• Transcript
  • Show Notes

On this episode of United Security, “Arms, Protests, Ballots,” Lisa Monaco and Ken Wainstein break down politically charged national security issues making the headlines, including: 

— The legal and policy questions raised by Secretary of State Mike Pompeo’s decision to bypass congressional review on an $8.1 billions arms deal with Saudi Arabia and United Arab Emirates;

— The legal authorities for the deployment of federal agents in response to Black Lives Matter protests in Portland and the related concerns the move raises about the mission of the Department of Homeland Security; 

— Criticisms of the warning issued by William Evanina, director of the National Counterintelligence and Security Center, on foreign election interference.

REFERENCES AND SUPPLEMENTAL MATERIALS: 

ARMS SALES: 

  • 22 U.S. Code Chapter 39—Arms Export Control Act, Legal Information Institute, 1976
  • 22 CFR § 123.15 – Congressional certification pursuant to Section 36(c) of the Arms Export Control Act, Legal Information Institute, 1976
  • Paul K. Kerr, “Arms Sales: Congressional Review Process,” Congressional Research Service, 7/17/2020
  • Pranshu Verma and Edward Wong, “Another Inspector General Resigns Amid Questions About Pompeo,” New York Times, 8/5/2020
  • Alexandra Stark, “Should Congress Play a Role in Arms Sales?” Lawfare, 7/26/2020
  • Scott R. Anderson, “Untangling the Yemen Arms Sales Debate,” Lawfare, 6/14/2019
  • “Examples of ‘Emergency’ Arms Sales,” Forum on the Arms Trade, 2019
  • Peter K. Tompa, “The Arms Export Control Act and Congressional Codetermination over Arms Sales,” American University International Law Review, 1986
  • David Kurlander, “Distressed, Dismayed, and Worried: King Hussein and the Origins of Congressional Arms Oversight,” CAFE, 8/6/2020
  • James M. Markham, “Hussein Says He May Buy Soviet Arms,” New York Times, 8/8/1975

DHS & PROTESTS:

  • “21 former security leaders: We oppose militarized DHS deployment in Portland,” USA Today, 7/28/2020
  • David Kurlander, “‘Basically Opportunistic’ — The L.A. Riots and the Decision to Federalize the National Guard,” CAFE, 6/5/2020
  • “Executive Order on Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal Violence,” WhiteHouse.gov, 6/26/2020
  • 40 U.S. Code § 1315. Law enforcement authority of Secretary of Homeland Security for protection of public property, Legal Information Institute, 2002 
  • 10 U.S. Code § 252 – Use of militia and armed forces to enforce Federal authority, Legal Information Institute 
  • Homeland Security Act of 2002: Public Law 107-296, DHS, 11/25/2002
  • “National Strategy for Homeland Security,” DHS, 7/2002
  • “The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law,” Congressional Research Service, 2018
  • Mary Harris, “How DHS Went to War With the American People,” Slate, 7/28/2020
  • Shane Harris, “DHS compiled ‘intelligence reports’ on journalists who published leaked documents,” Washington Post, 7/30/2020
  • Steve Vladeck and Ben Wittes, “DHS Authorizes Domestic Surveillance to Protect Statues and Monuments,” Lawfare, 7/20/2020
  • Barbara Boxer, “Barbara Boxer: DHS was a mistake. I regret voting for it,” Washington Post, 7/25/2020
  • President George H.W. Bush, “L.A. Riots: President Bush’s reaction,” YouTube, 5/1/1992
  • President George W. Bush, “Hurricane Katrina Response,” C-SPAN, 9/3/2005
  • Douglas Brinkley, “How New Orleans Drowned,” Vanity Fair, 6/2006
  • “Unrest Even at the Top Even During Riots,” Seattle Times, 12/16/1999
  • President Bill Clinton at the 1999 WTO Ministerial Conference, C-SPAN, 12/1/1999

ELECTION INTERFERENCE: 

  • “Statement by NCSC Director William Evanina: 100 Days Until Election 2020,” DNI.gov, 7/24/2020
  • David E. Sanger and Julian E. Barnes, “U.S. Warns Russia, China and Iran Are Trying to Interfere in the Election. Democrats Say It’s Far Worse,” New York Times, 7/24/2020
  • Abby Ohlheiser, “Chinese Hackers Spied on the 2008 Elections, Too,” The Atlantic, 6/6/2013
  • Ken Wainstein Statement Election Security Testimony before the Senate Judiciary Committee, C-SPAN, 6/12/2018
  • “Joint Statement from the Department of Homeland Security and Office of the Director of National Intelligence on Election Security,” DNI.gov, 10/7/2016

BOSTON MARATHON BOMBER: 

  • Court ruling overturning Boston Marathon bomber’s death sentence, Washington Post, 7/31/2020
  • Masha Gessen, “Why a Court Overturned the Death Sentence for Dzhokhar Tsarnaev, the Boston Marathon Bomber, The New Yorker, 8/5/2020
  • Sari Horwitz, “Boston bombings a test and tryout for new counterterrorism adviser Lisa Monaco,” Washington Post, 4/17/2013
  • Lisa Monaco, “Countering Violent Extremism and the Power of Community,” WhiteHouse.gov, 4/16/2014

UNSUNG HEROES: THE CITIZENS OF BEIRUT 

  • “How to Help Lebanon After Beirut Explosion,” New York Times, 8/5/2020
  • “Beirut Explosion: How to Donate and Help Victims of Lebanon ‘Catastrophe,’” Newsweek, 8/5/2020
  • “Israeli square bathed in Lebanese colors in rare show of support over Beirut blast,” Reuters, 8/5/2020
  • Video of Migrant Worker Saving Young Girl, Twitter, 8/4/2020
  • Video of First Responders Before Second Blast, Twitter, 8/5/2020

Lisa Monaco:

From CAFE, this is United Security. I’m Lisa Monaco.

Ken Wainstein:

And I’m Ken Wainstein.

Lisa Monaco:

Hey, Ken Wainstein.

Ken Wainstein:

Hey, Lisa Monaco. Good to see you.

Lisa Monaco:

Nice to see you and it’s literally nice to see you even though we are not in the same place. Still no studio, still no fuzzy microphone between us. But through the miracle of Zoom, been able to turn on the video function while we’re chatting. Is that a UVA t-shirt, big orange t-shirt I see you sporting?

Ken Wainstein:

Yeah, I’m glad you noticed. It’s one of my about 43 different UVA national championship t-shirts. Did I mention national championship?

Lisa Monaco:

Yeah, exactly.

Ken Wainstein:

I got to say I’m a little bit shameless about that.

Lisa Monaco:

A little bit?

Ken Wainstein:

Guilty as charged. Yes.

Lisa Monaco:

We have so much to discuss this week, Ken. We’re going to talk about controversy over arm sales by the US government to Saudi Arabia. Also, the firing of this State Department Inspector General, which attentive listeners may think well, geez, that’s old news, Lisa. But stay tuned, it comes back. In relation to the arms sales issue, we’re going to talk about everything that’s been going on with DHS and the deployment of federal agents to Portland and that whole controversy. The recent intel assessment also from counterintelligence officials about election interference.

Ken Wainstein:

Yeah, so quite a few things here to deal with. Let’s start with the arms sales. Got to take these two seemingly disparate pieces of news and the firing of Steve Linick, and the policies and laws surrounding congressional notification about arms sales to foreign countries. But the connection here is that Steve Linick was fired and now the House of Representatives has initiated an investigation into that firing, and just this week issued four subpoenas to different State Department officials looking into the firing that took place back in May of the IG, Steve Linick.

Ken Wainstein:

The allegation that they’re looking into is whether or not that firing was in retaliation for investigations that he was conducting and or to chill investigations that he was conducting of the State Department and maybe specifically, of the Secretary of State Pompeo.

Ken Wainstein:

A couple of different investigations that have been highlighted in the press that Linick was conducting. One had to do with Pompeo’s use of State Department personnel for his own personal purposes, and whether that happened.

Lisa Monaco:

Like running errands and going to the cleaners and that kind of stuff.

Ken Wainstein:

Exactly. Booking reservations and this kind of thing. That was one of them. The other that had to do with arms sales, and specifically Pompeo’s decision in late May of this year, that he would go ahead and authorize, that the president would go ahead and authorize the sale of over $8 billion of arms to Saudi Arabia in the UAE, United Arab Emirates. To do so without first securing congressional approval. That is a policy decision that he and the President made that Steve Linick said that he was authorized to investigate.

Ken Wainstein:

The Secretary of State took umbrage and took exception to him conducting that investigation, but the IG said that he was fully authorized to do that. That was within his mandate as an IG, and that’s one of the reasons reportedly, he was fired.

Lisa Monaco:

Yeah. As you said, in the lead in, Ken, at first glance, it seems kind of strange, how do these two stories come together? These two threads seem to come together, because it looks like from the reporting, and now some hearings and some investigation that Congress has been doing, that Linick may have been fired because he was investigating whether it was appropriate for Pompeo to basically go around, or [inaudible 00:03:55] to go around Congress by getting the president to declare an emergency, that said it’s in our national security interest to sell these $8 billion worth of arms to Saudi Arabia, notwithstanding Congress’s views on the matter.

Lisa Monaco:

What we should unpack is what is the role here of Congress when it comes to us arms sales? Historically, the US government is authorized to sell arms to allies and partners. This authority dates back to pre-1800, that there’s long been a practice of us supporting our allies and partners, including through arm sales. Then there’s grown up a series of statutes that provides the framework for the US government to do these arms sales. But there’s been, I think, historically a tension between how much say in the matter Congress should get, and there has been a tooing and froing if you will, between where and how Congress gets to register its views.

Lisa Monaco:

I think there’s reasonable differences on this question. Should Congress have to approve arm sales, or do they only get to register their disagreement by passing a statute? Then it has to go to the president to either veto that statute and then the Congress has to muster enough votes to override that veto. That’s a big hurdle for Congress to be able to do, and historically hasn’t been able to block arms sales through that kind of cumbersome process.

Lisa Monaco:

In the case of the Saudi Arabian sales, we know, dating back to last year that Congress has registered its deep and bipartisan frankly concerns with continued arms sales to Saudi Arabia, in the wake of a few things that have ruffled feathers, by partisan feathers, that is. One, that the continuing waging of a conflict in Yemen that has been led by Saudi Arabia resulting in massive humanitarian devastation in that country. Then, of course, the killing, the murder, the brutal, brutal slaying of the journalist Khashoggi, and the bright light that shined upon Saudi Arabian crackdown on dissidents and the like.

Lisa Monaco:

In the wake of those things, Congress has said, wait a minute, we’re not so much on board with continued large scale sales to Saudi Arabia. They passed a resolution signaling their displeasure. But that’s where it lay, as I understand it, correct me if I’m wrong, Ken, until Pompeo decided, wait a minute, we now need to do this national emergency to move forward with these arms sales, notwithstanding Congress’s displeasure with these arms sales.

Lisa Monaco:

It’s in that frame, and in that scenario that Linick, it seems reportedly initiated an investigation as to motives behind this declaration of a national emergency and moving forward with these arms sales. It really raises, not only, of course, questions about the propriety around firing an independent inspector general, but of course, is this the right way to move forward with an arms sale when Congress has signaled its displeasure and who should really get to weigh in? And when should Congress be able to stop an action, like a US government sale to a partner, clearly a partner in many efforts but a complicated partner in many of our foreign affairs efforts.

Ken Wainstein:

Yeah, a very complicated partner. You cited the two human rights concerns that I think are most at the fore. The human rights abuses that have been seen down in Yemen, and that ongoing tragic war, and then, obviously, the killing of the reporter. But, in this instance, Pompeo claimed that there was an emergency, and the emergency that he cited was that Iran was making efforts to destabilize things in the Middle East, and they couldn’t wait for Congress to consider this at length anymore, and they needed to go ahead and get these arms to our partners.

Ken Wainstein:

As with so many of these national security issues, it’s really a matter not of looking at a bright line law because the laws often don’t give you the answer about what is expected or appropriate. It’s rather what long standing practice has been? As you pointed out, the statute that provides for this Congressional review, it does provide for review, but Congress has never been able to actually stop a sale from happening when the President is wanting to go ahead with one.

Ken Wainstein:

If you go back and look at how this has played out in the past, you see that this actually grew out of the statute that we’re referring to, the Arms Export Control Act, grew out of the early 1970s, when Nixon pivoted from providing direct military or direct military involvement as he did in Vietnam and lived to pay the price for it, and pivoted to trying to provide support to allies through munitions and arms. Made a big effort to do that.

Ken Wainstein:

President Ford carried that on. He actually, at one point in 1975, decided he wanted to sell missiles to Jordan, to help Jordan. That raised a lot of concern, especially in Congress that those missiles could use against Israel, one of our closest allies in the world. There was a very public debate about that. King Hussein of Jordan went public saying that if he didn’t get those missiles, he would go from them looking to the US support to looking for support from the Soviet Union.

Speaker 3:

The American Congress has threatened to block the deal, or at least to reduce the number of missiles sold. We asked the king, if he’d accept this.

Hussein:

We will definitely not accept any cuts, not by one single missile of the required number of advanced talks that were agreed to be the bare minimum required to defend our skies against an incursion. We feel obviously threatened, and we hope that the deal will go through. We appreciate very much the positive stance of many senators and congressmen on this issue until now, and we hope that the facts will be clear.

Hussein:

We cannot see why talks in Israel should be considered defensive and talks in Jordan should be considered offensive?

Ken Wainstein:

This is the height of the Cold War. In fact, our own David Kurlander at CAFE, one of our producers has written a very good article about this issue. That then led or that laid the groundwork for the passage of the statute that provided for this Congressional review, but it also provided for an exception. The exception, as you said, is this emergency. The emergency cited here is the concern that Iran is going to undertake destabilization efforts, which is what they’ve been doing for quite some time.

Ken Wainstein:

The question is, is that enough of an emergency to justify circumventing Congress? When you look back at I think, in fact, Pompeo cited, I think, that there had been four instances where this emergency exception in the statute had been invoked. One of them for example, was when President Carter in the aftermath of South Yemen that was a Soviet ally, attacking North Yemen, which was already allied. He wanted to get arms quickly to North Yemen so that they could rebuff the attack. He used the emergency exception because he didn’t believe there’s time for Congress to fully vet this over 30 days, he needed to get the arms to our allies so they could actually respond to the attack.

Ken Wainstein:

Query whether this emergency cited by Secretary of State, Pompeo is on a par with that kind of emergency, to really justify going around Congress. Congress, well, it might not have the ability to prohibit practical ability, really to prohibit these arms sales because the president can always veto a resolution banning the arms sales. It provides for very important input and balancing of our foreign policy approaches. I think respects the constitutional prerogatives that are given to Congress in the area of foreign affairs.

Lisa Monaco:

Look, Congress has got a number of constitutional powers that they are responsible for. This is Congress weighing in on these types of issues, on these types of arms sales, it’s completely consistent with their role in our separation of powers system. Then on the other end, you can say, well, look, who is Steve Linick, the Inspector General to be initiating an investigation into what is ultimately a policy debate? I think that’s the basic outline of the arguments.

Lisa Monaco:

I’m curious, Ken, where do you fall? What’s your take on both of those?

Ken Wainstein:

Look, my bias is often to be concerned about any mechanism that slows down the executive branch’s ability to effectuate its foreign policy objectives. So often, there’s a need for speed. You’ve got to get things done. Allies are looking to you for assistance, you need to be able to provide it. You have obligations that by treaty, by statute, by personal assurance, you need to be able to back up those obligations to be a real ally and leader in the global order.

Ken Wainstein:

It’s very difficult… Look, we’ve seen this starting with George Washington, very difficult for George Washington to be… I remember a story about how, in terms of his first treaty, he actually went to the senate and sat down with the senate to consult with the senate about the treaty. Said, there’s so much bickering back and forth, he walked out and said, “I’m never doing that again.” No president has done it again. Now, there’s a much more limited and separated treaty consideration process. The problem is it’s very difficult to work in real time if you have to run your foreign policy decisions by Congress.

Ken Wainstein:

I understand the concern of the executive branch, no question about it. Bottom line, though, is there’s a law. The law creates an exception. The question is whether the circumstances that we have here, justify that exception. That I think is probably what Steve Linick was looking at, and I think there is a legitimate question as to whether that really is core policy that the IG shouldn’t be second guessing or is it a possible unintentional misinterpretation of a law in order to effectuate a policy position?

Ken Wainstein:

Seems like a fine distinction, but it seems like the former should be outside the scope of the IG responsibilities. The latter more of something that you’d expect an IG to look at.

Lisa Monaco:

Yeah, look, IG’s are charged to, at their broadest level, investigate waste, fraud and abuse within their agencies. But here you could see this particular investigation about the declaration of the emergency, it’s falling into the abuse category. Is this an abuse of State Department authority to effectuate a political outcome?

Lisa Monaco:

I think it is probably not a stretch for him to be doing this investigation, if that is in fact, the case, as has been reported. But I think it’s a more interesting question what should be the role of Congress in this. You talk about the need for speed, which of course, I understand, I think that’s right. You and I have both served in the executive branch and know the importance of being able to move out quickly and efficiently once a policy decision is made. But, I also would say that there can be important back and forth with Congress to help shape those policy decisions.

Lisa Monaco:

I think about my own experience, for instance, when we were wrestling in the Obama administration with what to do with the situation in Syria, suffice to say there was a lot of controversy over whether or not to provide assistance and training and other things to the Syrian rebels at the time to help push back against the Assad forces and terrorist and other forces in Syria that were taking advantage of the chaos there that had been wrought by Bashar al-Assad. Some in Congress really wanted to weigh in on that.

Lisa Monaco:

I remember I and others in the national security community went up and did a series of briefings about what we were doing and what assistance we were planning to undertake. Getting feedback from members of Congress on those proposals, I think helped us shape them. Frankly, it’s going to be better from a national security perspective, if you’re moving out as a country with not just the executive branch moving out with regard to a particular policy, but it’s one that’s got buy in from at least some in another branch of government, namely, the congressional branch. We’re going to be better from a national security perspective if we’re not doing so in a siloed manner.

Ken Wainstein:

Very persuasive point. But, before everybody gets too convinced by your strong point, they’re on the other hands on the other hands, right? There’s the value not only in speed and agility, there’s the value in our allies, and frankly, even more importantly maybe our adversaries seeing that we act consistently within our foreign policy, that we set a foreign policy and that we then move forwards or holistically, but all focused on what those laid out foreign policy objectives are.

Ken Wainstein:

One could argue that on something as vital as this providing arms to allies, if the president sets out a policy, let’s say in the Middle East, we’re going to support country A, B, and C, and not D E and F, and then tries to effectuate that policy with an arms sale. Then Congress comes along and says, “No, no, we actually like D more.” Well, that provides for inconsistency in the application of our foreign policy, makes us less predictable to allies and adversaries, and therefore it could undermine our foreign policy objective.

Ken Wainstein:

I think it is a tough issue. I see how, very smart, capable people on both sides have taken strong positions on it. Frankly, ironically, one of those strong positions, I think we should probably cite here was laid out by a member of the Senate, back in 1986. As I recall in that instance, this United States Senator proposed that we flip the script instead of in other words, instead of having Congress try to stop an arm sale, that it disagrees with, a change in the law to allow Congress or to provide the Congress has to actually affirm really approve arms sales before they go forward. Which, of course, would cede much control over this area from the executive branch to the congressional branch, and is a pretty critical separation of powers question.

Ken Wainstein:

Interestingly enough, that Senator was none other than Joseph Biden. The interesting question to think about whether he sees that issue the same way or will see that issue the same way if he’s elected to the United States President, and might be seeing the issue of who should have more control over arm sales in a different way, in accordance with the proposition that, where you stand on an issue it depends on where you sit.

Lisa Monaco:

Yeah, exactly. I was just going to say that. That old saying is apropos here. It’s this question of, should Congress have to affirmatively… I can see a lot of the same challenges with having Congress have to affirmatively approve, versus, seek to block. You’re going to run into the same problems, particularly, in our dysfunctional political environment that we operate in today. Getting any consensus or sufficient consensus around a position, whether it’s to block or to affirmatively approve, is going to be a challenge, quite frankly, in the world we’re operating in today.

Lisa Monaco:

I think, where I come down on this is, ideally, you have a back and forth. There’s different ways that Congress can weigh in here and have its views known. The current environment is and the current framework is the executive branch provides notification in advance of a desired arms sale, right. There’s different levels. If it’s an arms sale, over $14 million, you need a 30 day review period. If it’s of a different type of assistance over… There’s different thresholds, 200 million, et cetera.

Lisa Monaco:

The executive branch provides notice. In that time, in that 30 days, Congress can seek to block by mustering enough votes to pass a joint resolution that then has to go to the president to either be signed into law or vetoed, and then as we’ve observed, then the Congress would have to muster a two thirds majority to actually override the veto.

Lisa Monaco:

All of that can happen within 30 days. That allows Congress, that process allows Congress to make its views known, and there can be a back and forth between the legislative branch and the executive branch to shape, maybe put in some more requirements on what those arms can be used for, some reporting issues and the like. Having that notification period can drive those discussions. That has been the normative way this has been done.

Ken Wainstein:

Yeah. I think you put your finger on it. It’s actually worked since the statute was passed in the ’70s. The process has worked to give Congress meaningful input, not so much by operation of the statutory requirements, but more by the norms that developed through practice between the executive branch and Congress. We now hear that, in fact, there’s been reporting recently that in the aftermath of Secretary of State Pompeo’s decision on this particular arms sale, that the executive branch that the administration is considering dispensing with these informal process notifying and seek review from Congress, or at least, the meaningful review beyond what’s was laid out as a requirement of the statute.

Ken Wainstein:

I think that would be unfortunate, because that’s dispensing with a norm-

Lisa Monaco:

As we’re having this discussion, I’m thinking, once again, we find ourselves discussing norms, and activities of the day and news of the day that is challenging those and busting through those norms. I think, Ken, we ought to develop maybe, United Security Podcast bingo, every time we say norms, that we should have a bingo card.

Ken Wainstein:

Good idea. It’s always important to step back and revisit and reconsider those norms. Every time I walked into a new job in government, the first thing you do is you get briefed up by the people that you’re going to be working with, and they would tell you, this is the way things are done, and it’s important, it’s important to bring new people in. That’s one reason why I think the political appointee process is a good one, because it means you step into this organization, and you rethink, oh, this is the way things are done. Is there a reason for that? Should it be done that way?

Ken Wainstein:

That’s a healthy process. I’m not objecting to rethinking norms. Reconsidering them, thinking whether they’re now maybe they no longer fit the times we live in, but abandoning norms for the sake of abandoning norms is dangerous, and I think undercuts the collaborative government that creates good foreign policy.

Lisa Monaco:

Well, another area where we seem to be busting through norms is what’s been going on with DHS, and deployment of federal agents. I almost said federal troops, federal agents to Portland, that’s been going on and roiling that community over the last couple of weeks. So much to discuss here as well, Ken. I mean, as I look at these reports, and I see these images and try and keep up with the latest that’s been happening out there, so many things that are… I think it raises so many issues, in addition to the proper role of federal law enforcement agents in what is a matter of state and local policing.

Lisa Monaco:

But it also raises profound questions about the role of the Department of Homeland Security. This is an agency relatively young in our constellation of federal agencies, and I suspect you’ve got a unique perspective on because it, of course was set up after 911 and signed into law by President Bush for whom you were the Homeland Security Advisor, what is all of this… I think we’re going to dive into that.

Ken Wainstein:

Yeah, whole nest of issues. I think just full disclosure, both you and I signed a letter recently that got published, I think in USA Today. It was a letter raising concerns about the deployment of DHS personnel out to Portland specifically. It was a bipartisan group of people from the law enforcement and national security communities, raising the concerns. The concerns, there were a number of that we laid out. This goes back to the origins of DHS where DHS really was set up, it was designed specifically to forge and submit the partnership between federal law enforcement and counter terrorism efforts and state and locals and tribal authorities.

Ken Wainstein:

The concern here was if this deployment was done without the express invitation and even though that the objection of some state and local leaders, what was that doing to that partnership, and that relationship of trust that you need for state and locals to work effectively with their federal counterparts? Then, another issue, of course, is the concern that there might have been political motivation to try to demonstrate a firm response to these protests.

Ken Wainstein:

Once again, as we’ve always said, there are political calculations to every policy decision that’s inherent in our government, but people have raised that concern. The last thing I’d say, is this, and I think this is a very real and very practical concern, crowd control and dealing with protests, especially protests that have elements that are positive and peaceful, and elements that are not is very difficult to do. You don’t know how to do that just by being a law enforcement officer. Your average CBP or Secret Service Officer is not necessarily going to have training in how to deal with that.

Ken Wainstein:

Think about the forbearance that it requires, as a police officer being out there in that situation, feeling concern for your own safety, also dealing with insults and the like often, and having to show restraint. That’s tough, but it’s a function of training. In D.C. where you and I were in the US Attorney’s Office, Metropolitan Police Department, they’ve had some slip ups in the past in terms of how they’ve handled the many demonstrations that happen in D.C. But they’re well trained in that regard because they have so many of them. They’re good at, they understand how to deal with crowd control.

Ken Wainstein:

A lot of the people who got sent out there to Portland, they didn’t have that training. That’s a problem. We’ve seen that problem throughout our history. [inaudible 00:28:43] back to 1770 with the Boston Massacre, that was the issue, they were British soldiers trying to deal with [inaudible 00:28:50] and the question was whether these people were demonstrating, had the right to do and say what they’re doing or did they not have the right to throw ice and rocks at the British soldiers? The British soldiers shot five or six of them, and actually, John Adams, our first vice president, or second president, defended them in court and got, I think most, if all the British soldiers off, arguing that they were trying to control an unruly crowd, and therefore, that was an appropriate use of force.

Ken Wainstein:

We’ve seen that over the years and we saw the terrible tragedy at Kent State. It’s a tough thing to do. I think the idea of sending people out into something like Portland, who were not trained as to how to calibrate the use of force, given the shifting circumstances of a crowd like that, that’s very dangerous. I think, unfortunately, we saw the consequences of that.

Lisa Monaco:

Look, I think that’s one of the many reasons that policing, basic policing functions have always been left to the state and local authorities. It’s a matter of both constitutional framing, part of really the function of the 10th amendment, that those functions that are not enumerated for the federal government or left to the states, and policing, and the basic policing function has always been in that category. A quintessentially state and local function.

Lisa Monaco:

Here… I take your point about training, but on that theory, you could obviously train federal forces to do this and federal agents do this, but are they the right ones to be performing that function? I think, frankly, what we’re seeing going down in Portland is, by and large, certainly if they’re not invited, and they’re going beyond as some of the reporting has indicated, they’re going beyond the specific function for which they’re allegedly being deployed, i.e. to protect specific federal buildings, we should just back up a minute, Ken and describe for folks what it is that these federal agents were doing or purportedly doing and under what authority?

Lisa Monaco:

They were frankly, I think, legal commentators have all concluded. They actually the deployment of those agents, there is a law providing for that. But this is quintessentially the area of it may be legal, but is it smart, right?

Ken Wainstein:

Absolutely. I think that’s the case that there’s a law that allows the president to deploy federal forces to protect federal property. In this case, they were concerned about the federal courthouse. So, their justification was, we’re going to use this statue to deploy our forces to go out there and protect the federal courthouse. As you point out, it was lawful, the question is whether it was consistent with all these other concerns that we’ve laid out. Then how it was actually effectuated.

Ken Wainstein:

There are some concerns about this, that maybe these forces didn’t just go out, or these personnel didn’t go out and just stay around the courthouse and provided perimeter defense. But in fact, weighted in to do crowd control and enforce the law beyond the federal property.

Ken Wainstein:

Then there’s a question, there was an executive order that the President issued, which talked about the need to use federal authority and federal personnel to protect monuments and the like. The question is whether that extends to not just federally owned monuments, like the Washington Monument or what have you. But a lot of the Confederate monuments that are being defaced or pulled down are not owned by the federal government. They’re owned by municipalities or states. The question of whether federal forces can be used for that, under that provision of law that I just cited.

Lisa Monaco:

You raised two things. We talked about the law that provides that the federal law enforcement agents have a responsibility to protect federal buildings. That is true. It is normally conducted by an agency within the Department of Homeland Security called the Federal Protective Service. These are the folks, you go into your local federal courthouse, and these are the folks who are protecting that building during the screening, et cetera.

Lisa Monaco:

Well, what happened in Portland is that the Secretary of Homeland Security, also I should say Acting Secretary of Homeland Security, and we’ll get back to that issue in a minute, used an authority that the Secretary of Homeland Security has, which is to augment, add additional law enforcement agents to supplement the Federal Protective Service. What happened is, he deploys to Portland, against the wishes of the mayor and governor there, deployed additional federal law enforcement agents. In this case, from Customs and Border Protection, I think some US Marshals from the Department of Justice were also used in some instances. Sends them out there allegedly to help the Federal Protective Service protect federal buildings.

Lisa Monaco:

Then as the reporting indicates, they didn’t necessarily stay just at the federal building locations, but, the very disturbing reports that some of these agents were out in the streets, in unmarked vehicles, wearing military style uniforms, unmarked uniforms, and in some instances, detaining individuals, and not telling them for what reason they were being detained, not ultimately charged in many instances, et cetera.

Lisa Monaco:

If you go back to the origins of the Department of Homeland Security, and this is where I want to get your take, Ken. As somebody who was, as they say, present at the creation of the Department of Homeland Security, do you think you guys and President Bush envisioned defacement of monuments as a homeland security threat?

Ken Wainstein:

Yeah. To answer that question directly, no. But to step back a minute, I was there at the creation, I was working with Bob Muller at the FBI and blessedly was not actually involved in the sausage making that resulted in the merger of 22 separate agencies into one behemoth department. But, we were there as part of that effort. It was… Look, I don’t remember any talk about the DHS being or devolving into a national police force.

Lisa Monaco:

Right. Quite the contrary.

Ken Wainstein:

Yeah. The idea was for DHS to be a mechanism for partnering with state and locals not to become an uber police force that would then parachute in and supplant state and locals. That wasn’t ever something that was on my radar as one of the objectives of DHS. Also, as a result, I don’t remember there being much talk about concern that DHS might end up being used for overreaching. That there might be the merger of these agencies would somehow raise the prospect that DHS personnel could be misused down the road.

Ken Wainstein:

The creation of this agency, under a lot of pressure from Congress in the aftermath of 911. People have debated it since and some people who voted for it in Congress back then are now regretting their vote for a variety of reasons. But it was, as being part of a particular bureaucracy, DOJ who was impacted by this consolidation. I remember, we were very concerned about losing any of our critical functions to DHS. Ultimately, DOJ and FBI could not.

Ken Wainstein:

In fact, I remember Attorney General Ashcroft was shedding crocodile tears about losing INS to DHS, immigration is just a very difficult, thorny area, especially after 911 where there are a lot of questions about whether INS had handled things correctly. In fact, I think the thing that really… Straw that broke the camel’s back for Attorney General Ashcroft was when the INS sent student visa approvals to two of the 911 hijackers, actually specifically to their flight school six months after they had flown airplanes in the World Trade Center.

Ken Wainstein:

Anyway, I think Ashcroft was perfectly happy for INS to go to another department. That was a lot of what we were worried about at the time [inaudible 00:37:23] That concern though, about a national police force was not one of the things that was front of mind.

Lisa Monaco:

It’s interesting, because, as you know, I grew up in the same post 911 framework, understanding that that was the purpose behind DHS and not to be a federal police force. You and I as former prosecutors, the notion that you go into a jurisdiction over the objection of the state and local officials to carry out some type of federal law enforcement mission is just anathema to the whole enterprise. As I look, it was unfolding in Portland, I think, geez, how are these federal law enforcement officials and these agents going to… When all of the dust settles on these protests and the federal role in it, how are they going to join forces with the local police or the state police on the inevitable number of task forces that they have to serve on together, side by side?

Ken Wainstein:

True, though, that raises another concern, which as you said, it’s better, no question is better to act at the request of the state and local authorities, and that’s what I think every president would prefer. You don’t always have that, though. I think we can go to the first cousin of deployment of federal law enforcement personnel, and look at the deployment of the military. As we alluded to a little bit earlier in the broadcast, there’s actually statute that prevents the use of the military for domestic law enforcement purposes, the Posse Comitatus Act that says you can’t use the military for law enforcement except in certain circumstances.

Ken Wainstein:

One of them as laid out in the Insurrection Act, is if there’s open insurrection in an area. There are two challenges, a couple of challenges there in terms of how to apply that. One is defining what insurrection is for purposes of allowing the use of federal forces. We’ve seen different presidents struggle with that. I know, George H.W. Bush, invoked the Insurrection Act to send military personnel into LA to try to regain order after the riots in 1992. I believe he did that actually at the request or with the consent of the governor at the time, as I recall.

Lisa Monaco:

That’s right, Governor Wilson, I think at the time made that request.

Governor Wilson:

This morning, I’ve ordered the Justice Department to dispatch 1000 federal riot trained law enforcement officials to help restore order in Los Angeles beginning tonight. These officials include FBI SWAT teams, special riot control unit to the US Marshal Service, the Border Patrol, and other federal law enforcement agencies.

Ken Wainstein:

Right. That was fairly clean from that perspective. Another incident where this came to head was after Katrina, and you recall in 2005, Katrina was the huge hurricane that hit New Orleans and was devastating to the city. There were reports of widespread looting and disorder and violence. There was, what seemed to many people to be a lull in which the military was not deploying, and many people were calling for the military to be deployed to try to regain order in the streets.

Ken Wainstein:

Since then, it’s come out in some detail that there was a good bit of back and forth between President Bush and the Governor, Kathleen Blanco at the time of Louisiana, who was resisting the use of military forces and was not agreeing to ask the president or even to agree to it. Ultimately, the president ended up calling out the military to come in to help provide support in order, but not with arrest powers. They weren’t given the law enforcement powers.

George W. Bush:

Today, I ordered the Department of Defense to deploy additional active duty forces to the region. Over the next 24 to 72 hours, more than 7000 additional troops from the 82nd Airborne. From the first Calvary, the First Marine Expeditionary Force, and the Second Marine Expeditionary Force will arrive in the affected areas. These forces will be on the ground and operating under the direct command of General Russel L. Honoré. Our priorities are clear, we will complete the evacuation as quickly and safely as possible. We will not let criminals prey on the vulnerable, and we will not allow bureaucracy to get in the way of saving lives.

Ken Wainstein:

That’s been second guests over the years. But that was a situation where the president… The president informed the governor, he has a lot of respect for the role of governor and the prerogative of those states to be the first decision makers when it comes to how to exercise law enforcement powers in their territory. He wanted to grant as much deference to the governor, but she was not inviting him in. As a result, the military didn’t come in, and as a result, some would say that there were some unnecessary days of violence that could have been averted.

Lisa Monaco:

Well, you’re talking, of course, about President George W. Bush at the time, who was the governor of Texas, before he was president. It’s interesting, you pointed out the second guessing, some of that he has done himself, didn’t he, in his book, Decision Points, he writes about wondering if he made the right call?

Ken Wainstein:

Right. He agonizes about that, because that was a difficult period where he was trying to help a situation but didn’t know how far to press and especially given that, just the optics of that he didn’t want to look like he was coercing this governor and it wouldn’t look good both for the governor and for him. He really refrained and tried to allow her to come to that decision.

Lisa Monaco:

This is now reminding me of my own experience on one of these issues. This is when I was a young staffer for Janet Reno, and she was Attorney General at the end of the Clinton administration, it was 1999. There was a significant riots and unrest in Seattle, around the convention of and the meeting of the World Trade Organization, which had been recently stood up to regulate an increase around… Provide regulation and a forum for discussion about trade policy.

Lisa Monaco:

There was a big convening of the WTO in Seattle. Then Secretary of State Madeleine Albright was scheduled to speak, the head of the UN, Kofi Annan was scheduled to speak and President Clinton was traveling out from Washington to Seattle to also attend. It was a huge, huge event, and there erupted tremendous protests against the role of this organization seen by many as an elite forum that wasn’t taking into consideration issues of global inequality, environmental degradation. Sound familiar, right?

Lisa Monaco:

There were massive protests in Seattle, and some of it got quite violent. There was a group of anarchists called the Black Bloc, owing to the all black that they dressed in, including with face masks and the like. They got quite violent in terms of looting and rioting and some setting of some fires. The then Governor of Washington State Gary Locke was wrestling with what to do about this.

Lisa Monaco:

Meanwhile, the meeting of the WTO was getting interrupted. Madeleine Albright, I think, the reports were at the time, I remember she couldn’t get out of her hotel because of the protest to go to the convention to do her speech. There was a lot of pressure on Locke to call out the National Guard that he had at his disposal as governor to quell these protests.

Lisa Monaco:

I remember, it was late, late one night on the East Coast when all this was going on, and I was in the Attorney General’s private office with her fielding phone calls from Gary Locke, the governor of Washington, about whether he would eventually call out the National Guard in his state capacity to help quell these protests? It was very tense moments. If Locke didn’t use his authority as governor to do this, or we’re going to have to take some other measures?

Lisa Monaco:

It didn’t come to that, but it was my first experience researching and understanding these things called Posse Comitatus and the Insurrection Act as a second year lawyer. It’s interesting, Clinton ultimately did arrive to make that speech and he did ultimately make that speech and sought to strike a balance between what the WTO was doing, and what that organization was doing and the grievances being voiced by some of the protesters in the streets.

Gary Locke:

We are called upon here to meet against a background of a lot of people coming here to protest. Some of them, I think, have a short memory or maybe no memory of what life was like in most of your countries not so very long ago. Let me say, again, I condemn the small number who were violent and who tried to prevent you from meeting, but I’m glad the other showed up, because they represent millions of people who are now asking questions about whether this enterprise in fact, will take us all where we want to go. We ought to welcome their questions, and be prepared to give an answer. Because if we cannot create an interconnected global economy, that is increasing prosperity and genuine opportunity for people everywhere, then all of our political initiatives are going to be less successful.

Gary Locke:

I ask you to think about that. When I hear the voices outside the meeting rooms, I disagree with a lot of what they say, but I’m still glad they’re here. Why? Because their voices now count in this debate.

Ken Wainstein:

I think it’s important to note that, the decision to deploy these personnel was made at a time when they didn’t have a senate confirmed General Counsel, and they had fired the general counsel, John Mitnick, a number of months ago, and he was fired specifically because he stood up to the decision to try to take migrants and bust them from the border and release them in sanctuary cities. He said that that was not consistent with law and regulation, and as a result, he got fired.

Ken Wainstein:

Then they now have an acting person in there who doesn’t have the established authority of a senate confirmed general counsel and is not terribly experienced, anyway. As a result, you don’t have these kind of operational decisions being scrutinized and being analyzed according to the law and to regulation and also to norms, and thinking about how, even if there’s the lawful authority to exercise this power, what the implications will be. Someone like John Mitnick, who John was actually my lawyer when I was a Homeland Security Advisor in the George W. Bush administration, and he’s an excellent lawyer, he sees around in corners, he thinks things through, and he stands up for the rule of law under any and all circumstances, which is what he did and what got him fired here, God bless him.

Ken Wainstein:

But, he’s a good man. Had he been there, I think he would have thought about these issues, he would have raised concerns. Even if the personnel were deployed, I’m quite confident that some of those concerns would have been addressed beforehand. That’s an important function of people who are the general counsel’s of agencies like John Mitnick or Steve Bunnell before him, in the Obama administration who did the same thing, and it’s a shame that they weren’t there when these decisions were made.

Ken Wainstein:

Which, just before we… As though they’re not enough dimensions to this issue, let’s go on to another questionable action that was undertaken by DHS in this scenario, and that is the reporting that was done by the intelligence or analysis division of DHS. The reporting that got sent out to state and local partners about the publication of unclassified internal DHS documents by a couple members of the press, including our friend, Ben Wittes.

Lisa Monaco:

Yeah. Talk about yet another bizarre turn that these events have taken. You’ve got a division within DHS called the Office of Intelligence and Analysis. This is an office within the Department of Homeland Security, whose function generally has been to provide what’s called the open source analysis, not using classified tools, and to provide intelligence and analysis to both federal agencies as well as state and local partners.

Lisa Monaco:

Again, there’s that word, about the threat picture out there. Here you’ve got this entity in the Department of Homeland Security. The thing that struck me about this, again, as a lawyer, and as somebody who served in the Justice Department for 15 years and in the FBI for several years, the idea that you would have intelligence collection, about and on, it seems according to the reporting, reporters, members of the press, and US citizens, and the basis for this and the reason for this intelligence reporting seems to be the performance of their duties as members of the press.

Lisa Monaco:

That is just bizarre when you think about it, and really calls into question, I think the authorities at play here. You and I know, having both served in the FBI, you can never predicate an investigation solely on the basis of First Amendment protected activities, namely, the conduct of journalism. This really was a disturbing series of reports here. I think there’s more to come on this. There’s more to be, I think understood about what was going on here. But it really does call into question the management of that office.

Lisa Monaco:

This goes back to this parade of actings. You’ve got the head of the Department of Homeland Security and acting individual, Chad Wolf, not senate confirmed, his deputy, Ken Cuccinelli, also acting, not senate confirmed. The head of this Office of Intelligence and Analysis. Also, somebody no longer he just got removed by the Acting Secretary because of this controversy. But he was the Brian Murphy who headed that office, he was in an acting capacity.

Lisa Monaco:

It just paints a picture of the department with very, very broad authorities being stretched by people who are not seemingly accountable by virtue of being in these acting roles, and not having that same level of accountability.

Ken Wainstein:

Yeah, and look, this episode might just be more a reflection of that dysfunction that’s caused by all the dislocation going on in DHS, as opposed to some super nefarious plot against the First Amendment. In fact, if you look at Ben Wittes, in his typically thoughtful way, he says, look, yeah, I did report on these unclassified internal DHS memoranda, and I don’t begrudge them internally looking into how these memoranda got out. That’s fine, I understand the need for that. What he says is so troubling is the fact that they put in a report, an intelligence report out to others about the fact that these two journalists had reported on these documents as though that is a threat that needs to be disseminated, information that which needs to be disseminated to their partners as a threat to be dealt with.

Ken Wainstein:

That’s troubling. Were that a conscious policy decision, that would be very concerning. I wonder, pure speculation, I wonder if it was just more not understanding the implications of what they were doing as opposed to something more intentional than that.

Lisa Monaco:

But that’s a management issue, right?

Ken Wainstein:

Yeah, absolutely a management issue, and that’s why you need managers.

Lisa Monaco:

Right. The fact that you’d have an office being run in a way that permitted this collection is disturbing. We should point out the memos that were “leaked”, and that were the subject of these Ben Wittes, and I think it was Mike Baker from the New York Times, their report was these were internal memos generated inside DHS for leadership in DHS, I believe describing how the forces and the agents deployed to Portland are not necessarily trained and expert in crowd control and the local policing efforts there.

Lisa Monaco:

To go back to the point you were making earlier about the different missions, and levels of training and expertise that the federal law enforcement agents might have versus the mission they were asked to perform out there.

Ken Wainstein:

Right. Then just to take this to the inside baseball level too, a number of people in the intelligence community or a number of entities in the intelligence community are now citing this as an example of how the intelligence analysis unit over at DHS isn’t up to snuff. I don’t know that i actually buy that because… Well, put it this way, there was resistance from the very beginning in 2002, when it was decided that DHS would have an intelligence capability and the intelligence community, of course, every agency in the intelligence community thinks that they do intelligence better than anybody else in the world. When there’s a new kid on the block, they’re going to look for any opportunity to remind people that that’s the new kid and the new kid doesn’t know what he or she is doing.

Ken Wainstein:

I think there’s a little bit of that going on here. That being said, it does raise the question about, what is the intelligence function of DHS? My understanding from the beginning, and actually I remember being in a conference of intelligence community general counsel’s where back, I think it was in 2002, we got a very thorough presentation about this really robust intelligence operation that DHS was going to have.

Ken Wainstein:

Of course, my question and everybody else’s question was why we need that? We have this intelligence capability elsewhere. CIA since 1947, and FBI since it started doing counterintelligence work, et cetera, et cetera. All of the agencies in the intelligence community, why do we need to replicate that? Ultimately my beat of it was DHS’s intelligence mandate came to focus on really establishing the intelligence cycle between the DHS and the federal level, and the state and locals. Disseminating intelligence to the state and locals who hadn’t historically received enough intelligence, frankly. That was one of the problems, that was looked at after 911.

Ken Wainstein:

I think that’s really been their purpose. I think they’ve added value in that area. The fact that this is a trip up in the intelligence sharing with state and locals makes it particularly troubling because that is where they add value.

Lisa Monaco:

Well, I think this is just the tip of the iceberg on this discussion that has now gotten started because of the Portland controversies. Now, there’s controversy around the role and the product coming out of INA, the Intelligence and Analysis Unit we’ve been talking about, and the broader threat picture that we’re looking at now 20 years post 911, all of these entities were set up, very focused on an external threat. Foreign terrorist actors coming into the United States to carry out a sophisticated plot like 911 and 20 years on, we are now looking at a significant uptick in hate crimes, anti-Semitic crimes, racially motivated violence, anti-government motivated violence, all of which are domestic in sourcing and origin and not linked to a foreign group.

Lisa Monaco:

We’re really going to have to grapple with what is the intelligence mission and enterprise around understanding those threats, consistent with our constitutional system and our First Amendment protections that we rightly treasure and protect and have to as we address those threats. This is, again, just the tip of the iceberg, I think on these discussions.

Lisa Monaco:

But before we leave the intelligence issue generally, we’ve got another piece of more breaking news in the intelligence world, and that’s this most recent assessment articulated by Bill Evanina of the National Counterintelligence Center, about foreign election interference. Far from promoting a unified view and summoning a unified purpose against foreign election interference, it’s really throwing a bit of a hand grenade into the environment here and kicked up quite a load of dust.

Ken Wainstein:

It was interesting. Bill Evanina is the head of the NCSC, which is the National Counterintelligence and Security Center. He issued a threat assessment about election interference for the upcoming election, and he says that they’re primarily concerned with China, Russia and Iran. He then goes through what each of them… The interests of China, the interests of Russian, and the interests Iran in trying to possibly disrupt our election in various ways.

Ken Wainstein:

It’s interesting, one of the things that has caught some criticism before is that it puts Russia on a par with these other two. Of course, Russian interference has been the controversial issue since 2016. Some have seen in the way Russia has put on a parity with China and Iran as an effort to de-emphasize that risk and de-emphasize the role of Russia in attacking our elections.

Ken Wainstein:

But, look, there’s no question that China and Iran have every intention of trying to damage our elections. China, for example, I remember when I was Homeland Security Advisor during the campaign between McCain and President Obama, it came to our attention that China was hacking into the databases and the computers of both the McCain and the Obama campaigns. The decision was made to brief both campaigns up on that, do a defensive briefing.

Lisa Monaco:

Yeah, I remember that. You know how I remember that? I was Chief of Staff at the FBI at the time. I called a guy by the name of Denis McDonald.

Ken Wainstein:

McDonough.

Lisa Monaco:

At the time, he was the Chief National Security Aide to then Senator Obama, who’s obviously the Democratic nominee, and I called up Denis, I’d never met him before. I said, “Listen, you don’t know me. But I’m Bob Muller’s chief of staff, and I want to tell you, you’re going to get a call from a nice guy by the name of Sean Henry, who has been an FBI agent, head of the cyber division at the FBI. He wants to come and talk to you about how China’s trying to infiltrate the campaign.” That was my first introduction to Denis. He and I have chuckled over that introduction many, many times over the years. But of course that was China infiltrating for intelligence collection.

Ken Wainstein:

Right. It was them trying to just get intel on the… Understandably, on the campaigns and on the candidates and their platforms, et cetera. Interesting, I hadn’t realized that you were on the other end of this, because I was in the Oval Office when the president and it was Josh Bolten talked about that intelligence and said, absolutely, got to brief up the campaigns. Then you got the word. Though, knowing the FBI, maybe you guys had already done it before, getting direction anyway.

Lisa Monaco:

Without notifying the White House, exactly.

Ken Wainstein:

That wouldn’t be unprecedented. But it was looking at it, in hindsight, it was quaint, it was just good old intelligence gathering. Of course, in 2008, it went from foreign governments gathering intelligence to full on disruption efforts and efforts to influence the American people. That is one of the reasons why people were concerned about this Evanina statement, because the concern is that it really doesn’t educate the American people about the threat we’re facing.

Ken Wainstein:

While in the context of the China intelligence operations in 2018, that can be addressed by telling the campaigns, “Hey, they’re trying to hack into your systems.” Then you just build your defenses. When the malign efforts by a foreign government, or not just that, but actually go to trying to spread misinformation to the American people. The way to build defenses to that is with the American people. You can only do that, and only build those defenses if you tell the American people to be wary of misinformation and influence efforts.

Ken Wainstein:

The concern is that this statement, and any other efforts that we’ve seen today, haven’t been the clarion call that is needed to tell the American people, watch out, be careful. When you read things, be careful, they might be actually sourced to the Russians, or to the Iranians or Chinese, and might not actually be true. That’s the only way that you can combat that.

Ken Wainstein:

I am concerned that we’re not sensitizing the public to that threat enough, and we might now have a rerun of 2016 if we’re not careful.

Lisa Monaco:

Well, it’s just a replay of having this be waged on partisan grounds. Evanina has issued this intelligence assessment, Democratic leaders have criticized it as being so generic as to be not helpful. Now, unfortunately, that criticism is coming only from one side of the political aisle. It immediately puts all of this into a political maelstrom. But there can be good reasons for not sharing everything that the government knows about what the efforts of these countries, and these malicious actors are.

Lisa Monaco:

You don’t want to disclose, perhaps, how much you know and how you know it. But to your point, I think we really do need to lean forward in describing what it is we know about these efforts so that the American people can make decisions about the types of information they’re seeing in their Twitter feed, in their Facebook feed, and really going into this eyes wide open.

Lisa Monaco:

That’s the danger of either not sharing more information, and having this all be discussed solely through a partisan lens.

Ken Wainstein:

Yeah, it’s worth going back and thinking about how you and your colleagues handled this situation back in 2016, where you faced a very difficult choice, which I’ve had occasion to learn about both I read in the papers and also through some of my representations of former government officials, where you all had to wrestle with the dawning realization of this really comprehensive effort on the part of the Russians to spread misinformation and influence the American voters. But do so in the run up to an election where, obviously, you had a Democratic nominee going up against Republican nominee, and anything that you said publicly would be seen through the prism of the politics of the election and interpreted by some, not as an effort just to protect the integrity of the election, but maybe as an effort to sway the election. I know that was a tough spot to be in.

Lisa Monaco:

Look, I think there’s been a lot that’s been written and said about how the Obama administration or we in the Obama administration responded to the Russian efforts to influence the election in 2016, and to sow discord in the electoral process. I come away from that with a number of things that I think are lessons we should have learned. One, that you need a unified bipartisan response to the Russian effort to sow discord amongst us. They did then, and I think will continue to do and are continuing to do so now, to try and to sow discord and use our divisions and play up our divisions and use them against us.

Lisa Monaco:

The best antidote to that is unity, and bipartisan unity. We unfortunately, were not able to get that in 2016. I fear we’re not better poised now to have a bipartisan, unified approach to foreign influence. Then the other thing is, to your point, give more information to the American people, and do so in as a political a way as possible. We struggled in 2016 with when and how to articulate what we saw the Russians doing. We ended up issuing a very unusual statement by the then director of national intelligence and the Secretary of Homeland Security, on October 7th of 2016, that laid out that the Russians were trying to sow discord and probe our state election systems.

Lisa Monaco:

It was a very unusual, unprecedented statement at the time. But it quickly got drowned out. We said in that statement that it was being directed by the highest levels of the Russian government. We didn’t say the words of Vladimir Putin, but we might as well have, because of the way that statement was written. But it quickly got drowned out because on that same day, the Access Hollywood tape dropped and all attention focused there. I think in the future, what we really need is a clear mandate for the intelligence community to tell the American public what it knows about foreign election interference, and to do so in an unclassified forum.

Ken Wainstein:

Yeah, and I think that’s vital. It’s unfortunate that we don’t have a mechanism in place to do that. In fact, in the aftermath of the election, I testified before the Judiciary Committee and the Senate, along with a few others on this very issue.

Ken Wainstein:

Another proposal draws from the lessons learned in the run up to the 2016 election, when the Obama administration struggle with the question whether and how much information to provide the public about the Russian interference efforts they were detecting, torn between a desire to inform the public and the need to refrain from public announcements that could be seen as an attempt to affect the outcome of the election.

Ken Wainstein:

In order to avoid that dilemma in future election cycles, some have recommended that Congress pass legislation recommending or requiring the DNI to report at intervals leading up to a federal election, whether the intelligence community is detecting any foreign interference with the upcoming election and the source and extent of that interference. Thereby ensuring that voters are on notice and on the lookout for misleading propaganda and disinformation in the run up to an election, which is the most effective way to neutralize a foreign influence campaign.

Ken Wainstein:

One of the things that we proposed, and I’m sure I stole the idea from somebody else, but one of the things I was pushing was exactly that, a law that says that maybe at the nine month point before an election, and then at the six month or at the three month point before an election, the intelligence community is mandated to provide the American people and Congress with, respectively unclassified and classified reports on what sort of foreign interference efforts they’re seeing, so that the American people can be as advised or as informed as they can be within the constraints of classified or within the constraints of an unclassified context.

Ken Wainstein:

That Congress can receive the same briefing in a classified way, so that nobody can say that the intelligence community of that particular administration had a political agenda in deciding to make those reports, they’re mandated to make them. That takes the next administration and if that had been put in place, it would take this administration out of the very difficult position you guys were in and deciding whether and how to inform the American people and Congress about what you’re seeing.

Ken Wainstein:

Unfortunately, that wasn’t taken up by Congress. While I’m sure there are things being done behind the scenes in terms of intelligence operations and the like to try to rebuff any kind of efforts like that, it’s unfortunate that we haven’t done more to get the word out to the American people of what kind of threat we’re facing.

Lisa Monaco:

I totally agree. Having that type of mandate would take the politics out of it, and would just put it as a routine mandate by the intelligence community to make those reports.

Ken Wainstein:

We’ll see what happens after the election, and hopefully, we’re not regretting or really regretting our inaction on these fronts. Look, before we wrap up on what’s been a conversation I really enjoyed, I want to cite something that’s probably very meaningful to you, which is the decision by the federal appeals court, just last week, to set aside the death penalty against the Boston bomber.

Ken Wainstein:

As you, Tsarnaev who had received the death penalty, appealed his death penalty, and the court of appeals found that the district court judge who had tried the case had not done enough to explore the impact of pretrial publicity on the jury that rendered the capital punishment sentence. So, they [inaudible 01:12:22] the death penalty, and then sent it back to the court to have hearings about the impact of that pretrial publicity on the sentence.

Ken Wainstein:

I raise that for you because you were, I think, two or three days into the job as Homeland Security Advisor when this happened, and so I’m sure this is something that brings back some painful memories for you.

Lisa Monaco:

Yeah. Well, first, although it felt like I was two or three days on the job, I was in the beginning of my third week on the job when the Boston Marathon bombing happened on that Monday in April of 2013. In many respects, it’s a blur, but it was an incredible week, actually, when I think about it. I was, as I said, starting my third week on the job as the Homeland Security and Counterterrorism adviser to the president.

Lisa Monaco:

I started off my day, working on totally different issues, actually, a pandemic related issue to start hitting off that Monday morning. Then that afternoon when we got word of explosions near the finish line in Boston, my thoughts were multifold. First, I thought, all right, I need to be up in the Oval Office in about five minutes to tell the president what we know and what we don’t know and what we’re doing about it. I was furiously calling the FBI Director, Bob Muller, the CIA director, the head of the National Counterterrorism Center to figure out what do we know so that I could brief the president. But I was simultaneously thinking about my family, because I grew up just outside of Boston in Massachusetts, and the Boston Marathon Day, every year in Boston and the suburbs around Boston was a holiday, was a local holiday. Patriots Day.

Lisa Monaco:

We always had it off from school, we always would go to watch the marathon, my brothers and I. One of my oldest brother’s would run it and had run it in the past. I knew one of my brothers and his kids were probably watching the marathon and were lining the route. I was worried, were they in danger? Were they part of any melee? What was going on there? Well, with my family, one of my other brothers lived near the finish line.

Lisa Monaco:

It was a real chaotic jumble. But first and foremost, I had a job to do, and it was the, as I said, very, very early days for me in a very high pressure job and something we had never seen, really, it was very early days, in a very high pressure job, and I was immediately being faced with a real crisis, and we didn’t know what it was.

Lisa Monaco:

All we knew in those first hours was explosions near the finish line. We didn’t know by whom, motivated for what reason and what else might be coming our way. That decision, and that news this week produced a flood of memories, but also on the decision itself, it just made me concerned for the families and the victims and their families, that it just dredges up all of this again, and continues to put them through more of a searing experience than they’ve already had.

Ken Wainstein:

Right. That’s the very sad part that no matter how right the course decision might be, and gosh knows that we need to make sure to protect due process and all parts of our criminal justice system, but particularly in the meeting out of the death penalty.

Lisa Monaco:

Absolutely.

Ken Wainstein:

Regardless of whether it was right or wrong as a decision, it is a shame that it’s now dredged up a lot of these painful memories for the victims who thought that they had closure and this was behind them. Our hearts go out to them.

Lisa Monaco:

Now, before we wrap up, Ken, we should talk about our unsung hero this week, or unsung heroes this week.

Ken Wainstein:

Absolutely. Talking about our hearts going out to people, our hearts go out to the people of Beirut-

Lisa Monaco:

Absolutely.

Ken Wainstein:

… in these very difficult days. They have suffered an unspeakable tragedy.

Lisa Monaco:

Yeah, there have been stories of two explosions and boy, the pictures that have been coming out from these two massive explosions at the port of Beirut in Lebanon, just over the last couple of days. The latest numbers are that 135 people killed and around 5000 injured. But we can expect those estimates to continue. Lots of question about the origins of these explosions.

Lisa Monaco:

The best information, I think, coming out is that it may have been an accident, because the source of the explosion was 2700 tons of ammonium nitrate, which is a highly combustible explosive material.

Ken Wainstein:

Which was used in Oklahoma City.

Lisa Monaco:

It was, exactly right. That was the source of the explosives in Oklahoma City. It was being stored, it looks like, by port authorities near this port and may have been stored improperly, we don’t know. But the best estimate, it seems, and the best information we have at this time, is that it may well have been an accident, notwithstanding claims recently by President Trump that it was an attack, it looks like the Department of Defense has tried to walk that back.

Lisa Monaco:

But, beyond the inevitable questions of what caused this, we’ve seen some really, really just incredible pictures and stories of people coming together in the face of this unspeakable tragedy, in the face of this crisis.

Ken Wainstein:

Yeah, and as with all these disasters, and tragedies, you see the best in human nature and many instances in here, thanks to our visually connected world, so much of this episode has been caught on video and published around the world. There’s one video of a worker in a house who saw the explosion coming in, went and grabbed her employer’s child and ran her away from the window to protect her from flying glasses and flying shards of glass. Then videos of firefighters putting themselves in harm’s way and then actually getting killed by the blast.

Ken Wainstein:

These are the kind of images that show what people do to help other people in these kind of situations. Like we saw after 911, like we’ve seen throughout our history after disasters. Both at an individual level like that, and also at the government level where many governments have stepped forward to help out, provide Lebanon a helping hand.

Ken Wainstein:

I think one thing that really brought tears to my eyes, it was reported that Israel has been providing humanitarian aid despite the very tense relationship between Israel and Lebanon, and apparently, a couple of nights back, just as a show of solidarity with Lebanon, they bathed the Rabin Square in Tel Aviv, in the colors of the Lebanese flag, which is something you wouldn’t expect to see. But it was a nice sign of solidarity. The fact that at the other day, we’re all human, and we’d have to look out for each other.

Lisa Monaco:

We’re sending our prayers to those who are in that crisis right now. Also, if you’re interested, any listeners who are interested in donating aid, check out our show notes, and there’s information there about where you can donate to NGOs and to other aid organizations. If you’re interested in providing some help for those who need it, check out the show notes.

Lisa Monaco:

I think that’s all we’ve got time for today, Ken.

Ken Wainstein:

Yes, it’s been a pleasure and send your prayers and any assistance you can to the people over in Beirut, who are struggling, and we look forward to talking to you again two weeks from now.

Lisa Monaco:

Okay, till next time-

Ken Wainstein:

Take care.

Lisa Monaco:

That’s it for this week’s United Security Podcast. Your hosts are Lisa Monaco and Ken Wainstein. The executive producer is Tamara Sepper. The editorial producer is Jennifer Indig. The audio producer is Nat Wiener. The associate producer is David Kurlander and the CAFE team is David Tatasciore, Matthew Billy, Sam Ozer-Staton, Noa Azulai, Calvin Lord, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Malley. Our music is by Allison Leyton-Brown. Thank you for being part of the CAFE insider community.