revealed that KSM was waterboarded 183 times in March 2003.)

For years, prosecutors and defense lawyers have gone back and forth over the admissibility of what the five men told the FBI in 2007 at Guantanamo, months after their arrival from CIA custody.

The other major hangup, which Preet and Secretary Johnson discussed at some length, has been the question of venue: Should the defendants be tried in Guantanamo Bay by a military commission, or should they be tried in a federal civilian court?

Military commissions, which are a combination of the military court-martial and the federal criminal court systems, were created by Congress in 2006 and reformed in 2009. Under that system, the judge and the jury, technically called a “panel,” are members of the military. The KSM trial would take place in a large courtroom on the grounds of Guantanamo that was built specifically to try the 9/11 case. Spectators in the gallery would hear the trial on 40-second delay, to give the judge’s officer enough time to mute the audio if anybody says anything classified.

That’s not the setting the Obama administration had initially wanted for the trial. In November 2009, DOJ announced that KSM and the four other detainees would stand trial in the Southern District of New York, in a courtroom just blocks from Ground Zero. But in April 2011, Attorney General Eric Holder reversed that decision, announcing that the five men would instead face a military commission at Guantanamo.Here’s the exchange that Preet and Secretary Johnson had over the political pushback that led to DOJ’s reversal:

Preet Bharara: [It was] a sensitive topic at the time. And I, as U.S. 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 U.S. Attorney, down with the Attorney General, Eric Holder, and others. Time and time again, in the fall of 2009, we made the argument for a civilian trial in the Southern District Court 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 Marshal attended, and the warden wanted to show us the cell 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 of 2008 and 2009. Congress had passed the military commissions in 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, and 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 the result of cruel, inhuman and degrading treatment. The JAGS were very offended by that. They felt that [it would] impugn the integrity of their military justice system. They wanted reform, and they convinced me that with a reformed military commissions system, we could make it work. And we worked with Congress in 2009. We got the law changed. President Obama agreed to use the military commissions system for certain cases, and we would divvy up the cases, which we did. We went through a process. 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. And I was prepared to see that case go to Manhattan.

Preet Bharara: And the decision was in fact made. And it unraveled.

Jeh Johnson: And it unraveled because of political forces. Frankly, I don’t think we adequately prepared the battlespace for the announcement. We did not adequately vet it with the mayor with the congressional delegation up here.

The “political forces” that Johnson discussed were not just local but national. Republican Senator Lindsey Graham, in particular, led the fight against trying KSM in a civilian court. He said in 2009: “I will do anything in my power to make sure Khalid Sheikh Mohammed never sees the inside of a federal court. The reason being is that I’m very worried about the precedent you’re setting when you hold someone six or seven years under the law of war and then all of a sudden you introduce them into the American criminal justice system.”

And fight he did. Graham attempted to broker a deal with then-White House Chief of Staff Rahm Emanuel in which the Senator would support closing Guantanamo Bay in exchange for allowing KSM to be tried by a military commission there. By 2010, the support for allowing the defendants to be tried in a civilian court had eroded. Even New York City Mayor Michael Bloomberg and Senator Chuck Schumer withdrew their initial support.

Now, as the 20th anniversary of 9/11 approaches, Guantanamo Bay remains open and the men who plotted the attack have yet to stand trial.

What happened?

Write to us with your reactions at letters@cafe.com.

In Body Image

Listen to Stay Tuned, “20 Years After 9/11,” where Preet is joined by Jeh Johnson, President Obama’s former Secretary of Homeland Security, to reflect on 9/11 and the state of our national security.

Listen to Up Against The Mob, “The Cooperator.” Former Genovese crime family mobster Michael Visconti opens up to host Elie Honig about his life and rise in the mob — how he first got mixed up with the mafia, the violent crimes he committed, and his decision to flip against his mob “family.” Don’t miss the bonus for Insiders, where Elie and Safeena Mecklai go behind the scenes of the first episode.

Listen to Now & Then, “Climate Control,” where Heather and Joanne discuss the climate crisis and moments of political conflict over the environment throughout American history. Don’t miss the “Backstage” segment for Insiders, where Heather and Joanne discuss the impact of Hurricane Ida and how to prioritize environmental protections in personal and political life.

Listen to Note From Melissa, “Form and Function in Texas SB8.”

Listen to CAFE Insider, “The Bounty on Roe.” Preet and Joyce discuss the Supreme Court order rejecting a request to block Texas’s new restrictive abortion law from going into effect. They also discuss the workings of the Court’s shadow docket, and the proposed legislation that would codify Roe v. Wade.

 

FOLLOW:

Safeena Mecklai is a recent graduate of NYU School of Law, where she was President of the NYU Law Student Bar Association and a Managing Editor of the New York University Law Review. Formerly a student co-host of Third Degree with Elie Honig, she now speaks with Elie for each Insider bonus episode of Up Against The Mob. Follow her @safeenaleila..

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That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at letters@cafe.com with your thoughts, suggestions, and questions.

Edited by Tamara Sepper

The CAFE Team:

Tamara Sepper, Adam Waller, Sam Ozer-Staton, Jake Kaplan, David Kurlander, Noa Azulai, David Tatasciore, Matthew Billy, Nat Weiner, and Namita Shah.