Modern Threats and Institutional Reform

Of all things I've ever done in my in my life, government service, that is a moment that I remember most Watching Marine One bring President Bush home that day . This September marks twenty five years since terrorists hijacked planes and st eered them into the twin towers of the World Trade Center. They steered a third plane into the Pentagon. A fourth was headed for the U. S. Capitol , but crashed into a field in Shanksville, Pennsylvania after its passengers over powered their attackers . In the days and years that followed America's leaders walked a fine and sometimes blurry line how to prevent an attack like that from ever happening again and how to do so without trampling American laws and democratic values. This is sources and methods from NPR. I'm Mary Louise Kelly, Alberto Gonzalez was serving as White House counsel. On nine eleven, he went on to become President Bush's attorney general. I've flown out of Dallas American seventy seven. The plane that crashed into the Pentagon also flew out that morning. I was probably in the terminal with the hijackers. Jay Johnson served in the Obama administration as general counsel of the Defense Department and later as President Obama's homeland security secretary. The office next door to mine had a clear view of the twin towers. I walked next door and I saw the black smoke billowing out of the building contrasting with the beautiful blue sky. I sat down with both of them before a live audience at the Aspen Ideas Festival for a discussion on the legacy of nine hundred eleven. Here's our full conversation . We are here to mark twenty five years twenty five years since nine eleven. And it occurs to me that had we all been gathered here twenty five years ago , summer of two thousand one , many of us might have flown in on planes , commercial planes where the door to the cockpit was wide open the whole flight. And we could have carted leader after leader of shampoo and mouthwash in our carry ones. No need for no three ounce baggies . We could have carried pocket knives in our carry ons right onto the flight because TSA was not enforcing those rules not least because TSA did not exist , nor did the Director of N ational Intelligence, nor did the National Counterrorism Center, nor did the Homeland Security Department that you went on to run. So we're going to spend this next half hour talking through how this country responded to the nine hundred eleven attacks , how this country's leaders , including the two of you tried to balance protecting the nation , with civil liberties , with the rule of law . Which parts of that response have worked, have turned out great , which parts didn't, which parts feel worth keeping today, and which parts we should maybe never have done in the first place . I want to start with just the briefest of recollections. In a few sentences from each of you, where were you on nine hundred eleven? Judge Gonzalez I was in Norfolk, Virginia speaking to a group of government lawyers when I got word that the towers had been hit . And so my instinct was to get back to my post. You had flown out of Dulles. I fl hadown out of Dulles American seventy seven. The plane that crashed into the Pentagon also flew out that morning. I was probably in the terminal with the hijackers at the same time. But anyway, I'm determined to get back to Washing ton before President Bush returns home from Florida. He's speaking to at elementary school , and I'm successful in getting the Navy flies me back in a Navy helicopter and I'm on the oval office porch as Marine One brings Bush home of all the things I've ever done in my in my life, government service, that is a moment that I remember most watching Marine One bring President Bush home that day. How about you? So I have to begin with observing we're sandwiched in between famous musicians and movie stars and this very sober discussion I was in Manhattan on nine eleven, two thousand one. nine eleven happens to be my birthday . And I had just left working at the Pentagon with the Clinton administration I just left in january two thousand one as general counsel of the Department of the Air Force . I worked in the E ring on the fourth floor . I was back in my law practice in Midtown, Manhattan , getting ready to get on the subway to go downtown to a meeting in the New York State Attorney General's office across the street from the World Trade Center . And I was sitting at my desk, I heard somebody say , Wow, a plane hit the World Trade Center . And the office next door to mine had a clear view of the Twin Towers. They walked next door and I saw the smoke I'.ll never forget it was a beautiful blue sky, and I'll never forget the contrast of that black smoke billowing out of the building, contrasting with the beautiful blue sk y . And either on the TV or with my naked eye, I saw the second plane hit. Yeah . And the moment that the one moment I've experienced in my life when When my brain refused to register what my eyes were seeing is when I saw the first tower collapse because those twin towers for almost thirty years had been a permanent fixture of the New York City skyline . And when I drove home that afternoon , I lived in Monclair, New Jersey, still do , drove across the George Washington Brid ge, all the traffic was headed out . There were National Guard on the bridge, and I saw a fighter jet . Yeah . And what hit me then was at New York City in just a, couple of hours , it become a war zone. Yeah . And out of that became my out of that came my dedication to want to return to national security. I was in the newsroom . Thank you . I was in the newsroom had just moved to Washington. They rolled in cots for us to line the halls , knowing that we would not be going home for days and we didn't. And I remember trying to write the lead for all things considered that night and thinking where does this feel like writing the first draft of history . And I have never covered a single newsday that was a bigger story. And I've covered wars and pandemics and elections and insurrection. And I hope never to have a bigger newsday than nine eleven . So I want to go, you race back to the White House . You're down in the bunker, the White House bunker , take us to what in those first hours and days, what are the questions in your mind in terms of what the legal response to this attack is going to need to look like? What powers the president is going to need now? Well, I was in touch with my lawyers who were scattered in office buildings in downtown DC at the time. Yeah . And the issue was, what authority does the Commander in Chief have at this particular time? And one of the main questions to answer is suppose there's a commercial aircraft heading to the Capitol or DC , does the president have authority to authorize the military to shoot down that aircraft? So we were looking at those kinds of issues and , you know, it's just a question of deciding how far the president President Bush wanted to go in terms of protecting America. And for him, you know, got when he out of that helicopter, I was with Karen Hughes . We both had worked with Bush from Texas. We knew him very well . Very curious to see what in his face. And we greeted him, and he just nodded and walked right by us . And what he was was he was determined . Never in the time that I worked with him have ever seen him scared during that period of time. He was just simply determined . He had a job to do. And in the days afterwards, I remember asking him, okay, what can we do to help you? He would just simply say, Do your job . His job was to protect America , and that's what we were expected to do is to help him do that job. One more to you, and you can jump on the back of this Secretary. The one of the very first moves was the two thousand one AUMF, the authorization for use of military force. It passed just three days after the attack september fourteenth, two thousand one . The Senate passed it ninety eight to zero . The House voted to pass it four hundred twenty to one That one vote, the only lawmaker on Capitol Hill who voted against the authorization was Barbara Lee, California Democrat . Thank you, Californians in the room. She opposed it because she argued this is going to be a blank check that would give the executive branch vast powers to wage open ended war , given that it remains active today in twenty twenty six, did she have a point? I think President Bush and certainly I 'm stunned. We're surprised that the AUMF is still in existence and relied upon , quite frankly. We never envisioned that it would go beyond dealing with the particular threat that existed in two thousand one. And I think it is perfectly legitimate. And I think all of us have an obligation to ensure that our branches of government are checked when they exercise power, particularly the executive branch, even in a time of war, you and I spoke earlier about the fact that during Bush's first term four times the U. S. Supreme Court issued decisions checking the power of the president. And in the Hombey decision, Supreme Court Justice Sandra Day O'Connor said a state of war is not a blank check for the president of the United States when it comes to the rights of American citiz . And that's the way it should be. At the time, the court, you know , can I can I add to that? So General Gonzalez is right. Article one section eight of the Constitution says Congress declares the wars . Our current president has not read that provision and started a war against Iran , a nation state. It's a war. Without a doubt, it's a war. If a foreign power started an airstrike on Washington, DC and took out the leadership of our U. S. government. I think we'd all call it a war, right ? And on nine eleven, we were attacked by Al Qaeda harbored by the Taliban . And President Bush did the right thing. He went to Congress to seek a declaration of war, an authorization to use military force against an unconventional army . We relied on that statutory authority in our counterterrorism operations during the Obama years from a constitutional checks and balances point of view , that is way better than one man deciding to take this nation to war . So you two are here, obviously, you are lawyers, not politicians. Just before we move on from this, should that provision sunset ? The authorization of military force. From a legal perspective, or should we move on ? Should it sunset? I think it should sunset . And I think if a new threat arises, go to Congress, makes a case, and Congress gives another authorization or a declaration of war. It's the way our system should work? The reality, I just finished writing a law review article on presidential war powers. So this is uppermost on my mind. And I interviewed a bunch of members of Congress voted for the two thousand one authorization and the two thousand two authorization . One of them told me that once an authority is conferred, it's almost impossible to take it back. The two thousand two AUMF to go to war against Iraq was just repealed last year . The two thousand one AUMF still exists, and it's invoked for for, I mean, frankly , the interpretation of the two thousand one authorization is way beyond what I'm sure any member of Congress in two thousand one would have envisioned. It's been used to go against ISIS , which didn't even exist in two thousand one, and it gets invoked all the time . So in principle, a sunset is a good idea . It's just in the climate of a nine hundred and eleven where certain members of Congress I interviewed told me I didn't even read it . I just, you know, go get the bastards . It's very difficult to put a sunset or a limit ation on an authorization in that kind of climate . Let's take a break. When we get back the CIA's detention and interrogation programs, how did they line up against US law? That's ahead on sources and methods from NPR. We'll be right back . We're back with my conversation at the Aspen Ideas Festival with Alberto Gonzales and J. Johnson. I was a young reporter in these years right after nine eleven, covering national security and terrorism and reporting on the abuses at Abu Gra ? The drone strikes waterboarding. I remember going through a two thousand five Justice Department memo that documented the CIA waterboarding Abu Zubeta at least eighty three times in the summer of two thousand two. Kyla Sheikh Mohammed waterboarded one hundred and eighty three times in march two thousand three . We were debating in our newsroom, and I'm sure many others, what do we call this? Enhanced interrogation, torture? What can we say Take us by the time you show up at the Pentagon in two thousand nine, the courts have weighed in on some of this , did you find the legal architecture you were inheriting that Judge Gonzales and others helped build? Did you find it legally sound? So Charlie Savage of the New York Times used to like to write during the Obama years about how similar we were to the Bush years. You'd like to point that out . And the reality is that by the time President Obama came in january zero nine and I went back to the Pentagon The boundary lines had been written. I mean, they were operating pretty much on a blank sheet of paper going after an unconventional non nation state or . And the courts by then, by the time we came in, the Hamdan decision, the Midian decision, had established some boundary l ines for us in which we knew how to operate . On the issue of interrogation , the Jag Corps was very upset general very upset attorneys extracting statements taken by CID, cruel and human degrading treatment. So that portion of the Military Commiss ions Act was reformed . One thing I'll remember and I'll never forget I was at a detention site in I can't remember Afghanistan or Iraq in two thousand nine And the detainee was in there with an interrogator for a long time . He came out and he said , If that's the worst you're going to do to me, I'm on the wrong side , and I was struck by that comment it never left me. Should the US ever have been in the waterboarding business Let me talk about this because I think this is President Bush before we began these the techniques which were approved by the Department of Justice . Several times made it clear to me says we're not going to engage in torture. Make sure we don't engage in torture. So my job is to make sure that we didn't engage in the legal definition legal definition of torture . And so the Department of Justice wrote a series of opinions outlining the safeguards that had to put in place the protocols that had to be put in place before we engage in this kind of conduct . Now two things that I would say in response to some people would say, well, you know , what about what happened at Saint Abu Ghubre ? What happened there was had nothing to do with interrogations. It was simply a group of individuals on their own deciding we're going to have fun with these prisoners. Nonetheless, I think it is a fair to question whether or not the permission given by the administration to engage in some kind of enhanced interrogation techniques was a permission slip for this kind of conduct, even though I think the reporting was the legal analysis , the techniques themselves were not made public. And so what happened by the individuals at Abu Gareb had no idea what had been authorized. But nonetheless, I think looking back , I take comfort in the fact that there have been sworn testimony by the director of the CIA , by the director of the NSA, and by my successor at Justice , is that information was extracted from these interrogations that made a difference in keeping America safe. Nonetheless, the notion that the United States engages in torture , permits torture is not something that I would support or one that I would be especially proud I would be not at all proud of quite honestly. We're better than that . But am I right in thinking this is a practice that the U before. S. nine ele hundred andven had classified as torture is violation of the Geneva Conventions . That was certainly not the position of the Department of Justice . So again, if the Department had not given us the authority, we wouldn't have engaged in that. So I want to add there's a the overhang in this whole discussion , there's a pendulum effect to you asked about this originally. There's a pendulum effect between what Americans are willing to accept by way of an imposition on our civil liberties during times of high anxiety and more security . So most of you in this room are old enough to remember what the environment felt like september eleventh , two thousand one . We had been attacked . Our leaders were saying we were going to get attacked again . There was anthrax . I wouldn't let my kids open the mailbox because of anthrax . And by two thousand nine, that pendulum had swung in the other direction , and we wanted change. So we elected the law professor in two thousand . And I think the big challenge for Americans is to recognize manufactured fear , manufactured anxiety spun up by our leaders . I served as Secretary of Homeland Security. My grandfather was a PhD sociologist and a suspected communist. My grandfather testified before the House on American Activities Committee to deny he was a member of the Communist Party in nineteen forty seven. I have the transcript . And it's in times like that and times like now where we have to frankly see through the bullshit . Yeah Sorry for my language . Okay, time for one last break. When we return Guantanamo Bay, it's still open, still housing detainees , how does this country defend what's happening there? That's ahead on sources and methods from NPR. We'll be right back Guantanamo , which still houses detainees twenty five years on , including some who have long been cleared for police . Two questions . How can we as a nation that is a democracy , aspires to stand for democratic values and the rule of law? How can we defend that? And how do these cases end? Let me have to make it . No , I have an answer. Guantamo after we went into Afghanistan, we began capturing people and a decision had made to be, okay, what are we what do we do with people that we have captured? We thought it would be unsafe to keep them in Afghanistan . There were countries, our allies unwilling to take them. We weren't going to bring them to the United States. We thought that would be too dangerous. American people would not like that. We weren't sure about the rights it would attach as soon as it set foot on American soil. I think it was Don Rumseld himself who's the Secretary of Defense, who suggested, well, we have this naval station at Montana Bay and we can put them there. And we presented it to President Bush. President Bush said, Okay, let's do that. The thinking was that it would be a holding station, holding place place for individuals as we decided what to do with bring them to justice, put them into military commissions, bring them into the United States. Jan Ashraf, the attorney general very much wanted to try as many of them as we could in Article III courts . And that's how Guantanamo came to be. It was never the intention this would be a long term solution to people that we captured. It was a short term solution to an immediate problem . And the fact that he still exists today tells me through several administrations , no president, no administration, has been able to figure out what to do with these individuals . They don't want to bring them to the United States . They don't want to release them . So it's just kind of sitting there. But isn't there a basic rule of law question there? Well , perhaps there is a basic law of question, but there they are. So how do these cases end? Are we increasingly looking at a scenario where Kalichik Mohammed is going to die in Guantanamo having never had a trial? So when first day in office, President Obama signs an executive order to close it. It's still open basically because the political forces in this period of anxiety , because two thousand nine, twenty ten , Al Qaeda was still making efforts at large scale attacks on the United States , and the political forces basically prevented us . There are two categories of detainees at Guantanamo. There have been those that have been charged in the military commission system and those that have not , but they are what we refer to as law of war detainees . And that population is down to maybe even a single digit at this point, maybe more. When I came into the Pentagon as the lawyer , my belief was that we needed to apply for credibility's sake , we needed to apply traditional military law of war principles to an unconventional enemy . And that's what we did. So we took on , accepted what we refer to as law of war detention , detention without charges, as long as the war existed, but here we are twenty five years later, and the military commission system I was probably in the Obama administration the biggest proponent of keeping that system because the Jag Corps believed in it. And again, it was an application of traditional military principles . But if you had told me fifteen , sixteen years later that they'd still be sitting there pretrial, waiting the nine hundred e andleven defendants , I was supportive of sending them to Manhattan, but the southern district of New York. Yeah . But the others , if you had told me that there had been not a single trial, I would have said this system this system ain't going to work So how do these cases brilliant? So that's people ask me, what's your regret? I said, Well, Heinside's brilliant, but if I kn hadew then what I knew now about system, I would not have been a proponent of it. Sorry, I just have to know neither of you is answering the question. How do these cases end The reason the reason I'm not answering the question is because I don't know if there is an answer. I don't know what the answer is quite honestly. And I think that reflects the reality of why it's still there . Do you want these individuals brought into this country? Yes . Some people do, some people don't. They there was a plea deal struck with the nine hundred eleven defendants, which the Secretary of Defense rejected . I don't know where that stands now, but I think at this point that's got to be the resolution. Yeah . When to you, Secretary on the Department of Homeland Sec urity, which as we noted is one of several institutions, the biggest of the institutions created in response to nine hundred and eleven . How's it going? That's on how it's turning out. So the model the thinking that created the Department of Homeland Security in two thousand two is way outdated . The thinking then was up till then we didn't need a ministry of Interior or Department of Homeland Security because we're separated from the rest of the world by two oceans and that all changed on nine hundred eleven . And if we consolidate into one cabinet level department the regulation of all the different ways somebody can get into this country land sea and air , TSA, Coast Guard, border patrol, customs, we will have kept the bad guys out . That thinking is now outdated . And the immigration mission has overwhelmed the department , obviously, as everybody knows , and the immigration mission is political red meat for a lot of people. I can't walk down the street anymore with my DHS gym bag because I'll be chased down or I can't wear a DHJ's hat anymore. We'll give you an NPR tote back Brad. We need to I think frankly, I think we need to scrap it and start all over again . Whether that could happen in this political environment is that a whole other question. Yeah . I mean, this pushes us toward one of the questions I wanted to land us on, which is as we think about the response to nine hundred eleven and the legal response we've been talking about , it was all crafted to address a foreign terrorist threat. And today , the focus and resources are so much headed in a domestic direction that, the greater threat is from within. So the laws that you were trying to hash out in those days after nine eleven that you had inherited and were trying to figure out what do we institutionalize? What can we jettison a few years later ? Do they work anymore? I think some of them work . I think that we live in a changing environment . It is very polarized . I think we're seeing a level of corruption at multiple levels in this country and the combination of the polarization and corruption. Those are real threats to our national security . Other nations, our enemies see what's going on in this country . They see the disbandling of key components within the Department of Justice, Department of Homeland Security . They see the leadership selected in these very important organizations and wonder, huh ? How can this be? I mean, really, in a nation of three hundred three hundred million Americans , this is the best you have . So it's a very it's a very dangerous time, I think, quite frankly. I think around the world, people are really questioning our commitment not to our own national security, but certainly to our alliances around the world . And I for one listened to Ken Burns earlier today talking about the beginning of America and the hope, the dream of what might be with this great country . And I also heard Ken Burns speak recently about the fact that we are in the process of becoming. So we're not done yet . This is just a blip as far as I'm concerned. It's a painful blip , but it is a blip. And I think if we all remain optimistic , but we have to pay attention and we have to participate in democracy , that we can still have the country that we once believed in, quite frankly , the principal terrorist threat to our nation, to our homeland now is domestic based . With the exception that when we went to war with Iran , we created a heightened threat environment for terrorism inspired by Hezbollah and Hamas, possibly . But that aside, the principal terrorist threat to our nation is domestic based. Homegrown , homeborn , terrorism a lone act inspired by extreme hateful stuff they see on social media coupled with the prevalence of guns in this society . And as long as people who have no business having a gun are able to get a gun in this country , we're going to be dealing with facts of terrorism for far too long, whether it's a school , a church or any other large gathering. And that's something that I think our political leadership needs to finally at some point be willing to take on. Jay Johnson, Alberto Gonzalez, thank you. Thank you. I'm Mary Louise Kelly, we're back with our regular episode on Thursday until then, thank you for listening to sources and methods from NPR.