Preet Bharara:

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

David Sanger:

What we’ve learned over the past decade and a half to our dismay is that democracy is a great import for countries that really want it and know how to sustain it and can develop a tradition for it. It’s a lousy export. You can’t just force it on somebody.

Preet Bharara:

That’s David Sanger, a Pulitzer Prize-winning journalist. He serves as the White House and National Security correspondent for The New York Times where he’s worked for over four decades. He’s now out with his fourth book, New Cold Wars: China’s Rise, Russia’s Invasion and America’s Struggle To Defend The West. In it, he explores how the U.S. has grappled with global conflict, war, trade, and power over the last few decades. Historian Michael Beschloss writes, “Sanger’s mesmerizing inside story of a world transformed will inspire and disturb. But as the author makes abundantly clear, no one who lives on this planet can ignore what is happening.” I speak with Sanger about the themes of his book, the nature of deterrence, the prevalence of intelligence, failures, and the wars in Ukraine and Gaza. That’s coming up. Stay Tuned.

Q&A

Now, let’s get to your questions. This week, like last week, we’ve been getting a lot of questions about how trials are conducted, how judges make their decisions, and what some of the evidentiary rules are. For example, we got this question, how do jurors remember everything that happens in a long trial? Can they take notes? So that’s a great question. I can imagine how daunting it might seem to prospective jurors to have to remember every little detail from a week’s or sometimes even month’s long trial. But fear not, if you’re wondering about it, jurors aren’t really expected to have perfect recall of every bit of witness testimony or every document. There are several ways that they can refresh their memories, as an initial matter based on the question with respect to jurors taking notes, that’s usually in the discretion of the judge and we have a particular instruction here in Trump’s case.

In the Manhattan criminal trial, the presiding Judge, Merchan, told jurors and his jury instructions that they were allowed to take notes for personal use, but that they would not be, “A substitute for recorded transcript of the testimony.” He also said, “Remember, every word of each witness is recorded by the court reporter and during deliberations upon your request, the testimony will be read back to you in whole or in part.” So that tells you that notes need not be verbatim and note-taking should not be so extensive that it distracts jurors from watching the proceedings in real-time. Like we say in other context in life, jurors have to be present. The judge reminded jurors of their role as finders of fact who are responsible to evaluate the believability and accuracy of a witness’s testimony he went on to say it is, “Thus important that you be able to both fully comprehend what a witness is saying and how a witness is saying it.”

So while note-taking is allowed, it’s arguably more important for jurors to focus their attention on the proceedings and the testimony that’s unfolding before them live in real-time. It’s especially important that they observe things like a witness’s body language and facial expressions, that kind of stuff that can’t really be transcribed in notes. So to recap, jurors can sometimes take notes subject to the judge’s discretion. There’s an official recorded transcript of all the testimony and it is in fact commonplace and I’ve seen it many, many, many times, during jury deliberations for one or more jurors to request a read back of certain testimony so they can refresh their memory. Just one final note on note-taking by jurors in this case, as Joyce Vance pointed out on the CAFE Insider podcast, any juror who’s hoping to use these notes as a jumping off point for a book or a screenplay or something like that is out of luck. The notes will be collected at the end of trial and won’t be given to the jurors who took them.

Here’s another question we’ve been getting a lot of, and it’s a version of this. How does the judge decide which aspects of Trump’s history are allowed to be introduced as evidence in the trial? So that’s a very important and timely question and a complicated one and one that as Joyce and I have discussed many times on the CAFE Insider podcast is a fraught decision. So obviously in any particular case, you’re supposed to prove the elements of the crimes that have been alleged, but in certain limited circumstances you can also introduce evidence of trial of other stuff. It’s not central to the allegations. And that question implicates one of the trickiest issues in the law of evidence. When can a defendant’s prior bad acts be introduced at trial? That’s very much present issue in the Trump trial of course as well. So in general, the rules of evidence state that evidence of prior bad acts are not admissible to prove a defendant has a certain character trait or prove that the defendant acted in accordance with that character trait or has a propensity to engage in those kinds of bad acts.

In federal court, which I’m very familiar with, this is Rule 404(b), and in New York state it’s Rule 4.07. So for example, if I’ve been charged with committing a robbery, a bank robbery, that’s what the prosecution has to prove the elements of the crime of bank robbery, right? However, if there’s evidence that can be brought to bear at trial that on a prior occasion, I robbed a bank or I was seen to have robbed a bank and I used a particular mask and I wrote a particular note with particular language in it, and that’s identical to, or very similar to the way that I did the bank robbery, my MO of doing the bank robbery in the charged case, prosecutors can make the argument that that shows a pattern, it shows an mo, it shows intent, it shows lack of mistake, and that can be sometimes admissible in the criminal case that’s charged, but the prosecution is not allowed to argue and jury is not allowed to infer that Preet’s just a bank robber and that’s what he does.

He robs banks, he has a propensity for robbing banks, and so he’s likely to have robbed the bank as charged in the instant indictment. So as I’ve explained, bad acts, evidence is admissible to prove a defendant had a particular motive, intent or knowledge. For example, Your Honor, the defendant falsified business records on these prior occasions. Therefore, he knew in this case that when he recorded this hush money payment as a legal expense, he was falsifying business records. In other words, it was not a mistake or an accident, it was not innocent or such other bad acts evidence might be offered to show a common scheme or plan, as I mentioned in the example of the bank robbery, a common scheme or plan between the current case and a prior bad act. So for example, Your Honor, the defendant used the same tactics visible here or in a previous case of falsifying business records to commit fraud.

Therefore, we can infer that by using those same tools or tactics or methods, again, he had the requisite intent to commit fraud here. But again, just to emphasize one more time, a juror cannot infer the defendant had a certain propensity for committing fraud or whatever the crime is that’s been charged. So prior bad acts are admissible for any non-propensity purpose, meaning they’re likely admissible so long as they’re not being used to demonstrate that the defendant acted in accordance with past bad behavior or that he or she has a certain propensity for that behavior. Propensity is an important word and you’re going to hear it a lot. So prosecutors who want to get a conviction in good faith and in good conscience are always struggling with this balance between trying to admit other bad act evidence because it will help them prove their case, but doing so in a way that’s not going to cause trouble on appeal.

Because if later, an appellate court finds that the trial judge made a mistake and allowed in evidence that was mostly for propensity purposes and not for common scheme or lack of mistake or some other allowable purpose, the verdict can be thrown out. And by the way, that’s not a hypothetical on the front page of all the papers in the last week, we’ve seen an example of that in New York state and in fact a criminal prosecution brought by the very same people who are prosecuting Donald Trump, that’s the Manhattan DA’s office in the case against sexual offender Harvey Weinstein. As the New York Court of Appeals ruled in the Harvey Weinstein case, there were multiple other women whose testimony was permitted but were not part of the actual charged acts in the case. And the court held that their testimony should not have been allowed because it was, “Unnecessary to establish defendant’s intent and served only to establish defendant’s propensity to commit the crimes charged.”

Here’s how the court put it in another part of the opinion, “Defendant Harvey Weinstein was convicted by a jury for various sexual crimes against three named complainants and on appeal claims that he was judged not on the conduct for which he was indicted, but on prejudicial and untested allegations of prior bad acts. We conclude that the trial court erroneously admitted testimony of uncharged alleged prior sexual acts against persons other than the complainants of the underlying crimes because that testimony served no material non-propensity purpose.” So an obvious question that arises and the people have been discussing is, does this Court of Appeals decision in New York have any bearing on the Donald Trump case? Well, I think any case that has a ruling from the highest court in the land that’s binding ruling on the lower courts is one that will be read very, very carefully by both parties and by Judge Merchan himself.

I think at first blush, the Weinstein case and the Weinstein prior bad acts issue is quite different from the Donald Trump case, among other things in the Weinstein case, the Court of Appeals made the point that there were actually three complainants, right? So it wasn’t the word of one person. There were three different victims who complained about sexual abuse by Harvey Weinstein and they didn’t need the buttressing from other complainants who were not part of the main charges in the case. That is arguably quite different from what you have in the Donald Trump case where the hush money payments and furtherance of another crime, an election crime involves only one person Stormy Daniels. And so arguably the evidence of other bad acts, including the catch and kill payments to Karen McDougal do have some bearing on method and intent and lack of mistake. I can go on and on about the differences and/or similarities between the Weinstein case on this issue and the Trump case.

But instead of doing that, we’re going to be talking a lot more about this with a special guest on Monday’s episode of Stay Tuned In Brief. This is a fun question that comes in a tweet from Forrest Tobie who writes, “I teach a high school law class and need a good movie to play in the waning days of the school year. My Cousin Vinny is a no-go because it’s Rated R. Any suggestions?” So my first reaction, Forrest, is that I can’t believe My Cousin Vinny is Rated R, And that was the reaction, the surprise reaction of people on the podcast team as well. So my immediate reaction was, if you want to pick a riveting good legal movie with courtroom drama and a lot of flair and amazing excellent acting and a fantastic otherworldly cast, you might want to watch A Few Good Men. And then I realized A Few Good Men also astonishingly is Rated R.

So then I went back to first principles, and I don’t know if this movie that I’m about to mention is a good bet for a high school class in 2024 that’s used to a certain kind of pace in a movie, but I think one of the greatest legal dramas of all time is a movie based on the play, Inherit the Wind, not one of the more recent versions that came out in the last number of years, but the original from 1960 starring Spencer Tracy. It’s the story as you may remember based on the so-called Monkey Trials in Tennessee, the story revolves around a school teacher in Tennessee, much like yourself, who was criminally prosecuted for daring to teach the theory of evolution in school. So it’s black and white, it doesn’t have the fast cuts of modern movies in the modern era, but it is in fact the play and the film that got me thinking about going to law school in the first place when I was in middle school in New Jersey.

If it’s any help, I just looked it up and it’s got a Rotten Tomatoes rating of 93%, not bad for a black and white film from 1960. If you do end up showing that movie to the class, let us know how it went. Before we end the Q&A portion of the program. You may remember if you listened last week that there was a question from a listener which was as follows, “What is a motion in lemonade?” And it caused me to laugh and everyone here chuckled a bit. Obviously, that’s a play on the phrase that people use all the time. A kind of legal jargony phrase, motion in limine, L-I-M-I-N-E. Not a motion in lemonade, but I did say I didn’t know how to answer the question, what is a motion in lemonade? And if people had a thought about how to better answer that question, they should give it a shot.

So we looked at our mail and we have a winner, and the winner is this, “Dear Preet, a motion in lemonade is that euphoric moment of achievement when you have successfully executed all of Beyonce’s dance moves from her previous album, #Goalz. Julie Leavitt, longtime fan of the show.” We have a winner.

THE INTERVIEW

I’ll be right back with my conversation with David Sanger. Who controls the world order and how is it changing? Longtime New York Times correspondent and foreign policy expert, David Sanger joins me to discuss the state of American power and the nature of its interests. David Sanger, welcome to the show.

David Sanger:

Preet, great to be back with you.

Preet Bharara:

So congratulations on your latest book. It’s called New Cold Wars: China’s Rise, Russia’s Invasion, and America’s Struggle to Defend the West. So I have an initial question about it. You talk to a lot of Washington folks, obviously it’s about government and international relations and politics and all those sorts of things. And in a city famous for anonymous quotes, you get a lot of people on the record, what’s your secret?

David Sanger:

Well, I wish there was a secret to it other than the fact that I’ve been reporting from Washington for 30 years and before that I was a foreign correspondent for the Times for many years. And at this point, I think I’ve worn a lot of these people down. No, there were points where we had things in the reporting and we said to people, “Look, you’ve walked right up to this in some public statement or some congressional testimony or whatever.” I was doing this with my great researcher and co-writer, Mary Brooks, and he said, “Is there really a reason that this can’t be? Can you justify why you can’t say this on the record?” And I think you’re going to find quotes in the book from people who you don’t normally hear from. Bill Burns, the CIA director who of course was used to speaking on the record all the time when he was a diplomat in the State Department.

But you know, CIA director is a different job. Avril Haynes, the director of National Intelligence who Burns reports to and so do the other 16 intelligence agencies. Mark Milley, the former chairman of the Joint Chiefs, who has that marvelous quoted toward the beginning of the book. It’s at the end of the introduction that I think sums up the Ukraine war when he said, “We thought this was going to be a clean cyber war, and then we thought it was a World War II tank war, and then it became a blanking World War I French warfare.” And the answer is it was all three. But Jake Sullivan, Anthony Blinken, the Secretary of State, they all talked for the book sometimes repeatedly.

Preet Bharara:

Can you identify two or three people who were anonymous in the book?

David Sanger:

Absolutely, Preet. And I have to say that your contributions were limitless and anything that you-

Preet Bharara:

If I had tried to contribute in this field, the book, would not have garnered the praise that it has gotten. It’s interesting was your bio, we have a little bit of a parallel education. I also was a government major at the same college, and I don’t know which area you specialized in, but when I was here at least there were four areas of government, American Government, Comparative Government theory, and international relations. I ended up writing my thesis in theory and the worst grades I got, and the most I struggled with any class in government were in the international relations realm.

David Sanger:

Well, you’ll be glad to know that I was the opposite. I actually wrote my senior thesis on a issue of constitutional law on the way, good for you to see, and then applied to law school, but ended up in the newsroom of the New York Times and never left. So at some moment we diverged, Preet.

Preet Bharara:

We did in a wood. I always had a problem and I still do. And one of the great treats of being able to do this podcast is to talk to people who are much smarter than I am about foreign policy and international relations and national security. It seems to be a very rough business of guesswork and not a lot of rules. I veered into the law. There are a lot of ironclad rules. We work under statutes, there’s some norms and some guidelines, but generally speaking, we work within a regime of ironclad rules and statutes and courtroom rules and as well, and I always thought that the operation in the world where nation-states have their own interests that are hard to glean and that shift and change sometimes on a daily or weekly basis, not just on a yearly basis, that trying to predict anything was very difficult. So I always found myself at sea, am I wrong to think that that’s a very difficult way of proceeding in that realm?

David Sanger:

No, you’re not. So the essence of the law is that it applies to everybody and that power relationships shouldn’t be part of it, by virtue of the fact that we have a former President of the United States on trial right now in a state court on allegations of violations of state law in international relations. You start with the power relationships, you overlay a layer of international law and then the question is, can the power relationship overcome the law or in the norm we’ve set. So let me give you two examples. In cyber the subject of my last book, The Perfect Weapon, there are no rules. We’ve been trying to apply rules from the terrestrial world and put them in cyberspace and there’s never a straight on fit. So we don’t really know how to prosecute ransomware if it’s happening across borders or we don’t know what to do with a state run hack of a system the way the United States and Israel hacked into and destroyed part of Iran’s nuclear program.

And then the second part we never quite understand is how do you apply equally the rules of international law? So we have the ICC now investigating Israeli leaders for possible charges of war crimes related to Gaza. And the Israelis are shocked because war crimes over bombing an area is what you reserve for Vladimir Putin and his commanders. So there’s this constant tension between the power relationship, the alliance you’re in and the application of international law. And you see that I think throughout the book because we’re in a period right now of remarkable shift in which we spent 20 years pursuing terrorists where there wasn’t a whole lot of question about whether what they did violated every international law and norm, if you attack the World Trade Center or the Pentagon and you kill 3,000 people or you’re Hamas and you kill 1,200 people in Israel, there’s not a lot of doubt out there. But when you have state-

Preet Bharara:

I’m sorry, there’s not a lot of doubt about what?

David Sanger:

There’s not a lot of doubt about the fact that there’s an international legal contravention, right?

Preet Bharara:

Right. But that doesn’t answer the question as to why he went into Iraq?

David Sanger:

That’s right, absolutely. And it doesn’t answer the question of what’s the authority under which we attack the nuclear program of Iran when we are not at war with Iran? And gets to the question of when you are retaliating for October 7th or you are retaliating for September 11th, what are the limits, if any, on how you can retaliate and who you can retaliate on against?

Preet Bharara:

Can I ask a more fundamental question, David? Obviously, with each administration in the US foreign policy goals dealings with allies and adversaries shift to some degree, but overall there I think is the argument that there’s some continuity in American foreign policy. So, A, do you agree with that? B, if you do agree with that, is it possible to state what the general foreign policy principles of the United States have been over the last 2, 3, 4 decades? What is the foreign policy of the US?

David Sanger:

You can describe some big foreign policy objectives, and I teach a course on national security with Graham Allison at the Kennedy school and have done so for 15 years or so. And we try to put together for students who get the students to come up with a hierarchy of national interests. So your first national interest is national survival, so nuclear or other threats that could threaten survival go to the very top of your list above human rights, which bothers some people, above economic progress, which bothers other people, but you try to put together a hierarchy. I think a second one would be defending a liberal state that operates according to a constitution and principles that the United States as cherished, if not, always obeyed for since the Constitution’s adoption.

Preet Bharara:

And can I stop you there? What does that have to do with foreign policy?

David Sanger:

Because the root of foreign policy is defending national interests and it’s a core interest to us to maintain a democracy with individual liberties and so forth. We may well change over time our definitions of what that was. Obviously, when the Constitution was written, we excluded a huge portion of our population from voting rights.

Preet Bharara:

Is part of that, I’m sorry, because I feel like I’m in class and I want to make sure I understand what the professor is teaching. Does that mean you’re number two in any way that to the extent we conduct our foreign policy, it has to be consistent with and aligned with those democratic values you described? Or is that something different?

David Sanger:

It means it should be.

Preet Bharara:

Yup.

David Sanger:

And at regular points, it is not. FDR setting up the Japanese internment camps, the US use of torture during the Iraq War and Afghanistan staging coups in the 1950s, in Iran or the ’60s in Latin America, we find lots of areas where we separate from our values very quickly, but one of the wonders of the system is that we can go back and investigate and rethink and we hope learn some of those lessons.

Preet Bharara:

Yeah.

David Sanger:

We frequently make them a second, third and fourth time. But I think one of the other things that this book shows you is absolutely critical is that the reason that you need to pay attention to what you do at home is that it is central to your ability to develop alliances, which are our great power extension abroad. And that’s why the Russians and the Chinese have very few allies because there aren’t that many countries that say, “Yeah. I want a system just like that.” Or at least, there aren’t many countries that are run by non-authoritarians who say that. And the central argument of this book is that for the 30 years after the fall of the Berlin Wall and the collapse of the Soviet Union, we deluded ourselves into thinking that the world was moving in the direction of those sets of values, Preet.

That the end of history as Francis Fukuyama called it, but he wasn’t the only one who harbored this view meant that the world was converging on Western values. And that at the end of the day though they wouldn’t look like Jeffersonian Democracies. The Chinese would be forced to allow greater democracy and greater freedom of expression. And I describe at the beginning of the book, going to Beijing University with Bill Clinton and he gave a speech which I actually believed at that time, saying the internet will set you free and will undercut the power of the Communist Party. And we now know that what the internet and all of the follow-on technologies that it enabled facial recognition, tracking people on the cell phones, on their cell phones, tracking their expressions on social media, actually enabled the Communist Party to develop some of the most exquisite forms of human control that we’ve ever seen.

We believe that the Russians, while they may want Ukraine and other territory back, would at the end of the day decide that signing up with the capitalist theory that you’re better to be able to sell your oil all around the world would predominate and that they would make the choice that we might make that, yeah, we might like to have an additional piece of land, but more important that our markets stay open. And so we overlooked every warning from Vladimir Putin that in fact he had some other priorities. And that restoring the lands of Peter the Great meaning starting with Ukraine was that priority. And so we diluted ourselves and projected our own values on them.

Preet Bharara:

Yeah. Is the natural order of things to move towards democracy, is the natural order of things for democracy to fall apart or is there no natural order of things? Is there no law of political or democratic entropy?

David Sanger:

I don’t think there is a law of it, but we thought democracy was on the rise around the world following really from the fall, the Soviet Union through to the color revolutions in-

Preet Bharara:

Well, it was on the rise?

David Sanger:

And it was.

Preet Bharara:

It was on the rise.

David Sanger:

Some, yeah, I mean, it was just-

Preet Bharara:

We didn’t just think it.

David Sanger:

It was spreading.

Preet Bharara:

Yeah.

David Sanger:

Right. But spreading and having deep roots are two very different things. And what we’ve learned over the past decade and a half to our dismay is that democracy is a great import for countries that really want it and know how to sustain it and can develop a tradition for it. It’s a lousy export. You can’t just force it on somebody. We tried that in Afghanistan, how has that experiment looking right now? And that the forces that push back against it frequently own all the weapons. So we have been in democratic recession for the past 15 years and that’s hardly a new thought to me.

Preet Bharara:

Well, it’s funny you said a second ago that spreading is one thing, but democracy needs to have deep roots and one is reminded of the phrase physician heal thyself. How deeper are roots as you’ve come to understand them in the last few years?

David Sanger:

We’re about to go find out.

Preet Bharara:

Yeah.

David Sanger:

And when people ask me as I’ve been asked many times since this book came out a couple of weeks ago, what is the single greatest national security threat we face? And my answer is, it’s us, that we have so divided our own society that we are so wrapped up in our culture wars and our arguments about the border and Black Lives Matter and abortion, every one of those, an absolutely critical issue of individual or communal rights that we have somehow managed to forget that we live in a world where other countries will fill the vacuum when the United States or other powers are not there. And so there’s something wonderfully simplistic about the theory that we just pull back behind high walls, solve our own problems and whack anybody who comes out to mess with us. And I know that sounds great on the campaign trail and it worked for Donald Trump in 2016, and it was true back in the 1930s when America First was the formal name of a movement.

Although, when I tried that on President Trump during the 2016 campaign and before he had adopted the America First slogan, in fact it probably came in part out of this interview that we did, he had had no knowledge of the America First movement in the ’30s. And the ’30s was not the first time that we had had that movement in the United States. So every time we’ve tried this experiment, what have we discovered that we may not want to go deal with the world, but the world wants to go deal with us. And if you pull back your values, your sense of shaping the environment in which America lives is over.

Preet Bharara:

One of the most striking things that anyone has said on this podcast, at least to my ears as the host was in talking about these issues of autocracy and authoritarianism and drift in one direction or the other, I asked a guest, a very smart guest what she thought was the percentage in a Western Liberal Democracy, the percentage of a population that might sort of latently be welcoming to authoritarianism. And she put the number at like 25 to 30%. And that’s in long-established Western democracies like the United States. Do you have any reaction to that? Do you buy that? And if so, what’s the consequence?

David Sanger:

Entirely possible. I mean, for one thing we don’t teach very much anymore about in our schools and so forth, we do civics classes, but that’s a different thing than understanding the roots of democracy in the United States. I’m a news reporter, I’m not a columnist, I’m not here to make political statements, but we have right now a candidate for president who has said that he wanted to be at least dictator for a day and who at another point said that the constitution might be have to be suspended. And I realize words don’t mean a whole lot to him. He says what he says at a current moment, and that is not disqualified.

Preet Bharara:

I’ll be right back with David Sanger after this. So David, I want to ask a couple of different questions that are separate from values that are a little bit more about pragmatic concerns. It seems to me that when you’re trying to figure out how to maintain the world order or peace or whatever the case may be, the two of the problems are, one, the elusiveness of information knowledge. Some would say intelligence, and I wonder if you think that’s true and whether that’s becoming a bigger problem. And then two, is the elusiveness of deterrence and understanding what deters other actors. Now with respect to the first one, we have many examples, some of which I think all of which you talk about in your book.

It was presumed that Ukraine could fall within a matter of days once Russia invaded, it was presumed in the opposite direction that Afghanistan would be able to hold out against the Taliban for a year or two. Instead, they collapsed in a matter of days. All sorts of bad information in intel with respect to what’s going on in Gaza and has gone in Gaza and the list goes on and on and on. Could you describe for folks just how difficult it is in the modern era and if it’s better or worse. And maybe it’s better, we have so much surveillance capability, but what is exactly the difficulty of understanding what the hell is going on and what will go on?

David Sanger:

So here’s the paradox, Preet, we’ve never had a bigger flow of intelligence. We’ve got cameras everywhere, we’ve got satellites everywhere. We’ve got cyber capabilities that enable us to break into systems and hear things and see things that we’ve never seen before. We have such a flood of data, Preet, that our biggest problem is separating it and discerning it. In fact, one section of the book describes technology that we gave the Ukrainians that puts on one giant screen or a small screen that you could take into a trench, a battlefield situation where you can sort of see everything from classified photographs from the sky to messages on telegram. That might give you a sense of where the Russians are located. And the big problem is just separating out what’s important from the huge amount of chaff out there. And yet our failures, including our failure to understand how weak the Afghan military was, how strong the Taliban might be by comparison, or what mistakes the Russians might make come from the fact that we’re great at counting things.

I can tell you exactly how many tanks the Russians have lined up along the Ukraine border, but I can’t tell you whether there is will to fight among a bunch of Russian soldiers who were never told they were going into Ukraine or why and may have family there and may have ties there and aren’t willing to go kill people or have wild units that don’t care who they’re killing. Or in the Afghan case that we work from a presumption that the local forces, the local Afghan military that we trained for 15 or 20 years by the US, trained by special forces, trained by National Guard, trained by all kinds, would collapse right away for an absence of will to go face the Taliban. And I’ve talked a lot and for the book, talked a lot to intelligence leaders, military leaders about that. And we’re almost a prisoner of our data. We count the stuff we can see and we don’t think enough about the intangibles that we can’t delve into.

Preet Bharara:

Well, is it that we don’t think enough about it or not to let anyone off the hook? It’s just an impossible thing to figure out with a limited means that our brains have.

David Sanger:

It may be, but I can tell you that coming out of those two experiences that you mentioned, the failure in Afghanistan where the president was told that the Afghan forces would be able to hold Kabul for a year and a half after the US departed. They lasted weeks, at best. And where they were told that the Russians would take all of the capital of Kiev and much of the rest of the country in three or four weeks and instead got driven out. And there are a lot of after action reports that are underway launched by Avril Haynes and Bill Burns. And-

Preet Bharara:

Well give us the answer now. We can’t wait.

David Sanger:

Yeah.

Preet Bharara:

Please answer-

David Sanger:

I wish I knew because I don’t think any of those are done. And if they’re done, they probably won’t make them public. But the fact of the matter is will the fight is one of the hardest things to go measure because it’s almost down to the individual level and certainly to the unit

Preet Bharara:

Level. Well, when those assessments were being made, it’s one thing to get the will to fight wrong and not understand how heavily it should be weighed, but was will to fight considered in both of those situations?

David Sanger:

I think it was assumed. I think it was assumed that the Russians ran a professional military that had exercised repeatedly in basically integrated combat operations where you bring in air and sea forces and land forces and you do a highly skilled coordinated fight. And what we discovered was the first time they hit battle, what did they do? They created a 40-mile-long traffic jam of tanks and fuel cars where the Ukrainians did a brilliant job with us help of picking off the fuel trucks and launching small missiles and small fire into them and creating giant fireballs that burned up the rest of the invading force. Now, we assumed from that for a year and a half that the Russians were the country that couldn’t shoot straight. And now what’s happened? After a year and a half of being hardened in battle to some degree and taking hundreds of thousands of casualties, the Russians are getting their act together.

They’re learning how to go use their electronic warfare capability to disable some of our most sophisticated stuff, the HIMARS Missiles. US launched it, a set of US-made drones that they gave to the Ukrainians, the Ukrainians launched them against the Russians. The Russians took every one of them out. And this was a first time it had seen utility in battle. So we sometimes have wrong technological assumptions, we sometimes have wrong assumptions about how a unit will fight, and we assume sometimes that it’s static, although Russians have learned a huge amount from their mistakes over the past two years in a few months in Ukraine and they’re not about to make them again.

Preet Bharara:

What’s dispiriting about this is you would think that over time these assessments would get better. And my worry is as a layperson who just talks about these things from time to time is it doesn’t seem that our ability is getting any better. So the misunderstanding and the bad prediction about Ukraine and Russia was at a different point in time from Afghanistan. It was a different point in time from October 7th in Israel. If you were to predict going forward, would you imagine we’re going to continue to have very substantial intelligence failures of this sort indefinitely?

David Sanger:

So, Preet, there are intelligence failures where you don’t have the facts. There are intelligence failures where you have the facts, but you don’t interpret them correctly. And that is exactly what happened on October 7th where the Israelis had plenty of warning in their system that there was a terror attack being planned, and yet they were focused to the north, not to the south.

Preet Bharara:

And some would argue that was also the problem with America and 9/11, fair?

David Sanger:

That’s right. That’s right. Where we had even in the presidential daily brief, some pretty specific examples of how Al-Qaeda planned to attack, but it didn’t seem imaginable. And then there’s a third category, and it’s one that I deal with on the book the most, which is an assumption that you understand the motivation of the major players. And let me give you an example of that because in some ways I think they are the biggest one. So when Putin came and took power, which is the very end of 1999, the beginning of 2000, it was the end of the Clinton Administration, hard to believe he’s been around for a quarter-century, but he has, there was an assumption that he would get with the western system and play by the Western rules as we talked about earlier. And there’s a scene in the book, it’s actually the opening scene of the first substantive chapter of the book called Floating Down the Neva River, when George W. Bush was on a yacht with his wife and Putin and his then-wife.

And there was this lurking figure in the background who was serving dinner, who of course, I remembered, I had been on the boat behind part of the White House pool, and we had briefly been on the yacht. And I remember seeing this guy who I didn’t understand what his role it turned out, of course it was Yevgeny Prigozhin, the man who would go on to try to fix the 2016 election and then create the Wagner group and save the Russians from many of their worst mistakes in Ukraine. And then of course tried to march on Moscow, that didn’t work out so well for them, but that was all going to be years ahead. So as they’re floating down the river, what are they talking about? They’re talking about whether Russia one day might join the European Union, the ultimate expression of Western capitalism. They’re talking about whether one day, maybe one day Russia would join NATO.

In fact, there was for a number of years something called the NATO-Russia Council. You went in the gates of the NATO headquarters and there was an office for Russia. The country that NATO was created or the Soviet Union was, the country that NATO was created to contain. And so the thought was ultimately Russia might join as a member. That was the governing thinking of where we were headed in 2002, 2003, 2004 until 2007 when Putin himself went to the Munich Security Conference and declared There are parts of Russia that have been of Mother Russia, of Peter the Greats Russia that have been ripped away from us, that must return. And everybody sort of blew it off. I mean, Bob Gates, then the defense secretary stood up and said, ‘I’ve been through one Cold War and I don’t really need to go through another.” But it was not a huge front page story in the United States that Vladimir Putin was suddenly reversing course.

And yet when we look back at it now, and when I look back on it to write the book, that was one of those markers where we needed to say, “Whoa, our assumptions of how the next few decades are going to go work out may need to be fundamentally reset.” And seven years later, he took part of Crimea. It took us a year to enact even the first major sanctions. And the next year, Angela Merkel announced that she was creating Nord Stream 2 in an agreement with Putin, a pipeline and gas pipeline that ran from Russia around Ukraine denying it any revenue and into Europe. And what did she say? Putin is a reliable supplier. Because he always had been, for all his differences, he never cut off the oil or the gas. And seven years later he tries to take all of Ukraine. Well, what was Putin supposed to conclude? Other than that we weren’t actually really serious.

Preet Bharara:

So in hearing you speak, I wonder if we’re sometimes a little bit harsher on ourselves than we need to be because circumstances change, the environment changes, people change, and it isn’t always the case that a particular figure like Putin or someone else was necessarily going to do the things that he ultimately did, or are you saying, and by the way, sometimes our actions or lack of action or inaction can change the course of history. And it sounded like you were saying with a different response on Crimea, maybe Putin wouldn’t have been as bloodthirsty and territorially ambitious as he was, that he shifted and moved and became more ambitious in a particular way because of the message that was sent. Is any of that sensible?

David Sanger:

I think that’s right. Look, we had to pursue the possibility that we could bring Russia and China into the Western system. I don’t blame anybody, Clinton, Bush, Obama for trying that. But we were so intent that it would work that we frequently downgraded every piece of evidence that things were going the other way. And we overestimated the importance of signals that we could work together in areas where we have common interest. So Obama signed a Climate Agreement with the Chinese. It wasn’t the world’s greatest agreement. It was hard fought. There was more things we needed to get, but we got there. Russia and China sat on the same side of the negotiating table with the United States and the European Union in trying to contain Iran’s nuclear program in the 2015 agreement that ended up with the Iranians turning over 97.5% of their uranium, and they enriched uranium and they gave it to the Russians who then downgraded it, downblended it so that it couldn’t be used in a nuclear weapon.

We hailed that as a sign that the world’s great powers could come together on a great issue of nonproliferation. Same thing with North Korea, where China ran the Six-Party Talks in an effort to contain North Korea. Now, for various reasons, all of these failed including President Trump’s decision to pull out of the 2015 agreement when it was largely working. But if you separate those out, we looked at every one of those and said, “See, when it really comes down to an issue of national interest, we can all work together.” Now today, Preet, if there was a negotiation between the US and the Europeans and Iran to restore the nuclear agreement, and I think that’s highly unlikely. I doubt that Chinese and the Russians would be sitting on the US side of the table, especially at a moment that the Iranians are providing Russia with the drones they need to prosecute the war in Ukraine.

Preet Bharara:

I want to go back to this issue of failure to understand things. And one of those things as you pointed out, which is endlessly fascinating, is the failure to properly assess the will to fight. So I understand or can give some forgiveness to the Americans and the West in not fully appreciating the ability and the professionalism and the will to fight on the part of the Russian troops. But what’s Putin’s excuse? They’re his troops.

David Sanger:

They are his troops, but he doesn’t live in a system where-

Preet Bharara:

So he’s no better than Tony Blinken?

David Sanger:

He lives in a system that first of all is unlikely to give him bad news. He’s reading the military report saying, “We have trained in X, we have trained in Y, we’ve modernized our military.” The Russians sunk a huge amount of money into military modernization before the Ukraine invasion. Much of it they put in nuclear and hypersonics and weapons they would use in an existential battle against the United States. But he learned a pretty tough lesson. And if you’re Xi Jinping, you’ve got to look at the Ukraine situation and wonder, would my troops do better if I ordered them to take Taiwan or are they feeding me endless optimism the way they fed it to Putin?

Preet Bharara:

Yeah, these are tough questions. And then we get to the second point I was making a few minutes ago. How do you deter particular individuals, particular regimes or non-nation state actors? For example, how do you going forward deter an organization like Hamas? Forget about Putin for a moment. In other words, I’m not asking you to give us the Nobel Prize-winning answer to that question, but how do good faith and intelligent and wise politicians think about that question?

David Sanger:

So let’s talk for a minute, Preet, about the nature of deterrence. During the post-Cold War period, the assumption was that the best way to deter Russia and China from confronting the west was to make their economic engagements with the west so deep that they wouldn’t risk the cost of an invasion, a confrontation. So with the Chinese, I don’t need to explain to you all the different ways that the economies are interconnected, but it was deeper than just the economies. Chinese leadership were sending their kids to Ivy League schools. We were sending, and still are, it’s a good thing, hundreds of thousands of students prior to COVID to China every year.

We were thinking the more we understand them and the more their students understand us, the better our chances of avoiding conflict, particularly if the leadership is sending their kids there because those kids will become the leaders of the future. With Russia, the theory of the Europeans had, particularly the Germans, were grab the Bear in a close embrace, make those pipelines the link between Russia and Europe that no one would profit from interrupting or breaking. And there was great confidence placed in the theory that this embrace was itself a form of deterrence. By the way, Europe made the same mistake prior to World War I. It thought that the integration of Germany with the rest of Europe meant that war was nearly impossible.

Preet Bharara:

But if I can stop you there for a second, David, why is it a mistake? Why are we saying it was a failure even up to this day with China? We’re not at war with China, we’re not at risk of any hot war with China. Your own book is called New Cold Wars, that’s not the greatest situation or dynamic in the history of the world, but it’s better than what it could be. So why are we so quick to call it a mistake or a failure, this globalization or interdependence approach?

David Sanger:

With China, it has not necessarily been a failure. The trick with China is going to be keeping the Cold War cold, but it’s going to be a lot more difficult than it was. And this is one of the main arguments of the book. In the old Cold War, in the old Cold War, Preet, we had one adversary. It was mostly a military competition with the Soviet Union. And within that it was mostly a nuclear competition. We each had a red phone, when we picked it up, we had a pretty good expectation that we would know who was at the other end, or at least what their job was. We could eye count their weapons and we knew the people who had launched authority. There was a simplicity and a predictability to it despite all of its terrorism. And I don’t mean to underestimate those terrors, particularly during events like the Cuban Missile Crisis.

Fast-forward to the new Cold Wars. We have two major players, Russia and China, who are in a partnership that we barely understand. And when you were talking before about intelligence mysteries, the central one now is what is the nature of this relationship between Russia and China and to what degree are they coordinating with others, including Iran in what the Iranians call the axis of resistance, resistance to the United States and the West? The second big element of the new Cold Wars is that while there is a nuclear underway, and we saw that come out including in October of 2022, when as I lay out on one chapter of the book, we were probably as close to nuclear confrontation with Russia as any point since the Cuban Missile Crisis in 1962, that the primary battle, particularly with the Chinese, is over technological supremacy. And that’s why so much of the book delves into the Biden Administration’s effort to deprive the Chinese of the most sophisticated chips and the equipment to make them.

These are the chips that have three-nanometer circuits, incredibly tiny circuits that enable you to make chips that you use for artificial intelligence and for the microprocessor that is sitting in your iPhone. And so that’s an additional complication. And so while it’s true that we have not, and let’s pray that we don’t go into open conflict with the Chinese, over Chinese Government, over Taiwan or anything else, the fact of the matter is that what we’re trying to do is hollow out each other’s technological progress in an effort to get a leg up. And that is why the Chinese believe that we have reinvented containment, the old nuclear containment theory and applied it largely in the semiconductor and other technological arenas.

Preet Bharara:

So just to go back to my original deterrence question for a moment, these examples you’re giving are perhaps easier than the question that I originally asked, which was how does one deter an organization like Hamas?

David Sanger:

So for Hamas, it’s harder. It’s not a real state. It doesn’t have that much territory to defend. Although in this case, I think the Israelis would tell you that the mass destruction of Gaza is supposed to be a form of deterrence. In other words-

Preet Bharara:

Well, they’re talking about, just to analogize from the criminal law, incapacitation is different from deterrence?

David Sanger:

Incapacitation can be different from deterrence. But remember, even if they eliminate Hamas, and I don’t think Israel is yet close to that objective, but even if they did, there will be over the years another Hamas-like organization that will arise just as there will be another Al-Qaeda or another ISIS or another Taliban.

Preet Bharara:

Some people are arguing credibly that the way Netanyahu is prosecuting this war, he’s guaranteeing that?

David Sanger:

You create it,. That’s right, because if you have a generation of people whose parents or your brothers and sisters were killed by the bombs raining down Gaza, the chances are you are not asking the question, what prompted the Israelis to go do this? In this case, a terror attack that killed 1,200 people. You’re just remembering that your entire life was shattered by that act, and that’s what can create the fertile ground for the next generation of terrorists. The issue came up, Rumsfeld used to raise it during the war in Afghanistan and in Iraq, which is if you bomb somebody like that, are you wiping out the immediate threat and down in the tunnels creating the next generation threat?

Preet Bharara:

Can I ask a question about the relevance at all of America’s moral standing or its perceived moral standing? You talk about a very striking conversation between Biden and Netanyahu, and you imagine other conversations like this taking place probably for a long time, but maybe with a little bit more force. Now, when we think we can lecture or caution other leaders and how they should conduct themselves, whether it’s Netanyahu or anyone else, they respond as Netanyahu demanded as you write in your book, hadn’t the US firebombed Tokyo during World War II? Hadn’t it unleashed two bombs? What about the thousands who died in Mosul as the US sought to wipe out ISIS? Do those things matter or are they just ways for people to talk around a question and are they just rhetorical flourishes between leaders?

David Sanger:

They build an argument, Preet. And Biden’s essential argument was we made a lot of mistakes post-9/11. And he said this publicly at the very end of his talk to the Israeli people when he went to visit Israel 10 or 12 days after the awful terror attack in October. And he warned we made mistakes after 9/11 in the way we prosecuted the war that we came to deeply regret. And he was essentially saying, don’t you go make the same mistake? And he offered that because he knew that Netanyahu, based on the conversations that he and Tony Blinken and others had made with Netanyahu, that they were on the verge of going off to do what became this attack that as we speak, has taken about 34,000 Palestinian lives, some large number of those, some proportion of those militants people who were attacking Israel, but a much larger portion of those women and children that were not.

So he was basically saying, “Learn from our experience and don’t make the same mistake.” And Netanyahu in exactly the line that you quote from the book was saying, “Hey, I know this sounds great 20 years later as you look back, but we have to avenge the deaths of innocence who were murdered. And just as you firebombed Tokyo and didn’t think twice about it, and just as you bombed Hiroshima and Nagasaki to save American lives, that would’ve been lost had there been a ground invasion, an argument that won over many Americans. My dad who just passed away two years ago, was part of that invasion force.”

Preet Bharara:

But they did think twice about it. I mean, everything that I know about those decisions was America didn’t do it blithely.

David Sanger:

Nope. They thought hard about it, and then they went ahead and did it.

Preet Bharara:

Yeah.

David Sanger:

So we all pick the historical analogy that we think fits our decision making at the moment,

Preet Bharara:

Right. Look, again, going back, I said this already once. The better example might not have been Hiroshima and Nagasaki, but the war in Iraq, which in no way, shape, or form, as we now know, avenged anything in relation to 9/11-

David Sanger:

That’s right. And we were writing at the time the New York Times made its share of mistakes during this time, and I would not understate those for a moment, but many of us at that time, and I was covering that moment, were raising questions about the quality of the evidence that Bush was amassing at a moment when he couldn’t argue that Iraq was part of the 9/11 attack. So instead, he argued that what 9/11 has taught us is that we can never allow that kind of power to be amassed by one of our adversaries, which is essentially the argument that Netanyahu is making today.

Preet Bharara:

David Sanger, thank you for being on the show. Thank you for doing that. And congratulations again on your new and important book, New Cold Wars: China’s Rise, Russia’s Invasion, and America’s Struggle to Defend the West. Thanks so much.

David Sanger:

Thank you, Preet. And great to be with you.

Preet Bharara:

My conversation with David Sanger continues for members of the CAFE Insider community and the bonus for Insiders, we discuss the threat of TikTok and whether Sanger ever gives politicians advice.

David Sanger:

The problem is that the algorithm that drives everything on TikTok, the feed that you see is designed in a black box that we can’t look at.

Preet Bharara:

To try out the membership for just $1 for a month. Head to cafe.com/insider. Again, that’s cafe.com/insider.

BUTTON

I want to end the show this week by sharing some news in the World Central Kitchen. As many of you may know, World Central Kitchen works to provide fresh meals in times of crisis. Founded by Chef Jose Andres in 2010, World Central Kitchen has worked with local chefs and volunteers to provide meals all over the world. In Ukraine, Morocco, Puerto Rico, Haiti, Texas, Japan, and now Gaza. As you may also know, seven World Central Kitchen volunteers were killed in an errant Israeli airstrike in Gaza on April 1st. They were working to provide meals in the Strip where thousands of Palestinians have been killed and millions more face starvation in the face of the Israel-Hamas War, which began after the brutal October 7th Hamas attack.

The strike that killed these aid workers was widely condemned across the globe, and Israel acknowledged its error and took responsibility for the attack. In the aftermath of the tragic killing of their volunteers, the World Central Kitchen, understandably halted operations in Gaza, safety is of course a paramount concern, but this week, the World Central Kitchen announced they’re resuming their work feeding people in Gaza. In a statement, CEO Aaron Gore wrote, “The humanitarian situation in Gaza remains dire. We are restarting our operation with the same energy, dignity, and focus on feeding as many people as possible. To date, we have distributed more than 43 million meals, and we are eager to deliver millions more. Food is a universal right, and our work in Gaza has been the most life-saving mission in our 14-year organizational history.” Along with 68 community kitchens in Gaza, the organization is building a high-production kitchen in the southern town of Mawasi, which Gore writes is affectionately known as Damien’s Kitchen being built to his favorite saying, “No problems only solutions.”

Damien is one of the seven volunteers who was killed in the IDF strike. Gore went on to say, “We have been forced to make a decision, stop feeding altogether during one of the worst hunger crises ever ending our operation that accounted for 62% of all international NGO aid, or keep feeding, knowing that aid, aid workers and civilians are being intimidated and killed. These are the hardest conversations, and we have considered all perspectives when deliberating. Ultimately, we decided that we must keep feeding, continuing our mission of showing up to provide food to people during the toughest of times.” I’m absolutely struck by the bravery of these aid workers, and as I always have, I support and commend the tireless and noble work of the World Central Kitchen.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, David Sanger. 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. You can also now reach me on threads, or you can call and lead me a message at 669-247-7338. That’s six 669-24PREET. Or you can send an email to letters@cafe.com. Stay Tuned, as presented by CAFE or and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producer is Noa Azulai. The audio producer is Nat Weiner. And the CAFE team is Matthew Billy, Jake Kaplan and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay Tuned.