Sep 10, 2021

60 Words, 20 Years

It has now been 20 years since September 11th, 2001. So we’re bringing you a Peabody Award-winning story from our archives about one sentence, written in the hours after the attacks, that has led to the longest war in U.S. history. We examine how just 60 words of legal language have blurred the line between war and peace.

In the hours after the attacks of Sept. 11, 2001, a lawyer sat down in front of a computer and started writing a legal justification for taking action against those responsible. The language that he drafted and that President George W. Bush signed into law - called the Authorization for Use of Military Force (AUMF) -  has at its heart one single sentence, 60 words long. Over the last decade, those 60 words have become the legal foundation for the "war on terror."

In this collaboration with BuzzFeed, reporter Gregory Johnsen tells us the story of how this has come to be one of the most important, confusing, troubling sentences of the last two decades. We go into the meetings that took place in the chaotic days just after 9/11, speak with Congresswoman Barbara Lee and former Congressman Ron Dellums about the vote on the AUMF. We hear from former White House and State Department lawyers John Bellinger & Harold Koh. We learn how this legal language unleashed Guantanamo, Navy Seal raids and drone strikes. And we speak with journalist Daniel Klaidman, legal expert Benjamin Wittes and Virginia Senator Tim Kaine about how these words came to be interpreted, and what they mean for the future of war and peace.

Finally, we check back in with Congresswoman Lee, and talk to Yale law professor and national security expert Oona Hathaway, about how to move on from the original sixty words.

Original episode produced by Matt Kielty and Kelsey Padgett with original music by Dylan Keefe. Update reported and produced by Sarah Qari and Soren Wheeler.

Special thanks to Brian Finucane.

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(SOUNDBITE OF MUSIC)

LULU MILLER: Hi, I'm Lulu Miller.

LATIF NASSER: And I'm Latif Nasser.

LULU MILLER: This is RADIOLAB. And today...

LATIF NASSER: We are imminently approaching the 20th anniversary of 9/11. And as we've been watching over the last couple of weeks the American withdrawal from the war in Afghanistan, which started shortly after those attacks, our producer Sarah Qari came to us and suggested that we rerun one of our old episodes.

SARAH QARI: Oh, yeah. I mean, I feel really strongly about this story. I - you know, it - I feel like 60 Words, as an episode, like, means a lot to me. And part of it...

LULU MILLER: So the episode is called 60 Words, and it's about a set of actual words that were written down in the couple days after 9/11 that completely changed how and against whom the U.S. can use military force. Now, that show was actually released back in 2014 before Sarah was a producer here, so she heard it as a listener.

SARAH QARI: It just hit me so hard. And I think that was, like, a real moment for me, where I was, like, this is the kind of story that I want to be making because of my experience of 9/11 and what a big part of my childhood it feels like it was. And like...

LULU MILLER: And wait. So how - where were you when 9/11 happened?

SARAH QARI: Like, I was in the second grade. And it was, like, literally, like, maybe day four or five of Islamic school. Like, my parents had enrolled my brother and I in this, like, full-time Islamic school in Jersey, which is basically, you know, like, Catholic school but, like, instead of, like, Catholicism part, it's all just, like, Islamic studies classes. And so that was, like, a totally new experience. I went from, like, being at a school where I was like the only brown kid to, like, all of a sudden being, like, in a class that was all Muslim kids, right? And I remember a TV getting wheeled into the classroom, seeing the Twin Towers on the TV. Everything just being very hushed in class and, like, everyone being very, very afraid. And we got sent home, like, within a few hours. And then I remember being at home asking my parents what was going on. Like, wait. But, like, how could these people be Muslim? Like, we're Muslim. And then what happened was that, especially because of being at an Islamic school, the narrative around me became you have to now represent your religion to the rest of the world. Like, you have to show people what Muslims actually are. And, like, that narrative became apart...

LATIF NASSER: Don't embarrass the rest of us.

SARAH QARI: Don't embarrass the rest of - or just, like, show people that we're not that, you know?

LULU MILLER: So much pressure on a little kid - on anyone.

SARAH QARI: Yeah, exactly. Like, that just became a constant part of my life over and over. And part of it was always hearing about some conflict or other. Like, now the U.S. is going to Afghanistan. Now the U.S. is fighting al-Qaida. Now the U.S. is in Pakistan, killing Osama bin Laden. Now the U.S. is fighting ISIS. Like, it was just this constant thing of, like, the United States is now constantly present in these Muslim countries to fight terrorism. And when I first heard 60 Words, it just felt like learning about the genesis moment of it all. Like, it just felt like learning about the hidden thing that started the Forever War. That's why it just had such a huge impact on me and gave me a sense of like - this is the kind of thing I want to do as a journalist - is, like, shed light on this kind of stuff.

LULU MILLER: All right. So, I guess, should we just listen now, and then you're going to give us some updates at the end?

SARAH QARI: Yeah, totally. Let's listen to the original. And I guess we should also say that the producers who worked on it, Matt Kielty and Kelsey Padgett - you won't hear them in the episode, but they did, like, amazing, amazing reporting and producing to make this happen. So...

LATIF NASSER: Yes. Yes, Kelsey. Yes, Matt. OK, great.

(SOUNDBITE OF ARCHIVED BROADCAST)

JAD ABUMRAD: OK, ready? Hey, I'm Jad Abumrad.

ROBERT KRULWICH: I'm Robert Krulwich.

JAD ABUMRAD: And this is RADIOLAB.

ROBERT KRULWICH: Today, we've got a story about the crazy power of words.

JAD ABUMRAD: In particular, 60 words.

ROBERT KRULWICH: Single sentence.

JAD ABUMRAD: That is - well, that has, you could say, defined America for the last 12 years. And...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: Yeah.

JAD ABUMRAD: ...The place to start is a difficult one.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: This just in. You are looking at obviously a very disturbing live shot there.

JAD ABUMRAD: September 11, 2001, 8:46 a.m.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: A plane has crashed into the World Trade Center. We don't know anything more than that. We don't know if...

JAD ABUMRAD: This is a day that anyone who is old enough to remember does remember. We can remember where we were, who we were with.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: So you have no idea right now...

UNIDENTIFIED PERSON: Oh, there's another one. Another plane just hit. Oh, my God, another plane has just hit.

JAD ABUMRAD: And, of course, we could remember how we felt.

(SOUNDBTIE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: Tell me what you just saw.

UNIDENTIFIED PERSON: Oh, shoot.

UNIDENTIFIED PERSON: It fell down.

UNIDENTIFIED PERSON: Explosion. Oh, my God.

JAD ABUMRAD: It is the worst attack ever on American soil.

(SOUNDBITE OF SIRENS WAILING)

JAD ABUMRAD: But if you really want to understand the world we live in now, you've got to jump ahead one day to September 12, to a corner office in the White House where there's a lawyer sitting at a computer trying to figure out, how are we going to declare war?

GREGORY JOHNSEN: And one of the things that everybody realizes after sort of an initial discussion is yes, we'd like to declare war, but we have no idea upon whom we should declare war.

JAD ABUMRAD: That is Gregory Johnsen.

GREGORY JOHNSEN: The Michael Hastings National Security Reporting Fellow at Buzzfeed.

JAD ABUMRAD: Now, the reason this lawyer...

GREGORY JOHNSEN: Man by the name of Timothy Flanagan.

JAD ABUMRAD: The reason Flanagan is sitting at a computer in an office is because then President George Bush had to do something. He had to act. And he didn't want to act alone. He wanted congressional approval.

BEN WITTES: Right.

JAD ABUMRAD: I mean, technically in an emergency...

BEN WITTES: The president can defend the country.

JAD ABUMRAD: He is the commander-in-chief, after all.

BEN WITTES: He doesn't have to go to Congress and say, hey, do I have authorization to use force?

JAD ABUMRAD: Not in an emergency. That's Ben Wittes, by the way.

BEN WITTES: Senior fellow in governance studies at the Brookings Institution.

JAD ABUMRAD: But President Bush needed Congress on his side, he felt. You know, it was important that we project unity, that we were all standing together as one. And second, if this was an act of war...

BEN WITTES: The power to declare war in the Constitution is given to Congress, not to the executive.

JAD ABUMRAD: And when Congress declares war, suddenly the president has a very clear and powerful mandate. Now...

BEN WITTES: The declaration of war is kind of a dead instrument of international law. I mean, nobody's declared war since World War II. But the modern incarnation of the declaration of war is the authorization to use force.

JAD ABUMRAD: The authorization to use force.

GREGORY JOHNSEN: What's called the authorization for the use of military force.

JAD ABUMRAD: Or as it's commonly referred to, the AUMF.

GREGORY JOHNSEN: Right.

JAD ABUMRAD: So our lawyer in the White House, Flanagan...

GREGORY JOHNSEN: He's given a task.

JAD ABUMRAD: Go write an AUMF that Congress can send to the president.

GREGORY JOHNSEN: He really has no idea, so he goes back to the last time that the U.S. did this.

JAD ABUMRAD: Last time Congress passed one of these things.

GREGORY JOHNSEN: He does a quick sort of search on his computer.

JAD ABUMRAD: Boom. Finds it - 1991, Iraq, the Gulf War. Flanagan grabs the text.

GREGORY JOHNSEN: And then he copies that into a Word document and that becomes his template. He makes some cuts. He makes some changes. He deletes some words.

JAD ABUMRAD: And then he hits send.

(SOUNDBITE OF ARCHIVED RECORDING)

GEORGE W BUSH: Our war on terror.

(SOUNDBITE OF ARCHIVED RECORDING)

BARACK OBAMA: A just war.

JAD ABUMRAD: And he sets in motion this bewildering series of events.

(SOUNDBITE OF MONTAGE)

UNIDENTIFIED REPORTER: A U.S. drone strike.

UNIDENTIFIED REPORTER: Linked to al-Qaida.

UNIDENTIFIED PROTESTER: End the war. Bring the troops home now.

JAD ABUMRAD: This madness that is basically the world we live in.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: Fifteen members of a wedding procession were killed by a U.S...

JAD ABUMRAD: And if you're like me...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: Bizarre, even sadistic treatment.

JAD ABUMRAD: If you're like me and you find yourself flipping through the channels, see the news, basically ignoring it, but then every so often thinking, wait a second.

(SOUNDBITE OF NEWS MONTAGE)

UNIDENTIFIED REPORTER: Terrorism targets in Africa.

UNIDENTIFIED REPORTER: From Libya now, the U.S. Air Force...

UNIDENTIFIED REPORTER: A drone strike in southern Somalia.

JAD ABUMRAD: Wait, wait. How are we doing this in all these different places?

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: One hundred prisoners are on a hunger strike...

JAD ABUMRAD: And like that.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: ...In protest of their indefinite detention.

JAD ABUMRAD: How are we detaining people for so long?

ROBERT KRULWICH: You mean, is it OK to do that?

JAD ABUMRAD: Well, just who signed off on this, you know?

ROBERT KRULWICH: Yeah.

JAD ABUMRAD: And it turns out we all did because it was in that document.

GREGORY JOHNSEN: This is the legal foundation for everything that the U.S. has done. Everything from Guantanamo Bay to drone strikes to secret renditions to SEAL raids - it's all been hung off these 60 words.

JAD ABUMRAD: And that's the crazy part. The body of this document, the part that really matters, and the reason that when I was reading Gregory's reporting on this, I was like, what? - is that it all goes back to one single sentence.

GREGORY JOHNSEN: Sixty words, one sentence.

JAD ABUMRAD: Can you read it?

GREGORY JOHNSEN: Absolutely.

(Reading) That the president is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

JAD ABUMRAD: Sixty words. Today, a collaboration with BuzzFeed.

ROBERT KRULWICH: And with reporter Gregory Johnsen.

JAD ABUMRAD: We're going to try to decode those words.

ROBERT KRULWICH: And ask, where did those words come from? And how did they come to mean what they mean?

JAD ABUMRAD: Which is not what you'd think they mean.

ROBERT KRULWICH: No.

JAD ABUMRAD: And how did they end up leading us into what is arguably the longest war in American history?

(SOUNDBITE OF SIRENS WAILING)

ROBERT KRULWICH: And nobody saw it coming - absolutely nobody. That's the weirdest part.

JAD ABUMRAD: Well, nobody minus one. Let's start there.

Maybe you should introduce us to Barbara Lee.

GREGORY JOHNSEN: Right. Barbara Lee is a congresswoman from right around Berkeley, Calif.

BARBARA LEE: Hello.

GREGORY JOHNSEN: Hello, hello.

BARBARA LEE: Hi, it's Barbara.

GREGORY JOHNSEN: And she is someone who has been, in many ways, a lifelong activist.

JAD ABUMRAD: Going all the way back to when she was 15 in high school in San Fernando Valley

BARBARA LEE: 'Cause I wanted to be a cheerleader.

JAD ABUMRAD: But, you know, since this was the early '60s...

BARBARA LEE: You had to have certain criteria, like, at least whether it was stated or not, blonde and blue-eyed.

(LAUGHTER)

ROBERT KRULWICH: That would have been hard for you, I would figure.

BARBARA LEE: That was really hard. So I went to the NAACP.

JAD ABUMRAD: She got them to pressure the school to change the rules.

BARBARA LEE: And I won.

GREGORY JOHNSEN: And she became the first Black cheerleader at her high school.

BARBARA LEE: Yeah, yeah.

JAD ABUMRAD: That's just by way of introduction. Fast-forward many years, she becomes a congresswoman. She gets elected to a second term. And on that day...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: There is smoke pouring out of the Pentagon.

JAD ABUMRAD: She was at the Capitol.

BARBARA LEE: No one knew where to go, so the police officers just said, run, run, run. Go, go, go.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: This was an apparent terrorist attack on our country.

BARBARA LEE: So I ran out of the Capitol...

ROBERT KRULWICH: Wow.

BARBARA LEE: ...Down Pennsylvania Avenue. I remember looking back and saw a lot of smoke.

JAD ABUMRAD: Which was, you know, the Pentagon.

BARBARA LEE: You know, clearly, the country is under attack. Clearly, people have died. Clearly, we've got to deal with whoever did this. Whatever it takes.

JAD ABUMRAD: Fast-forward two days, September 13, Barbara Lee is back at the Capitol to meet with her Democratic colleagues to review that document that Flanagan had sent over.

BARBARA LEE: The mood in the room was very somber and very angry...

GREGORY JOHNSEN: The thing we have to keep in mind when we're talking about this is all of this was done within 72 hours after the worst terrorist attack in United States history.

BARBARA LEE: ...And very confused. What would be the appropriate response?

JAD ABUMRAD: So as she and her colleagues read those 60 words...

GREGORY JOHNSEN: There was a lot of debate going on back and forth.

BARBARA LEE: Oh, yes. Oh, yes - from everyone.

JAD ABUMRAD: Because this actually wasn't the first draft. Flanagan had sent one over the night before.

GREGORY JOHNSEN: September 12, 2001.

JAD ABUMRAD: And that one...

GREGORY JOHNSEN: Was something that almost no one agreed to.

JAD ABUMRAD: According to Gregory, that early draft had a few extra lines in it.

GREGORY JOHNSEN: One gave the president the power to preempt any future acts of aggression against the United States.

JAD ABUMRAD: And Barbara Lee and her colleagues knew...

GREGORY JOHNSEN: That look, so many things can be packed into this word aggression, that if we sign on to this, that if we give the president this power, the president may never have to come back to Congress ever again and request authorization for military force because he can say that anything is aggression. And we're also giving him the power to preempt.

JAD ABUMRAD: So they kicked back to the White House. Flanagan took out those words, and now they had this new draft.

GREGORY JOHNSEN: That the president is authorized to use all necessary and appropriate force.

JAD ABUMRAD: Which is what you heard. But still, when Barbara read that and saw phrases like all necessary and appropriate force, she thought, what does that even mean?

BARBARA LEE: I said this is too broad. Was not definitive. It's open-ended.

GREGORY JOHNSEN: And as she was speaking - this is taking place in the basement of the Capitol building - she sees some of her Democratic colleagues start to nod.

BARBARA LEE: Yeah. People were nodding. People were nodding

JAD ABUMRAD: Because everybody there knew the danger of ill-defined words. You just had to go back 50 years.

GREGORY JOHNSEN: To the Gulf of Tonkin.

BARBARA LEE: Yep.

JAD ABUMRAD: Gulf of Tomkin (ph).

GREGORY JOHNSEN: Tonkin.

JAD ABUMRAD: Tonkin with an N...

GREGORY JOHNSEN: Yes.

JAD ABUMRAD: ...To explain.

(SOUNDBITE OF ARCHIVED RECORDING)

LYNDON B JOHNSON: My fellow Americans, as president and commander in chief...

JAD ABUMRAD: 1964, LBJ announces that two American ships...

(SOUNDBITE OF ARCHIVED RECORDING)

LYNDON B JOHNSON: ...Two U.S. destroyers...

JAD ABUMRAD: ...Parked in the Gulf of Tonkin off the coast of Vietnam were torpedoed by North Vietnamese boats.

(SOUNDBITE OF ARCHIVED RECORDING)

LYNDON B JOHNSON: By a number of hostile vessels.

JAD ABUMRAD: Many people now argue that one of these attacks never even happened. Nonetheless, President Johnson wanted to strike back, so he asked Congress...

(SOUNDBITE OF ARCHIVED RECORDING)

LYNDON B JOHNSON: To pass a resolution.

JAD ABUMRAD: Which they did giving him the power to, quote, "take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression."

(SOUNDBITE OF ARCHIVED RECORDING)

LYNDON B JOHNSON: Making it clear that our government is united in its determination to take all necessary measures and support our freedom and in defense of peace in Southeast Asia.

JAD ABUMRAD: Now it is the broad language of that document, most people believe, that opened the door to the worst part of the Vietnam War.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: The Rangers and Marines took casualties, mostly from hidden snipers.

JAD ABUMRAD: The thousands and thousands of casualties...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON: This keeps happening. There's nothing you can do.

JAD ABUMRAD: ...The Horrific atrocities.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: Charges have been made that troops killed as many as 567 South Vietnamese civilians during a sweep in March 1968.

JAD ABUMRAD: And in a television interview in 1969 when President Johnson was asked to justify it all, he said you can't just blame him.

(SOUNDBITE OF ARCHIVED RECORDING)

LYNDON B JOHNSON: Congress gave us this authority in August 1964 to do whatever may be necessary. That's pretty far-reaching. That says sky's the limit.

JAD ABUMRAD: So the lessons of the Gulf of Tonkin in Vietnam, that was very much in the air in that meeting on September 13, 2001.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: Several key leaders hoped to avoid a repeat of the 1964 Tonkin Gulf resolution.

JAD ABUMRAD: So it was understandable that when Barbara Lee stood up and said to her colleagues she was worried about some of this language...

BARBARA LEE: People were nodding, people were nodding. So there was a lot of uncertainty about what to do.

JAD ABUMRAD: But in the end, those concerns were ultimately outweighed by another desire.

BARBARA LEE: We've got to be unified with the president. We can't show political divisions.

GREGORY JOHNSEN: Let's have the nation. Let's have Congress speaking with one voice.

JAD ABUMRAD: It was a time for unity and for action. And so walking out of that Democratic caucus meeting...

GREGORY JOHNSEN: On the evening of September 13.

JAD ABUMRAD: ...Congressional leadership decided that these 60 words...

GREGORY JOHNSEN: This is the version. There's no going back to the drawing board. And so...

(SOUNDBITE OF GAVEL POUNDING)

GREGORY JOHNSEN: ...At 10:16 a.m., September 14, 2001...

(SOUNDBITE OF ARCHIVED RECORDING)

TOM DASCHLE: Senate will come to order.

GREGORY JOHNSEN: ...The Senate is gaveled into session.

(SOUNDBITE OF ARCHIVED RECORDING)

TOM DASCHLE: The clerk will call the roll.

GREGORY JOHNSEN: Daschle calls a vote.

(SOUNDBITE OF ARCHIVED RECORDING)

TOM DASCHLE: Mr. Akaka. Mr. Allard.

WAYNE ALLARD: Aye.

TOM DASCHLE: Mr. Allen.

GEORGE ALLEN: Aye.

GREGORY JOHNSEN: There are 98 senators on the floor.

(SOUNDBITE OF ARCHIVED RECORDING)

TOM DASCHLE: Mr. Durbin.

DICK DURBIN: Aye.

TOM DASCHLE: Mr. Voinovich.

GEORGE VOINOVICH: Aye.

GREGORY JOHNSEN: All 98 of them vote yay.

(SOUNDBITE OF ARCHIVED RECORDING)

TOM DASCHLE: No senator voted in the negative.

JAD ABUMRAD: So it was a sweep.

GREGORY JOHNSEN: Yeah.

JAD ABUMRAD: Later in the day, the resolution would go to the House, where Barbara Lee was a representative. Daschle had actually rushed the vote through the Senate.

GREGORY JOHNSEN: Because the White House has called for a national prayer meeting at the National Cathedral...

JAD ABUMRAD: For the victims of 9/11.

GREGORY JOHNSEN: ...That's supposed to start right at noon. And so...

JAD ABUMRAD: Right after the vote...

GREGORY JOHNSEN: ...All the senators pour out of the Capitol and get onto the buses trying to get through the drizzle.

JAD ABUMRAD: It was actually raining that day. Now at that moment, Barbara Lee...

GREGORY JOHNSEN: She hadn't decided how it is that she was going to vote.

BARBARA LEE: I struggled with it.

JAD ABUMRAD: For the previous two nights, September 12 and 13, she'd stayed up late.

GREGORY JOHNSEN: Calling back to advisers, to friends in California.

RON DELLUMS: We talked every day.

JAD ABUMRAD: Including this guy; this is Ron Dellums.

RON DELLUMS: I served for over 27 years in the U.S. House of Representatives.

JAD ABUMRAD: Barbara used to be his chief of staff. And when he resigned, she won his congressional seat.

RON DELLUMS: You know, she would say, well, what about this, and what do you think about that?

BARBARA LEE: And we kind of talked through the emotional state of the country.

RON DELLUMS: That we are feeling pain, anger. We're shocked.

JAD ABUMRAD: Both Barbara and Ron were trained as psychiatric social workers. So they both knew that when a person is feeling all of those things, it's generally better to do nothing.

BARBARA LEE: Yeah, psychology 101. You don't make decisions when you're mourning, afraid.

JAD ABUMRAD: On the other hand...

BARBARA LEE: I believe, you know, in unity, too. I want to be unified with the president when the country is under attack.

RON DELLUMS: I understood.

BARBARA LEE: He didn't tell me. He didn't say which way I should vote.

RON DELLUMS: But I did say to her, Barbara, however you vote, I will always respect you. You will always be friend. You will always be family.

JAD ABUMRAD: So at that moment, with the memorial service about the start and a few hours till the House vote, Barbara Lee was at the Capitol.

BARBARA LEE: I was in the cloakroom.

JAD ABUMRAD: And since she wasn't sure how she was going to vote, she planned to skip the memorial service.

GREGORY JOHNSEN: She wanted to stay. She wanted to think.

BARBARA LEE: And then I don't know what it was. It may have been the spirit moving me. I don't know. But at the very last minute...

GREGORY JOHNSEN: She was drinking actually a can of ginger ale at the time.

BARBARA LEE: I said I think I'm going to go. And I just ran out. I probably was the last one on the bus. I had the can of ginger ale in my hand and ran down the steps and got on the bus.

GREGORY JOHNSEN: She got to the cathedral. The House buses arrived about 30 minutes or so before the opening. And so for 30 minutes she's in the Cathedral...

BARBARA LEE: About halfway back.

GREGORY JOHNSEN: ...Listening to the organ.

(SOUNDBITE OF ORGAN PLAYING)

BARBARA LEE: Thinking about the families and those who were killed...

GREGORY JOHNSEN: There are people around her who are sort of whispering...

BARBARA LEE: ...The pain and anguish.

GREGORY JOHNSEN: ...A few people who are crying.

BARBARA LEE: I said I got to pray over this.

GREGORY JOHNSEN: And she's just wrestling with her vote.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED CHOIR: (Singing, inaudible).

GREGORY JOHNSEN: Her heart is saying one thing.

BARBARA LEE: This is too broad.

GREGORY JOHNSEN: And her head is saying...

BARBARA LEE: Unity.

GREGORY JOHNSEN: How is it that you can be against the president at this point?

JAD ABUMRAD: Speaking of the president, eventually President Bush takes the podium.

(SOUNDBITE OF ARCHIVED RECORDING)

GEORGE W BUSH: We are here in the middle hour of our grief. Just three days removed from these events, Americans do not yet have the distance of history. But our responsibility to history is already clear - to answer these attacks and rid the world of evil.

GREGORY JOHNSEN: And then as soon as President Bush steps down, everyone in the congregation stands up. And they sing the "Battle Hymn Of The Republic"...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED CHOIR: (Singing, inaudible).

GREGORY JOHNSEN: ...Which is a very powerful, a very moving piece of music. But it's not the sort of thing that is typically sung at a memorial service. It's a very forward and almost aggressive sounding.

ROBERT KRULWICH: What's the phrase? Terrible, swift sword.

GREGORY JOHNSEN: Yeah.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED CHOIR: (Singing, inaudible).

BARBARA LEE: Oh, my God. It was not quite what I expected in a memorial service.

GREGORY JOHNSEN: But the second speaker...

JAD ABUMRAD: A reverend by the name of Nathan Baxter.

GREGORY JOHNSEN: ...Got up. And he gave a reading from Jeremiah 31.

(SOUNDBITE OF ARCHIVED RECORDING)

NATHAN BAXTER: When ancient Israel suffered the excruciating pain and tragedy of militant aggression and destruction...

BARBARA LEE: Hearing that all over again takes me right back there. And I remember...

(SOUNDBITE OF ARCHIVED RECORDING)

NATHAN BAXTER: A voice is heard in Ramah...

BARBARA LEE: Lamenting and bitter weeping.

(SOUNDBITE OF ARCHIVED RECORDING)

NATHAN BAXTER: ...Lamenting and bitter weeping.

BARBARA LEE: Rachel weeping for her children.

(SOUNDBITE OF ARCHIVED RECORDING)

NATHAN BAXTER: Rachel is weeping for her children.

BARBARA LEE: When he spoke, that's when, to me, it was a memorial.

GREGORY JOHNSEN: And then he started to pray.

(SOUNDBITE OF ARCHIVED RECORDING)

NATHAN BAXTER: ...For the healing of our grief stricken hearts, for the souls and sacred memory of those who have been lost.

GREGORY JOHNSEN: And he said something that really struck Barbara Lee.

(SOUNDBITE OF ARCHIVED RECORDING)

NATHAN BAXTER: Let us also pray for divine wisdom...

GREGORY JOHNSEN: He said as we act...

(SOUNDBITE OF ARCHIVED RECORDING)

NATHAN BAXTER: That as we act, we not become the evil we deplore.

(SOUNDBITE OF MUSIC)

BARBARA LEE: That evil that we deplore - when he said that, I became very - it was this sense of peace and calm came over me.

JAD ABUMRAD: And Barbara Lee says it was right then that she knew what she'd do.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON: The clerk will report the title.

UNIDENTIFIED PERSON: House Joint Resolution 64, joint resolution to authorize the use of United States Armed Forces...

JAD ABUMRAD: Later that evening, the House opens up its debate on the AUMF.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED CONGRESSMAN: Mr. Speaker, I rise in support of this resolution, which authorizes the president to use all force necessary.

JAD ABUMRAD: And Congressperson person after Congressperson...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED CONGRESSMAN: Mr. Speaker...

JAD ABUMRAD: ...Stands up...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED CONGRESSMAN: ...I rise in support of this resolution.

UNIDENTIFIED CONGRESSMAN: Mr. Speaker, I rise tonight to fully endorse and authorize the use of force.

JAD ABUMRAD: ...One after another.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED CONGRESSMAN: Mr. Speaker, I rise in support of the authorization.

UNIDENTIFIED CONGRESSMAN: I rise today in support of this resolution.

UNIDENTIFIED CONGRESSMAN: We will rally behind our president.

JAD ABUMRAD: ...Sixteen in a row until...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON: Gentlewoman from California is recognized for a minute and a half.

JAD ABUMRAD: ...We get to Barbara Lee.

(SOUNDBITE OF ARCHIVED RECORDING)

BARBARA LEE: Mr. Speaker, members, I rise today really with a very heavy heart, one that is filled with sorrow for the families and the loved ones who were killed and injured this week.

(SOUNDBITE OF MUSIC)

BARBARA LEE: Only the most foolish and the most callous would not understand the grief that has really gripped our people and millions across the world. Now I have agonized over this vote. But I came to grips with it today. And I came to grips with opposing this resolution during the very painful yet very beautiful memorial service. As the member of the clergy so eloquently said as we act, let us not become the evil that we deplore.

JAD ABUMRAD: Just after the vote, Barbara Lee says she was in the cloakroom again and she starts getting accosted by colleagues.

GREGORY JOHNSEN: All of these friends are coming up to her and saying, you've got to go back you. You cannot vote this way.

BARBARA LEE: I said, I'm not changing my vote.

GREGORY JOHNSEN: One of them actually said to her, look, you've done so much on HIV. You've done so much on AIDS. This vote is going to take you out. Think of the bigger picture.

ROBERT KRULWICH: They're saying, you're dead.

GREGORY JOHNSEN: Yeah.

BARBARA LEE: But that's the right vote. I'm not going to give any president the authority to go to war when we don't know what we're doing. You know, the only Congress can declare war.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: Help me on this, guys. Has the House vote - OK, the House has just now finished that vote. And we see one No vote.

GREGORY JOHNSEN: The final vote for the House was 420 to 1.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: We know it's a Democrat. We don't yet know who. We'll figure that out in a moment...

GREGORY JOHNSEN: Barbara Lee was the only person in the Senate or the House to cast a no vote.

JAD ABUMRAD: That must have been a very lonely moment.

RON DELLUMS: To be perfectly honest with you, I said some prayers for my friend.

BARBARA LEE: This was the right thing to do. And, you know, votes like this, you have to be ready to pay the consequences.

JAD ABUMRAD: Over the next few weeks and months...

GREGORY JOHNSEN: Her office was inundated with letters.

UNIDENTIFIED NARRATOR: Barbara Lee, you are a traitor and a disgrace to the office that you hold.

JAD ABUMRAD: You can find all these letters archived at Mills College.

UNIDENTIFIED NARRATOR: You are a blight on American society, a terrorist yourself.

GREGORY JOHNSEN: So much hatred.

UNIDENTIFIED NARRATOR: I don't know why you decided to place yourself into the camp of terrorists.

BARBARA LEE: Those attacks came and they came and they came...

UNIDENTIFIED NARRATOR: (Unintelligible) What's your [expletive] problem?

BARBARA LEE: ...Death threats.

UNIDENTIFIED NARRATOR: Now off to hell with you, you Benedict Arnold wannabe.

BARBARA LEE: And so I had to have security day and night.

UNIDENTIFIED NARRATOR: Up yours.

Thanks for supporting the Taliban.

Hey, Hanoi Barbara Lee, what are you? What do you believe in?

JAD ABUMRAD: If you go to Mills College in Oakland - and we sent a reporter there - you will find 60,000 letters. They're not all negative but most are. But Congressman Lee says she never faltered because right after the vote she was in her office...

BARBARA LEE: My dad called me - lieutenant colonel, retired, in the Army. He said, I'm really proud of you. You know, my dad had been in Korea and World War II (laughter). And he sees it the way I see it. Because I really wasn't sure what he was saying because - you know, (laughter) I really wasn't sure.

JAD ABUMRAD: She thought, all right.

BARBARA LEE: Daddy's proud of me.

JAD ABUMRAD: Now, we should note that Barbara Lee is still a congresswoman. She did not pay the price for that no vote. And whatever you think of her vote, whether you think it was the right thing to do or the wrong thing to do, what is interesting to me is that as we're sitting here looking back on 12 years of war, she was sitting there 12 years ago looking forward. And maybe she saw something about how this would play out, about how these words, these 60 words, would start to grow and expand. That's next.

(SOUNDBITE OF MUSIC)

GREGORY JOHNSEN: This is Gregory Johnsen.

BEN WITTES: My name is Benjamin Wittes.

GREGORY JOHNSEN: RADIOLAB is supported in part by the National Science Foundation...

BEN WITTES: ...And the Alfred P. Sloan Foundation.

GREGORY JOHNSEN: Enhancing public understanding of science and technology in the modern world. More information about Sloan at www.sloan.org.

AUTOMATED VOICE: End of message.

JAD ABUMRAD: Hey, I'm Jad Abumrad.

ROBERT KRULWICH: I'm Robert Krulwich.

JAD ABUMRAD: This is RADIOLAB. And today...

ROBERT KRULWICH: Sixty words.

JAD ABUMRAD: This is a collaboration with BuzzFeed and reporter Gregory Johnsen. The story is based on an article that Gregory wrote about the 60 simple words that have really defined American counterterrorism for more than a decade.

ROBERT KRULWICH: It's called the Authorization for Use of Military Force. That's shortened to AUMF, and it was passed by Congress three days after Sept. 11th. Here it is again read by Senator John McCain.

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN MCCAIN: Which says, the president is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons in order to prevent any future acts of international terrorism against the United States by such nations or organizations.

JAD ABUMRAD: All right. So why would we be looking at that boring-ass sentence?

ROBERT KRULWICH: He seems almost bored saying it.

JAD ABUMRAD: Yeah, he does. Can I just be honest with you for a second?

ROBERT KRULWICH: Yeah.

JAD ABUMRAD: I generally move through the world with the assumption, which has been proven over and over again to be true, that I don't know how the world works. Like, somehow, I missed that day in school or something.

ROBERT KRULWICH: Are you referring to something specific? Like, a...

JAD ABUMRAD: No, I'm referring to a general sense that somehow, like, Oz is out there behind the curtain pulling levers and I'm just always going to be stuck on this side, you know?

ROBERT KRULWICH: Yeah.

JAD ABUMRAD: I think it's what motivates the show for me is that, like, I just - I feel kind of stupid most of the time, and these shows are a way to engage the world and really examine the world.

ROBERT KRULWICH: Right. Exactly.

JAD ABUMRAD: And when it comes to these matters of national security, I really feel clueless. And so when I read Gregory's article, I felt like I understood something crucial for the first time about the way words actually operate in the world. Because, like, again this sentence, this totally boring sentence...

GREGORY JOHNSEN: This is the legal foundation for everything that the U.S. has done. Everything from Guantanamo Bay to drone strikes to secret renditions to SEAL raids, it's all been hung off these 60 words. One lawyer who was in the Bush administration said, look, this sentence is like a Christmas tree. All sorts of things have been hung off of this.

JAD ABUMRAD: But how? Like, because you read the thing and you don't see any mention of Guantanamo Bay in those 60 words.

JOHN BELLINGER: It doesn't mention detention. It doesn't mention drone strikes. It doesn't mention drone strikes against American citizens.

JAD ABUMRAD: OK, so that guy - he's one of the first folks we called to help us decode this. That's John Bellinger.

JOHN BELLINGER: I served as the legal adviser for the National Security Council from 2001 to 2005, and as the legal adviser for the Department of State from 2005 to 2009.

ROBERT KRULWICH: You can't do any speed dating with a credential like that because the date will be over.

JOHN BELLINGER: That's my congressional testimony voice.

ROBERT KRULWICH: Oh, OK.

(LAUGHTER)

JAD ABUMRAD: And we asked him, like, OK, so detention isn't anywhere in this document, so how do you read detention from these 60 words?

JOHN BELLINGER: The argument with which I am comfortable as a legal matter...

JAD ABUMRAD: Is this - he says if you go eight words into those 60 words and you get to the phrase...

JOHN BELLINGER: All necessary and appropriate force.

ROBERT KRULWICH: All necessary and appropriate force. Yeah.

JAD ABUMRAD: You got to ask yourself, what is force? What does that mean?

ROBERT KRULWICH: What do you - you know what force is. If I punch you in the face, that's using force.

JAD ABUMRAD: That's one kind of force.

JOHN BELLINGER: You can use force to kill people.

ROBERT KRULWICH: Yes.

JOHN BELLINGER: But a lesser use of force is to detain them. Detention is simply lesser included in the use of force that comes naturally in a military operation.

JAD ABUMRAD: It's like a subset of force, basically. So if you're authorized to use force to kill people, you are also by default authorized to use force to detain them.

JOHN BELLINGER: Essentially to knock them out of the battle in other ways. And that that force is both necessary and it's appropriate. And the courts have upheld that.

JAD ABUMRAD: So that one word, force, that is how you justify Guantanamo Bay.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: Well, the controversy surrounding Guantanamo Bay continues.

JOHN BELLINGER: The Authorization to Use Military Force Act has...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: What happens at military commissions at the...

JOHN BELLINGER: ...Been the legal basis for the detention of thousands of individuals.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: And many of them have been detained for more than 10 years. None have been charged.

JOHN BELLINGER: And the words detention are never mentioned.

JAD ABUMRAD: OK, so that's detention. If it gets even trickier if you go just a few words past all necessary and appropriate force.

ROBERT KRULWICH: To what?

JAD ABUMRAD: You get to the mention of the enemy, who the force is supposed to be used against, right? And it seems to be very limited language.

ROBERT KRULWICH: You mean, we can't shoot everybody or anybody.

JAD ABUMRAD: No. Only the people who...

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN MCCAIN: Planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored...

ROBERT KRULWICH: That sounds much more...

JAD ABUMRAD: Sounds very much tethered to 9/11, right?

ROBERT KRULWICH: Yeah.

JAD ABUMRAD: Which is why a lot of congressmen and women voted for it. Joe Biden, on the day of the vote, September 14, 2001 - he says, look people, don't freak out about this language.

(SOUNDBITE OF ARCHIVED RECORDING)

JOE BIDEN: It relates to the incident and is broad authority relating the incident. It does not relate to all terrorism every place.

JOE BIDEN: Because we're just talking about al-Qaida who did this and the Taliban who have harbored them, right?

JOHN BELLINGER: No.

GREGORY JOHNSEN: Not necessarily.

JAD ABUMRAD: Gregory Johnsen again.

GREGORY JOHNSEN: Over time what's happened is there's been this other sort of catch-all category that has been read into these 60 words, even though it appears nowhere in these 60 words. And that catch-all category is associated forces.

JAD ABUMRAD: Associated forces.

GREGORY JOHNSEN: Yeah.

JAD ABUMRAD: What we've been calling these 61st and 62nd words.

ROBERT KRULWICH: (Speaking French).

JAD ABUMRAD: (Speaking French). And if you define the enemy as al-Qaida, the Taliban and associated forces, it's a whole different ballgame.

GREGORY JOHNSEN: Yeah.

ROBERT KRULWICH: So when you read those - all those words that did not include the phrase...

GREGORY JOHNSEN: Associated forces is nowhere in the text.

JAD ABUMRAD: So where does it...

ROBERT KRULWICH: So then why could people cite something that isn't in the text?

GREGORY JOHNSEN: This is one of the enduring mysteries of this. So...

JAD ABUMRAD: The earliest example that we could find of those two words is in a 2004 memo from Deputy Secretary of Defense Paul Wolfowitz. He defines that enemy as al-Qaida, the Taliban and associated forces. But the truth is, it may have just been there from the beginning.

ROBERT KRULWICH: What do you mean?

JAD ABUMRAD: Because according to Ben Wittes from the Brookings Institution...

BEN WITTES: There is a concept in the laws of war called co-belligerency. It's the idea that if you're at war with Person A and Person B is on Person A's side in the war, you're also legally at war with person B.

JAD ABUMRAD: Makes perfect sense if you think of it in traditional war terms 'cause, like, we're at war with Germany. Italy joins their side. So by default, we're at war with Italy, too.

BEN WITTES: Right.

JAD ABUMRAD: So just transpose that here. If we're at war with this group called al-Qaida...

BEN WITTES: And a certain set of groups...

JAD ABUMRAD: ...That aren't them...

BEN WITTES: ...Join the war...

JAD ABUMRAD: On al-Qaida's side...

BEN WITTES: ...Then you are legally at war with them.

JAD ABUMRAD: If you don't think about that too hard, it is crystal clear.

GREGORY JOHNSEN: But then the question that has arisen over time is how broad do you make that circle?

JAD ABUMRAD: 'Cause the problem, obviously, is that we're not talking about nation states anymore. We're talking about groups.

GREGORY JOHNSEN: So, OK. How close does the link to al-Qaida and the people who carried out September 11 have to be? So if you have someone who's connected to someone who's connected to someone who's connected to someone who is connected to September 11, is that enough? Or is it only three links? Or can you be an associate of an associate?

(SOUNDBITE OF MUSIC)

JAD ABUMRAD: Now we can't exactly know how broadly the Obama and Bush administrations have defined those words. And we'll talk about why in a second. But you just have to look at the news.

ROBERT KRULWICH: Right?

JAD ABUMRAD: And you could see that, like, we started with a war that was in Afghanistan, and then spread to a lot of different places - Pakistan, Libya, Somalia.

ROBERT KRULWICH: Yemen.

JAD ABUMRAD: Yeah, and in Yemen...

GREGORY JOHNSEN: There is a lot of debate and a lot of discussion.

JAD ABUMRAD: About, like, is this legal? Does this have anything to do with September 11 anymore?

GREGORY JOHNSEN: 'Cause now the group in Yemen, al-Qaida in the Arabian Peninsula, which is a group that was first formed in 2009, they have their own hierarchy and their own structure. And it's not clear how and in what fashion they take orders from either Osama bin Laden while he was still alive or now Ayman al-Zawahiri. So does this make them an associated force, or does it make them part of al-Qaida?

JAD ABUMRAD: The answer, at least on...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: Good morning, everyone. It is Friday. It's September 30, 2011. Mark it down on your calendar.

JAD ABUMRAD: September 30, 2011, seemed to be, yes, when the U.S. assassinated two members of the group.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: This is not confirmed yet. But it could very well have been a U.S. predator drone strike. That is a U.S. government attack.

JAD ABUMRAD: And to put all this in context, between 2002 and 2014, according to some estimates, there have been about 65 drone strikes in Yemen killing about 400 people. And so much hinges on how you define those words.

GREGORY JOHNSEN: So much is in the definition. I asked the Pentagon. I said who - what are the list of associated forces? So al-Qaida, yes. The U.S. is at war. That's clear. What about the other groups?

JAD ABUMRAD: Al-Shabab, al-Qaida in Iraq, Al-Qaida in the Islamic Maghreb, Armed Islamic group, Abu Sayyaf, Jemaah Islamiyah, brotherhood of this, brotherhood of that.

GREGORY JOHNSEN: Who are these groups? Who is the U.S. at war with? And the Pentagon emailed me back, and they said that list is classified and not for public release.

JAD ABUMRAD: Wait. So we - who we are at war with is...

GREGORY JOHNSEN: We don't know. I...

JAD ABUMRAD: Wait. So you're saying when you approached the Pentagon...

ROBERT KRULWICH: They say that they will not tell you the names of the people we're at war against. Well, maybe they shouldn't. Maybe that's a valuable...

JAD ABUMRAD: What do you mean?

ROBERT KRULWICH: Well...

JAD ABUMRAD: They - don't you want to know, as a citizen of America, who we're fighting?

ROBERT KRULWICH: On the other hand, do I want to know as the - as - if the United States has determined that I am dangerous to it, if it announces, then that would give me a certain amount of notice, which I may - perhaps would be disadvantageous to the United States.

GREGORY JOHNSEN: It could also, though, act as a disincentive for you to take action.

ROBERT KRULWICH: Maybe. But maybe not. Maybe they will just get quieter, more dangerous.

JAD ABUMRAD: I mean, it's true. There might be reasons for this.

JOHN BELLINGER: They have not wanted to provide a public list because they...

JAD ABUMRAD: This is John Bellinger again.

JOHN BELLINGER: One, the groups move all the time. And so a few say, well, these are associated groups. Well, then certain people just move from group A to group B. And they also want to leave these different groups guessing. But it still raises Democratic concerns if the American people don't really know who the executive branch believes is covered by the AUMF.

GREGORY JOHNSEN: In a democracy and in a representative democracy, that has to be weighed out. Should the citizens of the United States know who it is that the United States is targeting for death around the world, who it is that the United States is technically at war with? Should war be a decision that the citizens of a democracy, of a representative democracy have a say in?

ROBERT KRULWICH: Well, we're a representative democracy as you just said. So I'm assuming that the chairman of the House Intelligence Committee knows every item on that list.

GREGORY JOHNSEN: I'm not so sure.

(SOUNDBITE OF ARCHIVED RECORDING)

CARL LEVIN: Good morning, everybody. The committee meets today to receive testimony on the law of armed conflict...

(SOUNDBITE OF MUSIC)

GREGORY JOHNSEN: One of the more interesting Senate hearings took place in early 2013.

(SOUNDBITE OF ARCHIVED RECORDING)

CARL LEVIN: ...Including the status of the 2001 authorization for the use of military force, the AUMF.

GREGORY JOHNSEN: It was the Senate Armed Services Committee. Senator Carl Levin of Michigan is the chairman of the committee. Senator McCain is on the committee.

(SOUNDBITE OF ARCHIVED RECORDING)

CARL LEVIN: I'd like to welcome our witnesses.

JAD ABUMRAD: And Gregory says the senators called a couple of Defense Department officials to answer questions.

(SOUNDBITE OF ARCHIVED RECORDING)

ROBERT TAYLOR: Members of the committee, thank you for the opportunity to testify about the legal framework for the U.S. military operations to defend our nation.

JAD ABUMRAD: 'Cause they want to know, like, now that we're 12 years into this war, how are you using this document? Does it need to be changed?

GREGORY JOHNSEN: So the Department of Defense officials - and there were four of them - came and said look.

(SOUNDBITE OF ARCHIVED RECORDING)

ROBERT TAYLOR: I believe that existing authorities are adequate for this armed conflict.

GREGORY JOHNSEN: Don't revisit this sentence. Don't repeal it. This sentence is sufficient. It gives us all the power that we need.

(SOUNDBITE OF ARCHIVED RECORDING)

ROBERT TAYLOR: ...Against al-Qaida and associated forces.

JAD ABUMRAD: And as they're laying out their case, they say those two words.

(SOUNDBITE OF ARCHIVED RECORDING)

ROBERT TAYLOR: Associated forces, associated forces, and associated forces.

JAD ABUMRAD: Over...

(SOUNDBITE OF ARCHIVED RECORDING)

ROBERT TAYLOR: Associated forces.

JAD ABUMRAD: ...And over.

(SOUNDBITE OF ARCHIVED RECORDING)

ROBERT TAYLOR: And associated force, and associated forces, and associated force, and their associated forces associated force, and associated forces.

JAD ABUMRAD: And instead of just nodding along, a lot of the senators were like what?

(SOUNDBITE OF ARCHIVED RECORDING)

ANGUS KING: Gentlemen, I've only been here five months. But this is the most astounding and most astoundingly disturbing hearing that I've been to since I've been here. You guys have essentially rewritten the constitution here today.

JAD ABUMRAD: That's Angus King, independent senator from Maine.

(SOUNDBITE OF ARCHIVED RECORDING)

ANGUS KING: And you keep using the term associated forces. You use it 13 times in your statement. That is not in the AUMF. And you said at one point it suits us very well. I assume it does suit you very well because you're reading it to cover everything and anything.

JAD ABUMRAD: But one of the most striking moments of this hearing is when the head of the committee, Senator Carl Levin, turns to one of the DOD officials and asks him...

(SOUNDBITE OF ARCHIVED RECORDING)

CARL LEVIN: Is there a list? Now, is there an existing list of groups that are affiliated with al-Qaida?

UNIDENTIFIED OFFICIAL: Senator, I'm not sure there's a list per se. I'm very familiar with the organizations that we do consider right now are affiliated with al-Qaida, and I could provide you that list.

CARL LEVIN: Would you give us that list?

UNIDENTIFIED OFFICIAL: Yes, sir. We can do that.

CARL LEVIN: And when you add or subtract names from that list, would you let us know?

UNIDENTIFIED OFFICIAL: We can do that as well, Mr. Chairman.

CARL LEVIN: Thank you.

ROBERT KRULWICH: Let me just see if I can understand what you just said. At a committee hearing...

GREGORY JOHNSEN: Yeah.

ROBERT KRULWICH: ...A U.S. senator asks specifically, so who's on the list of people were allowed to kill?

GREGORY JOHNSEN: Right. That suggested that the Senate Armed Services Committee, who had oversight, really had no idea.

JAD ABUMRAD: Which made us wonder, like, all right, if we don't have any idea who we're at war with, and the Senate Armed Services Committee doesn't seem to have any idea, then who does?

GREGORY JOHNSEN: Well, one of the things that became clear to me as I was reporting on this story was that many of the people who were making these decisions had never been elected by anyone to any position, and they were the ones who were making the decision, not the elected representative.

JAD ABUMRAD: And so who are they?

(CROSSTALK)

JAD ABUMRAD: So we were rooting around for a while looking for an answer to that question until we found this guy. This is Daniel Klaidman. He's a journalist.

DANIEL KLAIDMAN: And I've covered national security and counterterrorism for many years.

JAD ABUMRAD: And based on hundreds of confidential interviews that became his book "Kill Or Capture," he was able to paint a picture for us of who makes these decisions and how. He told us about these meetings.

You say it's the STVS meetings. What are they? Who's in the room? How do the events unfold?

DANIEL KLAIDMAN: Well, these are - they call them SVTS meetings in the vernacular of the bureaucracy. It stands for Secure Video Teleconference Meetings.

JAD ABUMRAD: He described them as a sort of a massive top-secret Google Hangout chat where...

DANIEL KLAIDMAN: Literally hundreds of people from throughout the national security bureaucracy.

JAD ABUMRAD: Log in to decide who's on the list and who isn't and who should live and who should die.

You said literally hundreds.

DANIEL KLAIDMAN: Literally hundreds of people. Now, many of them are backbenchers. They're not participating in the call, but they're taking notes. Before they get together in this meeting...

JAD ABUMRAD: Many of the folks at this meeting, he says, are given little packets of information on each target.

DANIEL KLAIDMAN: They call them baseball cards.

JAD ABUMRAD: Because they sort of look like it. You got a picture and some stats.

ROBERT KRULWICH: Like Yogi Berra on one side, and then you got his batting average and his hometown on the back.

DANIEL KLAIDMAN: Well, the terrorist equivalent of all of that. So who is this person? Where does he rank? And what kinds of operations has he been involved in in the past?

JAD ABUMRAD: Eventually, a general will come on the screen and say, here's our target.

DANIEL KLAIDMAN: Objective Akron.

JAD ABUMRAD: For some reason, he says, they always refer to the targets by the name of American cities.

DANIEL KLAIDMAN: Objective Toledo.

JAD ABUMRAD: A general might say, Target is in Yemen. We have a drone overhead.

DANIEL KLAIDMAN: There's an opportunity to kill this person.

JAD ABUMRAD: Can we legally do it? And the fascinating thing, although maybe it won't come as much of a surprise, is that the people he's making this pitch to are not generals but...

DANIEL KLAIDMAN: Lawyers.

JOHN BELLINGER: There are lawyers everywhere.

JAD ABUMRAD: That is just a basic fact of modern warfare, says John Bellinger. You now have lawyers on the ground.

JOHN BELLINGER: With artillery units, tank commanders.

JAD ABUMRAD: Lawyers in Kevlar, lawyers in helicopters.

DANIEL KLAIDMAN: There are lawyers really almost behind every bomb.

ROBERT KRULWICH: There's just lawyers everywhere.

HAROLD KOH: Yeah, and that's a very good thing.

JAD ABUMRAD: That's Harold Koh. He was the top lawyer at the State Department from 2009 to 2013.

HAROLD KOH: Because it means that we're not just shooting away at people willy-nilly or because we're angry at them or anything. It's a considered, careful decision.

JAD ABUMRAD: Now, Harold Koh, according to Dan Klaidman's reporting, was in those SVTS meetings, and he would often be the one to answer the generals' questions. Can we legally kill this person? So we asked him, like, if lawyers are now the ones deciding who we are at war with and who we aren't, how do you do it? And unfortunately for us...

HAROLD KOH: I don't think I can get into that on this call. There are multiple methods, but I'm not going to go into that.

JAD ABUMRAD: ...He said he couldn't comment on any of it because it's classified. But...

DANIEL KLAIDMAN: Harold Koh is a creative lawyer...

JAD ABUMRAD: According to Dan Klaidman, who spoke with a lot of people familiar with the process, Koh in particular had a fascinating way of determining who is and is not an associated force - in other words, who we are or aren't at war with. And it seems to be less about the groups as a whole and more about individuals within the group. For example...

DANIEL KLAIDMAN: Seniority - that was an important issue.

JAD ABUMRAD: For Koh, if you're going to target a guy, he has to be a senior member of a group like al-Qaida.

DANIEL KLAIDMAN: Right.

JAD ABUMRAD: He has to be able to give orders. And he has to be unique within the organization.

DANIEL KLAIDMAN: You couldn't simply under Harald Koh's theory go after, say, a driver or a cook who was in al-Qaida, or even foot soldiers because they were fungible.

JAD ABUMRAD: Meaning they could be easily replaced.

DANIEL KLAIDMAN: Another criteria was whether they were externally oriented.

JAD ABUMRAD: For Koh, if they were just participants in a civil war, you couldn't target them. But if they were targeting Westerners or Western interests, then yes. So if you take Dan Klaidman's account of Harold Koh's criteria as a representative - and we personally have no way of verifying it. But if you take that as the norm, then maybe there is a strong vetting process in place.

DANIEL KLAIDMAN: But I interviewed numerous people who participated in these meetings, and one of the things that I heard over and over again was that there was this kind of inexorable momentum toward killing, and that the military people in these meetings could speak with a kind of a tone of do-or-die urgency. In fact, two of the people who I quote in my book used exactly the same metaphor to describe that sense of momentum that was very difficult to resist. It was like standing on a train track with a train hurtling toward them at a hundred miles an hour.

JAD ABUMRAD: Then, I guess, like, the important question for me is - like, how often do they say no?

DANIEL KLAIDMAN: Well...

ROBERT KRULWICH: If the answer had been 99 times yes and one time no or 50 times yes and 50 times no?

JAD ABUMRAD: Yeah.

ROBERT KRULWICH: How many nos are there?

DANIEL KLAIDMAN: Well, look, I'd say - I did not come across many, many examples...

JAD ABUMRAD: But he did tell us about this one instance.

DANIEL KLAIDMAN: This was a meeting between the top lawyer at the Defense Department, a man named Jeh Johnson, and the top lawyer at the State Department who was then...

JAD ABUMRAD: Harold Koh.

DANIEL KLAIDMAN: Harold Koh.

JAD ABUMRAD: And according to Dan's sources, Harold Koh and Jeh Johnson were faced with determining the fate of a 40-year-old man, roughly 40, named...

ROBERT KRULWICH: Sheikh Mukhtar Robow. I think that's the right to say his name. I'm not sure.

JAD ABUMRAD: He was a member of the Somali group al-Shabab. And for context...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON: In other news, World Cup celebrations have turned to tragedy in the central African nation of Uganda.

JAD ABUMRAD: A few months before this conversation - this is in 2010 - al-Shabab bombed a rugby club and a restaurant at the same time in Uganda, killing 74 people.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON: Broken chairs, smashed tables and the sounds of pain as rescuers search for the living and the dead.

UNIDENTIFIED PERSON: (Non-English language spoken).

JAD ABUMRAD: So that had just happened. And according to Dan Klaidman, at this moment in intelligence circles, there was a debate raging as to whether al-Shabab should or should not be considered an associated force.

DANIEL KLAIDMAN: At the time, their leader had sworn allegiance to Osama Bin Laden. But their agenda was primarily a local agenda They had never struck out against the United States or against American interests in the region.

JAD ABUMRAD: So you've got the top lawyer at the State Department and the top lawyer at the Pentagon facing off as to whether this fellow Robow from al-Shabab should live or die.

ROBERT KRULWICH: And how does this work? Does somebody just - like, did someone pound the table? Or...

DANIEL KLAIDMAN: Yes, this was a very heated meeting. Jeh Johnson argued vehemently that Robow was covered under the AUMF.

JAD ABUMRAD: He was, after all, a founding member of al-Shabab.

DANIEL KLAIDMAN: Harold Koh vehemently disagreed. Harold Koh's conclusion, based on the evidence and the intelligence that he saw...

JAD ABUMRAD: Was that Robow was not externally focused. In fact, he belonged to a faction of Al-Shabab...

DANIEL KLAIDMAN: That was arguing against attacking the United States and other Western interests.

JAD ABUMRAD: So according to Klaidman, these two men went back and forth and back and forth until, eventually, Harold Koh just drew a hard line and essentially said...

DANIEL KLAIDMAN: Look, if you do this, you need to know that you will be doing it over the unambiguous objections of the State Department's legal adviser.

ROBERT KRULWICH: The unambiguous, ooh.

DANIEL KLAIDMAN: And that's very strong language coming from a lawyer. And the signal that it sent to the White House was, you will be taking military action, even though the top lawyer of the State Department said that this would be an illegal action.

ROBERT KRULWICH: All right. So what happened? Did they decide not to?

DANIEL KLAIDMAN: They did not do it.

HAROLD KOH: This is not academic. It's - lives depend on which way the decision goes.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON: (Non-English language spoken).

UNIDENTIFIED PERSON: President's authorized to use all necessary and appropriate force against those nations...

UNIDENTIFIED PERSON: People who planned, authorized, committed or aid in the terrorist attacks on September 11.

UNIDENTIFIED PERSON: (Non-English language spoken).

(CROSSTALK)

JAD ABUMRAD: We'll continue in a moment.

  1. I'm Jad Abumrad.

ROBERT KRULWICH: I'm Robert Krulwich.

JAD ABUMRAD: This is RADIOLAB.

ROBERT KRULWICH: Today, we've devoted the - we're continuing to devote the entire show to a single sentence, one sentence.

JAD ABUMRAD: Sixty words.

ROBERT KRULWICH: That's all.

JAD ABUMRAD: It's the 2001 authorization to use military force. It was signed into law on September 18, 2001. And together with BuzzFeed and reporter Gregory Johnsen, we have manhandled these words.

ROBERT KRULWICH: Yeah, we have dissected. We have bisected...

JAD ABUMRAD: Trisected.

ROBERT KRULWICH: ...And whatever other kind of sected you could do.

JAD ABUMRAD: Quadrisected.

ROBERT KRULWICH: To the AUMF as it's called.

JAD ABUMRAD: Yes. And, you know, we've looked at how the sentence has defined our last 12 years of counterterrorism.

ROBERT KRULWICH: And now?

JAD ABUMRAD: How will it define our future?

(SOUNDBITE OF ARCHIVED RECORDING)

CARL LEVIN: Gentlemen, thank you for being here today. This is a very...

JAD ABUMRAD: So when we were thinking about that Senate Armed Services Committee hearing, we ended up calling someone who sat on the committee...

TIM KAINE: Tim Kaine, senator from Virginia.

JAD ABUMRAD: ...And who was there that day.

TIM KAINE: Yeah, that was a very kind of hair-raising day.

JAD ABUMRAD: And Senator Kaine told us that one of the most hair-raising moments for him was when one of his fellow Senators, Lindsey Graham asked one of the Department Defense officials...

(SOUNDBITE OF ARCHIVED RECORDING)

LINDSEY GRAHAM: Do you agree with me the war against radical Islam or terror, whatever description you'd like to provide will go on after the second term of President Obama?

JAD ABUMRAD: In other words...

TIM KAINE: How long do you think this particular war as declared in this section is going to go on?

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON: Senator, in my judgment, this is going to go on for quite a while and, yes, beyond the second term of the president.

LINDSEY GRAHAM: And beyond this term of Congress?

UNIDENTIFIED PERSON: Yes, sir. I think it's at least 10 to 20 years.

(SOUNDBITE OF MUSIC)

TIM KAINE: It was chilling.

JAD ABUMRAD: Because, like, this is already...

TIM KAINE: The longest war in the history of the United States.

JAD ABUMRAD: Longer than Vietnam. And now a DOD official is saying add on 10 or 20 years?

TIM KAINE: So I said...

(SOUNDBITE OF ARCHIVED RECORDING)

TIM KAINE: Is it the administration's position that...

You tell me if somebody is born...

(SOUNDBITE OF ARCHIVED RECORDING)

TIM KAINE: ...After 9/11.

JAD ABUMRAD: Let's imagine in 2030...

TIM KAINE: They join a group that has just become associated with al-Qaida.

JAD ABUMRAD: In 2030.

(SOUNDBITE OF ARCHIVED RECORDING)

TIM KAINE: Is that the administration's position that the AUMF would cover them and those organizations?

And without hesitation, the administration witnesses said yes.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON: As long as they become an associated force under the legal standard that was set out.

TIM KAINE: It's not limited in time, not limited in geography - really troubling. But, you know, I'm also troubled by another thing. I mean, you know the iconic - it's a New York picture of a...

(SOUNDBITE OF MUSIC)

TIM KAINE: ...V-J Day kiss in Times Square.

JAD ABUMRAD: Yeah.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON: To see that here we have a combination of every type of person...

JAD ABUMRAD: August 14, 1945.

TIM KAINE: There ought to be a day where those who have served in war, that you declare that the war is over and then you celebrate them.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON: Are these people happy? That's the only way to express it. Are you happy?

(SOUNDBITE OF CROWD CHEERING)

ROBERT KRULWICH: Do you get asked sometimes by service families, like, when is this going to end? Does it ever come up?

TIM KAINE: Yes. Yes. Yes.

JAD ABUMRAD: He told us that something like 1 in 3 people in his State of Virginia are connected to the military. So he does get that question a lot. And the truth is, we all want a V-J Day. We need it. And so seven days after that Senate Armed Services Committee hearing, President Obama...

(SOUNDBITE OF ARCHIVED RECORDING)

BARACK OBAMA: It is a great honor...

JAD ABUMRAD: ...Gave a speech...

(SOUNDBITE OF ARCHIVED RECORDING)

BARACK OBAMA: ...To return to the National Defense University.

JAD ABUMRAD: ...Where he seems to say basically, it's time.

(SOUNDBITE OF ARCHIVED RECORDING)

BARACK OBAMA: This war, like all wars, must end.

(SOUNDBITE OF MUSIC)

BARACK OBAMA: That's what history advises. And that is why I intend to engage Congress about the existing authorization to use military force, or AUMF.

JAD ABUMRAD: He basically announces that he would like to get rid of those 60 words and end this war.

TIM KAINE: Yeah.

ROBERT KRULWICH: But common sense tells you that these are a different kind of enemy, not a state or a government. They just sort of - they make war in a different way.

TIM KAINE: Senator McCain has a great line. He goes, look, we're in an age of warfare where the war isn't going to end with the signing of a peace treaty on the deck of a destroyer. That's not how it happens these days. There's no clear start and ending.

JAD ABUMRAD: And yet the president...

BEN WITTES: He wants to end the war.

JAD ABUMRAD: Says Ben Wittes.

(SOUNDBITE OF ARCHIVED RECORDING)

BARACK OBAMA: And every war has come to an end.

BEN WITTES: He sees himself as a person who came in to a country fighting two wars, and he brought them all to an end. And I think he wants to have done that.

JAD ABUMRAD: But how do you - how do you do that? How do you end a war when the vast amount of people that you're calling the enemy haven't stopped fighting?

BEN WITTES: So what he does in the May speech, and it's extremely clever - and by the way, it's really well-lawyered - is he announces a set of rules going forward for drone strikes.

(SOUNDBITE OF ARCHIVED RECORDING)

BARACK OBAMA: America does not take strikes to punish individuals. We act against terrorists who pose a continuing and imminent threat to the American people.

BEN WITTES: That he's only going to use drone strikes when there's an imminent threat.

JAD ABUMRAD: And it's well understood by people who understand this kind of stuff that in the Constitution and also in international law, the president is allowed to act unilaterally in self-defense when there is an imminent threat, meaning it's urgent and you can't feasibly capture that person. Ben fears that what President Obama was doing there by stressing that word...

(SOUNDBITE OF ARCHIVED RECORDING)

BARACK OBAMA: An imminent threat to the American people.

JAD ABUMRAD: ...Is that he was laying a new foundation.

(SOUNDBITE OF MUSIC)

JAD ABUMRAD: He was saying, when the AUMF ends - and I want it to end - I do have another way of justifying all these things.

BEN WITTES: Maybe they wouldn't change.

JAD ABUMRAD: So the drone strikes and the raids would continue.

BEN WITTES: As long as you have a capacious enough understanding of what the word imminent means, you might be able to continue a whole lot of this stuff. And then you don't have to go to Congress at all.

(SOUNDBITE OF MUSIC)

BEN WITTES: And you can say you've ended the war. And the human rights groups will cheer for you. And we're going to mysteriously find that there are a whole lot of imminent threats.

(SOUNDBITE OF ARCHIVED RECORDING)

BARACK OBAMA: For freedom - thank you very much, everybody. God bless you.

(APPLAUSE)

BARACK OBAMA: May God bless the United States of America.

(SOUNDBITE OF MUSIC)

JAD ABUMRAD: And in the context of what happened to those 60 words, you do have to wonder, what's going to happen to a word like imminent? And all the while, according to Ben Wittes and pretty much everyone we spoke with, we haven't really answered the big questions.

BEN WITTES: When do we want to attack the enemy? Who is the enemy?

JAD ABUMRAD: And if we're going to be fighting them even when we're not technically at war with them, then what's the difference between war and peace?

(SOUNDBITE OF MUSIC)

ROBERT KRULWICH: And that's why this whole subject is so unsettling. Like, if you don't know the common-sense definition anymore of when you're at war and when you're at peace, then how do you write rules?

JAD ABUMRAD: Yeah.

ROBERT KRULWICH: This was an attempt to begin a war. And so it had the usual beginning questions - OK, you. Who are you? You out there, where? You, for how long? Till you surrender. No you're not going to surrender. Like, all of the usual business of warfare doesn't apply in this case. So then you have to think, now what do we do?

JAD ABUMRAD: Yeah. It's just like one long improvisation.

ROBERT KRULWICH: Yeah.

(SOUNDBITE OF MUSIC)

JAD ABUMRAD: Huge thanks this hour to Buzzfeed and to their reporter, Gregory Johnsen. Check out Gregory's piece.

ROBERT KRULWICH: It's where we started with this.

JAD ABUMRAD: We will link to it from radiolab.org. It's on BuzzFeed as well. It's called "60 Words And A War Without End: The Untold Story Of The Most Dangerous Sentence In U.S. History." That is a title right there. Also thanks to the great Dylan Keefe for original music and Glenn Kotche for music from his album Adventureland. And - oh, and also thank you to Beth Fertig and the WNYC archives for the 9/11 tape you heard at the top of the hour. This hour was produced by Kelsey Padgett and Matthew Kielty and myself. I'm Jad Abumrad.

ROBERT KRULWICH: I'm Robert Krulwich.

JAD ABUMRAD: We'll see you next time.

LULU MILLER: OK, so Lulu here again. That was the original story. And now we are back in the present with our producer Sarah Qari who has an update for us.

SARAH QARI: Yeah.

LATIF NASSER: Well, let's just say, like, maybe people have an idea about why this matters right at this moment, but just tell us anyway.

SARAH QARI: Yeah. I mean, we know how it is that we started the forever war. But, like, truly I feel like the question we're all asking ourselves right now is, like, how do you actually end it? And part of that is born out of the 20th anniversary of 9/11. And then part of it is, like, observing what has happened in the last few weeks in Afghanistan and watching the U.S. very messily and tragically try to extract itself from this conflict. And I think - yeah, I think that's the question that I feel I'm still grappling with is, like, how do you end it?

LATIF NASSER: Yeah.

SARAH QARI: And, you know, it turns out that Barbara Lee, the congresswoman from the original piece, has also been asking herself this question for all these years.

Hello. Hello.

LATIF NASSER: Really?

SARAH QARI: It's connecting to audio.

Yeah. Yeah, yeah, yeah.

BARBARA LEE: All right. Hold on a minute.

SARAH QARI: Hi, we can hear you.

Jad and I called her up.

BARBARA LEE: Thanks a lot.

JAD ABUMRAD: Yeah, it's good to talk to you in a very different world - although kind of the same world.

BARBARA LEE: I know. Yeah, no, I remember...

SARAH QARI: And the first thing she told us is that she actually recently sponsored a bill...

(SOUNDBITE OF ARCHIVED RECORDING)

NANCY PELOSI: We are here because of the courage of Congresswoman Barbara Lee. No one...

SARAH QARI: ...In the House...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON: The question is on passage of the bill...

SARAH QARI: ...Called H.R. 256...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON: The ayes have it.

SARAH QARI: ...That has since passed in the House and now is waiting to be voted on in the Senate. That would basically repeal one of the AUMFs that has come about since 9/11.

BARBARA LEE: Yes.

LATIF NASSER: Wait, what do you mean one of the AUMFs?

SARAH QARI: Well, it turns out, after the 2001 original 60 words one, there was a second AUMF in 2002.

BARBARA LEE: For the Iraq military action, the invasion and war in Iraq.

SARAH QARI: Which, by the way, she also voted against at the time. And that's the AUMF that she's trying to get repealed right now.

BARBARA LEE: To repeal the Iraq resolution - basically, that's what it says.

SARAH QARI: Which, like I said, passed the House and is headed to the Senate.

BARBARA LEE: And maybe it'll come to a vote middle of September and get to the president's desk.

SARAH QARI: But that bill wouldn't repeal the original 2001 AUMF, which is honestly still the one that we mostly use to justify military action nowadays.

LATIF NASSER: So does it even matter anyway?

SARAH QARI: I mean, so it kind of matters because taking it off the books would at least prevent it from being abused in the future. But yeah, no, it's not the original one. And so we asked Barbara Lee...

JAD ABUMRAD: Do you have any plans to actually go after the original one, and wouldn't it be kind of useless to go after the second and not the first?

BARBARA LEE: No, we're going after the first. We're working now. I've introduced the 2001 authorization repeal. And the big issue there is support - get to 218 on the floor. It's a heavier lift.

SARAH QARI: It's still such a big hurdle to get rid of those original 60 words.

BARBARA LEE: Because the 2001 is Afghanistan.

LATIF NASSER: But it's like, to me, the idea that Osama bin Laden is dead, the U.S.' involvement in Afghanistan is over...

SARAH QARI: Yeah.

LATIF NASSER: We're so far from the thing. We're so far from 9/11 now...

SARAH QARI: Yeah.

LATIF NASSER: ...A testament of which is that someone who was in the second grade is now reporting a story about it. You know what I mean?

SARAH QARI: (Laughter).

LATIF NASSER: Like...

SARAH QARI: Yeah.

LATIF NASSER: Like, we're so far from that. And to then keep using this sort of zombie legal justification feels like there's - like, what leg do they have to stand on? Like, I don't know. It seems, like, a lot harder to justify now, no?

LULU MILLER: Can I jump in as the least informed but just as a...

SARAH QARI: Yeah.

LULU MILLER: One thing in terms of legs to stand on - what really struck me in the language was, like, in order to prevent against any future acts of international terrorism. It's like, it's not a thing that was done but a thing that might happen. Like, that feels like a leg that could then just be - it could stand on forever. It feels like there would always be a case. There would always be, like, the lawyers...

LATIF NASSER: Right.

LULU MILLER: ...Or the whoever saying, like, well, maybe.

SARAH QARI: Yeah. No, totally, totally. And I think that they have a real interest in maintaining it. Even if they say that, like, you know, we want to end this specific war and we don't want to be there, it's still, like, a tool that can allow them to act fast and without congress's approval. In a world where situations like the one in Afghanistan are changing day by day, the 2001 AUMF still allows the president and the military to act with so much agility and - in some ways, you can kind of see their argument because we're just sort of in this open-ended conflict and the whole nature of war has changed. The United States is fighting against, like, start-up groups of people that didn't exist in 2001 before 9/11.

LATIF NASSER: Yeah.

SARAH QARI: You know, it's not like World War II anymore, where, like, you know, we begin and we end the war. And Congress, according to the Constitution, has the power to declare war. I guess I'm not even convinced that Congress is the right body of people to do that anymore. Like, there's so much partisanship. There's so much gridlock. It just feels like trying to use the Pony Express in, like, a world full of cellphones.

LATIF NASSER: Like, I mean, I agree. But, like, I don't know. Like, the idea that it's like, oh, OK, well, the president has this power and a bunch of very creative lawyers. Like - and, like, that's even more terrifying to me. I don't know. This is like...

SARAH QARI: No, totally.

LATIF NASSER: It's like a menu of two really terrible options here.

SARAH QARI: The problem to me feels like if you completely repeal the 2001 AUMF - like, let's say, like, tomorrow, it just, like, doesn't exist - what is the right tool for declaring military action moving forward, like, in this world where things move so fast and Congress is so slow and warfare is so different? What do you do when you need to resort to military action?

OONA HATHAWAY: Yeah, I hear that 100% 'cause I certainly sometimes despair that it feels like, you know, no matter what we do...

SARAH QARI: So I ended up talking to this national security expert.

OONA HATHAWAY: My name is Oona Hathaway, and I teach international law at Yale Law School.

SARAH QARI: And she actually made me feel kind of optimistic that Congress and the administration might be ready to find a new way forward.

OONA HATHAWAY: I guess the one hopeful part of me, see, is the fact that we're now nearly at the 20-year anniversary of this authorization. And, you know, anybody that looks at this realizes this was not what Congress thought it was voting for at the time.

SARAH QARI: And she thinks that Congress might be ripe to come up with something that could actually replace the 2001 AUMF and that the Biden administration...

OONA HATHAWAY: They're recognizing they're on pretty thin legal ground. And that's just not a good - either a political or legal position for the president to be in. So I think they're recognizing it's actually in their interest, if they can get a good replacement, to be supportive of that.

SARAH QARI: And Oona's idea - and this is Barbara Lee's thought, too - is that the problem might not be with AUMFs in general. The problem is with those original 60 words that were written in this moment of doubt and fear and rage and trauma and what we need instead is an AUMF that's written in a moment of clarity.

OONA HATHAWAY: If we had Congress come in and say...

BARBARA LEE: If you want to use force, these are the specifics that we want you to adhere to. This is the criteria.

OONA HATHAWAY: Here are the groups that we're fighting against. You know, here's how you can add new groups or take them out.

BARBARA LEE: You know, we want you to give us an exit strategy, what an estimated end time would be.

OONA HATHAWAY: Have an actual process whereby Congress actually makes clear that it supports what we're doing.

BARBARA LEE: And the costs and consequences have to be laid out.

SARAH QARI: So the idea is that, you know, you need an AUMF that is written better, that is more specific and doesn't have language that's wishy-washy. But, I mean, in terms of what that actually looks like on paper, I don't know.

LATIF NASSER: It's like when we set our employee goals. Like, it's like...

SARAH QARI: (Laughter).

LATIF NASSER: ...You know, the SMART - like, it's - what is it? Like, specific, measurable...

SARAH QARI: SMART goal, yes. Yeah - changeable.

LATIF NASSER: Like, we need SMART war goals, you know what I mean?

SARAH QARI: (Laughter) No, totally, totally. Time-bound. That's the end of this, like, acronym.

LATIF NASSER: Time-bound, all of these things. Like, it's - literally, take our employee handbook and just hand it out to Congress.

SARAH QARI: (Laughter).

LATIF NASSER: Like, I think that's what we need.

LULU MILLER: This update was produced and reported by Sarah Qari. And the original episode, again, is produced by Kelsey Padgett and Matthew Kielty. Thanks so much for listening.

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JOHN BELLINGER: Hi, it's John Bellinger at Arnold & Porter calling. I'm about to read to you the text of your credits.

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DANIEL KLAIDMAN: Hi, this is Dan Klaidman, and I'm going to read the credits as I've been asked to. RADIOLAB is produced by WNYC and distributed by NPR.

JOHN BELLINGER: RADIOLAB is produced by Jad Abumrad. Our staff includes Ellen Horne, Soren Wheeler...

DANIEL KLAIDMAN: Tim Howard, Brenna Farrell...

JOHN BELLINGER: ...Molly Webster....

DANIEL KLAIDMAN: ...Malissa O'Donnell, Dylan Keefe...

JOHN BELLINGER: ...Jamie York...

DANIEL KLAIDMAN: ...Lynn Levy...

JOHN BELLINGER: ...Andy Mills and Kelsey Padgett with help from Arianne Wack, Matt Kielty, Simon Adler and Chrisnel Store.

DANIEL KLAIDMAN: Special thanks to Bruce Kaine, Liz Mack, Steve Candell, Ben Smith and Kerry Adams. That's a wrap.

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