Transcript

60 WORDS FINAL WEB TRANSCRIPT (January 7, 2020 version)

JAD ABUMRAD: Hey, it's Jad. 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 Qassim Suleimani 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 2014. I'm gonna 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 -- it seems to really speak to what's happening right now.

[RADIOLAB INTRO]

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

ROBERT KRULWICH: I'm Robert Krulwich.

JAD: And this is Radiolab.

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

JAD: In particular, 60 words.

ROBERT: Single sentence.

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

[NEWS CLIP: Yeah.]

JAD: And the place to start is a difficult one.

[NEWS CLIP: This just in. You are looking at obviously a very disturbing live shot there.]

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

[NEWS CLIP: A plane has crashed into the World Trade Center. We don't know anything more than that. We don't know if ...]

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

[NEWS CLIP: So you have no idea right now ...]

[NEWS CLIP: Oh, there's another one. Another plane just hit! Oh my God, another plane has just hit!]

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

[NEWS CLIP: Tell me what you just saw.]

[NEWS CLIP: It fell down!]

[NEWS CLIP: Explosion! Oh, my God!]

JAD: 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?

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: That is Gregory Johnsen.

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

JAD: Now, the reason this lawyer ...

GREGORY JOHNSEN: Man by the name of Timothy Flanagan.

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

BEN WITTES: The President can defend the country.

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

BEN WITTES: Senior Fellow in Governance Studies at the Brookings Institution.

JAD: 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: 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: The authorization to use force.

GREGORY JOHNSEN: Well, it's called the authorization for the use of military force.

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

GREGORY JOHNSEN: Right.

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

GREGORY JOHNSEN: He's given a task.

JAD: 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 US did this.

JAD: The last time Congress passed one of these things.

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

JAD: 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: And then he hits send.

[ARCHIVE CLIP, George W. Bush: Our war on terror.]

[ARCHIVE CLIP, Barack Obama: A just war.]

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

[NEWS CLIP: A US drone strike.]

[NEWS CLIP: Linked to Al-Qaeda.]

[PROTESTER: End the war. Bring the troops home now!]

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

[NEWS CLIP: 15 members of a wedding procession were killed by a US ...]

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

[NEWS CLIP: Bizarre, even sadistic treatment ...]

JAD: 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!"

[NEWS CLIP: Terrorism targets in Africa.]

[NEWS CLIP: From Libya now, the US Air Force ...]

[NEWS CLIP: A drone strike in southern Somalia.]

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

[NEWS CLIP: 100 prisoners are on a hunger strike ...]

JAD: And like that!

[NEWS CLIP: ... in protest of their indefinite detention.]

JAD: How -- how are we detaining people for so long?

ROBERT: You mean, is that -- is it okay to do that?

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

ROBERT: Yeah.

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

GREGORY JOHNSEN: This is the legal foundation for everything that the US 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: 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: 60 words. One sentence.

JAD: Can you read it?

GREGORY JOHNSEN: 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."

JAD: 60 words. Today, a collaboration with BuzzFeed.

ROBERT: And with reporter Gregory Johnsen.

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

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

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

ROBERT: No.

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

ROBERT: And nobody saw it coming. Absolutely nobody. That's the weirdest part.

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

JAD: Maybe you should introduce us to Barbara Lee.

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

BARBARA LEE: Hello?

JAD: Hello, hello.

BARBARA LEE: Hi, it's Barbara.

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

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

BARBARA LEE: Because I wanted to be a cheerleader.

JAD: 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.

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

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

JAD: 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: 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 ...

[NEWS CLIP: There is smoke pouring out of the Pentagon.]

JAD: 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."

[NEWS CLIP: This was an apparent terrorist attack on our country.]

BARBARA LEE: So I ran out of the Capitol.

ROBERT: Wow!

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

JAD: Which was, you know, the Pentagon.

BARBARA LEE: 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.

JAD: Fast forward two days, September 13th. 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: 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: Because this actually wasn't the first draft. Flanagan had sent one over the night before.

GREGORY JOHNSEN: September 12, 2001.

JAD: And that one ...

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

JAD: 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: 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: So they kicked it 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: 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. It's 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: 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: Gulf of Tompkin.

GREGORY JOHNSEN: Tonkin.

JAD: Tonkin. Tonkin with an N.

GREGORY JOHNSEN: Yes.

JAD: To explain ...

[ARCHIVE CLIP, Lyndon B. Johnson: My fellow Americans, as President and Commander-In-Chief ...]

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

[ARCHIVE CLIP, Lyndon B. Johnson: Two US destroyers ...]

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

[ARCHIVE CLIP, Lyndon B. Johnson: By a number of hostile vessels.]

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

[ARCHIVE CLIP, Lyndon B. Johnson: ... to pass a resolution.]

JAD: 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."

[ARCHIVE CLIP, Lyndon B. Johnson: 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.]

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

[NEWS CLIP: The Rangers and Marines took casualties mostly from hidden snipers.]

JAD: The thousands and thousands of casualties.

[NEWS CLIP: They just keep dropping in. There's nothing you do.]

JAD: Horrific atrocities.

[NEWS CLIP: Charges have been made that troops killed as many as 567 South Vietnamese civilians during a sweep in March, 1968.]

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

[ARCHIVE CLIP, Lyndon B. Johnson: Congress gave us this authority in August, 1964, to do whatever may be necessary. That's pretty far-reaching. That's the sky is the limit.]

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

[NEWS CLIP: Several key leaders hope to avoid a repeat of the 1964 Tonkin Gulf resolution.]

JAD: 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: 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: 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 13th.

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

GREGORY JOHNSEN: This is the version. There's no going back to the drawing board. And so at 10:16 am, September 14, 2001 ...

[ARCHIVE CLIP, Tom Daschle: Senate will come to order.]

GREGORY JOHNSEN: The Senate is gaveled into session.

[ARCHIVE CLIP, Tom Daschle: The clerk will call the roll.]

GREGORY JOHNSEN: Daschle calls a vote.

[ARCHIVE CLIP, Tom Daschle: Mr. Akaka. Mr. Allard. Mr. Allen ...]

GREGORY JOHNSEN: There are 98 senators on the floor.

[ARCHIVE CLIP, Tom Daschle: Mr. Durban. Mr. Voinovich.]

GREGORY JOHNSEN: All 98 of them vote yay.

[ARCHIVE CLIP, Tom Daschle: No Senator voted in the negative.]

ROBERT: So it was a sweep.

GREGORY JOHNSEN: Yeah.

JAD: 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: For the victims of 9/11.

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

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

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

BARBARA LEE: I struggled with it.

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

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

RON DELLUMS: We talked every day.

JAD: Including this guy. This is Ron Dellums.

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

JAD: 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: 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: Yes. Psychology 101. You don't make decisions when you're mourning, afraid.

JAD: On the other hand ...

BARBARA LEE: I believe, you know, in unity too. I want to be unified with the President when the country's 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 a friend. You will always be family."

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

BARBARA LEE: I was in the cloakroom.

JAD: And since she wasn't sure how she was gonna 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 gonna 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.

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: The few people who are crying.

BARBARA LEE: Well, I said I gotta pray over this.

GREGORY JOHNSEN: And she's just wrestling with her vote. 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: Speaking of the president, eventually President Bush takes the podium.

[ARCHIVE CLIP, 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, 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: What's the phrase? "Terrible, swift sword."

GREGORY JOHNSEN: Yeah.

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

GREGORY JOHNSEN: But the second speaker ...

JAD: A Reverend by the name of Nathan Baxter.

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

[ARCHIVE CLIP, Reverend 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 ...

[ARCHIVE CLIP, Reverend Nathan Baxter: A voice is heard in Ramah ...]

BARBARA LEE: Lamenting and bitter weeping.

[ARCHIVE CLIP, Reverend Nathan Baxter: bitter weeping.]

BARBARA LEE: Rachel weeping for her children.

[ARCHIVE CLIP, Reverend Nathan Baxter: Weeping for her children.]

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

GREGORY JOHNSEN: And then he -- he started to pray.

[ARCHIVE CLIP, Reverend 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.

[ARCHIVE CLIP, Reverend Nathan Baxter: Let us also pray for divine wisdom.]

GREGORY JOHNSEN: He said, "As we act ...

[ARCHIVE CLIP, Reverend Nathan Baxter: That as we act, we not become the evil we deplore.]

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

[ARCHIVE CLIP: The clerk will report the title.]

[ARCHIVE CLIP: House Joint Resolution 64. Joint resolution to authorize the use of United States Armed Forces.]

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

[ARCHIVE CLIP: Mr. Speaker. I rise in support of this resolution, which authorizes the President to use all force necessary ...]

JAD: And Congressperson after Congressperson ...

[ARCHIVE CLIP: Mr. Speaker ...]

JAD: Stands up.

[ARCHIVE CLIP: I rise in support of this resolution.]

[ARCHIVE CLIP: Mr. Speaker, I rise tonight to fully endorse and authorize the use of force.]

JAD: One after another.

[ARCHIVE CLIP: Mr. Speaker, I rise in support of the authorization.]

[ARCHIVE CLIP: I rise today in support of this resolution.]

[ARCHIVE CLIP: We will rally behind our President.]

JAD: 16 in a row. Until ...

[ARCHIVE CLIP: Gentleman from California is recognized for a minute and a half.]

JAD: We get to Barbara Lee.

[ARCHIVE CLIP, 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. 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 a member of the clergy so eloquently said, "As we act, let us not become the evil that we deplore."]

JAD: Just after the vote, Barbara Lee says she was in the cloak room 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 gonna take you out. Think of the bigger picture."

ROBERT: They're saying, "You're dead."

GREGORY JOHNSEN: Yeah.

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

[NEWS CLIP: Help me on this guys. Has the House vote -- okay, 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 one.

[NEWS CLIP: We know it's a Democrat. We don't yet know who. We'll figure that out in a moment or so.]

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

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

GREGORY JOHNSEN: Her office was inundated with letters.

[LETTER: Barbara Lee, you are a traitor and a disgrace to the office that you hold.]

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

[LETTER: You are a blight on American society, a terrorist yourself.]

GREGORY JOHNSEN: So much hatred.

[LETTER: 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. Death threats.

[LETTER: Off to hell with you, you Benedict Arnold wannabe.]

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

[LETTER: Up yours.]

[LETTER: Thanks for supporting the Taliban.]

[LETTER: Hey, Hanoi Barbara Lee, what are you? What do you believe in?]

JAD: If you go to Mills College in Oakland, and we sent 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 when 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."

ROBERT: Huh.

BARBARA LEE: You know, and my dad had been in Korea and World War II. And he -- he sees it the way I see it, because I really wasn't sure what he was saying because -- you know, I really wasn't sure.

JAD: She thought, "All right."

BARBARA LEE: Daddy's proud of me.

JAD: 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 -- these words, these 60 words would start to grow and expand. That's next.

[GREGORY JOHNSEN: This is Gregory Johnsen.]

[BEN WITTES: My name is Benjamin Wittes.]

[GREGORY JOHNSEN: Radiolab 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.]

[ANSWERING MACHINE: End of message.]

[ADVERTISEMENT]

JAD: Hey, I'm Jad Abumrad.

ROBERT: I'm Robert Krulwich.

JAD: This is Radiolab. And today ...

ROBERT: 60 Words.

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

ROBERT: 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. Here it is again read by Senator John McCain.

[ARCHIVE CLIP, 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 or organizations."]

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

ROBERT: He seems almost bored saying it.

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

ROBERT: Yeah.

JAD: I generally move through the world with the assumption -- which is -- 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: Are you referring to something specific? Like a ...

JAD: 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: Yeah.

JAD: 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: Right. Exactly.

JAD: 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 US 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: But how? 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: Okay, so that guy, he was one of the first folks we called to help us decode this. That's -- 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: You can't do any speed dating with -- with a credential like that, because the date will be over.

JOHN BELLINGER: That's my congressional testimony voice.

JAD: And we asked him like, "Okay, 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: Is this. He says if you go eight words into those 60 words ...

ROBERT: Mm-hmm.

JAD: And you get to the phrase ...

JOHN BELLINGER: "All necessary and appropriate force ..."

ROBERT: All necessary and appropriate force. Yeah.

JAD: You gotta ask yourself, "What is force? What does that mean?"

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

JAD: That's one kind of force.

JOHN BELLINGER: You can use force to kill people.

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

[NEWS CLIP: Well, the controversy surrounding Guantanamo Bay continues.]

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

[NEWS CLIP: What happens at military commissions at the ...]

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

[NEWS CLIP: And many of them have been detained for more than 10 years. None have ever been charged.]

JOHN BELLINGER: And the words 'detention' are never mentioned.

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

ROBERT: To what?

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

JAD: No. Only the people who ...

[ARCHIVE CLIP, John McCain: ... planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored ...]

ROBERT: That sounds much more ...

JAD: It sounds very much tethered to 9/11, right?

ROBERT: Yeah.

JAD: 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."

[ARCHIVE CLIP, Joe Biden: It relates to the incident, and is broad authority relating to the incident. It does not relate to all terrorism every place.]

JAD: Because we're just talking about Al-Qaeda who did this and the Taliban who have harbored them, right?

JOHN BELLINGER: No.

GREGORY JOHNSEN: Not necessarily.

JAD: 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: Associated forces?

GREGORY JOHNSEN: Yeah.

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

ROBERT: Soixante-et-un et soixante-deux.

JAD: Oui, oui. And if you define the enemy as Al-Qaeda, the Taliban and associated forces, it's a whole different ball game.

GREGORY JOHNSEN: Yeah.

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

GREGORY JOHNSEN: Associated forces is nowhere in the text.

JAD: So where does it ...?

ROBERT: 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: 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.

ROBERT: What do you mean?

JAD: 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: 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.

BEN WITTES: Right.

JAD: So just transpose that here. If we're at war with this group called Al-Qaeda ...

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

JAD: That aren't them.

BEN WITTES: Join the war.

JAD: On Al-Qaeda's side ...

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

JAD: 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 -- that circle?

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

GREGORY JOHNSEN: 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 was connected to September 11, is that enough? Or is it only three links? Or can you be an associate of an associate?

JAD: 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.

ROBERT: Uh-huh.

JAD: But you just have to look at the news.

ROBERT: Right.

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

ROBERT: Yemen.

JAD: Yeah, and in Yemen ...

GREGORY JOHNSEN: There's a lot of debate and a lot of discussion.

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

GREGORY JOHNSEN: Because now the group in Yemen, Al-Qaeda in the Arabian Peninsula, which is a group that -- 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-Qaeda?

JAD: The answer, at least on ...

[NEWS CLIP: Good morning, everyone. It is Friday. It's September 30th, 2011. Mark it down on your calendar.]

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

[NEWS CLIP: 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: 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-Qaeda, yes. The U.S. is at war, that's clear. What about the other groups?"

JAD: Al-Shabaab, Al-Qaeda in Iraq, Al-Qaeda in the Islamic Maghreb, Armed Islamic Group, Abu Sayyaf, Jemaah Islamiyah, Brotherhood of this, Brotherhood of that.

GREGORY JOHNSEN: Who -- 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: Wait. So we -- who we are at war with is ...

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

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

ROBERT: 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 ...

JAD: What do you mean?

ROBERT: Well ...

JAD: Don't you want to know as a citizen of America who were fighting?

ROBERT: 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.

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

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

JAD: 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: This is John Bellinger again.

JOHN BELLINGER: 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.

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: 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.

[ARCHIVE CLIP, Carl Levin: Good morning, everybody. The committee meets today to receive testimony on the law of armed conflict ...]

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

[ARCHIVE CLIP, 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.

[ARCHIVE CLIP, Carl Levin: I'd like to welcome our witnesses.]

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

[ARCHIVE CLIP, DoD Official: 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: Because they wanted to know, like, now that we're 12 years into this war, how are you using this document? Does need to be changed?

GREGORY JOHNSEN: So the Department of Defense officials, and there were four of them, came and said, "Look ..."

[ARCHIVE CLIP, DoD Official: 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.

[ARCHIVE CLIP, DoD Official: Against Al-Qaeda and associated forces.]

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

[ARCHIVE CLIP, DoD Official: Associated forces.]

[ARCHIVE CLIP, DoD Official: Associated forces.]

[ARCHIVE CLIP, DoD Official: And associated forces.]

JAD: Over ...

[ARCHIVE CLIP, DoD Official: Associated forces.]

JAD: ... and over.

[ARCHIVE CLIP, DoD Official: And associated forces.]

[ARCHIVE CLIP, DoD Official: And associated forces.]

[ARCHIVE CLIP, DoD Official: An associated force.]

[ARCHIVE CLIP, DoD Official: And their associated forces.]

[ARCHIVE CLIP, DoD Official: Associated force.]

[ARCHIVE CLIP, DoD Official: And associated forces.]

JAD: And then, instead of just nodding along, a lot of the senators were like, "What?"

[ARCHIVE CLIP, 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: That's Angus King, independent senator from Maine.

[ARCHIVE CLIP, 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: 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 ...

[ARCHIVE CLIP, Carl Levin: Is there a list? Now is there an existing list of groups that are affiliated with Al-Qaeda?]

[ARCHIVE CLIP, DoD 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-Qaeda, and I could provide you that list.]

[ARCHIVE CLIP, Carl Levin: Would you -- would you give us that list?]

[ARCHIVE CLIP, DoD Official: Yes, sir. We can do that.]

[ARCHIVE CLIP, Carl Levin: And when you add or subtract names from that list, would you let us know?]

[ARCHIVE CLIP, DoD Official: We can do that as well, Mr. Chairman.]

[ARCHIVE CLIP, Carl Levin: Thank you.]

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

GREGORY JOHNSEN: Yeah.

ROBERT: A U.S. Senator asks specifically, so who's on the list of people we're allowed to kill?

GREGORY JOHNSEN: Right. That suggested that the Senate Armed Services Committee who had oversight really had no idea.[/i]

JAD: 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 are making these decisions had never been elected by anyone to any position, and they were the ones who are making the decision, not the elected representative.

JAD: And so who are they?

JAD: 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: 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.

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

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

DANIEL KLAIDMAN: They call them baseball cards.

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

ROBERT: 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: Eventually a general will come on the screen and say, "Here's our target."

DANIEL KLAIDMAN: Objective Akron.

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

DANIEL KLAIDMAN: Objective Toledo.

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

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

JAD: "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: 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: Lawyers in Kevlar, lawyers in helicopters.

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

ROBERT: There's just lawyers everywhere?

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

JAD: 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: 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 gonna go into that.

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

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

JAD: 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: For Koh, if you're gonna target a guy, he has to be a senior member of a group like Al-Qaeda.

DANIEL KLAIDMAN: Right.

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

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

JAD: Meaning they could be easily replaced.

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

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

DANIEL KLAIDMAN: Well ...

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

JAD: Yeah.

ROBERT: How many nos are there?

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

JAD: 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: Harold Koh!

DANIEL KLAIDMAN: Harold Koh.

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

JAD: He was a member of the Somali group Al-Shabaab. And for context ...

[NEWS CLIP: In other news, World Cup celebrations have turned to tragedy in the Central African nation of Uganda.]

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

[NEWS CLIP: Broken chairs, smashed tables and the sounds of pain as rescuers search for the living and the dead.]

JAD: 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-Shabaab 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: 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-Shabaab should live or die.

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

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

JAD: He was, after all, a founding member of Al-Shabaab.

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

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

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

JAD: 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: The unambiguous -- ooh!

DANIEL KLAIDMAN: And that's very strong language coming from a lawyer. And the signal that is 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: Okay, so what happened? Did they decide not to?

DANIEL KLAIDMAN: They did not do it.

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

JAD: We'll continue in a moment.

[DAVID: Hello. This is David from Berlin. Radiolab 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.]

JAD: Hey, I'm Jad Abumrad.

ROBERT: I'm Robert Krulwich.

JAD: This is Radiolab.

ROBERT: Today We've devoted the entire -- we're continuing to devote the entire show to a single sentence. One sentence.

JAD: 60 words.

ROBERT: That's all.

JAD: 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 -- we have manhandled these words.

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

JAD: Trisected.

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

JAD: Quadrasected.

ROBERT: To the AUMF, as its called.

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

ROBERT: And now?

JAD: How will it define our future?

[ARCHIVE CLIP, Carl Levin: Gentlemen, thank you for being here today. This is a very ...]

JAD: 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: And who was there that day.

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

JAD: 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 of Defense officials ...

[ARCHIVE CLIP, 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: In other words ...

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

[ARCHIVE CLIP, DoD Official: Senator, in my judgment this is gonna go on for quite a while and yes, beyond the second term of the President.]

[ARCHIVE CLIP, Lindsey Graham: And beyond this term of Congress?]

[ARCHIVE CLIP, DoD Official: Yes, sir. I think it's at least 10 to 20 years.]

TIM KAINE: It was chilling.

JAD: Because like, this is already ...

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

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

TIM KAINE: So I said ...

[ARCHIVE CLIP, Tim Kaine: Is it the administration's position that ...]

TIM KAINE: You tell me if -- if somebody is born ...

[ARCHIVE CLIP, Tim Kaine: ... after 9/11.]

JAD: Let's imagine in 2030 ...

TIM KAINE: They join a group that has just become associated with Al-Qaeda.

JAD: In 2030!

[ARCHIVE CLIP, Tim Kaine: Is that the administration's position that the AUMF would -- would cover them and those organizations?]

TIM KAINE: And without hesitation, the administration witnesses said, "Yes."

[ARCHIVE CLIP, DoD Official: As long as they become an associated force under the 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 the V-J Day kiss in Times Square.

JAD: Yeah.

[ARCHIVE CLIP: So here we have a combination of every type of person ...]

JAD: August 14th, 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.

[ARCHIVE CLIP: Are these people happy? That's the only way to express it. Are you happy?]

[CROWD CHEERS]

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

TIM KAINE: Yes. Yes. Yes.

JAD: 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 V-J Day. We need it. And so seven days after that Senate Armed Services Committee hearing, President Obama ...

[ARCHIVE CLIP, Barack Obama: It is a great honor ...]

JAD: Gave a speech.

[ARCHIVE CLIP, Barack Obama: ... to return to the National Defense University.]

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

[ARCHIVE CLIP, Barack Obama: 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 AUMF.]

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

TIM KAINE: Yeah.

ROBERT: But common sense tells you that these are 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 gonna 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: And yet the president ...

BEN WITTES: He wants to end the war.

JAD: Says Ben Wittes.

[ARCHIVE CLIP, 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: But how -- 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.

[ARCHIVE CLIP, 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 gonna use drone strikes when there's an imminent threat.

JAD: 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 ...

[ARCHIVE CLIP, Barack Obama: ... an imminent threat to the American people.]

JAD: Is that 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.

BEN WITTES: Maybe they wouldn't change.

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

[ARCHIVE CLIP, Barack Obama: ... for freedom. Thank you very much, everybody. God bless you. May God bless the United States of America.]

JAD: And in the context of what happened to those 60 words, you do have to wonder what's gonna 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: And if we're gonna be fighting them even when we're not technically at war with them, then what's the difference between war and peace?

ROBERT: 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 -- how do you write rules?

JAD: Okay so we -- I'm gonna cut in here. We produced that episode in April of 2014, and as I mentioned at the top of the episode this -- the reason this came to mind for us now, the reason we decided to re-release this podcast is -- is what happened four days ago. A U.S. drone strike killed the head of Iran's Quds Forces, Qassim Suleimani. He was at the Baghdad International Airport. The assassination, if you want to call it that, people debate whether you should call it that, it 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 gonna 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 ...

JAD: Hello, hello.

BEN WITTES: How are you doing?

JAD: Hey!

JAD: 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.

BEN WITTES: It is still doing a lot of work. It was the basis for the anti-ISIS campaign, or one of the bases for the anti-ISIS campaign. It remains the basis for a variety of overseas counter-terrorism 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 the -- even the endlessly stretchy and elastic AUMF does not obviously get you to. One of them for example is Iranian-backed militias in -- in Iraq. These are not in any sense associated forces of Al-Qaeda.

JAD: 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.

JAD: According to the Wall Street Journal, the Pentagon was careful not to say imminent in its statement about the killing of Suleimani. What did they say if not that?

BEN WITTES: Let me pull the statement because I think the statement is interesting and worth parsing. Statement ... Suleimani ... okay. So it is a three-paragraph statement. The first paragraph reads, "At the direction of the President, the U.S. Military has taken decisive defensive action to protect US personnel abroad by killing Qassim Suleimani, the head of the Islamic Revolutionary Guard Corps, Quds 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 pre-emptive self-defense, right? We -- 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 Suleimani was actively developing plans to attack American diplomats and service members in Iraq and throughout the region. Suleimani 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.

BEN WITTES: Then the next sentence is, "He had orchestrated attacks on coalition bases 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 Suleimani also approved the attacks on the U.S. Embassy in Baghdad that took place this week." So now we're talking about contemporary activity.

JAD: 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.

BEN WITTES: 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 a imminent threat issue, right? Like -- 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.

JAD: It sounds like a sort of the legal version of a Choose Your Own Adventure in a way.

BEN WITTES: 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.

JAD: Wow, so what you -- 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?

BEN WITTES: Yeah, that's exactly right. And this is not a Trump thing. It started in the Bush Administration. 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 Kaine 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 Suleimani 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.

JAD: We expect things will likely change pretty rapidly, and we'll do our best to update this episode as -- as they do. Huge thanks this hour to BuzzFeed and to their reporter Gregory Johnsen. Check out Gregory's piece.

ROBERT: That's where we started with this.

JAD: 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: I'm Robert Krulwich.

JAD: We'll see you next time.

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