Radiolab - 60 Words

Episode Date: January 7, 2020

This hour we pull apart one sentence, written in the hours after September 11th, 2001, 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.

Hey, it's Chad. So with the events of the last couple of days, by that, I mean, of course, the administration's decision to order a drone strike that killed Iranian general Qasem Soleimani at Baghdad International Airport, which has unleashed a chain of events that leads we have no idea where. With that happening, we wanted to play an episode which I think really puts this situation in a much larger context. We first broadcast this in April of, of 2014. I'm going to play it for you as we originally put it out. And then on the back end, we'll talk a little bit about how this all relates to the current situation that's unfolding. Again, this was originally broadcast in 2014, but it seems to really speak to what's happening right now. Wait, you're listening. Okay. All right. Okay. All right. You're listening to Radio Lab.

Radio Lab. From W-N-Y-S-E. See? Yeah. Okay, ready? Hey, I'm Chad Abum-Rod. I'm Robert Krollovich. And this is Radio Lab.

Today we've got a story about the crazy power of words. In particular, 60 words. Single sentence. That is, well, it has, you could say, defined America for the last 12 years. And the place to start is a difficult one. This just in, you were looking at obviously a very disturbing. September 11th, 2001, 846 AM. A plane has crashed into the World Trade Center.

We don't know anything more than that. This is a day that anyone who is old enough to remember, does remember. We can remember where we were, who we were with. So you have no idea right now? Other than another one, another plane just hit. Right? Oh my God, another plane has just hit. And, of course, we could remember how we felt.

Tell me what you just saw. Oh, shit. It fell down. A snow shit, oh my God. What happened? It is the worst attack ever on American soil. But if you really want to understand the world we live in now, you've got to jump ahead one day to September 12th

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? 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. That is Gregory Johnson. The Michael Hastings National Security Reporting Fellow at BuzzFeed.

Now, the reason this lawyer, a man by the name of Timothy Flanagan. 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. Right. I mean, technically in an emergency... The president can defend the country. He is the commander-in-chief, after all. He doesn't have to go to Congress and say,

hey, do I have authorization to use force? Not an emergency. That's Ben Wittes, by the way. Senior fellow in governance studies at the Brookings Institution. 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... The power to declare war in the Constitution is given to Congress.

not to the executive. And when Congress declares war, suddenly the president has a very clear and powerful mandate. Now, 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. The authorization to use force. What's called the authorization for the use of military force.

force. Or as it's commonly referred to, the AUMF. Right. So, our lawyer in the White House, Flanagan, he's given a task. Go write an AUMF that Congress can send to the president. He really has no idea. So he goes back to the last time that the U.S. did this. Last time Congress passed one of these things. He does a quick sort of search on his computer. Boom, finds it. 1991, Iraq, the Gulf War. Flanagan grabs the text. And then he copies that into a word document. And that becomes his template. He makes some cuts.

He makes some changes. He delete some words. And then he hits Send. Our war on terror. A just war. And he sets in motion this bewildering series of events. A U.S. drone strike linked to al-Qaeda. In the war, bring the troops home now.

This madness that is basically the world we live in. Fifteen members of a wedding procession were killed by U.S. And if you're like me. Bizarre. sadistic treatment. 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.

Terrorism targets in Africa. From Libya now, the U.S. Air Force. A drone strike in southern Somalia. Wait, wait. How are we doing this in all these different places? 100 prisoners are on a hunger strike. And like that. In protest of their indefinite detention. How are we detaining people for so long?

You mean, is it okay to do that? Well, just who signed off on this? Yeah. You know? And it turns out, we all. It all did because it was in that document. 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 rates. It's all been hung off these 60 words.

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? 60 words, one sentence. Can you read it? Absolutely. 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 September 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.

60 words. Today, a collaboration with BuzzFeed. And with reporter Gregory Johnson. We're going to try to decode those words. And ask, where do those words come from? And how did they come to mean what they mean? Which is not what you think they'd mean. No.

And how did they end up leading us into what is arguably the longest war in American history? And nobody saw it coming. Absolutely nobody. That's the weirdest part. Well... Nobody minus one. Let's start there. Maybe you should introduce us to Barbara Lee.

Right. Barbara Lee is a congresswoman from right around Berkeley, California. Hello. Hello, hello. Hi, it's Barbara. And she is someone who has been, in many ways, a lifelong activist. Going all the way back to when she was 15 in high school in San Fernando Valley. Because I wanted to be a cheerleader. But, you know, since this was the early 60s.

You had to have certain criteria like, at least whether it was stated or not, blonde and blue eyes. That would have been hard for you, I would figure. That was really hard, so I went to the NAACP. She got them to pressure the school to change the rules. And I won. And she became the first black cheerleader at her high school. Yeah, yeah. 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... There is smoke pouring out of the Pentagon. She was at the Capitol. No one knew where to go, so the police officers just said, run, run, run, go, go. This was an apparent terrorist attack in our country. So I ran out of the Capitol down Pennsylvania Avenue.

I remember looking back and saw a lot of smoke. Which was, you know, the Pentagon. You know, clearly the country's under attack. Clearly, people have died, clearly. We've got to deal with whoever did this, whatever it takes. Fast forward two days, September 13th. Barbara Lee's back of the Capitol to meet with her Democratic colleagues to review that document that Flanagan had sent over. The mood in the room was very somber and very angry.

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. And very confused. What would be the appropriate response? So as she and her colleagues read those 60 words... There was a lot of debate going on back and forth. Oh, yes. Oh, yes. From everyone. Because this actually wasn't the first draft. Flanagan had sent one over the night before. September 12, 2001.

And that one? Was something that almost no one agreed to. According to Gregory, that early draft had a few extra lines in it. One gave the president the power to preempt any future acts of aggression against the United States. And Barbara Lee and her colleagues knew 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. So they kicked it back to the White House. Flanagan took out those words. And now they had this new draft. That the president is authorized to use all necessary and appropriate force. Which is what you heard. But still when Barbara read that,

And soft phrases like all necessary and appropriate force, she thought, what does that even mean? I said this is too broad. It's not definitive. It's open-ended. 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. Yep. People were nodding. People were nodding. Because everybody there knew the danger of ill-defined words. You just had to go back 50 years. To the Gulf of Tonkin. Yep. Gulf of Tomkin.

Tonkin. Tonkin with an end. Yes, to explain. My fellow Americans, as president and commander in chief, 1964, LBJ announces that two American ships, two U.S. destroyers, parked in the Gulf of Tonkin off the coast of Vietnam, were torpedoed by North Vietnamese boats. By a number of hostile vessels. Many people now argue that one of these attacks never even happened.

Nonetheless, President Johnson wanted to strike back, so he asked Congress to pass a resolution, 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. Making it clear that our government is united in its determination to take all necessary measures in support of freedom and in defense of peace in Southeast Asia. Now it is the broad language of that document, most people believe,

that opened the door to the worst part of the Vietnam War. The Rangers and Marines took casualties, mostly from hidden snipers. The thousands and thousands of casualties. You just keep dropping in. There's nothing you can do. Horrific atrocities. Charges have been made that troops killed as many as 567 South Vietnamese civilians during a sweep in March, 1968. And in a television interview in 1969, when President Johnson was asked to justify it all,

he said, you can't just blame him. Congress gave us this authority. in August, 1964. To do whatever may be necessary, that's pretty far reaching. That's the sky's the limit. So the lessons of the Gulf of Tongan and Vietnam, that was very much in the air in that meeting on September 13, 2001. Several key leaders hoped to avoid a repeat of the 1964 Tonkin Gulf Resolution.

So it was understandable that when Barbara Lee stood up and said to her colleagues that she was worried about some of this language, People were nodding. People were nodding. So there was a lot of uncertainty about what to do. But in the end, those concerns were ultimately outweighed by another desire. We've got to be unified with the president. We can't show political divisions. Let's have the nation. Let's have Congress speaking with one voice. It was a time for unity and for action. And so walking out of that Democratic caucus meeting on the evening of September 13th, congressional leadership decided that these 60 words, this is the version. There's no going back to the drawing board.

And so at 10.16 a.m. September 14th, 2001. The Senate will come to order. The Senate is gaveled into session. The clerk will call the roll. Dashel calls a vote. Mr. Akaka. Mr. Allard. Mr. Allen.

There are 98 senators on the floor. Mr. Durbin. Mr. Voinovich. All 98 of them vote. Yay. No senator voted in the negative. So was a sweep. Yeah.

Later in the day the resolution would go to the house where Barbara Lee was a representative, Dashel had actually rushed the vote through the Senate. Because the White House has called for a national prayer meeting at the National Cathedral. For the victims of 9-11. That's supposed to start right at noon. And so... Right after the vote.

All the senators pour out of the Capitol and get onto the buses trying to get through the drizzle. It was actually raining that day. No, at that moment, Barbara Lee... She hadn't decided how it is that she was going to vote. I struggled with it. For the previous two nights, September 12th and 13th, she'd stayed up late. back to advisors, to friends in California. We talked every day.

Including this guy. This is Ron Delums. I served for over 27 years in the U.S. House of Representatives. Barbara used to be his chief of staff, and when he resigned, she won his congressional seat. You know, she would say, well, what about this and what do you think about that? And we kind of talked through the emotional state of the country. That we are feeling pain, anger, we're shocked. 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. Yes, psychology 101. You don't make decisions when you're mourning, afraid. On the other hand, I believe, you know, in unity too. I want to be unified with the president when the country's under attack. I understood. He didn't tell me, he didn't say which way I should vote.

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. So at that moment, with the memorial service about to start in a few hours till the House vote, Barbara Lee was at the Capitol. I was in the cloak room. And since she wasn't sure how she was going to vote, she planned to skip the memorial service. She wanted to stay.

She wanted to think. 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. She was drinking actually a can of ginger ale at the time. I said, I think I'm going to go. And I just ran out. I probably was the last one on the bus.

had the can of ginger ale in my hand and ran down the steps and got on the bus. 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. About halfway back, listening to the organ. Thinking about the families and those who were killed. There are people around her who are sort of whispering. The pain and anguish.

The few people who are crying. I said, I've got to pray over this. And she's just wrestling with her boat. Her heart is saying one thing, this is too broad, and her head is saying unity. How is it that you can be against the president at this point? Speaking of the president, eventually President Bush takes the podium. 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. And then as soon as President Bush steps down, everyone in the congregation stands up and they sing the battle hymn of the Republic, 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.

That's the phrase, terrible swift sword. Yeah. Oh, my God. It was not quite what I expected in a memorial service. But the second speaker. A reverend by the name of Nathan Baxter. He got up and he gave a reading from Jeremiah 31. When ancient Israel suffered

the excruciating pain and tragedy of militant aggression and destruction. Hearing that all over again takes me right back there, and I remember. A voice is heard in Rima. Lamenting and bitter weeping. Rachel weeping for her children. When he spoke, that's when, to me, it was a memorial. And then he started to pray. For the healing of our grief,

hearts for the souls and sacred memory of those who have been lost. And he said something that really struck Barbara Lee. Let us also pray for divine wisdom. He said as we act. That as we act, we not become the evil we deplore. That evil that we deplore. When he said that, I became very, it was this sense of, peace and calm came over me.

And Barbara Lee says it was right then that she knew what she'd do. The clerk will report the title. House Joint Resolution 64 Joint Resolution to authorize the use of United States Armed... Later that evening, the House opens up its debate on the AUMF. Mr. Speaker, I rise in support of this resolution

which authorizes the president to use all force necessary... ...in Congressperson after Congressperson. Mr. Speaker... ...stands up. I rise in support. support of this resolution. Mr. Speaker, I rise tonight to fully endorse and authorize the use of force. One after another. Mr. Speaker, I rise in support of the authorization. I rise today in support of this resolution. We will rally behind our president. 16 in a row until. The jailwoman from California is

recognized for a minute and a half. We get to Barberle. 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. Only the most foolish and the most cow's 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 a member of the clergy so eloquently said, as we act, let us not become the evil that we deplore. Just after the vote, Barbara Lee says she was in the cloak room again, and she starts getting accosted by colleagues. All of these friends are coming up to her and saying, you've got to go back. You cannot vote this way.

That's about changing my vote. 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. They're saying you're dead. Yeah, but that's the right vote. I'm not going to give any president the authority to go to war, and we don't know what we're doing.

You know, the only Congress can declare a war. Help me on this, guys. Has the House vote, okay, the House has just now finished that vote, and we see one no vote during... The final vote for the House was 420. to one. We know it's a Democrat. We don't yet know who. We'll figure that out.

Barbara Lee was the only person in the Senate or the House to cast a no vote. That must have been a very lonely moment. To be perfectly honest with you, I said some prayers for my friend. This was the right thing to do. And, you know, votes like this, you have to be ready to pay the consequences. Over the next few weeks and months. Her office was inundated with letters. Barbara Lee, you are a traitor and a disgrace to the office that you hold.

You can find all these letters archived at Mills College. You are a blade on American society, a terrorist yourself. So much hatred. I don't know why you decided to place yourself into the camp of terrorists. Those attacks came and they came and they came. Subject headline. What's your problem? Death threats.

Now off to hell with you. You Benedict Arnold wannabe. So I had to have security day and night. Up yours. Thanks for supporting the child ban. Hey, Hanoy, Barbara Lee. What are you? What do you believe in? If you go to Mills College in Oakland and we sent a reporter there, you will find 60,000 letters.

They're not all negatives, but most are. But Congressman Lee says she never faltered because right after the vote when she was in her office. My dad called me. Lieutenant Colonel retired in the Army. He said, I'm really proud of you. And my dad had been in Korea and World War II. And he sees it the way I see it, because I really wasn't sure what he would say. because, you know, I really wasn't sure.

She thought, all right. Daddy's proud of me. 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, 60 words would start to grow and expand. That's next. This is Gregory Johnson. My name is Benjamin Wittes. Radio Lab is supported in part by the National Science Foundation. And the Alfred P. Sloan Foundation.

Enhancing public understanding of science and technology in the modern world. More information about Sloan and www. www.org. End of message. Hey, I'm Chad Abumrad. I'm Robert Krollwich. This is Radio Lab. And today, 60.

words. This is a collaboration with BuzzFeed and reporter Gregory Johnson. 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. It's called the authorization for use of military force that's shortened to AUMF, and it was passed by Congress three days after September 11th. And here it is again read by Senator 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 September 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. All right, so why would we be looking at that boring-ass sentence? He seems he almost bored of saying it. Yeah, he does. Can I just be honest with you for a second? Yeah. 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. Are you referring to something in specific? No, I'm pretty to a general sense that somehow, like, Oz is out there behind the curtain, pulling the levers, and I'm just always going to be stuck on this side, you know? Yeah. I think it's what motivates the show for me,

is that, like, I feel kind of stupid most of the time. And these shows are a way to engage the world and really examine the world. Right, exactly. 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, 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.

lawyer who is in the Bush administration said, look, this sentence is like a Christmas tree. All sorts of things have been hung off of this. But how? How, like, because you read the thing and you don't see any mention of Guantanamo Bay in those 60 words. It doesn't mention detention. It doesn't mention drone strikes. It doesn't mention drone strikes against American citizens. Okay, so that guy, it's one of the first folks we called to help us decode this. That's, That's John Bellinger. I served as the legal advisor for the National Security Council from 2001 to 2005 and as the legal advisor for the Department of State from 2005 to 2009. You can't do any speed dating with a credential like that because the date will be over.

That's my congressional testimony, voice. And we asked him, like, okay, so detention isn't anywhere in this document. So how do you read detention from these 60 words? The argument with which I am comfortable as a legal matter is this. He says if you go eight words into those 60 words and you get to the phrase, all necessary and appropriate force. All necessary and appropriate force. You got to ask yourself, what is force? What does that mean?

What do you? Well, you know what force is? If I punch you in the face, that's amusing force. That's one kind of force. You can use force to kill people. Yes. But a lesser use of force is to detain them. Detention is simply lesser included in.

in the use of force that comes naturally in a military operation. 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. 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. So that one word, force, that is how you justify Guantanamo Bay.

Well, the controversy surrounding Guantanamo Bay continues. The authorization to use military force act has been the legal basis for the detention of thousands of individuals. Now, many of them have been detained for more than 10 years. None have ever been charged. And the words detention are never mentioned. Okay, so that's detention. It gets even trickier if you go just a few words past all necessary and appropriate force. To what?

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. You mean, maybe we can't shoot everybody or anybody. No, only the people who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or Harvard sexual. That sounds much more. Sounds very much tethered to 9-11, right? Yeah.

Which is why a lot of congressmen and women voted for it. Joe Biden, on the day of the vote, September 14th, 2001, he says, look, people, don't freak out about this language. It relates to the incident, and there's broad authority relating the incident. It does not relate to all terrorism every place. Because we're just talking about al-Qaeda who did this and the Taliban who have harbored them, right? Nope. Not necessarily.

Gregory Johnson again? 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. Associated forces. Yeah. What we've been calling the 61st and 62 words. 601 and the 602. Yes, and if you define the enemy as al-Qaeda, the Taliban, and associated forces, it's a whole different ballgame.

Yeah. So when you read all those words, it did not include the phrase. Associated forces is nowhere in the text. So then why could people cite something that isn't in the text? This is one of the enduring mystery. of this. So 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 the enemy as Al-Qaeda, the Taliban, and associated forces. But the truth is, it may have just been there from the beginning.

What do you mean? Because according to Ben Wittes from the Brookings Institution, 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. Makes perfect sense if you think of it in traditional war terms because like, we're at war with Germany. Italy joins their side. So by default, we're at war with Italy too.

Right. So just transpose that here. If we're at war with this group called Al-Qaeda... And a certain set of groups that aren't them... Join the war on Al-Qaeda's side... Then you are legally at war with them. If you don't think about that too hard, It is crystal clear.

But then the question that it has arisen over time is how broad do you make that circle? Because the problem, obviously, is that we're not talking about nation states anymore. We're talking about groups. So, okay, how close does the link to al-Qaeda and the people who carried out September 11th 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 11th, is that enough? Or is it only three links? or can you be an associate of an associate? Now, we can't exactly know how broadly the Obama and Bush administrations have defined those words.

We'll talk about why in a second. But you just have to look at the news. Right. And you could see that we started with a war that was in Afghanistan, and then it spread to a lot of different places. Pakistan, Libya, Somalia. Yemen? Yeah.

And in Yemen, there's a lot of debate and a lot of discussion. About, like, is this legal? Does this have anything to do with September? 11th anymore? Because now the group in Yemen, al-Qaeda 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 I'm in al-Doharie. So does this make them an associated force or does it make them part of al-Qaeda? The answer, at least on...

Good morning, everyone. It is Friday. It's September. September 30th, 2011, mark it down on your calendar. September 30th, 2011, seemed to be yes when the U.S. assassinated two members of the group. 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. 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. So much is in the definition.

I asked the Pentagon. I said, who, what are the list of associated forces? So Al-Qaeda, yes, the U.S. is at war, that's clear. What about the other groups? El-Shabaab, Al-Qaeda in Iraq, Al-Qaeda in the Islamic-Mab, armed Islamic group, Abu Sayyav, Jemaya, Islamia, brotherhood of this, brotherhood of that. 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. Wait, so we, who we are at war with is. We don't know. I. Wait, so you're saying when you approach the Pentagon and ask them? They say that they will not tell you the names of the people were at war against. Well, maybe they shouldn't. Maybe that's a valuable, well.

Don't you want to know as a citizen of America who were fighting? On the other hand, do I want to know as the, 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. It could also, though, act as a disincentive for you to take action. Maybe, but maybe not. Maybe they will just get quieter, more dangerous. I mean, it's true. There might be reasons for this.

They have not wanted to provide a public list because they... This is John Bellinger again. One, the groups move all the time. And so if you 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. 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. 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. I'm not so sure. Good morning, everybody. The committee meets today to receive testimony on the law of armed conflict. One of the more interesting Senate hearings took place in early 2013. Putting the status of the 2001 authorization for the use of military force, the AUMF. It was the Senate Armed Services Committee. Senator Carl, 11 of Michigan, the chairman of the committee, Senator McCain is on the committee. I'd like to welcome our witnesses. And Gregory says the senators called a couple of defense

department officials to answer questions. Members of committee, thank you for the opportunity to testify about the legal framework for the U.S. military operations to defend our nation. Because they wanted to know, like, now that we're 12 years into this war, how are you using this document? Does it need to be changed? So the Department of Defense officials, and there were four of them, came and said, look. I believe that existing authority. are adequate for this armed conflict. Don't revisit this sentence. Don't repeal it.

This sentence is sufficient. It gives us all the power that we need. Against al-Qaeda and associated forces. And as they're laying out their case, they say those two words. Associated forces. And associated forces. Over. Associated forces.

And associated forces. And associated forces. And associated force and their associated forces. Associated forces. And associated forces. And instead of just nodding along, a lot of the senators, like, what?

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. That's Angus King, Independent Senator from Maine. 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. 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, Is there a list now, is there an existing list of groups that are affiliated with al-Qaeda? 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 of al-Qaeda, and I could provide you that list. Would you give us that list?

Yes, sir, we can do that. And when you add it or subtract names from that list, would you let us know? We can do that as well, Mr. Chairman. Thank you. Let me just see if I understand what you just said. At a committee hearing, a U.S. senator asks specifically so who's on the list of people were allowed to kill? Right.

That suggested that the Senate Armed Services Committee who had oversight really had no idea. She made us wondering, like, all right, if we don't have any idea who were at war with and the Senate Armed Services Committee doesn't seem to have any idea, then who does? 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. And so who are they? Is it to be in YC? I guess so, yeah.

So we were rooting around for a while looking for an answer to that question. Until we found this guy. This is Daniel Clydman. He's a journalist. And I've covered national security and counterterrorism for many years. And based on hundreds of confidential interviews that became his book, Killer 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? Well, these are, they call them civets meetings in the vernacular of the bureaucracy. It stands for secure video. teleconference meetings. He described them as a sort of a massive top secret Google hangout chat, where literally hundreds of people from throughout the national security bureaucracy. 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?

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. Many of the folks at this meeting, he says, are given little packets of information on each target. They call them baseball cards. Because they sort of look like it. You got a picture and some stats. Like Yogi Berra on one side and then you got his batting average and his hometown on the back. 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? Eventually, a general will come on the screen and say, here's our target. Objective Akron. For some reason, he says they always refer to the targets by the name of American cities. Objective Toledo. General might say, target is in Yemen.

We have a drone overhead. There's an opportunity to kill this person. 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 lawyers. There are lawyers everywhere. That is just a basic fact of modern warfare, says John Bellinger. You now have lawyers on the ground.

With artillery units, tank commanders. Lawyers in Kevlar, lawyers in helicopters. There are lawyers really almost behind every bomb. Just lawyers everywhere? Yeah, and that's a very good thing. That's Harold Coe. He was the top lawyer at the State Department from 2009 to 2013. 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. Now, Harold Coe, according to Dan Cliven's reporting, was in those civets meetings, and he would often be the one to answer the general's questions. Can we legally kill this person? So we asked him, like if lawyers are now the ones decide, who we are at war with and who we aren't, how do you do it? And unfortunately for us... 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. He said he couldn't comment on any of it because it's classified. But... According to Dan Clydman, who spoke with a lot of people familiar with the process, Coe 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, seniority. That was an important issue.

For Coe, if you're going to target a guy, he has to be a senior member of group like Al Qaeda. Right. He has to be able to give orders. And he has to be unique within the organization. You couldn't simply, under Harold Coe's theory, go after, say, a driver or a cook who was in al-Qaeda or even foot soldiers because they were. were fungible. Meaning they could be easily replaced. Another criteria was whether they were externally oriented. For Coe, 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 Clydman's account of Harold Coe'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. 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 100 miles an hour. Then I guess, like, the important question for me is like, how often do they say no? Well, the answer had been 99 times yes and one time no,

or 50 times yes and 50 times no? Yeah. How many noes are there? Well, look, I'd say I did not come across many, many examples. But he did tell us about this one instance. This was a meeting between the top lawyer at the Defense Department and a man named Jay Johnson and the top lawyer at the State Department, who was then Harold Co. Harold Co. And according to Dan's sources, Harold Coe and Jay Johnson were faced with determining the fate of a 40-year-old man, roughly 40, named Sheikh Mukhtar Robo. I think that's the right everybody says his name. I'm not sure. He was a member of the Somali group El Shab. And for context,

World Cup celebrations have turned to tragedy in the Central African nation of Uganda. A few months before this conversation, this is in 2010, El Shab bombed a rugby club and a restaurant at the same time in Uganda, killing 74 people. Broken chairs, smashed tables,

and the sounds of pain as rescuers search for the living and the dead. So that had just happened. And according to Dan Clydman, at this moment, in intelligence circles, there was a debate raging as to whether al-Shabaab should or should not be considered an associated force. 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. 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 robo from El-Shabaab should live or die. How does this work? Does somebody just, like, does someone pound the table? Yes, this was a very heated meeting. Jay Johnson argued vehemently that Robo was covered under the AUMF. He was, after all, a founding member of al-Shabaab. Harold Co., vehemently disagreed.

Harold Coe's conclusion, based on the evidence and the intelligence that he saw, was that Robo was not externally focused. In fact, he belonged to a faction of El-Shabaab that was arguing against attacking the United States and other Western interests. So according to Clydman, these two men went back and forth and back and forth until eventually Harold Coe just drew a hard line and essentially said, 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 advisor.

The unambiguous move. 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 at the state's bargaining has said that this would be an illegal action. Okay, so what happened? Did they decide not to? They did not do it. This is not academic. It's lives depend on which way the decision goes.

The plan to authorize the terrorist is authorized and is all necessary. The planned authorized committed or aid the terrorist attacks on September. We'll continue in a moment. Hello, this is David from Berlin. Radio Lab is supported in part by the Alfred P. Sloan Foundation enhancing public understanding of science and technology in the modern world. More information about Sloan at www.sloan.org. Hey, I'm Jedd I'm Robert Krillwick.

This is Radio Lab. Today we've devoted the intro. We're continuing to devote. the entire show to a single sentence, one sentence. 60 words. That's all. It's the 2001 authorization to use military force was signed into law on September 18th, 2001. And together with BuzzFeed and reporter Gregory Johnson, we have manhandled these words.

Yeah, we have dissected, we have bisected, and whatever other kind of sected you could do. Quadra-sected. To the A-U-M-F, as it's called. Yes. And, you know, we've looked at how the sentence has defined our last 12 years of counterterrorism. And now? How will it define our future? Gentlemen, thank you for being here today.

This is a very important... So when we were thinking about that Senator Armed Services Committee hearing, we ended up calling someone who sat on the committee. Tim Cain, Senator from Virginia. And who was there that day? Yeah, that was a very kind of hair-raising day. And Senator Cain told us that one of the most hair-raising moments for him

was when one of his fellow senators, Lindsay Graham, asked one of the Department of Defense officials... Do you agree with me the war against radical Islam or terror, whatever description you like to provide, we'll go on after the second term of President Obama. In other words... How long do you think this particular war, as declared in the section, is going to go on?

Senator, in my judgment, this is going to go on for quite a while, and yes, beyond the second term of the president. And beyond this term of Congress. Yes, sir, I think it's at least 10 to 20 years. It was chilling. Because, like, this is already... The longest war in the history of the United States. Long of the Vietnam.

And now a DOD official is saying add on 10 or 20 years? So I said, Is it the administration's position that you tell me if somebody is born after 9-11? Let's imagine in 2030. They join a group that has just become associated with al-Qaeda. In 2030? Is it the administration's position that the AUMF would cover them in those organizations? And without hesitation, the administration witnesses said yes.

as long as they become an associated force under the legal standard that was set out. 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 VJ Day Kiss and Times Square. August 14, 1945. There ought to be a dead. where those who have served in war that you declare that the war

is over and then you celebrate them. Are these people happy? That's the only word to express it. Are you happy? You get asked sometimes by service families like when is this going to end? Does it ever come up? Yes. Yes. Yes. He told us that something like one in three 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 VJ day. We need it. And so seven days after that Senate Armed Services Committee hearing, President Obama, it is a great honor. Give a speech. To return to the National Defense University.

Where he seems to say, basically, it's time. This war, like all wars, must end. That's what history advises. And that is why I intend to engage Congress about the existing authorization to use military force. or A-U-M-F. Basically announces that he would like to get rid of those 60 words, and end this war. Yeah. But common sense tells you that these are different kind of enemy,

not a state or a government. They make war in a different way. 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. And yet the president...

He wants to end the war, says Ben Wittes. And every war has come to an end. 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. But 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?

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. America does not take strikes to punish individuals. We act against terrorists who pose a continuing and imminent threat to the American people. That he's only going to use drone strikes when there's an imminent threat. And it's well understood by people who understand this kind of stuff,

that in the Constitution and also an 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. An imminent threat to the American people. He said he was laying a new foundation.

He was saying, when the AUMF ends and I want it to end, I do have another way of justifying all these things. Maybe they wouldn't change. So the drone strikes and the raids would continue. 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. 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 for freedom. Thank you very much everybody. God bless you. May God bless the United States of America. 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. When do we want to... to attack the enemy. Who is the enemy?

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? 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? Okay, so I'm going to cut in here.

We produced that episode in April of 20, And as I mentioned at the top of the episode, the reason this came to mind for us now, the reason we decided to re-release this podcast is what happened four days ago. A U.S. drone strike killed the head of Iran's Quds Force as General Qasem Soleimani. He was at the Baghdad International Airport. The assassination, if you want to call it that, people debate whether you should call it that. Seems pretty clear to me that's what it was. That has set off a chain of events that we have no idea where it's going to lead. But it did raise a basic question for us, which is how is the United States government justifying this?

Is this an AUMF type situation? Or has that been phased out? And are we seeing what Benjamin Wittes was worrying about more than five years ago? That it's some kind of imminent threat type justification? Just raised a lot of questions for us. And so... Hello, hello. How are you doing?

Hey. We got Benjamin Wittes back on the line to give us his take. He is a senior editor at the Brookings Institution, editor-in-chief at the blog Lawfare. He had a bit of a cold. The first thing that he told us is that even though Obama, President Obama, pledged to get rid of the AUMF in that clip that we played in the episode, it's still very much here, very much in effect. It is still doing a lot of work. It was the basis for the anti-IS campaign or one of the bases for the anti-IS campaign. It remains the basis for a variety of overseas counterterrorism operations.

It remains the legal basis for a whole lot of detention operations, including Guantanamo Bay. It is also the case that we have started to confront a variety of issues in which even the endlessly stretchy and elastic AUMF does not obviously get you to. One of them, for example, is Iranian-backed militias in Iraq. These are not in any sense associated forces of al-Qaeda. And so what the Trump administration has done, he says, and by the way, they were not the first to do this. They've taken that stretchy AUMF from 2001, and they've added things to it. to make it even stretchier. Namely, they have begun to call upon this whole collection of loose, unidentified powers

that the Constitution gives a president in order to protect the United States. According to the Wall Street Journal, the Pentagon was careful not to say imminent in its statement about the killing of Soleimani. What did they say, if not that? Let me pull the statement because I think the statement, is interesting and worth parsing. Statement. So, okay.

So it is a three-paragraph statement. The first paragraph reads that the direction of the president, the U.S. military, has taken decisive, defensive action to protect U.S. personnel abroad by killing Qasem Soleimani, the head of the Islamic Revolutionary Guard Corps, or Kuds Force, a U.S. designated foreign terrorist organization. So the key words there are decisive, defensive action to protect U.S. personnel abroad, right? And so that is invoking the idea of preemptive self-defense, right?

We believe he was going to attack U.S. forces or personnel abroad. so we took action to neutralize that threat. The second paragraph, General Soleimani was actively developing plans to attack American diplomats and service members in Iraq and throughout the region. Soleimani and his Quds force were responsible for the deaths of hundreds of American and coalition service members and the wounding of thousands more. So there you have situating the current threat claim against a past pattern and practice of a robust series of attacks that, in fact, killed a lot of such people. Then the next sentence is he had orchestrated attacks on coalition basis in Iraq over the last several months, including the attack on December 27th, culminating in the death and wounding of additional American and Iraqi personnel. General Soleimani also approved the attacks on the U.S. Embassy in Baghdad that took place this week. So now we're talking about contemporary activity.

All of which sounds, although it never really says it outright, that there was some kind of imminent threat that needed to be dealt with. But then the statement throws you a curveball because the last paragraph reads, this strike was aimed at deterring future Iranian attack plans. The United States will continue to take all necessary action to protect our people and interests wherever they are in the world. Now, deterrence is not an imminent threat issue, right? And so the implication there is we're trying to send them a message, and that is a very different theory. And so I don't actually know how to read the totality of that statement. It seems to say it invokes, it is suggestive of imminence without saying it.

It suggests that the fundamental theory is a force protection theory. And then it also shifts gears and talks about deterrence, which strikes me as sounding in a completely different set of values. And so I found the statement pretty confusing, to be honest. It sounds like a sort of the legal version of a choose your own adventure in a way. That's exactly right. So it's a little bit of choose your own adventure, but it's also perhaps more importantly, it's we need all the adventures in order to, because if you just rely on the self-defense and troop defense thing, then the question becomes, well, what are the troops even doing there? Right.

You need the AUMFs to get the troops there in the first place. Well, so what you were worried about back in 2014 about like this drift that would happen where the AUMF would get stretched but then also things would get layered onto it to where it's impossible to know the borders anymore of who's our actual enemy and who isn't and what even is war in this context. Yeah, that's exactly right. And this is not a Trump thing. It started in the Bush. It accelerated in the Obama administration, and it continues now. The executive hordes war powers. On the other hand, Congress deserves a great deal of the blame here. Members, individual members, and Senator Tim Cain deserves a real shout out here, have tried to assert a kind of principled limits on allowing this drift to take place.

But the actual posture institutionally of Congress is it doesn't push back against these theories. It doesn't clarify the law. And that constitutes acceptance of these statutes that are meant for very different purposes being understood as authorizing these activities that they're kind of jerry-rigged to support. And the Soleimani case is a really good example of this. it is a kind of a crazy expansion of what I had thought the parameters of our legal fight against terrorism looked like, and to have it done on a Donald Trump temper tantrum without a sort of meaningful congressional involvement strikes me as democratically baffling. We expect that things will likely change pretty rapidly, and we'll do our best to, update this episode as they do.

Huge thanks this hour to BuzzFeed and to their reporter Gregory Johnson. Check out Gregory's piece. It's where we started with this. 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 the U.S. history. That is a title right there.

Also, thanks to the great Dylan Key for original music and Glenn Cochee for music from his album, Adventureland. and oh and also thank you to beth furtig and the w nyc archives for the 9-11 tape you heard at the top of the hour this hour was produced by kelsey paget and matthew kiltie and myself of jad aboubrot i'm robert rollwich we'll see you next time to play the message press two start of message hi it's john bellinger at arnold and porter calling i'm about to read to you the text of your credits hi this is dan clysmann and i'm going to read The credits, as I've been asked to. Radio Lab is produced by WNYC and distributed by NPR. Radio Lab is produced by Jad Abramrad. Our staff includes Ellen Horn, Sorenne Wheeler, Tim Howard, Brenna Farrell, Molly Webster,

Melissa O'Donnell, Dylan Keith, Jamie York, Lynn Levy, Andy Mills, and Kelsey Patchett. With help from Ariane Wack, Matt Gulte, Simon Adler, and Chris Nell Stor. Special thanks to Bruce Cain, Liz Mack, Steve Candell, Ben Smith, and Kerry Adams. That's a wrap. End of message.