Lawfare Daily: Prosecuting Terrorism and the Pursuit of Justice, with Jake Tapper

[Intro]

Jake Tapper: President Obama had come into office, obviously, in January 2009, and he wanted to prosecute the war on terror more according to American values and ideals, which meant he wanted to try terrorists in criminal court as much as possible. But the idea of bringing foreign terrorist to Brooklyn or to Manhattan to prosecute him scared so many people.

Michael Feinberg: It is the Lawfare Podcast. I'm Michael Feinberg, a public service fellow with Lawfare, here today with Jake Tapper, CNN's chief correspondent and the author of the new book, “Race Against Terror: Chasing an Al Qaeda Killer at the Dawn of the Forever War.”

Jake Tapper: Loretta Lynch talked to me about how she came from a military family. And how as a U.S. attorney, you often meet victims of crime who feel just completely ignored by the system.

And she wanted to make sure the Losano and Dennis families never felt––that they felt like the country did care, and the country was fighting to bring some small measure of justice to the killings of these two individuals.

[Main episode]

Michael Feinberg: Today we're talking about Jake Tapper's new book, which details the investigation, prosecution, and first conviction ever of an international terrorist operative in a U.S. civilian court.

Now, I want to sort of start off by talking about the genesis of the book. Outside of the main narrative, you speak, I think in the afterword, about hearing this from a father of one of your son's friends at a birthday party, right?

Jake Tapper: Yeah.

Michael Feinberg: You want to talk a little bit about how that came about?

Jake Tapper: Well, I mean, it's the kind of story that––I guess it could happen anywhere, but it's more prone to happen in a place like New York or DC, where there's a concentration of both journalists and people in the law enforcement community who work on terrorism cases and issues.

My son was turning 13, this is three years ago, and he is a big fan of airsoft and paintball and that sort of stuff. So we had a paintball birthday party for him out there in rural Virginia. And because it's so far––and you're a new father, so you'll understand this someday––but because it's so far, instead of making the adults drive four hours, I decided to have refreshments for the adults so they could just stick around, enjoy the nice October day and hang out for a couple hours while the kids did whatever they were doing to each other in the woods with airsoft guns or paintball guns, I guess.

Anyway, this dad walked up to me and said that he knew a lawyer and a veteran named Dave Roller, who I had written about in this book called “The Outpost” about Afghanistan that came out in 2012. And I said, yeah, that was a really tough book to write because the Pentagon keeps its crappy records and they don't share anything with anybody.

And he said, oh, tell me about it. And then he proceeds to tell me this incredible story. It starts with him as an assistant U.S. attorney at the Eastern District of New York U.S. Attorney's Office, which is Brooklyn as you know. And they get a call one day from the FBI from an agent you're probably familiar with named Ari Mahairas.

And Ari says, we just got this crazy call from Italy. They've picked up this guy on the deck of a cruise liner––during the Arab Spring, all these people are fleeing Libya, Tunisia––and he was, you know, picked up with them and he says he's a member of Al-Qaeda.

He's killed Americans in Afghanistan, and he tried to blow up the U.S. Embassy in Nigeria. His name is Spin Ghul. Have you ever heard of him?

And they had heard of him. The Americans fly over to Italy for Spin Ghul’s hearing in an Italian court, and he confesses. He tells this incredible story over multiple days, and when it's all over, the Italians are like, great, take him. We don't want him. He hasn't really done anything to us other than some unruliness on the ship.

But the Americans can't take him. It's 2011. It's the Obama era. They can't just whisk him away to Gitmo. That's not happening anymore. And Obama wants to try foreign terrorists in criminal court, which is also the only conditions under which the Italians will release them.

So, from then on, there is this race against the clock to prove Spin Ghul committed these horrific acts against American servicemembers and tried to blow up the U.S. Embassy in Nigeria, before the Italians get fed up and put him in a refugee camp from which he'll easily escape because those are minimum security operations.

And it's a story, it's a book about, well, the tale that this guy, this dad, Dave Bitkower, was telling me it was a story about sleuthing. He then starts proceeding to tell me about how they built the evidence to lock Spin Ghul up for the rest of his life. And it was an incredible story. For you, maybe just a common story, I don't know. But for me, as a guy who watches CSI and watches Cold Case and Law and Order and loves police procedurals, loves hearing about how bad guys are caught and prosecuted successfully, it was, I just couldn't, it was just such a great story.

And when he was done telling me the story––and he went on for a while because I think, you know, I think it's fair to say it was the case of his life––I was like, well, has anybody––this is a natural question for a journalist after the story is done––has anyone ever told the story before? Has anybody written about this?

And other than some stories in the press about his trial, about Spin Ghul’s trial, no. Nobody had really told the most interesting part of the story, which is the detective work that went on by the FBI agents, by the various investigators, by the assistant U.S. attorney. So that's how the story came to me.

And you know, I got Bitkower’s number and within a week or two I was having lunch with him and his fellow assistant, U.S. Attorney Shreve Ariail, and then I was being hooked up with other attorneys and FBI agents and the like, and, it was, you know, just really fascinating. And again, I don't know, for an FBI agent, how a book like this reads, but to a civilian it was just really just a great yarn.

And that's what I tried to write. I've written fiction and nonfiction. I tried to take some of the lessons I've learned from writing fiction and apply it here and write this as if it's a fictional thriller, a page turner. But it's all true and was really, you know, I felt it was fun to write, but also, when it came to the service members, and the unheralded people who work in the Justice Department and the FBI, an honor to write about.

Michael Feinberg: It's funny you ask what it would be like for an FBI agent to read this, because I actually very much appreciated this book because this is the sort of book, when I was still a special agent, that I would readily give to friends or family who wanted to understand the sort of things on which I worked that I could never talk about.

I thought you did a very good job capturing what an actual investigation is like and sort of demolishing the myth that it's always adversarial between the assistant U.S. attorneys and the FBI special agents involved. It seemed like you really captured the team effort that goes into an endeavor like this.

Jake Tapper: Yeah, I mean, I think it's fair to say that not everybody knows what everybody else is doing, and there is, you know––it's not like I didn't sense any turf issues when writing the book.

You know, the FBI folks were very insistent on me knowing that they were following Spin Ghul before the assistant U.S. attorneys were. And I think the assistant U.S. attorneys, in some instances didn't fully appreciate what the FBI agents were doing, but I'm not really interested in that stuff. It doesn't really, I mean, and it wasn't really like a major source of tension or anything like that.

I was just more interested in how it worked. And catching the bad guy. And the fact is that there was a lot of stuff––I mean, I think probably it's fair to say that the FBI agents, if they've read the book, have learned things that they didn't know that were going on, and vice versa with the U.S. Attorney's Office.

But as a general note, yeah, this is––it wasn't written this way. It was written to be a page turner, a thriller, a true crime book. But as a general note, it was––it ended up also being a love letter to a functioning Justice Department, which I don't know we have now.

Michael Feinberg: I have thoughts on that, but it's probably a conversation best saved for another day.

Jake Tapper: Over a beer perhaps. Yes.

Michael Feinberg: Or multiple.

Jake Tapper: Yeah.

Michael Feinberg: So, you know, you mentioned that this case, while ultimately successful, started with a lead from a foreign country, from Italy.

Jake Tapper: Yeah.

Michael Feinberg: And I was not familiar with this case except by name before I read your book, and I was a little surprised when I saw that Italy was so cooperative. Because in the not-too-distant past, before they came into contact with Spin Ghul, there had been what I will politely call a kerfuffle between American counterterrorism operations and the Italian government.

Jake Tapper: You mean when they indicted a bunch of CIA officials for kidnapping? Yes.

Michael Feinberg: Yes. I was wondering if––

Jake Tapper: Convicted them, not just indicted them. Convicted them, yeah.

Michael Feinberg: Yes. Quite a few of them, if I recall. I was wondering if you could sort of give the background of how that particular extraordinary rendition––or kidnapping, depending on your point of view––in Italy colored the behavior of the Italian government this time around.

Jake Tapper: So I think the guy's name was Abu Omar and he was an Egyptian cleric who had fled Egypt and was living in Italy. And the Americans working with the Italians kidnapped him, whatever you want to call it. Extraordinary rendition is the polite term.

And took him to a foreign country where he was tortured. And then he's now free in Egypt, I think. That's the last time I heard about him. He was in Egypt. Yeah.

I don't want to overstate the cooperative spirit. The Italians were mad at the Americans. Mad at the Americans for any number of reasons having to do with the war on terror.

First I think as a general note, there were a lot of European officials, European leaders, who were very disappointed with how the Bush administration prosecuted the war on terror. In terms of Gitmo, in terms of extraordinary rendition, in terms of enhanced interrogation––otherwise known as torture––in terms of declaring people enemy combatants.

I mean, there was a lot of new or newly rehabilitated law having to do with terrorists that the Europeans did not like. And there was this ticking clock. I mean, one of the reasons I think that the Italians were, they were cooperative with the Americans in the sense that they wanted America to get this guy and lock him up.

They were eager for him to leave. They didn't want to be housing him any longer than they had to. And he, in fact, you know––as you know, and maybe some of your listeners know, the fact that the pickup came in June of 2011, that's when they got Spin Ghul. And it was, I think within the year, within a year, that he was extradited and brought to the United States.

That is rapid for the Justice Department working with a foreign government. As you know, these things often take years and years and years and years. So that, I think, demonstrates how much the Italians were eager to have him out of their country.

But the Italians were also putting forth a lot of strings. Spindle came with strings attached. The Americans could take him, but he couldn't go to Gitmo, he couldn't be tried by a military commission, and the death penalty had to be off the table. So, I think there was a degree to which the Italians also felt, well, we are calling the shots here. And we think this is an al-Qaeda terrorist.

We don't want him killing people. I don't know how much they ever would've actually sent him to a refugee camp, but I sensed that the Americans really felt like that was a legitimate threat, and so they needed to indict him and extradite him as soon as possible. And so that was done as quickly as possible.

Michael Feinberg: And I assume it was helpful for the prosecution in negotiating these caveats and parameters with Italy in that there had recently been a change of administration in the United States that very much wanted a sort of proof of concept for trying a terrorist subject in a civilian court rather than through a military commission?

Jake Tapper: Yes. Oh, so President Obama had come into office obviously in January 2009, and he wanted to prosecute the war on terror more according to American values and ideals which meant he wanted to try terrorists in criminal court as much as possible.

It was weird rereading and re-report this about 2011, 2012, 2013. But it reminded me of just how terrorized the American people were still, more than a decade after 9/11, but the idea of bringing a foreign terrorist to Brooklyn or to Manhattan to prosecute him scared so many people. And honestly was, you know, and it was bipartisan. Schumer didn't want them. Peter King, the Republican congressman, didn't want them.

Bloomberg, who I think was a mayor and was independent at the time, didn't want them. There was very little support for this, whether it was Spin Ghul or Khalid Sheikh Muhammad who was down at Gitmo. There was just a p––it was just not going to happen.

And in fact, while Obama was leading this government that was trying to bring Spin Ghul to the United States to prosecute him, there was an effort to block Obama from being able to do it written into the Defense Authorization Act. And the last-minute concession that Obama got was that he could get, he could seek a waiver.

You know, nobody was allowed to be, no foreign terrorist was allowed to be brought into the United States for a criminal prosecution, but he could announce and sign a waiver. So, they got a waiver for Spin Ghul, and I think he's the only one. There's been a waiver for now. Flash forward to today. Spinel was the very first, and as of now, only foreign terrorist tried in a U.S. criminal court for killing American service members abroad.

But now Trump is trying to do the second one, which is this guy Jafar, who was part of the Abbey Gate conspiracy. We can go into later as to what's going on in the Eastern District of Virginia––

Michael Feinberg: Yes. Because there's a very interesting wrinkle––

Jake Tapper: Yeah.

Michael Feinberg: ––in prosecution of that case, which we'll get to in a minute.

Jake Tapper: Yeah, a hundred percent. But I do think it's interesting that Trump announces this and has joint address to Congress this year, I think was March. And there is no outcry. There is no one saying you can't bring him to Virginia. Because it's hard to explain to people if they don't remember, but there was a tangible fear, not only what happens if he's not convicted––do we then release him, and he is just like at the Starbucks in Manhattan and killing people?

But also there was this fear of, is al-Qaeda going to try to break him out prison? Is he going to escape? Is he––and there was almost this infusion of superhuman powers that we assigned to these people, like that they were deadlier than any, anyone.

Yes, of course, these are horrible criminal terrorists, no question. But they don't have superhuman powers.

And it was, I don't wanna say it's an irrational fear because 9/11 happened and that was terrifying. But there was this very tangible fear in this first term of the Obama years that does not seem to exist anymore.

When I tell people Jafar is just a few miles away from us, where I'm sitting here in DC in, I think he's in a jail in Alexandria, people can't believe it, you know? But it's kind of just accepted.

Michael Feinberg: Yeah. So let's go back to Jafar and to Abbey Gate just for a second, 'cause there's something I want to tease out here.

EDNY. It’s one of the four best national security practices within the Department of Justice. There's a crosstown rivalry with SDNY, of course, and then there's the DC U.S. Attorney's office and the Eastern District of Virginia. And those are really the heavy hitters for counter-terrorism prosecutions in the United States.

Jake Tapper: And just to interrupt the––if people are wondering who decides which one of these jurisdictions gets the terrorist, it has to do with where the terrorist is arrested, I believe. Right? If they're in Africa, it goes to one place. If it's in Afghanistan, Pakistan, it goes to another place.

Right? Isn't that how it's done?

Michael Feinberg: It depends, and I don't know how it is right now, but generally speaking, there is a multifactor analysis having to do with geography. The investigating squad out of the FBI at 26 Federal Plaza. But even with those parameters, a lot of times it will come down to what's called the DAG fight, which is when both offices that very much want the case and the publicity that comes with it will appeal to the Deputy Attorney General's office and essentially have a sort of formalized debate about which office gets to run with it. But I don't think that was an issue here.

Jake Tapper: No, he was picked up in by the Italians. I believe Europe went to the Eastern District of New York. I think that's how it happened here.

It just automatically, it just went from the Italians to Bill Nardini who was at the Justice Department desk in Rome, and he calls the special agent in charge, Ari Mahairas, att the FBI, who then automatically goes to the Eastern District of New York because that was the jurisdiction. That's how it happened

Michael Feinberg: Right. Now, one of the benefits of that system is at the time the Eastern District of New York had a real murderers’ row of top-notch national security prosecutors. You not only had David Bitkower and Shreve, but you also had younger attorneys like Melody Wells, who now is running the national security program for the Northern District of Illinois, which has Chicago.

You have a lot of people who were involved in this case who really knew what they were doing, not just in this case, but then went on to even bigger things later in their careers because of their success.

Jake Tapper: Yeah.

Michael Feinberg: That's not really what we're seeing happen with Jafar and Abbey Gate the past week in the Eastern District of Virginia.

Jake Tapper: Yeah. And so let's talk about that. So one of the things that I have found, that I've learned while writing this book––and part of the book takes place in Afghanistan, which I knew a little bit about from covering the war in Afghanistan, writing a previous book about it, et cetera.

But I didn't know a ton about prosecuting terrorists and all these issues until I wrote this book and researched this book, and one of the things I came to appreciate is, first of all, this isn't easy. This is really tough.

Like, locking away Spin Ghul was a huge, huge effort. And look, people can differ and people can, you know, I mean, I wrote the book not to be a polemic. It's not a political book. Politics are in there, but I'm not taking a position. And liberals and conservatives have read the book and thought that it proved their point of view on whether these people, these terrorists should be tried in criminal court or just sent to Gitmo.

And that's fine. I don't want the book to have a point of view on that. But one of the things I did learn is this isn't easy. And it is really important to have experts in the same way that you would if you're going to have an appendectomy, you want the best surgeon. When you are going to prosecute a terrorist, you want the best prosecutors.

And I don't think––and FBI investigators as well. And I don't think I've fully comprehended that because I, because honestly you guys are very secret about stuff and we don't know because, you know, there isn't a lot of sharing when it comes to this sort of thing. Even when James Comey was sharing what he did share, it was stuff about politics. It wasn't about prosecutions.

But in any case, one of the things I learned is how important it is to have Melody Wells or Dave Bitkower, or Shreve Ariail or others. There's a guy that is in the book who would not cooperate with me at all, so this is not me blowing smoke to somebody who was a good source, named George Toscas, kinda legendary in the FBI was in the National Security Division. Had been at the Justice Department since 1993. And he had experience.

What do I mean by he had experience? We learn more––people, human beings––from our failures than we do from our successes. I think we, we learned more.

He had a failure. He had been trying to prosecute some Hutu murderers who killed Westerners in Rwanda. And he was prosecuting this case during the first Bush administration, first Bush term George W. Bush. And the judge threw out their confession because they had been interrogated by these Rwandan police who were part of the rival Tutsi clan.

And this judge thought that it was basically torture and fruit of the poison tree, et cetera. And these murderers are now free men in Australia. So George Toscas had been burned by this. I learned this from his colleagues, not from him, but he, from then on, I think probably came even more of a hardass.

And if you were an FBI agent, an assistant U.S. attorney, whatever, trying to get a tough prosecution okayed––getting the U.S., getting the Attorney General to sign off on it, getting President Obama to sign off on it, getting John Brennan to sign off on it, that was nothing. Getting George Toscas to sign off on it, that was your big hurdle because he was the hardass in the Justice Department.

George Toscas is no longer doing this for us, us Americans to keep us safe. He's not doing it. Because he signed off on the Mar-a-Lago classified documents warrant, when Trump came into office, he was sidelined. And it's an absolute disgrace that he is not doing what he does best because of this political consideration for a legitimate classified documents investigation.

And it gets worse. The guy who was prosecuting Jafar just a few weeks ago was fired, is a guy named Michael Ben’Ary. Again, never talked to him in my life, doesn't respond to emails, doesn't respond to texts. Like I'm doing, he's not, I'm not saying this because he's done me any favors.

Michael Ben’Ary was prosecuting Jafar, even though there was a lot of turbulence going on at the Eastern District of Virginia because the previous U.S. attorney, acting U.S. attorney Erik Siebert had been fired, because he wasn't bringing charges against Letitia James, the New York Attorney General, or James Comey, the former FBI director.

He was replaced. Lindsay Halligan came in. And now Michael Ben’Ary was fired because some MAGA person posted on social media that she supposed he opposed the prosecution of Comey too, which there's no evidence of it.

And she wasn't even stating it as a fact. She was surmising it. And he's gone and he wrote a letter, a public letter saying this hurts the case against Jafar, and the current Justice Department leadership is more focused on going after the president's perceived political enemies than they are in protecting the American people.

That is, as you know, very rare for a prosecutor to ever say publicly, and kind of terrifying. So that's where we are. And I hope that they are replacing Michael Ben’Ary with prosecutors who know what they're doing. But I have my doubts because it seems like all they care about is loyalty to Trump and not expertise in locking away terrorists.

And if the Jaffar case is half as complicated as the Spin Ghul case, this is not going to be easy. I mean, I don't know the circumstances under which Jafar confessed, quote unquote, to the Pakistani authorities. Is that going to be admissible? I have no idea.

Michael Feinberg: A lot of people, they watch Law and Order or similar shows and they think they have a good idea what a national security prosecution is going to be like, but they don't realize how different it is and what an art form it really is.

Because you have things you don't have in a standard murder trial. You have classified evidence that you can't reveal in open court outside of very specific procedures. You have information from foreign governments that those governments don't want to admit they gave you.

You have confidential sources who may still be embedded with terrorist organizations whom if you publicize their role, they're going to get killed. This is not the sort of thing where you can hire a recent law school graduate and assume that they're going to be able to step into the shoes of a Michael Ben’Ary or somebody like a David Bitkower.

Jake Tapper: No it's crazy. Yeah. No and I mean, when you read, and presumably some of your listeners or viewers will read my book, and you'll see this is tough. Like they, they literally had to fly to Nigeria twice, two different trips to Nigeria. And, you know, witnesses had been killed, witnesses were in Gitmo and not able to testify.

I mean, it was for the grace of God that they were able to find physical evidence. So, I don't know how they're going to do Jafar. I wish them success, you know, but you can't just put an insurance attorney from Florida who's MAGA-loyal and expect that this is––which is Lindsey Halligan, the president's acting U.S. attorney in the Eastern District of Virginia––and just think this is going to go well.

 I mean, she, yeah, she got an indictment against Comey and she got an indictment against Tish James, but indictments are not the ball game. Indictments are relatively easy.

Michael Feinberg: That's very true. There is, the old statement is, you've heard a million times you could indict a ham sandwich.

The burdens of proof for a criminal conviction are significantly higher than what you need to get an indictment. And I was really glad, in the context of this discussion and in the book that you mentioned, George Toscas’s role in this, because as somebody who worked national security matters my entire career, I very much knew of George Toscas by reputation.

At the time I was in the FBI, he was the highest-ranking career employee at the Department of Justice and still held that title when he was pushed out recently. But speaking candidly, he was viewed as kind of a pain.

Jake Tapper: Yeah. Journalists think so too, by the way, because he wouldn't––

Michael Feinberg: I have no doubt.

Jake Tapper: ––he doesn't respond to any of our questions.

Michael Feinberg: Well, I mean, for our issue was a little different, which is getting him to yes on an indictment was always a very uphill battle. And it's not until you're more seasoned as an investigator or a prosecutor that you realize you want that.

You want somebody who is going to poke holes in your case up until the very last day, so that the final indictment you present to the grand jury or the final summation you make to the jury, is as strong as it could possibly be, and you've game-planned every possible weakness you may have.

Jake Tapper: Yeah, I mean that the idea that he's not going to help the jaffar prosecution. Makes us less safe. There's no politics involved in this. I'm not saying this from an anti-Trump perspective. I don't even know what George Toscas’s politics are.

Like I said, I've never talked to him. He's never communicated with me in any way. I tend to think that, I mean, just as a general note, I tend to think of prosecutors and law enforcement as more conservative because of what they do for a living. But you know, that's just an assumption. I have no idea what his politics are.

I know that there were classified documents at Mar-a-Lago and no one has credibly disputed that. You could argue that they shouldn't, they, you know, that there's an over-classification problem in the government, and I'll agree with that a thousand percent. But the idea that there were classified documents at Mar-a-Lago, the president––the former president at the time––was refusing to hand them over, and there was a credible investigation as to they, they weren't being stored securely, that's for sure.

And he signed off on a warrant. I mean, that's kind of a no brainer.

Michael Feinberg: It's also his job.

Jake Tapper: Right. The political action would've been to deny the warrant that would've been the political action.

Michael Feinberg: Correct. Because then you would be treating Trump very differently than you would be treating any other defendant in a mis–– or subject at that point in a mis––

Jake Tapper: Including Biden. Including Pence, including, you know, Reagan, including all the other people who have had classified document issues. And remember, there was a special counsel that investigated Biden for his possession of classified documents. Robert Hur?

Michael Feinberg: Yes. Who is a Republican DOJ Appointee, who was the U.S. attorney for Maryland.

Yeah, for a long time. Yeah. People will always forget there were simultaneous special counsel investigations going on.

Jake Tapper: Yeah, and I mean, I wrote a different book that came out earlier this year about Biden and his acuity issues. And one of the themes of that was that Robert Hur was doing his job, and got unfairly assailed by the left and the right for how he did his job.

And it was really, honestly, a shame. And you know, Biden basically fired Merrick Garland in the midst of all this, when people leaked to the press that he wouldn't be part of a second Biden administration.

You know, again I look at Robert Hur the same way I look at George Toscas, which is the same way I look at David Bitkower, which is people doing a very difficult job, you know, and trying to do it to the best of their ability.

Michael Feinberg: Her got a lot of flak for, I don't remember the sentence by memory, but he essentially made a judgment about how a jury might perceive President Biden's recollections.

And a lot of my friends got really upset about that because they thought it was an unfair way to portray somebody who hadn't been charged. But they forget that part of a prosecutor's job, whether you're a line AUSA or a special counsel, is you have to assess candidly, how are your potential witnesses and defendants going to appear in court?

Jake Tapper: Yeah. And this is also part of Erik Siebert not wanting to bring charges against Comey or Tish James, which is, can I get a conviction?

It's not, can I get an indictment? It's, can I get a conviction.

I don't know one prosecutor who wouldn't love the pelt of a public official on their wall. I mean, every prosecutor I've ever met, every FBI agent I've ever met, would love to take down a senator, would love to take down anyone in public life. If they work for the public integrity unit, that's their bread and butter.

And you know, there, there are cases in the past that people think that was overreach, whether it's Ted Stevens or the first Menendez case, I guess not the second one given that he's in prison right now. But, whether or not you can get a conviction is always the question. And when Robert Hur’s report came out and he said that he thought that Biden would present as a well-meaning elderly man with a poor memory, this was in February 2024.

He had sat through about five hours of interviews with Joe Biden in October, 2023. And those five hours of, obviously, the transcript and the audio has been released. And they're pretty shocking in terms of how meandering Biden seems and how off focus and how much he just seems like a well-meaning elderly man with a poor memory.

But Hur was raked through the coals for that. And then came the debate in June, and Biden seemed like a well-meaning elderly man with a poor memory. And Hur, who had been, had seen his reputation, dragged through the mud by Democrats and had a tough time finding a job, which is usually not the case for a special counsel. They usually are not, or do not have difficulty finding a job, 'cause it's a prestige position.

He was vindicated and thankfully he's, you know, employed and able to raise money for his family and all that. But it was really crappy. But, you know, the question of can I get a conviction is so paramount, and something that I think a lot of people forget.

Can I get a conviction against Hillary Clinton? That was a question that James Comey had to answer.

Michael Feinberg: Yes. People don't realize how much work goes into a prosecution, and how many nuances there are to make sure that you have that victory at the end. And as a result, a lot of decisions that aren't political appear politicized, just 'cause people don't understand what's going on behind the curtain.

And I think you do a really good job of laying that out as you detail the investigation, prosecution, and ultimate conviction of Spin Ghul. But I want to shift gears a little bit because that's only one of the stories you tell in the book.

And you spend a lot of time doing something I didn't expect when I first picked it up and saw the jacket copy, which is, you spend a large part of the narrative amongst the soldiers who were the victims of Spin Ghul’s attack in particular, the 82nd Airborne.

Jake Tapper: Yeah. So the ambush that Spin Ghul engaged in was very early in the Afghanistan war in April 2003, at a place called Firebase Shkin, which was right near the Afghan-Pakistan border.

And he was, you know, he was being tried for killing two service members, Airman Ray Losano and Private Jared Dennis. And it's always difficult, but also I feel an obligation as a journalist to tell the stories of these soldiers as I did in “The Outpost,” because they are as unheralded as the FBI agents and assistant U.S. attorneys, if not more so.

And I thought that we needed to understand what had been taken from us, both as a country and also just the Gold Star family members who lost their loved ones. And also the service members who to this day are physically or psychologically damaged because of what happened. Right?

There is a soldier in the book who is right now having a major mental health crisis, somebody I got to know while writing this book. And these scars do not heal with time. They stay forever. And it's just a question of how people best deal with them.

So yeah, I told the story of Jared Dennis and Ray Losano and their service, and the service members. And I thought it was an important part of the story and also would make the stakes higher. Because you see the evil that is done to these men. And it also was an important part of the prosecution.

One of the FBI agents, a woman named Raushaunah Muhammad––so, Ray, so Jared Dennis was this kid––he was kid, he was 19 when he was killed, that's a kid, you know––and he was from Antlers, Oklahoma. He was a Native American kid, kind of a goof, kind of a class clown.

And he would write home and call home and talk about what he was experiencing in Afghanistan. And he's a sweet kid, and I included a few of his letters to kind of get across who he was, letters to his mom, and his innocence, his naïvete.

One of the things he writes about is how cool it is that the Afghans are so much like the Oklahomans he knows. Except instead of branding their animals, they dye them, with like pink dye or green dye or yellow dye. And he got a real kick out of that. Raushaunah Muhammad kept a photograph of one of these pink chickens at her desk to remind her of what all this hard work was for. Jared Dennis's sweet soul had been taken from this earth, and the pink chicken reminded her of Jared Dennis.

And that's, I think a lot of what made these men and women work so hard to bring justice to Spin Ghul. Loretta Lynch––who was the U.S. attorney and then the Attorney General during this period––Loretta Lynch talked to me about how she came from a military family, and how as a U.S. attorney, you often meet victims of crime who feel just completely ignored by the system.

And she wanted to make sure the Losano and Dennis families never felt that they felt like the country did care and the country was fighting to bring some small measure of justice to the killings of these two individuals.

Michael Feinberg: And as a reader, I really appreciated the fact that at no point did it feel like the service members were politicized or being used as a justification for civil trials over military tribunals or anything like that. And I mean––this is a sort of tangent––I'll note, you know, when I saw the film adaptation of your other book about soldiers, “The Outpost,” I was a little shocked when I got to the end credits.

Because I didn't realize who it was directed by when I started it. But it was somebody who is very outspoken on a lot of political and military issues. Who, while a West Pointer himself, I believe––

Jake Tapper: Yes.

Michael Feinberg: ––is very much on the left anti-war side of the spectrum, and I think it was a real testament to the source material that the story never got portrayed in a way that seemed like it was advocating for a political point.

Jake Tapper: I'm so glad you said that. I feel a hundred percent the same way. I wrote “The Outpost” not as a polemic against the war in Afghanistan. I kind of see the story of this outpost, I kind of see it as a metaphor for the war in Afghanistan, people going into a country with the best of intentions and things not going the well, the way they wanted it to, and a lot of good men being killed.

But I didn't write it to be an anti-war book. I wrote it to just tell the story of “The Outpost” and be a tribute to the men who served there. I did not want the movie to be a polemic either. I didn't want it to be preachy. I wanted just the story to tell itself and people can draw whatever conclusions they want.

And Rod Lurie, I thought, did an amazing job. And you're right, he's a very outspoken liberal and some of his previous work reflects that, especially. The one he did with Joan Allen, what was it called?

Michael Feinberg: “The Contender?”

Jake Tapper: “The Contender,” yes, “The Contender,” that, in which she's a yeah, she's––anyway, dragged through the mud by Republican congressmen. And I didn't want that, and he didn't either.

I don't think I had to convince him of that. I mean, I told him that was one of the things that I thought was important about the book and what I would hope would be the case for the movie, which is, you can watch that movie as a conservative or read the book as a conservative and think, ‘look what amazing people we have,’ and not take a position on the war.

You can read it or read the book or watch the movie as a liberal and think oh, that's insane, we never should have been there. You can bring whatever you want to this story and you'll find evidence to disappoint your point of view. But that's not my job. My job is just to tell the story and to include all those points of view.

And I try to do the same with this book too. And I included the perspective of the judge. The judge, Cogan, later––and it's very rare for a judge to give an interview, but I, you know, I had impressed upon him, this is not a political book. I just want to know your points of view on these things, on these decisions you made, et cetera, why you made them.

And he later also told me, and this is in the book, like that, he kind of thought the trial was ridiculous. He thought it was a show trial for Obama to show off, look how idealistic we are, and look how our courts work in this amazing way.

And he thought, you know, Obama, you're the president. You can do whatever. You can lock Spin Ghul up forever, and you don't have to go through all this effort.

And that's his point of view and it's perfectly legitimate. And Hugh Hewitt told me that's how he felt about it. And again, I'm not here to give my point of view. I am as politically agnostic as I can be on a lot of these things. And my job, I feel, is just to tell the story and let the chips fall where they may, as long as I'm including all of the information.

I do think, and this is not in the book––so this is a, this is my perspective, but it's not part of the book––I do think that prosecuting Spin Ghul, probably, and it's impossible to prove, probably was the better idea than putting him in Gitmo. Because I think if he had been sent to Gitmo, he probably would be free by now.

He probably––because there wouldn't have been this huge effort to amass evidence against him. And he probably just in the sturm and the churn of Gitmo would've, at some point, somebody would've said, why are we holding this guy? He’s been here 10 years. The only thing we have is some confession. He seems crazy to us anyway.

And then he may have, you know, he would've been released and then I think he would've gone and killed as many Americans as possible, as has happened with some Gitmo detainees. So, I do think that trying him in a criminal court probably made us safer just based on the history of what happened to other people at Gitmo.

But that's not an argument. That's just kind of like a speculation.

Michael Feinberg: Yeah. It's worth noting, you know, Guantanamo as a venue for judicial proceedings––we're over two decades now, and I think the number of convictions.

Jake Tapper: Two.

Yeah. It can be counted on one hand,

Jake Tapper: Two with nine plea, nine plea deals. I think two convictions.

One of those convictions, I think, part of it was thrown out of court, whereas the criminal prosecutions of terrorists in criminal court. It's more than 600. So the numbers are pretty stark.

Michael Feinberg: Yeah. So I basically just have two more questions for you before we wrap things up, and the first is going to seem a bit off topic.

It really struck my eye when I saw it in your book, and I suspect other people who have a real solid background in national security affairs might have the same thought. And you mentioned one of the CIA officers involved in this case was an individual named John Kiriakou.

Jake Tapper: Yeah.

Michael Feinberg: And the name jumped out at me because I worked counterintelligence investigations my whole career.

And Mr. Kiriakou was sort of famously prosecuted or persecuted, depending on your point of view, for revealing to the media expansive amounts of information about the CIA's various torture programs.

And I was curious––and again, this may be calling for wild speculation on your part, so feel free to, you know, demur––do you think that the experience he had seeing how an overt civil transparent process could work, may have colored how he viewed what the agency was doing in other parts of the world?

Jake Tapper: I don't know. His case––there's this one chapter on the capture of a terrorist named Abu Zubayda. And this happens in 2002 in Pakistan.

And the reason that that case ends up being important, or that seizure ends up being important, is because there is evidence seized in that raid that proves that Spin Ghul was who he claimed he was.

And what was interesting was the raid was done with the FBI and the Pakistanis. And I talked to, you know, the FBI people who were on the ground there. And then the CIA took possession of Abu Zubayda, and he was whisked off to a black site and tortured. And nothing after that was usable in a court of law.

But because the FBI had been part of it––had not just part of it, had been leading the raid before the CIA got involved––that evidence was admissible because the FBI was doing everything by the book. And at the time, the CIA––and look, I don't, I'm not trying to impugn the CIA, they were doing what they were commanded to do, and I'm not trying to impugn the Bush administration, they were doing what they thought they needed to do in a very perilous time when the world was terrified 'cause of 9/11––but the decisions they made made prosecution impossible for any number of people. And I think there are about 15 people left at Gitmo.

So I don't know if it colored Kiriakou’s view that he saw the FBI doing things by the book and then all of a sudden the CIA was doing them off the book. But the contrast of what was done to Abu Zubaydah was stark. And it was just interesting to me to, well, first of all, just to write about this raid, because I hadn't heard about it even though it has been written about before.

But also just the contrast of it, that the FBI was still doing things by the book after 9/11 and the CIA was not. And that meant in this court case––and the trial came in 2017 during the first Trump administration during this, the court case––that they could be using this evidence seized 15 years before in Pakistan because the FBI was doing everything by the book, there's a chain of custody for what was seized, and all the rest.

I just thought that was really, really interesting. And John Kiriakou I've had on my show before, he is always an interesting guest. I know he is a controversial guest, but I think that his opinion about––you don't even have to share his opinion about the immorality of torture to believe that it hurt the ability of the United States to wage the war on terror because so much evidence became inadmissible.

Michael Feinberg: Yeah, and Spin Ghul obviously stands as a real contrast to that, because he is ultimately tried above-board in a transparent fashion with all the forensic evidence you would expect, like the Koran that had his fingerprints on it from the side of the battle.

And it's not a happy ending, of course, because there was tragic loss of American lives that led to this, but it's a successful ending for the prosecutors involved.

And my final question for you is, in the course of your career, you've probably covered countless counter-terrorism operations, whether military or civilian investigations, prosecutions, negotiations, and so on and so forth. What is the one lesson that you think we should draw from the trial of Spin Ghul that makes it stand out for you apart from all those other matters?

Jake Tapper: I think that––and this is such a unique case, 'cause like I said, it's to this day, the first and only foreign terrorist tried in a criminal court for killing service members abroad––and the attempts to try Gitmo detainees were largely perceived as unsuccessful, because not only were politicians blocking it, but when they brought Ghailani, who was the only Gitmo detainee ever tried in criminal court, because the case went so sideways, because evidence was thrown out because of torture, and so Ghailani was acquitted by a Manhattan jury of 284 out of 285 charges.

The jury did convict him on one charge, which meant he went away to prison. But that sent a chill throughout the national security apparatus. Oh my God, we can't bring these guys to trial in criminal court. Witnesses will be thrown out, they'll be found not guilty, and then they'll walk.

That was the fear. I will say that I think that the way these prosecutors and FBI agents and others did their job made it so Spin Ghul can never hurt anybody ever again. I don't know that it can be replicated with every FBI or CIA, arrest of every terrorist because I don't know what evidence exists and the conditions under which they're brought into custody.

But I do think that Spin Ghul––on Earth 2.0, he's captured in 2008 in the Bush administration, I think he's a free man and he is killing Americans abroad. Because I just think the effort wouldn't have been there because these JAG attorneys at Gitmo, they don't have the time or expense to travel the world and build a case.

And so even if he had been prosecuted, who knows what they would've been able to try him with other than a confession. And any first-year lawyer without evidence would be able to argue, as a defense attorney, this guy's nuts and you have no evidence against him. And as the book goes into detail, I mean, there are questions about his sanity and about his competence to stand trial.

I mean, how much a judge believes in them or not is another matter. So, I think it made us safer, because I think that Spin Ghul was a very dangerous man. He was a zealot. He wanted to kill as many Americans as possible, and I think he would've, and I think he would've been freed.

I don't think he's, you know, these last 15 guys at Gitmo are the most dangerous guys. Some of them you'll meet in the book, Hadi and Faraj and others. You've heard of Khalid Sheikh Mohammad and the rest. Spin Ghul was not that, he was not an upper-level al-Qaeda operative. He was just under them. And he would've been freed and he would've killed people.

And so, I think, you know, in any number of ways this case could have gone south. If the Italians had let him go or put him in a refugee camp, if the case had failed, if they hadn't worked as hard as they did to build the case, if Toscas hadn't been there demanding, every T is crossed and every I dotted, if Bitkower hadn't been assigned, if Shreve hadn't been assigned, and all the rest, but it went well.

So I do think that's the lesson. Is that our system of jurisprudence, while it can take a while and can be bureaucratic and annoying, makes us safer.

Michael Feinberg: And I think we'll leave it at that. Jake Tapper, thank you very much for appearing on the Lawfare Podcast and we'll speak to you soon.

Jake Tapper: Thank you so much. Great to be here.

Michael Feinberg: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters.

Please rate and review us wherever you get your podcasts. Look out for our other podcasts, including Rational Security, Allies, The Aftermath, and Escalation, our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written work at lawfaremedia.org.

This podcast is edited by Jen Patja and our audio engineer this episode was Cara Shillenn of Goat Rodeo. Our theme song is from ALIBI Music. As always, thank you for listening.