• Transcript
  • Show Notes

On this episode of the United Security podcast, Lisa Monaco and Ken Wainstein offer an update on the ongoing threats to election security, including a recent DHS assessment calling Russia the “primary covert influence actor.” They also discuss the national security implications of the White House COVID-19 cluster and break down the extradition of the “ISIS Beatles” to face trial in the United States.

REFERENCES & SUPPLEMENTAL MATERIALS

*Episode recorded on the morning of Thursday, October 15.

ELECTION UPDATE

  • Dan Merica, “Commission Cancels Second Presidential Debate,” CNN, 10/9/2020
  • Ronald Schafer, “Trump refused to debate virtually. But Nixon did and got the best of JFK,” Washington Post, 10/15/2020
  • Annie Karni & Thomas Kaplan, “A Full Guide to the Presidential Town Halls,” New York Times, 10/15/2020
  • “Department of Homeland Security Releases Homeland Threat Assessment,” DHS.gov, 10/6/2020
  • Shane Harris & Matt Zapotosky, “‘Unmasking’ probe commissioned by Barr concludes without charges or any public report,” Washington Post, 10/13/2020
  • Sacha Pfeiffer, “Brian Murphy’s Attorney On DHS Whistleblower Complaint,” NPR, 9/9/2020
  • Nicholas Bogel-Burroughs, “What We Know About the Alleged Plot to Kidnap Michigan’s Governor,” New York Times, 10/9/2020
  • Michael Brenes, “The Tragedy of Hubert Humphrey,” New York Times, 3/28/2018
  • “Trump tells Proud Boys: ‘Stand back and stand by,’” Associated Press, 9/29/2020
  • Orion Rummler, “Christopher Wray: FBI has not seen evidence of national voter fraud effort by mail,” Axios, 9/24/2020

WHITE HOUSE COVID-19 CLUSTER

  • “A Timeline of Trump’s Symptoms and Treatments,” New York Times, 10/6/2020
  • President Trump’s Tweet announcing COVID-19 diagnosis, Twitter, 10/2/2020
  • “Paul Sonne, “Trump suggests coronavirus infection came from interaction with Gold Star families,” Washington Post, 10/8/2020
  • Dan Lamothe and Missy Ryan, “White House event for families of deceased U.S. troops thrust into new light after admiral’s coronavirus diagnosis,” Washington Post, 10/6/2020
  • President Trump on Maria Bartiromo, Fox News, 10/8/2020
  • Nicholas Fandos and Nick Corasaniti, “What if Trump Can’t Run? Many Steps Are Clear, but Some Are Not,” New York Times, 10/2/2020
  • “Presidential Succession Act, 3 U.S. Code § 19.Vacancy in offices of both President and Vice President; officers eligible to act,” Legal Information Institute, 1947
  • 25th Amendment to the Constitution, Constitution Center, 1967
  • Andrew Glass, “Reagan Undergoes Cancer Surgery, July 13, 1985,” Politico, 7/3/2010
  • Jon C. Fortier, “The West Wing and Presidential Succession,” American Enterprise Institute, 9/24/2003
  • Jack Goldsmith and Ben Miller-Gootnick, “A Presidential Succession Nightmare, Lawfare, 3/25/2020
  • Rebecca Kheel, “COVID-19 sparks national security concerns with top brass in quarantine,” The Hill, 10/7/2020
  • Robbie Gramer and Jack Detsch, “Will Trump’s Case of COVID-19 Endanger U.S. National Security?” Foreign Policy, 10/2/2020
  • Stephen M. Walt, “Trump’s Illness Is Not a National Security Crisis,” Foreign Policy, 10/6/2020
  • Steve Coll, “Woodrow Wilson’s Case of the Flu, and How Pandemics Change History,” The New Yorker, 4/17/2020
  • Richard V. Allen, “When Reagan was shot, who was ‘in control’ at the White House?” Washington Post, 3/21/2011

ISIS PROSECUTION

  • Indictment of ISIS defendants Kotey & Elsheikh, Eastern DIstrict of Virginia, 10/06/2020
  • John Demers press conference, “ISIS Militants Charged With Deaths Of Americans In Syria,” Justice.gov, 10/07/2020
  • Rachel Weiner, “Two ISIS militants charged in deaths of James Foley and other American hostages in Syria,” Washington Post, 10/7/2020
  • Luke Hartig, “Prosecuting the ISIS ‘Beatles’: A testament to dedicated US government professionalism,” Just Security, 10/9/2020
  • Diane & John Foley, Marsha & Carl Mueller, Shirley & Arthur Sotloff, Paula & Ed Kassig, “Justice for Our Children, Killed by ISIS,” New York Times, 2/16/2018
  • “18 U.S. Code § 3238. Offenses not committed in any district,” Legal Information Institute, 1963
  • “Lisa Monaco’s White House Daily Press Briefing,” C-SPAN, 6/24/2015
  • “Report on U.S. Hostage Policy,” Obama White House Archives, 2015
  • “Chiquita Brands International Pleads Guilty to Making Payments to a Designated Terrorist Organization And Agrees to Pay $25 Million Fine,” Justice.gov, 3/19/2007
  • “18 U.S. Code § 3771. Crime victims’ rights,” Legal Information Institute, 2004
  • “18 U.S. Code § 2339A.Providing material support to terrorists,” Legal Information Institute, 1994

UNSUNG HEROES

Lisa Monaco:

From Cafe, this is United security. I’m Lisa Monaco.

Ken Wainstein:

And I’m Ken Wainstein.

Lisa Monaco:

Good morning Ken Wainstein.

Ken Wainstein:

Good morning. Very good to see you. Okay, so let’s catch up on what’s going on today. Here it is, mid-October. I have a few things to report on the election. The first is that we were scheduled to have a debate tonight, but that got called off.

Lisa Monaco:

Yeah.

Ken Wainstein:

Low and behold.

Lisa Monaco:

I was settled in, going to be there with my popcorn watching the TV, but no, the debate that was scheduled for today has been canceled. Kind of circuitous route to get here, but the bottom line of course, Trump wouldn’t agree to a virtual format. The commission on presidential debates had, frankly made the right decision in my view to try and do a virtual debate and President Trump, for reasons that I don’t know if it made any sense to you, Ken, but it didn’t make sense to me. President Trump said, “Nope, I’m not going to do a virtual debate.”

Lisa Monaco:

It’s really interesting to me, I didn’t know this ahead of time, but if this virtual debate had gone on, it would not have been the first time. In 1960 Kennedy, the very famous first televised debate, the Kennedy-Nixon debate where Nixon famously did not look very good, had that five o’clock shadow, was kind of sweating. Turns out the two of them were not in the same studio. They were not together. They were not facing off in person. They were on two separate coasts. I guess Nixon in LA and Kennedy in New York. Their moderator was in Chicago. All of this because of their campaign schedules, but they had the first virtual debate, so this one being scheduled because of COVID seemed to make total sense.

Ken Wainstein:

Yeah, it’s interesting just to use that analogy. To the extent that there was any concern on the Trump side that he wasn’t in the room, drawing a stark contrast with Joe Biden. I think that’s a very illustrative precedent to site because that debate, many people credited that debate for Kennedy getting the momentum to then move on to the election victory, because as you said, he contrasted so clearly with Nixon.

Ken Wainstein:

I remember he had the blue shirt, it gave him color. He was young and vibrant, whereas Nixon had a white shirt that sort of leeched him out. He was sweating, had a five o’clock shadow, and so that the contrast and appearance and demeanor was really hit home with the American people and they took that into the ballot booth with them, so that is cited as one of the great examples in American politics of how appearances can sway an election., so therefore it’s sort of hard to see how Trump would have been giving up anything by doing this as a virtual debate. He could have had the same impact, so I don’t really understand what his rationale would be.

Lisa Monaco:

Yeah. I think, supposing there was a rationale maybe is being generous, but in any event we are going to have dueling town halls it looks like. Both candidates are now going to be doing separate town halls and separate networks at the same time, so just one more twist in this crazy, crazy campaign. We are going to have, it looks like we’ll just have one more debate, October 22nd I think, and so I, like you, will probably be glued to that, so we’ll see what happens. Do you think one more debate, just having one additional one, do you think that’s sufficient?

Ken Wainstein:

No, it’s not ideal. I actually, until the last debate, that was more of a train wreck than a debate, I’ve always felt that debates are really important or provide an important insight into the candidates. It demonstrates sort of how they deal with pressure, demonstrates how they are able to deal with the issues and also as we discussed as it related to Nixon and Kennedy, it draws a contrast between the two people. I think they’re important and I think it’s a shame that we’re only having two, but after the last one maybe that’s a blessing.

Lisa Monaco:

Yeah. I think that’s probably right. The other issues in election update news. Last time we got together, Ken, we talked about the joint FBI, DHS public service announcement and it was literally a public service announcement that was warning about foreign actors trying to spread disinformation about election results and we’ve got a new development on this score as well.

Lisa Monaco:

The Department of Homeland Security issued a Homeland threat assessment. Curiously, I think the first one that they’ve … First such document that they’ve done, which is kind of surprising when you think about the mission of that agency, but this threat assessment warned that Russia is the quote, “Likely primary covert influence actor and purveyor of disinformation.” It further said that, “Russia likely seeks to denigrate Joe Biden.” What do you think about the fact of this assessment, the substance of it and the fact that it’s coming out from DHS now?

Ken Wainstein:

Look, I give him credit for being direct and hard hitting about Russia’s role in our campaign. As you know, you and I have taken the administration to task in past podcasts for being [inaudible 00:05:18] and equivocating on the seriousness of the threat posed by Russia and this hits it on the head. This of course is Chad Wolf, DHS and coming out with good, clear recitation of the intelligence and the threat that Russia poses, so I give him credit.

Ken Wainstein:

Now, we’ll see whether this is a new direction in terms of candor about the intelligence relating to the election. I like to hope so. One could, sort of looking at this as glass half full, one could look at some other things like the announcement recently that the Department of Justice shut down the unmasking inquiry, which was kind of a ridiculous enterprise to begin with, but that was looking into the unmasking of US person’s names and intelligence products and seeing whether there was any hanky panky in the use of that practice by the Obama administration.

Lisa Monaco:

You’re really into your ’50s and ’60s terminology, right? Hanky, panky. Yeah.

Ken Wainstein:

That’s right.

Lisa Monaco:

You’re dating yourself.

Ken Wainstein:

I’m going to go play a game of Twister right after this. They shut that down. They could have kept it going through the election just to keep it out there that the Obama administration was being scrutinized, but they didn’t, so maybe call me a hopeless optimist, but there’ve been a couple of decisions here recently that seem to be based on the facts and the needs of the country and not on politics.

Lisa Monaco:

I think I agree with you. I guess I would say one additional piece about this. I mean on the one hand, this threat assessment, it’s kind of a statement of the obvious, right, given the other conclusions of the intelligence community, statements from both the IC, from the FBI recently. On one hand, they are just doing their job, right? The fact that the Department of Homeland security issues a Homeland threat assessment should not be a galloping revelation to people and the fact that they’re issuing it now, when we are in the throws of some very significant threats to the election, also shouldn’t be a surprise. As you point out in the current context, it is a good thing that they are keeping their nose to the grindstone and doing this, particularly since we saw the reports of the whistleblower earlier this summer.

Lisa Monaco:

This whistleblower Brian Murphy, alleging that he was basically directed by Chad Wolf to sit on Russian election interference, intelligence assessment. In light of those reports, this assessment being issued is a good thing, but I couldn’t help be thinking about a phrase that my mother used to use all the time when we were kids growing up, which is you don’t get extra points for doing what’s right. So that was buzzing around in my head as I was reading this.

Ken Wainstein:

Maybe my expectations, sadly, have lowered since your mother’s day, unfortunately.

Lisa Monaco:

Yeah, exactly.

Ken Wainstein:

So there you go, I’m grasping at straws to be optimistic. But-

Lisa Monaco:

That’s good.

Ken Wainstein:

So look, another thing that we should talk about, as it relates to the election, is the concern about violence and forceful efforts to suppress the vote. And the thing is, as we’ve seen, there have been a number of announcements from law enforcement about concerns of violence around the time of the election.

Ken Wainstein:

In fact, just yesterday, I got an email from our building manager in our building, which is a few blocks away from the White House, that they’re putting plywood up over all the windows on the first and second floors of our building, because they anticipate the possibility of “civil unrest” around the election.

Ken Wainstein:

Which I found to be really shocking and sober, that here we are heading into an election predicting the possibility of violence. We talked about [inaudible 00:09:03] but I think it’s worth mentioning that’s an actual concern. No clear indication of the seriousness of that threat. Then the plot that was unraveled last week to kidnap the Michigan governor. So, this threat is real and it’s serious.

Lisa Monaco:

Yeah. But the notice, you just referenced from your building and of course that announcement about the plot against Governor Whitmer. These are really unfortunate signs of the times. Unfortunately, this comes all in the wake of frankly, Trump’s not so veiled, frankly, encouragement of the proud boys.

Donald Trump:

I would say almost everything I see is from the left-wing not from the right-

Speaker 4:

But what are you saying?

Donald Trump:

I’m willing to do anything. I want to see people-

Speaker 4:

Then do it, sir.

Donald Trump:

Say it, do it, say it. You want to call them… What do you want to call them? Give me a name.

Speaker 4:

White supremacists, [crosstalk 00:09:58] white proud boys.

Donald Trump:

Proud boys, stand back, and stand by.

Lisa Monaco:

How worried are you? I mean, it sounds like you’re pretty concerned about this, given all the signs we’re seeing.

Ken Wainstein:

Yeah. Look, it’s hard to predict as to whether there’s actually going to be an outbreak of violence. I find it more striking that we’re even talking about it. I go back a long way. I was born in 1962 and I can even remember the election of 1968. Going out and going door to door for Hubert Humphrey with my mom.

Ken Wainstein:

And that was one of the most turbulent times in American history, at least on the domestic front. And there was no talk about, as I recall, no talk about actual violence around the polls, around the elections, except in very isolated situations. So I find it really troubling as a sign of the times, as you said.

Lisa Monaco:

My worst case scenario or my concerns are, I mean, I think back to this time in 2016, when I was working in the White House and being very worried about disruptions at voting places. Concerns about efforts by the Russians to get into state election infrastructure. So, in 2016, my fear was about voter registration database is being scrambled and causing chaos. But today we’ve got more, I think, focus on having paper backups for voter registration databases, and backups for ballots, et cetera.

Lisa Monaco:

I think that’s in a better place today. I’m very worried about there being disinformation about results, right? Reported on the day of, and the evening of, the election. Disinformation about the potential for fraud in mail-in ballots, none of which has been substantiated. FBI director, Chris Ray has said, “There’s no coordinated effort at mail fraud.” But voting by mail and having fraud as part of that. I’m very concerned about reports that we’re seeing about the use of ransomware in connection with the elections. And then the uncertainty and potential chaos that that causes.

Lisa Monaco:

So, it’s an understandably tense time. So let’s get to some of the biggest news that happened in between the last time we talked, Ken and that’s of course, the fact that President Trump contracted, was diagnosed with COVID and by his account, has made a miraculous recovery.

Ken Wainstein:

So yeah, in terms of the national security dimensions of this issue, they’re seeing these two different categories of massive security implications.

Lisa Monaco:

Before we get there, can we talk about the episode in which President Trump seemed to be blaming Gold Star families and the gathering he had with Gold Star families as a potential source of the virus? And we should say, I mean, I want to personally say that I think we’re talking a lot about the political ramifications. We’re talking in some instances making some light of the bizarre circumstances here. I don’t wish the President actual ill and I think nobody I’ve talked to actually wishes him ill and I’m glad he has recovered.

Lisa Monaco:

But we really should be talking a little bit about the craziness around seeming to blame the Gold Star families and the event he was at on Sunday, the 27th. And in this reference, he made in an interview, that the fact that he was with them and engaging with the families of deceased. Service members gathering with the President, the Vice-President, the top military leaders and the Secretary of Defense at an event in the East Room of the White House, the reports are that there was not a lot of mask wearing, not a lot of social distancing at this event.

Lisa Monaco:

On Monday, the Vice-Commandant of the Coast Guard who was at that event did indeed test positive. So, even though attendees were tested before they went to that event, the Gold Star family event, nevertheless, there was somebody who emerged from it, who tested positive. But you had the President talking in this interview about how the fact that he was mixing and mingling with these families was somehow, he was trying to portray it as some selfless act on his part.

Donald Trump:

So, I figured that would be a chance that I would catch it. Sometimes I’d be with, in groups of, for instance, Gold Star families. I met with Gold Star families. I didn’t want to cancel that, but they all came in and they all talked about their son and daughter and father.

Donald Trump:

They all came up to me and they’d tell me a story, and Maria, it was really amazing actually, beautiful, but sad. And they’d come up and they’d tell me a story about my son, sir was in Iraq or he was in Afghanistan and sir, he did this and he did that.

Donald Trump:

And then he charged in order to save his friends and yes sir, he was killed, but he saved his friends. He’s so brave, sir. They tell me these stories and I can’t say, “Backup, stand 10 feet…” I just can’t do it.

Lisa Monaco:

The notion that he might be blaming Gold Star families for this. It’s just so incredible.

Ken Wainstein:

Right. He could have done everything he did at that event with a mask and he would have protected himself. He would have protected the others who were there and he would have sent a message to the American people that a mask is not only okay, but it’s your duty as a citizen to protect other citizens by wearing a mask. And that would have saved a lot. So, just quickly, the presidential succession act, legislation that was passed back in the 1940s after FDR suddenly died. And it was FDR who led the country for, whatever, over a dozen years, through the depression and through the war.

Ken Wainstein:

And a lot of people couldn’t even imagine the country without FDR himself at the helm, he died and I think that made people aware that boy, we really need to have a process in place to address the situation when a President dies or is incapacitated. So they laid out a process. They congress laying out a process by which the order of succession goes from the president, to the vice president, and then interestingly, to the seeker of the house of representatives, the president pro tempora over the Senate, and then back into the administration to cabinet officials. Number four, being secretary of state number five, secretary of treasury, secretary of defense, the attorney general and so on. And so, that is the legislative prescription for what should happen if the president either dies or becomes incapable of exercising his authority.

Lisa Monaco:

So, Ken, quick pop quiz for you. Who is the last, and don’t cheat by looking at your notes, who’s the last, in the order of succession? Who’s the last cabinet member in the order of succession?

Ken Wainstein:

I actually did see that. It was, Oh, it’s the secretary of DHS. Am I right?

Lisa Monaco:

Of Homeland security, that’s right. And do you know why that is? Which would seem kind of strange, if you think, “All right. Department of Homeland security responsible for keeping the nation safe, protecting from all manner of threats, from terrorism to natural disasters.” You’d think you’d put that person higher up on the order of succession. Do you know why?

Ken Wainstein:

Just because DHS didn’t come online until 2003, or whatever.

Lisa Monaco:

That’s right. So, the Presidential Succession Act, I think, it’s put in the order of cabinet members, who are in the line of succession, is in the order in which the cabinet department was created and was set up, which is why you have the secretary of state ahead of the secretary of treasury, and defense, and AG, because the state department was one of the first cabinet departments set up.

Ken Wainstein:

Christine, look at this.

Lisa Monaco:

See, I’m out wonking you.

Ken Wainstein:

This is wonkier.

Lisa Monaco:

I know.

Ken Wainstein:

I like that.

Lisa Monaco:

Okay. Sorry to interrupt your flow on the disquisition on the Presidential Succession Act.

Ken Wainstein:

So, that’s the Presidential Succession Act, but then of course there’s the 25th amendment that was ratified in the 1960s. Once again, I think in the aftermath and the Kennedy assassination that provided for both the voluntary and involuntary passing of authority from the president to the vice president, and that’s been invoked several times in the past when presidents have voluntarily relinquished their authority temporarily to a vice president when they knew that they were going to be undergoing sedation for an operation. So, as I recall, Ronald Reagan did that with George HW Bush as his vice president back when he had some sort of colon surgery, and I recall it being pretty serious colon surgery. And then I believe a couple of times, George W Bush did the same thing when he went in for a colonoscopy, and you do get sedated for those. I know from a hard experience as a middle aged man. And so, in those occasions, the vice president was the acting president for some period of time. And then, of course, once the president was back and capable of exercising his duties, he did so

Lisa Monaco:

Well, can I just say, while your education here of me and our listeners on the 25th amendment is very impressive, my own kind of wealth of knowledge on the 25th amendment comes entirely from season four of The West Wing. Do you remember this whole episode? Season four of The West Wing, President Jed Bartlet is distraught because his daughter Zoe has been kidnapped and they don’t know if it’s by terrorists or somebody else, and he’s so distraught, he fears that he won’t be making decisions in the right Headspace that he engages in what his staff describes it as a selfless act of patriotism by volunteering to, utilizing the power in the 25th amendment, to voluntarily step aside and hand over the power of the presidency, not to his vice-president, because if you’re a dutiful watcher of The West Wing, you would know that his vice-president had to step down in a sex scandal. So, we’re now, in this episode, Bartlet has no vice-president, he’s in the throes of this crisis.

Lisa Monaco:

And so, Bartlett exercises the power vested in him by the 25th amendment by voluntarily relinquishing his power by issuing this letter that voluntarily transfers power, temporarily, to who? His arch rival, who is from the other party and is in the speaker of the house position, and do you know who he was played by?

Ken Wainstein:

No.

Lisa Monaco:

John Goodman. Miraculous, amazingly done. He was a great character in this episode, but it plays out exactly the scenario that you’re talking about and Bartlett makes a big show of convening the cabinet, first, to tell them he’s going to do this. And he wants their full support. And it’s a great scene in the cabinet room where he pulls the entire cabinet to agree with him, to transfer power temporarily.

Ken Wainstein:

See you just have a lot more fun learning law. I learned it from reading largely articles, you watch cool TV shows. What better way to learn the law? So, that presidential succession is prescribed in the statute, it makes sense, just looking at it facialy, but there are a number of problems lurking there that have been raised by various commentators. Recently, Jack Goldsmith, Harvard law school professor, and actually the guests this week for Stay Tuned.

Lisa Monaco:

Nice plug, Ken. That was a good plug.

Ken Wainstein:

You like that one?

Lisa Monaco:

Yeah, it was good.

Ken Wainstein:

He’s written an article discussing this issue, because of course it’s come to the floor with the concern about the pandemic, and he actually has a textual concern. He thinks that the 25th amendment references officers taking over as president, and as a result, he thinks that the Presidential Succession Act is in conflict with that because it prescribes members of Congress coming in and taking over as president, and he has an argument that a member of Congress would not be an “officer” and therefore would not qualify as a successor to the president under the 25th amendment. So, there’s that issue. And then that raises the broader concern that with that constitutional question out there unanswered, if in fact we did have a situation where the president and vice president were both incapacitated, which by the way, is quite conceivable. I mean, just look at the current situation, and by the grace of God, we didn’t have that here, but we have two men of a certain age as president and vice president, with COVID, they could easily have both gotten it.

Ken Wainstein:

Fortunately, Vice President Pence did not. They could have both been on ventilators at the same time and had a commission. And then the question would be does Nancy Pelosi then step in as the precedent under the Presidential Succession Act? And with that constitutional issue, it’s still hanging out there, then that could well have spawned litigation where some would argue that it’s unconstitutional to put a member of Congress in there. And so, therefore it should devolve to the next member of the cabinet on the list, the secretary of state. And so, you could easily have a situation where the person who occupies the oval office, that question we throw to the courts, and the country would have to wait until the courts rule on that. And so, I mean, it’d be like Bush V Gore, It’d make Bush V Gore look like a pillow fight. This would be a Battle Royal. If the vice president and president were incapacitated for any length of time, it would throw the leadership of our country into chaos. So, he raises that issue.

Ken Wainstein:

And then the last issue is just the practical issue that, let’s say, it does in fact, get decided that the speaker of the house steps in to the oval office and acts as president. Just think about the practical ramifications of that, where you have a situation like we have now where the president’s most ardent adversaries, Nancy Pelosi will be stepping into the oval office and then exercising the authority of the presidency. It’ll be a very interesting scenario.

Lisa Monaco:

Yeah, and look, beyond the kind of interesting real questions that you tease out there and a Goldsmith teases out, we’re to do all that in this really unthinkably, although not unthinkably because we’re in it, polarized environment, politically polarized environment. It really does, on the one hand, shows the incredible wisdom of the framers for the framework like this, and the fact that we have updated this. Both the succession act started in 1947 after FDR died in office, and then as you pointed out, gets updated and refined in the sixties with the Kennedy assassination, et cetera. So, we have managed to react to these crises. And so, a big question is, will we learned something from this experience that informs how we’re finally going forward. And there’s, as you pointed out, there’s now interesting debate going on as to whether or not we should take the congressional element of the Succession Act and remove it, or place it at the end of the line of succession into as kind of after we get through the entire cabinet, then you go to Congress.

Lisa Monaco:

But we would never actually settle any of these questions as a legal matter unless, God forbid, we get to that type of crisis scenario and it does get thrown to the court, but the very fact of this conversation and the fact that we’re even engaging in this debate, or people are writing about this, lends credence, quite frankly, to the concern that a number of national security professionals, including our friend, Jim Clapper, the former director of national intelligence that they’ve expressed real concern that foreign adversaries, our enemies, can take advantage of the fact that we’re having these conversations in a potentially very distracted way. Clapper has commented, and others have commented that adversaries can take advantage of the United States, of the national security apparatus being distracted by internal issues. I know you and I have both been in government during transitions, and that is always a time of heightened concern for national security professionals. That it’s a time when our adversaries might seek to test us.

Lisa Monaco:

So, add on top of an election environment, a potential transition to distraction based on COVID and all these issues, it does raise significant concerns about what our adversaries might be willing to do in that regard.

Ken Wainstein:

Right, and there’s a debate among commentators. I mean, unfortunately, right now this is theoretical, because the president is seemingly healthy and is back at his post, but there’s been a debate recently about this very issue. How much of a danger would the president’s incapacitation be in terms of provoking threats from foreign adversaries? Would Russia use the confusion triggered by the presidents incapacity to maybe inundate a country would. North Korea launched a missile test. What sort of the nefarious activities could other our adversaries engage in, thinking that we’re distracted and won’t respond? And on one hand people point out that these moments of transition or moments of uncertainty of leadership are always fraught with danger, and there’s always a concern that an adversary would try to take advantage of it. Then others point out that, look, it’s not really that much more of a dangerous period.

Ken Wainstein:

Our foes can’t sort of turn on a dime and hear a report to the presence in the hospital and then put together an invasion plan overnight. And so, it’s probably not practically that likely they’d be able to take advantage of his situation. Secondly, people point out that a number of adversaries may have been perfectly happy with the situation that our country’s in. Being divided and embroiled in all sorts of domestic issues, and maybe they wouldn’t want to provoke a fight that might actually draw Americans together against the foreign threat, which is often what happens. And then the third point that people point out is it that, yeah, even if the president’s out of commission, you still have the processes in place, the hardworking professionals in place who will do the blocking and tackling of national security. And I do agree with that to some extent. The problem with that argument here though, is that that process, especially the inter-agency process, has been allowed to wither, and we’ve talked about this in past episodes.

Ken Wainstein:

The president doesn’t rely on the inter-agency process, the national security council process to make decisions the way other presidents do. He likes to rule from the gut, and isn’t really concerned about consensus among his cabinet officers. And so, I have some concerns that maybe that process, it would help see the country through a difficult time when the president is out of commission, that process might not actually be on the backstop that we think it is. So, there’s an interesting debate about how much of a danger time that we really are in just due to the fact that the president might be out of commission.

Lisa Monaco:

I mostly agree with what you said, Ken. I think we shouldn’t over torque on the impact of illness, for instance, in the president. But the bigger concern I have is the general approach of course, and our failure and our mishandling of the pandemic from the get-go, and our failure to exercise American leadership in the world on this once in a century crisis and what that has done to America’s standing in the world. That can’t help but aid our adversaries in addition to being distraction for us and providing a potential window for our adversaries to test us, which we know that they want to take advantage of. So, I find myself in agreement with the commentators who are concerned about this.

Ken Wainstein:

If you think about it, you don’t really have to look that far back in history to come up with examples of where the president’s health or ill health has had direct impacts on American policy, and America’s ability to accomplish it’s policy goals. One 100 years ago, that is a very clear parallel to today, involves president Wilson, and you recall that was the time of the Spanish flu, which was the last time America suffered something akin to what we’re dealing with now. And he had in the country and allies had won World War One, and he then had visions of establishing a league of nations, starting a whole new world order, trying to establish peace among nations. And one of the key elements of that effort was the peace treaty that was going to be entered into between Germany and the allies that had vanquished Germany in the war, and President Wilson arguing strenuously that the peace treaty should not be too onerous on Germany.

Ken Wainstein:

He didn’t want reparations to be too steep. He didn’t want Germany to be forced to make too many territorial concessions, but the British prime minister and the French pushed back very hard, and while they’re going through that negotiation, President Wilson was felled by the flu, and he was sidelined. He remained in the meetings, but he just was not able to function. As a result, he was not able to win the day on reparations and on territorial gains for France and the allies. And as a result, they ended up imposing a very severe treaty on Germany, which crippled Germany’s ability to recover from the war spinning into a depression, engendered great hostility on the part of the German people against the Allies, which of course are all the sentiments that Adolf Hitler took advantage of in his rise to power and when he brought the German people out of the depression and into World War Two. So, you can’t trace all historical events back to one issue or one problem. But boy, it’s interesting to think of what would have happened if President Wilson hadn’t got the flu during those negotiations.

Lisa Monaco:

Yeah. And I think we shouldn’t leave this topic and this whole question of chaos and uncertainty around presidential succession, and what happens when a president is incapacitated, even briefly, without mentioning probably the most famous episode in recent history of this, which is after President Reagan was shot in 1981 by John Hinckley. The then Secretary of State, Alexander Haig was involved in, I think what can only be described as the most iconic moment of political hubris ever, when he claimed erroneously that he was in control at the White House and at a press conference following the shooting of President Reagan.

Speaker 5:

Who is making the decisions for the government right now? Who’s making the decisions?

Speaker 6:

Constitutionally, gentlemen, you have the President, and Vice President and the Secretary of State in that order. And should the president decide he wants to transfer the helm to the Vice President, he would be able to do so.

Speaker 5:

He has not done that.

Speaker 6:

As of now, I am in control here in the White House, pending return of the Vice President, and I have been in close touch with him. If something came up, I would check with him of course.

Lisa Monaco:

And that will live with him for ever in history and is really goes down in history as the moment that he made a pretty big mistake. He clearly had not listened and had your same seminar on the presidential succession act.

Ken Wainstein:

See if he’d gone wonky with me, he wouldn’t have made that mistake.

Lisa Monaco:

Certainly.

Ken Wainstein:

That’s one of those things that, as you said, carries with him forever. I don’t ever think about Haig, who had an incredibly storied career in public service, I never think of him without first thinking of that incident. All right, let’s turn to more recent news. Just recently, we got big news out of the justice department that they had charged two notorious ISIS terrorists with a variety of charges, including hostage taking of Americans and killing and murder of Americans. And this relates to the two ISIS terrorists who had been held in custody over in Syria for the last couple of years. And they were charged and then brought to the United States to face charges here in the Eastern district of Virginia for having held a number of Western prisoners, including four Americans, psychologically and physically and sexually abusing them, torturing them, and then ultimately killing them. A number of them were killed by decapitation, that they then showed by video over the internet.

Ken Wainstein:

And these are two of four British citizens who went over to fight for ISIS in Syria who were styled the Beatles because of their British accents I think actually the hostages started calling them the Beatles. Third member of this hostage taking cell, is in custody over in Turkey. And a fourth was known as Jihadi John, who was the ring leader, was killed in a US airstrike several years ago.

Lisa Monaco:

Yeah. So Ken, this announcement from the justice department last week was I think really well summed up by our friend and former colleague, John Demers, the Assistant Attorney General for the National Security Division.

John Demers:

Today is a good day, but it is also a solemn one. Today we remember the four innocent Americans whose lives were taken by ISIS.

Lisa Monaco:

And I think he summed it up exactly right. This has personal resonance for me as somebody who worked in the White House and worked on hostage policy issues. I had a lot of contact with the families of the murdered Americans, brave journalists, and tremendously brave aid workers and humanitarians, the victims of these terrorists who are now going to face justice in an American courtroom.

Lisa Monaco:

So I think it was a good day, but a solemn one, to see the wheels of justice slowly, but relentlessly turning, to try and achieve some measure of justice. And hopefully in my view, some measure of comfort for their families because six years ago, we all witnessed the horrific, horrific scenes coming out of Iraq and Syria, the brutality of ISIS and these horrible beheading videos of these terrorists killing these brave Americans.

Lisa Monaco:

And it’s a testament to the work of professional folks in the counter terrorism community, the intelligence community, and prosecutors, to just keep their nose to the grindstone and just relentlessly try and seek justice here. But this was a long time coming and for a bunch of reasons that we should get into.

Ken Wainstein:

They were captured in, I think 2018 by Syrian democratic forces while they were trying to flee. And they’d been held for two years, number of reasons for the delay in bringing them here to face justice, but a couple of them were some questions about how that justice was to be metered out. And there were a couple issues. One was apparently the British. Of course, these two men were involved in killing British citizens as well. The British authorities had some evidence that was going to be critical to our ability to make a case against these two men. And the British, like a number of our Western European partners, have concerns about Americans sending people who are captured overseas down to Guantanamo, to face justice in the military commissions.

Ken Wainstein:

And the British have said that they’re not going to cooperate either by turning over defendants suspects themselves or turning over evidence that would help in a prosecution of suspects, if they think that that evidence is going to be used in the military commissions. And there was some talk about whether these men should go to the military commissions and the Attorney General Sessions was on record saying that they should, and there were a number of legal questions about whether ISIS fighters could be subject to the authorization for the use of military force that was passed in the aftermath of 9/11 attacks that were of course perpetrated by Al Qaeda, such that the US military can exercise this detention authority against ISIS fighters.

Ken Wainstein:

And so there was a legal question out there, but really very much a practical question of whether it be prosecution could do without any evidence from the British authorities, if they were to send these men to the military commissions. So the decision was made obviously to send them to Article Three Courts here in the Eastern district of Virginia.

Ken Wainstein:

The second question that had to be addressed before we ended up bringing these guys here to face charges was the death penalty issue. These are obviously death penalty eligible offenses, and given the brutality of what these men allegedly did, the death penalty is clearly a strong likelihood, that it would end up being… They would end up getting the death penalty if they were to be convicted of these charges. And the British opposed prosecution, the death penalty, they don’t have the death penalty and they take the position that they’re not going to cooperate with US authorities in a case that might result in the death penalty. In addition, the families here came out fairly soon after the capture of the two men saying that they did not want the death penalty be on the table. So that was a very live issue. And then just recently, I believe in August regional bar agreed publicly that they would not seek the death penalty. That then opened the doors to cooperation with the British and resulted in these men being brought here and a prosecution team mounted in Virginia.

Lisa Monaco:

Yeah, and look, the first question I think people probably have is, is it right to put them in Article Three or Federal Criminal courts versus a military commission or sending them to Guantanamo? I come down on the very, very strongly of the view that them being prosecuted in Article Three, Federal Criminal Court is exactly as it should be. It is a tried and true model of both finding truth and demonstrating and carrying out justice. It has worked for years to convict terrorists, it’s got a demonstrated track record. It’s actually in my view, absolutely what should happen here. The question of why it took so long, I think you’ve laid out quite well. And you’re right. The families in this instance, the families of the four Americans who we should be very clear about who these brave Americans were, James Foley, Peter Cassick, Steven Sotloff, and Kayla Mueller, are the four Americans who are talked about in this indictment and in John Demer’s statement, their families, as you referenced, wanted to see these men prosecuted in American court.

Ken Wainstein:

And if that meant taking the death penalty off the table, they, I think to a person, were okay with that because they wanted to see justice done. And they made that clear and [inaudible 00:41:39] in 2018, as you said.

Lisa Monaco:

So I think Article Three courts is exactly the way this should be going. And there was also some debate if you believe the reporting about this, that there was some debate about the strength of the case, right, within the department of justice, with some prosecutors urging that the case go forward, with some senior officials allegedly being more hesitant about it. I suspect that hesitance may have been around the question of whether they got the evidence from the UK before they took the death penalty off the table. So I think the most obvious disposition for this case is the one that they have now arrived at, which is prosecution in Article Three courts. And it’s to the great, good credit that they’ve brought this case in the Eastern district of Virginia. We should probably explain why is it in Virginia?

Ken Wainstein:

Yeah, it’s interesting. Whenever these big cases arise where people are being brought in from overseas and being charged with high-profile crimes, you have different US attorney’s offices competing for these cases. And the jurisdiction for the murder of Americans overseas can be established at different places. But one of the ways that you could have a venue for a case in a particular district is by the mere fact that the defendant is brought into that district from overseas. It’s called the first brought jurisdiction.

Ken Wainstein:

And so oftentimes a US attorney will say, why don’t you bring him to the airport in my district, so that I can prosecute the case? Here they are brought to the Eastern district of Virginia, I don’t know, but I’m assuming maybe through Dallas airport, and therefore the Eastern district of Virginia has jurisdiction. And that probably though was decided by the attorney general or at the highest levels of the justice department, as a reflection of their belief that the US attorney’s office there and the FBI field office are up to handling the case. Maybe personnel from those offices had been involved in the case to date, and also probably a reflection of their confidence in the judicial system.

Ken Wainstein:

The Eastern district of Virginia has what’s called the rocket docket, which is a set of internal procedures in the court, which move cases through and ensure that they don’t get delayed. And that usually ends up benefiting the government, the less delay the better for the prosecution. So probably all of those reasons went into the decision to send it to Eastern district of Virginia.

Lisa Monaco:

Yeah and we should say the type of maneuvering is the right word, but negotiation with the British, with European counterparts to actually get evidence, to take the death penalty off the table, that is not that unusual in terrorism cases. I know I was involved in cases as were you, when we worked in the justice department where you would provide, the US government would provide those type of assurances to counterparts in other governments in other prosecution services, so you could get the evidence so you could get the extradition of those defendants, and it’s a negotiated solution to try and move the wheels of justice forward.

Ken Wainstein:

And also when you think about the question of military commissions versus Article Three courts, it’s really a false choice because the military commissions have basically been rendered dysfunctional. You look at the 9/11 defendants, Khalid Sheikh Muhammad and the others, they’re still down there awaiting trial. What is this, 19 years after the fact. And the poor victims families are waiting for justice to be brought to them. And that’s because of the dysfunction of the military commissions process. So I’m not even sure there was much of a choice on that front to begin with.

Ken Wainstein:

So let’s shift gears for a quick second. And let’s talk, as you rightfully did about the victims. And one of the trends that has been so gratifying to see over the last few decades is, in talking about the criminal justice system, how it has started to observe the victims as being parties to the criminal justice system. In other words, it’s not just US versus criminal defendant, and we don’t go through the prosecution process focusing only on the defendant and on the government and their respective rights, but also thinking about the victim and giving the victim certain rights in the process.

Ken Wainstein:

And I can tell you when I started out as a prosecutor in 1989, the victim had very little say in how a prosecution was carried out, what kind of sentence was sought, this kind of thing. And now with the Victim Rights Act and other developments, things are much better for the victims in the criminal justice system. You have played a very important role in recognizing the rights of victims and the role the victims have to play in dealing with the government’s reaction or response to their victimization. And that relates to your work with the issuance of the new policy about hostages, American hostages overseas, when you were the Homeland Security Advisor for President Obama.

Lisa Monaco:

This dates back to summer of 2014. So ISIS was rolling through Iraq, taking over a large swaths of territory. And the summer of 2014 was of course also marked by these horrific images that came over the internet of these beheadings that ISIS, and now we know the Beatles were to blame for these horrific acts of violence and brutalization against Americans who had gone to Iraq and to Syria to either report the news as freelance journalists, as James Foley was, to work on behalf of populations there who were underserved to work on humanitarian relief, like the brave and incredible spirit that is represented by Kayla Mueller who’s a young woman who traveled from Arizona to go help those who needed help in Syria. So these are people who represented the best of America, and what we saw were these images coming out of Iraq and Syria with the beheading videos and the brutality that ISIS perpetrated against them.

Lisa Monaco:

And what had proceeded that, unfortunately, was incredible frustration by the families of these brave Americans who were constantly frustrated and understandably very angry with the US government for our failure to be able to secure the safe return of their loved ones. And to deal with them in a way that made them partners in the effort to secure the return of their loved ones. So, I got very involved in these issues as homeland security advisor. And what I saw was a government that was not organized to deal with the problem that was presented to us in 2014. The hostage policy of the United States had been written for a different time. It had not been created for a time that we were in, in 2014, which was with stateless terrorist actors taking hostage these brave Americans, operating from ungoverned spaces.

Lisa Monaco:

And it was a new type of problem. And yet our policy and our organizational structure within the US government was created for an old type of problem. So, the devastation that we saw and the brutality that we saw and the suffering for both these victims and from their families demonstrated, to me, that we really needed to do a lot better by these families. So I recommended, in the late summer of 2014, I went to President Obama and I said, “We need to really revamp and do a wholesale comprehensive review of how we’re going about this. What’s our hostage policy? How are we dealing with the families? We need to do better by them.” He immediately directed me to undertake this comprehensive policy review. And I have to say, the team that did this, who are my colleagues in the national security community, were so dedicated to this effort.

Lisa Monaco:

And it represented a level of effort from career professionals that really is the best of government service. So there were, I think, two very important features of this review. One was that it was very important that we involve the families, to hear from them directly their experience and their frustration and their anger. Quite frankly, the experience they had in dealing with the federal government was by and large, that they felt that they weren’t being told information about what was being done to secure the return of their loved ones, or they were getting conflicting information. They felt that the government wasn’t sharing information with them, wasn’t treating them as a partner in the return of their loved one. And also, the worst stories that we got, and also some of the worst feedback that we got from some of the families is that at times they felt threatened that they might be prosecuted if they engaged in efforts to secure the safe return of their loved one by paying a ransom or engaging with hostage takers to seek out paying a ransom.

Lisa Monaco:

And that is, of course, because of the statute that exists to prohibit providing material support to terrorist groups. So, all of this was just a horrible experience that the families had at a time that they were experiencing the absolute nightmare, the worst nightmare of their lives. So we were committed to hearing directly and involving the families in this review so that we could hear some very hard truths about their experience. And then the second piece was, we were committed to being very transparent about the results of this review and the ensuing policy changes that we made so that future administrations would have their feet held to the fire and be held accountable to adhering to these reforms. So, it was frankly one of the most important things I feel I was involved in, in my government service, because it really was about doing the hard work that government should do, which is recognizing when it’s not doing its job right.

Lisa Monaco:

And then making changes that affect real people and being committed to making changes, and to doing right by citizens, which is ultimately what the job of government should be. The reforms that we put in place, some were structural by creating mechanisms that would really drive 24/7 focus by the FBI and the intelligence community and others to really come together and focus 24/7 on developing recovery strategies, tailored recovery strategies, for Americans being held abroad. And importantly, involving families as partners in that effort. We created a new position of a special presidential envoy at the State Department, whose job is to be the singularly focused diplomat, working with governments around the world to try and secure the return of hostages. And we kind of changed our orientation. We said, “Instead of being in a crouch and constantly withholding information from families, we would change our orientation and lean into and be biased toward sharing information, including classified information if necessary with families.”

Lisa Monaco:

And then third is really treating the families as partners in this effort. As people that the government should be working with to secure the return of their loved ones. So, as I said, it was really one of the most important things I feel I was involved with. And these reforms, I think, have been well-received, and I think largely kept in place by the Trump administration, to their credit have been, I think, important changes. Now, some things didn’t change. And that was a point of criticism, right? Most importantly, the long-standing policy of the US government across many administrations to not pay ransoms for hostages. It’s not a position that a lot of the families agree with, but it is something that we stuck with. We did change it to the degree that we made clear that the no concession policy ie the no paying ransoms for hostages, that policy, while that is in place, no concessions doesn’t mean no communications, right?

Lisa Monaco:

And there had been a lack of clarity as to whether the government could even help families engage with, and communicate with hostage takers. And we made clear that, that was okay. That the US government would do that, would assist families in those communications. And then also, we made clear, and the Justice Department issued a quite unusual statement for the department, which was that no family member or relative had ever been prosecuted for paying a ransom to hostage takers. And in so doing, they kind of gave an indication of where they stand on the use of that material support statute when it comes to families and ransom paying. So, all in all, I think it was a much needed set of reforms and the type of work that government should do in the face of, frankly, not doing right by these families in the first place.

Ken Wainstein:

You talked about the material support statue, and how that was the problem if they were to pay ransom, if the victims were to pay ransom, that could actually be a violation, would be a violation of the material support to terrorism statute. We’ve seen that same issue arise in other factual contexts. And for example, when I headed up the National Security Division, we had a case involving Chiquita, the food company, that had operations down in Columbia, and it was found that they were paying basically protection monies to a terrorist organization down there to protect their people, to persuade this terrorist group not to attack and victimize their workers. That ended up being the basis of a prosecution on which the company pled guilty and paid I think $25 million because even though the monies might’ve been going to protect people and save lives, it was funding a terrorist group. So that’s a tough law to enforce. And I think it’s the toughest situation, is the situation you’re talking about, where a family wants to pay to save a loved one. And that’s of course, why there’s never been such a prosecution.

Lisa Monaco:

And this issue is very much still in the news, unfortunately, because Americans still are being held unjustly abroad in many corners of the world, including in Yemen. But we’ve got a new news, that just broke yesterday, coming out of Yemen, and a deal that was struck where two Americans and the remains of a third, who had been in Yemen, held by the Houthi rebels in Yemen, who have been engaged in a conflict with Saudi Arabia and others for now going on a number of years, three or four years at this stage. The deal was struck to return two Americans who were being held by the Houthis and the remains of a third, in exchange for the release from captivity and detention in Oman, of upwards of 240 Houthi fighters, who are now being frankly returned to the battlefield in war torn Yemen in order for these Americans to be returned home to the United States.

Lisa Monaco:

And we thank God for their safe return, but this deal just points up how fraught these issues are and how interconnected the return of Americans can be with other geopolitical issues. And so we’ll keep an eye on this as those Americans come home and we monitor other cases, including, I have to mention, of course the case of Austin Tice, a brave American journalist who has been held and missing in Syria for now many years, and his parents Debra and Marc continue to do heroic work to secure his return. So our thoughts are with them.

Ken Wainstein:

Amen. Can’t imagine the anguish that the parents are going through. And so let’s turn to the unsung hero and keeping with this theme, I think it’s entirely appropriate that the unsung heroes are those who are working on behalf of the plight of hostages, and hostage families, the individuals and groups that are devoted to helping hostage families deal with this, crisis and deal with the anguish of having a loved one in captivity overseas, and Lisa, you’ve worked with those individuals in groups, both in your time in the White House, but then since then, why don’t you give us an understanding of what kind of devoted public servants in government and out of government who are working on this cause?

Lisa Monaco:

So I guess I would say my nominees for our unsung heroes this week would be the families of hostages being held around the world unjustly, and the families of those who have been killed in captivity. Of course, the families of the brave Americans that we’ve already mentioned the Foleys, the Kassigs, the Sotloffs, and the Muellers. I had pretty regular contact and multiple contacts with all of those families, both before and after their children were so brutally murdered and to be having those discussions with them in their darkest hours, I was incredibly impressed, and just in awe, frankly, of the grace and the dignity and the determination they showed, not only of course to try and secure the return of their loved ones, but in their engagement in our review process, even in their grief and in their anger, their understandable anger, they were determined to make things better for future parents, right? They wanted to help the government get it right, or get it more right, so that hopefully other parents wouldn’t endure the same hell that they had gone through.

Lisa Monaco:

And then the second category I think of unsung hero are the groups, the non-governmental groups that do work on behalf of hostages, on behalf of press freedom, and on behalf of families to help them through these dark times. And in particular, I would call out Hostage US on whose board I’m privileged to serve. And the James Foley foundation, led by the indomitable Diane Foley, the mother of Jim Foley and its efforts on behalf of journalists and press freedom and advocacy for the safe return of hostages.

Ken Wainstein:

As would I. So hats off to them and their heroic efforts. And I’m glad we’ve had this episode, talking about them and talking about what is a somber topic, the hostage taking of Americans overseas, but one that shows the best of humanity along with the worst of humanity. So I think that’s it for today.

Lisa Monaco:

Yeah, that’s all the time we have for today Ken, I guess we’ll be back in two weeks.

Ken Wainstein:

In the meantime, please send us your questions at [email protected], and we’ll do our best to answer them in our next episode.

Lisa Monaco:

Till next time. That’s it for this week’s episode of the United Security podcast. Your hosts are Lisa Monaco, and Ken Wainstein. The executive producer is Tamara Sepper, The senior producer is Adam Waller, the senior audio producer is David Tatasciore, the cafe team is David Kurlander, Nat Wiener, Matthew Billy, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Calvin Lord, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Maley. Our music is by Alison Leighton-Brown. Thank you for being a part of the Cafe insider community.