Written in the frenzied, emotional days after 9/11, the Authorization for the Use of Military Force was intended to give President Bush the ability to retaliate against whoever orchestrated the attacks. But more than 12 years later, this sentence remains the primary legal justification for nearly every covert operation around the world. Here’s how it came to be, and what it’s since come to mean.
by Gregory D. Johnsen-Michael Hastings Fellow
Sunrise was still nearly an hour off when Nazih al-Ruqai
climbed into his black Hyundai SUV outside a mosque in northern Tripoli and
turned the key. The lanky 49-year-old had left the house barely 30 minutes
earlier for a quick trip to the mosque on a Saturday. It was Oct. 5, 2013, and
after more than two decades in exile, he had settled into a predictable
existence of prayer and worship.
The homecoming hadn’t always been so smooth. Ruqai, who
is better known in the jihadi world as Abu Anas al-Libi, was still feeling the
effects of the hepatitis C he had contracted years earlier during a stint in an
underground prison in Iran. Following overtures from Muammar al-Qaddafi’s
government, his wife and children had returned to Libya in 2010. But Libi
stayed away, wary of the man he had once plotted to kill. Only when the Libyan
uprisings started in early 2011 did he follow his family back to Libya. But by
then it was already too late. His oldest son, Abd al-Rahman, the only one of
his five children who had been born in Libya, was dead, shot while fighting for
the capital.
After that, things moved in fits and starts. Qaddafi was
killed weeks later in October 2011, and Libi eventually settled in Nufalayn, a
leafy middle-class neighborhood in northeast Tripoli, alongside several members
of his extended family. Life after Qaddafi was chaotic and messy — nothing
really worked as the new government struggled to reboot after 42 years of
dictatorship, often finding itself at the mercy of the heavily armed militias
and tribes that had contributed to Qaddafi’s downfall.
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Abdul-Hamed al-Ruqai, known by his alias
Abu Anas al-Libi, an al-Qaeda leader
connected to the 1998 embassy bombings
in eastern Africa. FBI / AP Photo
|
Libi knew he was a wanted man. He had been on the FBI’s
most wanted list for more than a decade, following an indictment in 2000 for
his alleged role in al-Qaeda’s attacks on U.S. embassies in Kenya and Tanzania
two years earlier. Along with Libi the indictment named 20 other individuals,
including Osama bin Laden and Ayman al-Zawahiri, as defendants.
“He suspected that at any moment he would be killed,” his
son later told The New York Times. Still, on that Saturday morning in early
October, much of the danger seemed to have passed. Libi had been living in the
open for nearly a year, attending prayers and settling local disputes, where
his history as a fighter and knowledge of the Qur’an made him a respected
arbiter. Neighbors called him simply “the shaykh,” a sign of respect in the
conservative circles in which Libi still moved.
He had also taken steps to address his past. Three weeks
earlier, on Sept. 15, Libi had sat down with Libya’s attorney general to
discuss his indictment, according to one report. (The Libyan Embassy in
Washington did not respond to repeated requests to confirm Libi’s meeting.) But
mostly he just wanted to move on with his life. He had applied for his old job
at the Ministry of Oil and Gas and he couldn’t stop talking about how much he
was looking forward to becoming a grandfather for the first time.
A trio of cars around 6 a.m. ended all of that.
Inside the family’s apartment, Libi’s wife heard the
commotion. From a window she looked out over the beige wall that surrounded
their building and into the street where several men had surrounded her
husband, who was still in the driver’s seat of his black Hyundai.
“Get out,” the men shouted in Arabic. “Get out.” Then
they smashed the window. Most of the men were masked, but she could see a few
faces, she said later in Arabic interviews. They looked Libyan; they sounded
Libyan. Some of them had guns; some didn’t, but they all moved quickly.
By the time the rest of the family made it to the street,
all that was left was a single sandal and a few drops of blood.
Early that same morning, nearly 3,000 miles away in the
seaside city of Baraawe on Somalia’s eastern coast, U.S. Navy SEALs crept
through the darkness toward their target, which a local resident later
described to me as a walled compound more than 100 yards inland. The Americans
had been here before. Four years earlier, in September 2009, a contingent of
Navy SEALs had ambushed a two-car convoy just outside of town. Flying low in
helicopter gunships, the SEALs quickly disabled the cars and then touched down
to collect the bodies.
This time the target — Abd al-Qadir Muhammad Abd
al-Qadir, a young Kenyan of Somali descent better known as Ikrima — was
stationary. The SEALs would have to go in and get him. Pre-raid intelligence
suggested that the compound housed mostly fighters with few or no civilians
present. Only 130 miles south of Mogadishu and what passed for the Somali
government, Baraawe had been under the control of al-Shabaab, a fragmentary
militant group, since 2009. Fighters came and went freely, as al-Shabaab
implemented its own narrow version of Islamic law in the city.
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| Abdulkadir Mohamed Abdulkadir, aka Ikrima. |
Moving up the beach and into enemy territory, the SEALs
needed the element of surprise. Through the trees and scrub brush ahead of
them, most of the city was dark. Baraawe had only a few hours of electricity
each day, usually from evening prayers until midnight. But al-Shabaab’s members
lived separately and, along with some of the city’s wealthier residents, got
around the shortages by running private generators. The plan that night took
this into account, calling for the SEALs to jam internet signals, apparently in
an attempt to cut off communication once the raid began. That would prove to be
a mistake.
Inside the compound, some of the al-Shabaab fighters were
up late and online. And, according to a report in the Toronto Star, when the
internet suddenly went out in the middle of the night, they went to look for
the source of the problem. At least one fighter stepped outside, and as he
moved around in the darkness he spotted some of the SEALs.
The plan to knock the internet offline and isolate the
fighters in the villa had backfired, effectively giving al-Shabaab an early
warning that the SEALs were on their way. (In the days after the raid,
al-Shabaab would arrest a handful of local men who were known to visit Western
websites, accusing them of spying and aiding U.S. efforts.)
The firefight lasted several minutes, although residents
reported hearing gunfire throughout the night as members of al-Shabaab
discharged their weapons into the dark for hours after the Americans had
withdrawn, empty-handed.
In the span of a few hours, the U.S. had launched a pair
of raids — one successful and one not — 3,000 miles apart, in countries with
which the nation was not at war. Hardly anyone noticed.
More than a dozen years after the Sept. 11 attacks, this
is what America’s war looks like, silent strikes and shadowy raids. The
Congressional Research Service, an analytical branch of the Library of
Congress, recently said that it had located at least 30 similar occurrences,
although the number of covert actions is likely many times higher with drones
strikes and other secret operations. The remarkable has become regular.
The White House said that the operations in both Libya
and Somalia drew their authority from the Authorization for the Use of Military
Force, a 12-year-old piece of legislation that was drafted in the hours after
the Sept. 11 attacks. At the heart of the AUMF is a single 60-word sentence,
which has formed the legal foundation for nearly every counterterrorism
operation the U.S. has conducted since Sept. 11, from Guantanamo Bay and drone
strikes to secret renditions and SEAL raids. Everything rests on those 60
words.
Unbound by time and unlimited by geography, the sentence
has been stretched and expanded over the past decade, sprouting new meanings
and interpretations as two successive administrations have each attempted to
keep pace with an evolving threat while simultaneously maintaining the security
of the homeland. In the process, what was initially thought to authorize force
against al-Qaeda and the Taliban in Afghanistan has now been used to justify
operations in several countries across multiple continents and, at least
theoretically, could allow the president — any president — to strike anywhere
at anytime. What was written in a few days of fear has now come to govern years
of action.
Culled from interviews with former and current members of
Congress, as well as staffers and attorneys who served in both the Bush and the
Obama administrations, this is the story of how those 60 words came to be, the
lone objector to their implementation, and their continuing power in the world
today. The story, like most modern ones of America at war, begins in the shadow
of 9/11 with a lawyer and Word document.
Just over 24 hours after United Flight 175 flew into the
south tower at 9:03 in the morning on Sept. 11, Alberto Gonzalez, the White
House counsel, called one of his deputies into his office.
The U.S. still didn’t know for certain who was behind the
attacks or how many people had been killed. The CIA thought it might be Osama
bin Laden’s al-Qaeda network, and early casualty reports put the death toll at
more than 5,000. Only one of those things would turn out to be true. But on
that first day the only thing anyone knew for certain was that the U.S. had
been attacked and that it had to respond.
Gonzales gave a key part of that task to Timothy
Flanigan, a graying, slightly paunchy 48-year-old lawyer with a background in
corporate law.
Gonzales wanted his deputy to draft the congressional
resolution that would authorize the president to go after those responsible.
Flanigan listened to the instructions, but he was out of his element. He had
clerked for Warren Burger during the chief justice’s final years on the Supreme
Court in 1985 and 1986, but most of those cases focused on things like
antitrust laws and regulating adult bookstores, not national security and war.
Still, he at least knew where to start. While the U.S. had never been attacked
like this before, Congress had a long history of authorizing the use of force.
What he needed was a precedent.
After a quick search online, Flanigan located the last
time Congress had given the president permission to act: the 1991 Authorization
for the Use of Military Force against Iraq. Then, according to an account in
Kurt Eichenwald’s best-selling 2012 book 500 Days, he copied and pasted the
text of that resolution into a new document.
Next Flanigan called David Addington, a gruff,
standoffish man in Vice President Dick Cheney’s office. Addington had started
his career as a lawyer in the CIA and he had a better sense of the issues at
stake. So too did John Yoo, a 34-year-old law professor from Berkeley, Calif.,
whose innovative legal arguments in Bush v. Gore a year earlier had secured him
a place in the Bush White House. Together the three men hammered out a first
draft of the resolution, which they faxed to congressional leaders that
evening.
Almost no one liked Flanigan’s initial offering. Everyone
was working long hours and fighter jets were still patrolling the skies over
Washington, but Congress wasn’t ready to give President George W. Bush a blank
check to go after an ill-defined enemy no one knew anything about.
At a Democratic caucus in the basement of the Capitol
building, several members complained that the wording was too broad.
Republicans were similarly concerned. One part of Flanigan’s draft authorized
the president to “use all necessary and appropriate force” both in the United
States as well as abroad. What exactly did that mean? officials wondered. Could
President Bush use the military domestically? What about the CIA? No one seemed
to know.
Flanigan and Yoo spent much of Thursday, Sept. 13,
walking scared and sleep-deprived congressional staffers through the brief
text. At one of the meetings in the Roosevelt Room, tempers started to fray as
Flanigan and Yoo dug in to defend their work. The day before, Senate Majority
Leader Tom Daschle had warned President Bush to be careful with his rhetoric,
particularly his use of the word “war.” And now his staff was driving home a
similar point. Mostly they wanted to make sure that the resolution adhered to
the War Powers Resolution language, which Congress had passed in the wake of
the Vietnam War as a way of checking the president’s ability to unilaterally
wage war.
Crammed around a long wooden table with a portrait of
Theodore Roosevelt as Rough Rider looking down on them, the two sides got to
work. Deep into the meeting, one of Sen. Patrick Leahy’s aides returned to the
War Powers language, which had already been debated and tabled several times.
This was a deal breaker, she said.
Nothing had been settled. The two sides were going in
circles. From around the table the frustration was palpable. Finally, House
Speaker Dennis Hastert’s chief of staff, Scott Palmer, spoke up. “We don’t have
time for this,” he blurted out from his seat in the back.
The 50-year-old Palmer saw his role in the meeting as a
mediator and a prodder. His boss was second in the order of presidential
succession, and he was convinced the U.S. was about to be hit again. The
discussion in the Roosevelt Room was getting bogged down in legislative
minutiae when the country needed action.
Let’s have a seminar on this next month, Palmer thought
as he laid into Leahy’s aide. Part of the edge in his voice was due to his
belief that it was exactly this type of narrow thinking that had led to the
intelligence wall in the years leading up to the attack. But right now their
job wasn’t to litigate past mistakes, it was to give the president the latitude
he needed to go after the people responsible.
Palmer’s outburst got the meeting moving again, and when
it broke up, a White House official wandered over. “Thanks for popping off,” he
told Palmer. “We could have been here all night.”
By late that evening the White House and Congress had
something resembling a working draft. They had even found a compromise to one
of the more vexing phrases, which would have given the president the authority
“to deter and pre-empt any future acts of terrorism or aggression against the
United States.”
Congressional lawyers had pointed out that the clause
would give the president unprecedented power, allowing him to strike anyone
anywhere in the world at any time. One even argued that given the potential
activities that could be crammed into the word “aggression,” the president
might never again have to seek congressional authorization to combat terrorism.
He could simply target anyone he considered a threat and say he was preempting
terrorism. Did Congress really want to give the president such open-ended and
wide-ranging power?
Flanigan and Yoo agreed to remove the clause on the
condition that they place similar language in the “whereas” section of the
resolution. Convinced this was the best they could get and comforted by the
fact that the whereas section carried no legal weight — it existed only to
provide the context for the resolution — Daschle and the rest of the Democratic
negotiators agreed to the deal.
They brought the revised draft — five whereas clauses,
the 60-word body, and a War Powers section — back to the Capitol basement for
the second Democratic caucus of the day. Hours earlier, a bomb threat had
forced the Capitol to close for 45 minutes as security swept the building.
Milling about on the grass outside the Capitol in suits and shoes designed for
hallways and offices, the members tried to maintain their composure, but the
long days and stress were starting to take a toll. Like the rest of the
country, they wanted to hit back.
“I say bomb the hell out of them,” Democratic Sen. Zell
Miller of Georgia had told The New York Times a day earlier. “If there’s
collateral damage, so be it. They certainly found our civilians to be
expendable.”
Not everyone was so sure. Barbara Lee, a 55-year-old
congresswoman with short black hair and the worn-through voice of a lifelong
activist, had stayed silent during the first caucus. There had been enough
people talking, and as a second-term congresswoman from the liberal California
San Francisco Bay Area, she was still relatively junior. But now, as support
for the resolution seemed to be gaining momentum, she decided it was time to
speak up.
Lee knew what she was about to say would be unpopular,
but she had been unpopular before. As a child growing up in El Paso, Texas,
during the 1950s, her mother sent her to Catholic school instead of segregated
public schools, and later as a high school student in California she broke the
color barrier to become the first black cheerleader at her high school.
“This is still a blank check,” she said when it came her
turn to speak. The faces staring back at her looked somber and reflective, but
Lee could sense the undercurrent of anger running through the room.
“Let’s take a step back,” she begged. “We don’t know what
the implications of our actions will be.” A few heads had started to nod along
with her, and as Lee sat down, several other members stood up to voice concerns
about the dangers inherent in such a broad resolution.
By the end of the meeting, it was clear that this was the
resolution, a single sentence and 60 words:
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.
That was it. After more than a day of negotiations
between the White House and Congress, Republicans and Democrats, this is what
had emerged. Congress could take it or leave it. There would be no going back
to the drawing board.
Lee spent much of the night on the phone. Congress was
moving forward with the resolution. The only question that remained was how she
would vote. She needed to get a sense of what her district back in California
was thinking, and she wanted to talk.
“I can’t believe this,” she kept saying into the phone.
“Am I missing something?” None of her friends had an answer. They could tell
her what they were hearing in California and list what they saw as the pros and
cons of different votes. But that was it. No one wanted to give advice.
It was her vote, and it would have to be her decision.
The Senate moved first. Early on Friday morning, Minority
Leader Trent Lott came to Daschle with a request. The Republicans in his ranks
were getting restless. The White House was telling congressional allies that
the resolution was ready, and with the attacks already three days in the past,
Lott’s members were tired of waiting. They wanted action.
If Daschle wanted the Senate to speak with one voice, he
needed to call a vote. Otherwise, Lott told him, some Republicans might start
to move on their own. Typically, voting on something like this started in the
House before moving to the Senate and then to the president, but typically the
House would have taken the lead in drafting the resolution. The protocol was
already out of order. Daschle agreed with Lott’s assessment, and when the
Senate was gaveled back into session at 10:16 on Friday morning, he was ready
with the resolution.
“Let me say, before I do read this request,” Daschle said
as he fiddled with his reading glasses, “how much I appreciate, once again, the
leadership of our Republican leader.” Glancing across the aisle to where Lott
stood in the mostly empty chamber, Daschle continued: “As he has throughout the
week, he has been remarkable. We could not be where we are today, this country
or this institution, without the strong partnership and leadership he has
shown.”
The White House had organized a prayer service at the
National Cathedral for noon, and in an effort to save time, Daschle asked the
senators to vote from their desks. Friday had turned into a dreary, rainy day,
and they still had a nearly 15-minute drive uptown.
“We want to get on the buses just as quickly as possible
after this vote,” Daschle told his colleagues. “They will be right down in
front of the steps.”
Carl Levin, a portly 67-year-old senator from Michigan
with boxy glasses perched low on his nose, addressed the floor. “This
authorization for the use of force is limited to the nations, organizations, or
persons involved in the terrorist attacks of Sept. 11,” he said. “It is not a
broad authorization for the use of military force against any nation,
organization, or person who were not involved in the Sept. 11 terrorist
attacks.”
Later that day, Levin’s Democratic colleague, Joe Biden,
seconded his interpretation of what the Senate had passed to The New York
Times. The current resolution, Biden claimed, was nothing like the 1964 Gulf of
Tonkin Resolution, which had been used to justify military escalation in
Vietnam for nearly seven years until it was repealed in 1971.
The Senate, Biden and senior Democrats like John Kerry
suggested, had learned its lesson. No one wanted another Vietnam. That, after
all, is why they had insisted that Flanigan and Yoo add the War Powers
language. But in the rush to draft and pass the resolution, no one had managed
to insert a sunset option — a time limit on the use of force. The legal
authority Congress was giving to the president would last until Congress took
it back. There was no end date, just a vague sentence and the broad authority
to “use all necessary and appropriate force.”
On Sept. 14, 2001, no one was thinking about how the war
would eventually end, only that it needed to begin.
Just as Daschle had hoped, the voting was over in
minutes. Each of the 98 senators present voted in favor of the resolution, and
Jesse Helms, who had been stuck in traffic for much of the morning, later took
to the Senate floor to tell his colleagues he would have voted yea. Only Larry
Craig of Idaho, who years later garnered further national ignominy, failed to
vote or explain his absence.
After speaking at the service for America’s National Day
of Prayer and Remembrance, U.S. President George W. Bush grasps the hand of his
father, former President George H.W. Bush, Sept. 14, 2001, at the National
Cathedral in Washington, D.C. Eric Draper/White House / Getty Images
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| After speaking at the service for America’s National Day of Prayer and Remembrance, U.S. President George W. Bush grasps the hand of his father, former President George H.W. Bush, Sept. 14, 2001, at the National Cathedral in Washington, D.C. Eric Draper/White House / Getty Images |
On the other side of the building, in the Democratic
cloakroom, Lee was still wrestling with her vote. She had already decided to
pass on the memorial service. The House was scheduled to vote on the resolution
on Saturday and she wanted to spend most of Friday making calls and thinking
about what to do.
As everyone else was gathering to get on the bus, Lee
sipped from a can of ginger ale and chatted with Elijah Cummings, a close
colleague from Maryland. “Are you going?” Cummings asked.
“Well,” Lee hesitated. “I think I’m going to stick
around.” But as she spoke, Lee could feel something inside her shift. She
couldn’t explain it to Cummings then, or even to herself later. She just knew
she needed to go. She needed to be present.
“You know what?” Lee interrupted. “I’m going.” Then she
turned and walked out of the cloakroom still clutching the ginger ale as she
moved down the steps, through the rain, and onto the bus.
Inside the neo-Gothic cathedral on Wisconsin Avenue, Lee
found a seat in the left several rows behind the cluster of former presidents
who had gathered in the front. For the next 30 minutes, as the church slowly
started to fill, she sat silently listening to the organ and praying. Around
her, a few people were already crying and several were whispering softly, a
faint rustle that could be heard between hymns.
Rev. Jane Holmes Dixon opened the service with a short
reading and a prayer. The next speaker, Nathan Baxter, a third-generation
priest and dean of the cathedral, held to a similar script, reading from
Jeremiah 31:15: “A voice is heard in Ramah, lamenting and bitter weeping,
Rachel is weeping for her children and she refuses to be comforted because they
are no more.”
The tall African-American priest paused briefly to look
out across the darkened cathedral as he moved from Jeremiah’s words to his own.
“Now let us seek that assurance in prayer,” he said in a slow, deliberate
baritone. “That as we act we not become the evil we deplore.”
That’s it, Lee thought from her seat. For much of the
past 24 hours, she had been looking for a reason to vote no. In her heart she
knew that was the right vote, but she hadn’t been able to articulate why.
Baxter’s words did it for her: “As we act, let us not become the evil we
deplore.”
She was as angry and heartbroken as anyone else. Her
chief of staff had lost a cousin when Flight 93 went down in Pennsylvania. But
she wanted a measured response, not a blank check for a perpetual war.
Something else was bothering her as well. Several of the speakers seemed to be
more focused on retaliation than remembering the dead.
This is supposed to be a memorial service, Lee thought.
Not a rush-to-war service.
Part of the tone was deliberate. President Bush and his
advisers had wanted to strike a note of defiance.
In his own remarks, Bush gave voice to the attitude that
would come to define his administration. “Just three days removed from these
events, Americans do not yet have the distance of history,” he said from the
cathedral’s lectern. “But our responsibility to history is already clear: To
answer these attacks and rid the world of evil.”
As Bush stepped down, everyone else stood. The marble and
stone echoed as the congregation sang “The Battle Hymn of the Republic”:
Mine eyes have seen the glory of the coming of the Lord
He is trampling out the vintage where the grapes of wrath
are stored;
He hath loosed the fateful lightning of His terrible
swift sword:
His truth is marching on.
Late that afternoon, Lee received a phone call in her
office. The vote that had been scheduled for Saturday had been moved up. The
hours of prep time she had been counting on to get the language of her floor
statement just right were gone. If she wanted to speak, she needed to get to
the floor.
On the House Committee for International Relations,
Stephen Rademaker, the committee’s chief counsel, received a similar message.
Under normal circumstances, Rademaker, a tall, thin lawyer with the loose frame
of a long-distance runner, would have taken the lead in drafting the
resolution, as his committee typically had jurisdiction for the authorization
of the use of military force. But the White House was in charge of the writing,
and Rademaker was a spectator.
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| Stephen Rademaker. Julie Jacobson / AP Photo |
Even though Rademaker’s legal skills hadn’t been utilized
in drafting the resolution, he knew it would be a historic vote. The Republican
immediately thought of his eldest son, Andrew, a high school freshman across
the river in Virginia. “You should come in for this,” Rademaker told his son
when he got him on the phone that afternoon.
The fall cross-country running season had just started,
but with after-school activities still canceled because of the attacks, Andrew
was looking for something to do. “Sure,” he told his dad. “I’ll come in after
school today.”
“No hurry,” Rademaker replied. “This thing could take a
while.”
On the House floor, Lee was hastily scribbling her floor
speech on loose notebook paper. She dashed off a quick paragraph and started on
a second before hesitating and scratching out half a line. Lee wrote for a few
more minutes, pausing here and there to draw a line through something in the
cramped cursive she didn’t like. She filled two pages with notes and then added
a single line on a third sheet. She was ready.
At 5:45 on Friday afternoon, the House was called to
order. One of Lee’s close friends, Eleanor Holmes Norton, a petite 64-year-old
member of the black caucus from the District of Columbia, spoke early in the
debate.
“The language before us is limited only by the slim
anchor of its Sept. 11 reference, but allows war against any and all
prospective persons and entities,” Norton warned. “The point is to give the
president the authority to do what he has to do, not whatever he wants to do.”
But for all of Norton’s worries about a “slim anchor” and
that the text could be stretched to go after those who had nothing to with the
attacks, she still said she supported the resolution to authorize the president
to use “all necessary and appropriate force.”
Barbara Lee, the one representative to vote against the
AUMF. CSPAN
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| Barbara Lee, the one representative to vote against the AUMF. CSPAN |
Lee came to the podium seven minutes later. “I rise
today, really, with a very heavy heart,” she said as emotion cracked her voice.
Then, from the well of the U.S. House of Representatives, she started to cry.
The mother of two boys, who had agonized and prayed over her vote, Lee jostled
the microphone and tugged nervously at the lapels of her jacket as she
struggled to regain control. A pair of deep breaths helped.
“However difficult this vote may be,” she said, her voice
steady once more, “some of us must urge the use of restraint. Our country is in
a state of mourning. Some of us must say, ‘Let’s step back for a moment, let’s
just pause, just for a minute, and think through the implications of our
actions today so that this does not spiral out of control.’” Lee closed her
brief remarks with Baxter’s line, the one that had convinced her to vote her
heart. “As we act,” she said. “Let us not become the evil we deplore.”
In the cloakroom after her statement, several of Lee’s
friends came up to her and begged her to reconsider. “You’re doing so much on
HIV and AIDS that is going to drop if you aren’t here,” one implored. “Don’t
let this one vote take you out.”
Fourteen-year-old Andrew Rademaker watched the House
debate from the balcony overlooking the floor. He had taken his father’s advice
and waited to have dinner before riding the subway into D.C. The enhanced
security measures that would come to define post-9/11 America had yet to be
installed, and he passed through a single metal detector and walked straight up
to the House gallery. It would be the last time he’d ever enter the Capitol so
easily.
Below him, the House debate stretched on for hours as
representatives waited their turn to publicly declare their support for the use
of force. Some wanted to declare war — a suggestion that had been dismissed
days earlier when no one could figure out whom to declare war on — and some
wanted to root out terrorism wherever it existed, but everyone supported the
use of force.
Lee was on her way back to her office when the final vote
was announced: 420-1. The nods of affirmation she had seen in the Capitol
basement the night before had disappeared on the House floor. And Lee’s “some”
had become one. Out of 535 elected officials in Congress, she was the only one
to vote no.
Almost immediately her phone started to ring. “I knew it
was you,” the mother-in-law of Lee’s oldest son said. She had been watching CNN
when the cable network broke in with the news that the House had just passed
the AUMF 420-1. “I knew you were the one.”
Lee’s father, a retired lieutenant colonel who had fought
in World War II and Korea, called her soon after. “I’m proud of you,” he said.
Lee hadn’t reached out to close family the night before
during her flurry of phone calls, worried that they would try to convince her
not to oppose the resolution. That her father said he supported her both as a
parent and as a former military officer meant a lot. She would remember his
words often in the weeks to come, a comforting message amid the thousands of
death threats and angry phone calls that flooded her office.
Andrew Rademaker found his father after the vote. The
Transportation Committee was debating an emergency appropriations bill, and
Andrew wanted to stay and watch. For the next few hours, exhausted members of
the committee fought and argued over billions of dollars that some worried
might be needed to save the airline industry from immediate collapse.
Finally, shortly after midnight, the debate was tabled.
On the way out of the chamber, Rademaker, who was still in lawyer mode, started
to explain to his son everything they had seen that night: the vote to
authorize the use of military force and the appropriations debate. The morning
rain had tapered off, and there was hardly any late-night traffic as the two
drove over the bridge into Virginia.
From the driver’s seat, Rademaker saw the Pentagon come
into view, leaking tendrils of smoke up into the sky. Slowing down on a whim,
he pulled up next to Arlington National Cemetery, parking the car on a little
hill that looked back into Washington. Rademaker gave up on his explanation of
House procedures and what the vote meant for the country. There was nothing
left to say. Together with his son, he stepped out of the car and stared down
the slope into the hole in the Pentagon. Smoke, wreckage, and a giant American
flag.
On Sept. 18, 2001, President Bush signed the joint
resolution authorizing him to use “all necessary and appropriate force” into
law.
One week later, on Sept. 25, John Yoo wrote Timothy
Flanigan a memo. Yoo wanted to reestablish the preemption language Daschle and
Congress had forced them to move to the whereas section during the
negotiations, effectively stripping it of its legal weight. Yoo’s memo, less
than two weeks later, made an end run around Daschle’s block and once again
gave the idea of preemption legal cover.
“The President,” Yoo wrote, “may deploy military force
preemptively against terrorist organizations or the States that harbor or
support them, whether or not they can be linked to the specific terrorist
attack of September 11.”
In the pages of dense, legal prose that followed, Yoo
acknowledged that while the AUMF is limited only to enemies connected to the
Sept. 11 attacks, the president actually had greater freedom of action based on
his powers as commander in chief under Article II of the Constitution.
Robert Chesney, a professor and expert on national
security law at the University of Texas, described this idea to me as the “belt
and suspenders approach” — a redundancy that allowed for greater flexibility.
When the AUMF proved too narrow, the Bush administration relied on its own
expansive reading of the president’s Article II authority.
For Yoo, this meant that the president could “take
whatever actions he deems appropriate” when it came to combating terrorism. He
could kill whomever he wants, whenever he wants, wherever he wants. At its most
basic level, John Yoo’s legal analysis restated Richard Nixon’s famous line
that “when the president does it, that means that it is not illegal.”
For years, a small but outspoken group of legal scholars
and outside experts had pushed back against Yoo’s idea of an unchecked
executive. They argued at conferences and wrote op-eds, but they had little
real power and no ability to effect change. Finally, toward the end of Bush’s
second term, they saw an opportunity to influence policy and help steer the
next administration. On Sept. 15, 2008 — almost seven years to the day that the
AUMF had been passed — one of those scholars boarded an Amtrak train in New
Haven, Conn., for the nearly five-and-a-half-hour trip to Washington, D.C.
 |
| Harold Koh testifies before the Senate Foreign Relations Committee, June 28, 2011. Chip Somodevilla / Getty Images |
The next day, Harold Koh, a short, intense man with
jet-black hair that draped down the right side of his forehead, took his seat
at the witness table in front of the Senate Judiciary Committee. The
53-year-old dean of the Yale Law School had a reputation as a brilliant if
grating opponent, often appearing more eager to humiliate those who disagreed
with him than simply disproving them. In front of the committee, he was
characteristically outspoken, calling the AUMF a “broadly worded law” that the
Bush administration had used “to justify National Security Agency surveillance,
indefinite detentions, and torture of foreign detainees.”
But in late 2008, with the presidential elections less
than two months away, Koh was eager to give advice. He couched his remarks
carefully, but as a former assistant secretary of state under Bill Clinton, it
was clear that he favored Barack Obama over John McCain. The next
administration, Koh said, should be very careful not to “construe the vaguely
worded Authorization for the Use of Military Force (AUMF) Resolution to
override existing legislation.” Already the AUMF had been in effect longer than
the Vietnam-era Gulf of Tonkin Resolution and there was no end in sight.
Toward the end of his prepared remarks, Koh laid out what
he saw as the key issue moving forward. “As difficult as the last seven years
have been, they loom far less important in the grand scheme of things than the
next eight, which will determine whether the pendulum of U.S. policy swings
back from the extreme place to which it has been pushed, or stays stuck in the
‘new normal’ position.”
Two days after Barack Obama took the oath of office on
the balcony of the U.S. Capitol building, he put Koh’s advice into action. In
his testimony, Koh had recommended that “as soon as the new president takes
office he should issue executive orders,” including one to close Guantanamo Bay
by a certain date.
Sitting in the Oval Office, on Jan. 22, 2009, President
Obama did just that. He signed a pair of executive orders announcing his
intention to close Guantanamo within a year and setting up a task force to
review current cases against the detainees.
 |
| President Obama signs an executive order to close down the detention center at Guantanamo Bay in the Oval Office on Jan. 22, 2009. Mark Wilson / Getty Images |
The detention facility at Guantanamo Bay is one of the
best examples of the unanticipated power of the 60 words at the heart of the
AUMF. Like a science experiment gone wrong, the words of that sentence have
mutated and changed over the years, sprouting new meanings and interpretations
that were never anticipated when Timothy Flanigan cut and pasted the text back
on Sept. 12, 2001.
In June 2004, more than two years after Bush established
Guantanamo, the Supreme Court decided in Hamdi v. Rumsfeld that since Congress
had given the president the power to kill, it must also have, at least
implicitly, granted the president the power to capture and detain.
Congress built on the court’s expansion by endorsing
another one two years later. In 2006, Congress said that military commissions
had jurisdiction over al-Qaeda, the Taliban, and what had come to be called
“associated forces,” a broad category of enemies who had allied themselves with
either al-Qaeda or the Taliban.
Eleanor Norton’s “slim anchor,” which held the language
of the law to those responsible for the Sept. 11 attacks, had finally broken
loose. The AUMF had ceased to be a scalpel. Now it was broadsword that could be
used against a wide variety of groups, many of which had not even existed in
2001. The fact that the 60 words made no mention of detention authority or
associated forces no longer mattered. The sentence stayed the same, only the
meaning had changed.
By the end of the Bush administration, even some
officials who had initially been in favor of a broad reading of the authority
enshrined in the AUMF began to grow wary of building so much of U.S.
counterterrorism strategy on such a shaky foundation.
“It is like a Christmas tree,” John Bellinger III told me
recently. “All sorts of things have been hung off of those 60 words.”
Bellinger, who worked closely with Condoleezza Rice first
on the National Security Council and then at the State Department, favored
revising and updating the AUMF instead of simply repealing it, a drastic
measure he considered dangerous. In 2010, he wrote a piece in theWashington
Post arguing the Bush administration had never sought to update the AUMF
because it “did not want to work with the legislative branch.”
Obama was supposed to change all that. He was the
president of hope and change, the man who would restore America’s reputation
and once again restore a healthy respect for the rule of law.
The day after his inauguration, the The New York Times’
editorial page crowed that it took Obama “less than 12 hours” to order a halt
to the military tribunals at Guantanamo. It turns out, the paper said, that
closing Guantanamo wasn’t actually “so hard.” All it took was a president with
the courage of his convictions, someone who was willing to do what was right.
Inside the new administration, things looked a little
different. President Obama had halted the tribunals and ordered Guantanamo Bay
closed, but then the new president moved on leaving his aides and appointees to
sort out the details. None of them really knew exactly what their boss wanted.
And when they asked the White House for direction, their queries went
unanswered.
“It was really a dysfunctional process,” one former
government official involved told me. “There was a lack of leadership and
engagement from the White House. It was a wasted year’s work — a lot of
open-ended discussions and few decisions.”
Obama was also on deadline. An Algerian detainee at
Guantanamo was challenging his detention, and John Bates, a district court
judge in D.C., had given the new administration until March 13 to respond. Who
exactly, the judge asked in essence, was the U.S. at war with? None of Obama’s
lawyers felt like they had enough time, but the judge had already given them
one extension and they needed an answer. What they came up with was a 93-word
definition that attempted to articulate many of the expansions that had taken
place in the eight years since the AUMF was passed.
During that time, the list of enemies had grown
significantly. In addition to those responsible for the Sept. 11 attacks —
al-Qaeda and the Taliban in Afghanistan — the U.S. was now effectively at war
with the broader, catchall category of “associated forces.” Government lawyers
also claimed that the U.S. could detain — which given legal logic meant that
the U.S. could also target for killing — anyone who “substantially supported”
any of the three categories of enemies, although they failed to clarify exactly
what constituted substantial support. The U.S. could also go after anyone who
carried out an attack against a “coalition partner,” as well as “any person who
committed a belligerent act,” which they also neglected to define. Eight years
into the war and the enemies kept multiplying.
Judge Bates, a long-necked, willowy man who had been
appointed to the bench by George W. Bush in the months after Sept. 11, pushed
back on the government’s refusal to define either “associated forces” or
“substantial support.” Both concepts drastically broadened the scope of the
AUMF and who the U.S. could kill, and the judge wanted to know exactly what the
government meant.
But, he wrote in his opinion, it had become clear to him
that the government had no “definitive justification for the ‘substantial
support’ concept in the law of war.” Bates said he was open to the idea of
associated forces but this had to mean more than a “terrorist organization who
merely share an abstract philosophy or even a common purpose with al-Qaeda —
there must be an actual association in the current conflict with al-Qaeda or
the Taliban.”
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| Obama’s speech on national security at the U.S. National Archives in Washington, D.C., May 21, 2009. Jim Watson / AFP / Getty Images |
Bates issued his opinion on May 19, 2009. Two days later
Barack Obama walked into the limestone and marble rotunda of the National
Archives to address the nation. Standing beneath a pair of 1936 Barry Faulkner
murals depicting the Declaration of Independence and the Constitutional
Convention, Obama pledged not to repeat the mistakes of the Bush
administration.
“The last eight years established an ad hoc legal
approach for fighting terrorism that was neither effective nor sustainable,” he
said. “All too often our government made decisions based on fear rather than
foresight.” This, the president promised, would change on his watch.
To help him make this a reality, Obama asked Harold Koh,
the Yale legal scholar, to join his administration as the legal adviser to the
State Department. Koh’s new position brought him into direct conflict with
another lawyer on Obama’s national security team. At 51, Jeh Johnson was a
balding attorney who had been with Obama from the beginning.
During the Democratic primaries, Johnson had severed his
ties with the Clinton family, who had given him his first high-profile
government position, to join Obama’s campaign. The president never forgot the
courage that took or the money Johnson brought in when Obama needed it the
most. Even before Obama took the oath of office in January, he had tapped
Johnson to be general counsel at the Defense Department.
From the time Koh arrived in Washington in late June, the
two were at odds, both institutionally and temperamentally. Aggressive and
often condescendingly brusque, Koh represented the more liberal State
Department, which typically sought to make U.S. action more palatable to its
international allies. Johnson had a more chameleon-like quality that led him to
adopt the mind-set of those he represented, which in this case was the
conservative, security-first Department of Defense.
Along with several other officials, throughout the summer
and fall of 2009, the two clashed on nearly every aspect of U.S. national
security law, with Koh consistently staking out the liberal position and
Johnson the more conservative counterargument. No one ever quite came right out
and said it, but everyone seemed to realize that they were fighting for the
nature of Obama’s presidency. How should a Democratic president combat
al-Qaeda? Who could he kill and whom could he capture? Was there a difference
between the two, or should he be able to kill anyone he could legally detain?
And, most importantly of all: What did it mean for a democracy to be in a
multigenerational war with a terrorist group?
This was Koh’s attempt to push the pendulum of the Bush
years back. Johnson wanted to push it back as well, just not nearly so far.
Both agreed that the U.S. could go after al-Qaeda’s “associated forces,” but
what about associates of associates? How much of a connection did the target
need to have to Sept. 11 to be legal? After all, the AUMF was explicit in
authorizing force only against those who were responsible for the attacks. The
Sept. 11 attacks had been planned and carried out by, at most, a few dozen men,
and now, in years of strikes around the world, the U.S. had killed thousands. How
big should the circle of responsibility be?
The decisions made in these D.C. conference rooms often
made the difference between life and death half a world away, and despite
anonymous claims from government officials, both lawyers knew that innocent people
were sometimes killed. Not as many as activists might claim, but still too many
to maintain a clean conscience.
Besides, they were unelected officials making decisions
about whom the U.S. should kill. Over the years since Sept. 11, Congress had
acquiesced, mostly in silence, to the gradual expansion of the AUMF. Neither
chamber had ever explicitly revisited the power they had granted the president
in the hours after the attacks, or even questioned how that authorization was
being interpreted and used.
That hadn’t always been the case. During the height of
the Vietnam War, the chairman of the Senate Foreign Relations Committee, J.
William Fulbright, held a series of hard-hitting hearings in an effort to
repeal the Gulf of Tonkin Resolution and end the war. Like the AUMF, the Gulf
of Tonkin Resolution had passed with almost no opposition, unanimously in the
House and against only two “no” votes in the Senate. Fulbright, who had
initially helped sponsor the resolution, soon came to see it as an excuse for military
expansion in a war the U.S. could never win.
 |
| John Kerry testifying before Congress in 1971 against the Vietnam War. c-spanvideo.org |
John Kerry testifying before Congress in 1971 against the
Vietnam War. c-spanvideo.org
In 1971, he succeeded in repealing the resolution and
subsequently called a 27-year-old Vietnam veteran named John Kerry as a
witness. Kerry was the first veteran to testify, and his dramatic two-hour
testimony helped shape the debate over the war that followed.
Thirty-eight years later, Kerry found himself in a
similar position, as one of Fulbright’s successors and the chairman of the
Senate Foreign Relations Committee. But unlike Fulbright, who used his position
to harass the administration on its expanding war, Kerry was more
administration envoy than adversary. As Andrew Cockburn wrote in a recent piece
in Harper’s, as soon as Obama took office, “Kerry stopped rattling cages.” Of
course, Fulbright went on to lose his next election, going down in the Democratic
primary; Kerry went on to become Obama’s second secretary of state.
Part of the reason is that the wars themselves are
different. Vietnam captivated the country in a way the war against al-Qaeda
hasn’t, at least not since the initial bombing of Afghanistan in 2001. There is
no longer a single battlefield, and no one seems to know what victory looks
like. Perfect security, we are constantly told, isn’t possible, but how many
people does the U.S. need to kill until it is safe enough?
Maybe it shouldn’t be so surprising that Congress didn’t
think about how the war would end when it passed the AUMF on Sept. 14, 2001,
but after more than a dozen years, we are no closer to an answer.
“This is a bizarro war,” Jack Goldsmith told me recently.
A tenured law professor at Harvard who worked in the Office of Legal Counsel
under George W. Bush, Goldsmith has written a pair of books on national
security law. “What we don’t see, we don’t care about.”
And for most of us there is little to see. With the
exception of Afghanistan, this is a war that is being fought out of sight with
drones and small teams of special forces operatives. A war that is largely
ignored at home has come to define us abroad.
The apathy lifted slightly in early 2010 when word leaked
that the U.S. was actively targeting an American citizen for killing. The White
House reacted to the increased scrutiny by rolling out Koh, the most liberal
and publicly vocal critic of Bush-era policies, to make the case that Obama’s
drone strikes were different. They were grounded in the AUMF and on solid legal
footing.
Koh took to the podium at the Ritz-Carlton Hotel in
Washington to address the American Society of International Law on March 25,
2010, in a conservative black suit and red tie. After a few jokes about the
event being as close as most in the room would ever come to the Oscars and a
red carpet, he got down to business.
Unlike the Bush administration, he said, which had relied
on vague constitutional arguments about presidential power, the Obama
administration had based its decisions “on legislative authority granted to the
president by Congress in the 2001 AUMF.” Of course, he added, “construing what
is ‘necessary and appropriate’ under the AUMF requires some translation.”
Gone was Koh the private scholar, who in 2008 had
complained about the “vaguely worded” AUMF that had allowed the Bush
administration to justify everything from NSA excesses to torture. Now, as a
government lawyer, he rested the Obama administration’s legal edifice squarely
on the foundation of the AUMF and those same 60 words. Everything the Obama
administration did, he reassured the ballroom of legal colleagues and friends,
“including lethal operations conducted with the use of unmanned aerial
vehicles,” was legal and just.
Koh wasn’t the only one whose opinion seemed to change
with his job. A decade earlier, on Sept. 13, 2001, Denis McDonough had been a
31-year-old foreign policy advisor to Tom Daschle, working to limit the AUMF.
Now McDonough was Obama’s deputy national security adviser and helping to
preside over an expanding target list that rested on that very same piece of
legislation he had once attempted to restrict.
While McDonough had aged, the targets had not. Many of
the men the U.S. was killing were in their late teens and early twenties, men
who had been boys on Sept. 11.
Months after Koh’s speech, in early 2011, Congress
stirred briefly to life with some members suggesting that it might be time to
start codifying the evolving interpretations of the AUMF. This, they argued, would
put the U.S. on more solid legal ground. The AUMF, after all, governed both
Guantanamo and drones and yet had made no mention of either. Surely, it would
be better to make those authorities explicit.
Obama’s top aides pushed back immediately. This was not
what the administration had in mind when it talked about repealing the AUMF and
ending the war. Later that year at an event at the Heritage Foundation, a
conservative think tank in Washington, Jeh Johnson explained why the
administration had opposed any new legislation. “I think the reason that we in
this administration have concerns about efforts to do that is because at the
end of the political process, what I don’t want to end up with is something
less than what we thought we already had by way of legal authorities through
the authorities on the books and our interpretation of our authorities that are
on the books.”
In other words, any attempt to update the AUMF, moving it
from what was written in the hours after the 9/11 attacks to something that took
into account the changes of a decade of war, might limit the president’s
options. The Obama administration was happy to rely on a 2001 authorization to
deal with a 2011 threat because its own internal interpretations gave it so
much flexibility. If Congress started messing with the 60-word foundation, the
administration’s whole legal edifice might come tumbling down.
What was supposed to be a rather routine Senate hearing
early in Obama’s second term provided a glimpse into just how expansively the
administration had been interpreting the sentence at the heart of the AUMF. On
May 16, 2013, the Defense Department sent a quartet of officials to the Capitol
to answer questions about the AUMF and the current state of the war against
al-Qaeda. In the course of their joint testimony, Michael Sheehan and Robert
Taylor, who were speaking for the four, both claimed that the 2001 AUMF and its
60 words were “adequate” for the administration’s needs.
Sheehan, a balding former counterterrorism official with
the New York Police Department who looked like he had forgotten to shave that
morning, spoke first. The administration, he told the senators, was
“comfortable” with the AUMF as it was currently structured because it didn’t
“inhibit us from prosecuting the war against al-Qaeda and its affiliates.”
Sen. John McCain was incredulous. Shuffling through some
papers, the 76-year-old senator pulled out a copy of the AUMF and started
reading. Twenty-four seconds later he finished the 60-word sentence, and then
he started to lecture. “This authorization was about those who planned and
orchestrated the attacks of September 2001,” McCain said, staring down toward
the witness table. “Here we are, 12 years later, and you’re telling us that you
don’t think it needs to be updated,” he continued. “Well, clearly it does.”
Other senators piled on. Angus King, a
professorial-looking Independent senator who had hosted a public access
television program called Maine Watch for 17 years in the 1970s and 1980s, told
the four officials that this was “the most astoundingly disturbing hearing I’ve
been to.”
“The AUMF is very limited, and you keep using the term
‘associated forces’ — you use it 13 times in your statement — that is not in
the AUMF,” King said, before adding, “I assume [the AUMF] does suit you very
well because you’re reading it to cover anything and everything.”
Toward the end of the panel, as the chairman was
preparing to dismiss the Pentagon officials, Sheehan raised his hand. “Just one
clarification,” he said. “Certainly the president has military personnel
deployed all over the world today, in probably over 70 to 80 countries, and
that authority is not always under AUMF.”
Sitting behind the witnesses, waiting his turn to
testify, Jack Goldsmith, the former Bush administration lawyer, was shocked.
Exactly how many of the 70 to 80 countries where military personnel are
deployed fall under the AUMF? he asked the next day on Lawfare, a legal blog he
co-founded. “The phrase ‘not always’ suggests a high number.”
“The hearing made clear that the Obama administration’s
long insistence that it is deeply legally restrained under the AUMF is
misleading and at a minimum requires much more extensive scrutiny,” Goldsmith
wrote. Goldsmith’s post and Sheehan’s public evasions raised a key question: Twelve
years after 9/11, who exactly is the U.S. at war with?
When I contacted the Pentagon to get an answer, a
spokeswoman emailed back: “The list is classified and not for public release.”
One week later, on May 23, 2013, President Obama walked
into the auditorium at the National Defense University in southeast Washington
to deliver a major national security address. Sounding more like McCain than
Sheehan, his own assistant secretary, Obama made a series of pledges.
“I intend to engage Congress about the existing
Authorization to Use Military Force, or AUMF, to determine how we can continue
to fight terrorism without keeping America on a perpetual wartime footing,”
Obama said. “The AUMF is now nearly 12 years old. The Afghan war is coming to
an end. Core al-Qaeda is a shell of its former self.”
Standing on a raised platform in front of the crowd,
which included members of activist group Code Pink who would soon interrupt
him, Obama continued. “I look forward to engaging Congress and the American
people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I
will not sign laws designed to expand this mandate further. Our systematic
effort to dismantle terrorist organizations must continue,” he said. “But this
war, like all wars, must end. That’s what history advises. That’s what our
democracy demands.”
But like his Guantanamo pledge five years earlier, this
was more rhetoric than reality. In the more than seven months since Obama gave
that speech, the White House has taken no public steps to roll back the AUMF.
From the outside, the string of unfilled promises looked like a president who
wants to end the war without giving up his powers to wage war. It’s easy to see
why.
The 12-year-old sentence gives the president both
incredible power — power that has been blessed by Congress and the courts — as
well as maximum flexibility. Read inventively enough, the AUMF permits a wide
range of military activities, all of which might at some point be necessary.
Repealing or refining those 60 words would only tie the president’s hands and
limit his options. It would also force him to reengage with Congress, which
helped block him on Guantanamo, and to explain to the American people what the
U.S. is doing and who it is fighting.
Then there is the issue of Afghanistan: the war Obama
once called a “war of necessity,” and the war he has made his own. If he
fulfills his promise to withdraw troops from Afghanistan by the end of this
year, the president will have effectively ended the war against the Taliban.
And that will create its own problems.
By building its detention authority on the AUMF, the
Obama administration has forced itself into a corner. Once the war is the over,
the power to detain disappears. What this means is that as soon as Obama
declares an end to the war in Afghanistan, there will be a series of legal challenges
from individuals still in Guantanamo Bay, claiming affiliation with the Taliban
and demanding their release.
The old legal authorities will no longer hold. The Obama
administration will either have to find a new basis for holding them — 13 years
after many of them were captured — or it will have to release people it has
said are too dangerous to set free.
Perhaps the most interesting question about the AUMF and
its 60 words is this: What does that sentence prohibit? What — more than 12
years after Congress passed it — is clearly out of bounds?
Several of the lawyers I talked to, officials from both
the Bush and Obama administrations, spoke eloquently and at great length about
the limits of the AUMF and being constrained by the law. And maybe that is true.
But none of them were able to point to a case in which the U.S. knew of a
terrorist but couldn’t target him because it lacked the legal authority. Each
time the president wanted to kill someone, his lawyers found the authority
embedded somewhere in those 60 words.
When the U.S. abducted Abu Anas al-Libi from the front
seat of his car in October 2013, it transported him to the USS San Antonio, a
ship in the middle of the Mediterranean Sea, far beyond the reach of any court.
Three days into Libi’s confinement at sea as word of his
abduction leaked out in the press, a public defender in New York asked a
federal judge to intervene and force the government to give Libi access to
legal counsel. The judge refused, explaining that the government hadn’t actually
arrested Libi. Instead he was being detained by the United States Armed Forces,
which as federal prosecutors claimed, were “acting under their own legal
authorities.” Until the government actually decided to arrest Libi, the judge
declared, he could do nothing.
Libi, a man the U.S. had abducted in Libya in 2013 who
had nothing to do with the Sept. 11 attacks, was being held under the authority
of the AUMF, the 60 words Congress had passed explicitly targeting only those
who had been linked to the attacks.
One week after his capture, with his health deteriorating
due to a hunger strike, the U.S. moved Libi off the ship and officially
arrested him for his alleged role in the 1998 embassy attacks. Only then did
the court appoint a lawyer to defend him.
“None of us, not one who voted for it, could have
envisioned we were voting for the longest war in American history,” Dick
Durbin, a Senate Democrat from Illinois, told Politico early in 2013. “Or that
we were about to give future presidents the authority to fight terrorism as
far-flung as Yemen and Somalia.”
One person, of course, did envision exactly this sort of
open-ended, ill-defined war. But even now, more than a decade after her lonely
vote, Barbara Lee still just wants the debate Congress never had in 2001.
“Let the congressional debate begin,” she told me
recently. If the U.S. wants to use force in places like Yemen or Somalia and
“if people think its worth it, for whatever reason, then let their member of
Congress vote for it. That’s the point.”
A lot has changed in the 12 years since Stephen Rademaker
and his son Andrew took their midnight drive to a smoldering Pentagon. The war
that was authorized that night has now moved into its second generation,
jumping from father to son. Stephen is out of government and Andrew, now a
27-year-old House staffer, is in. Osama bin Laden is dead and al-Qaeda, at
least as it was configured on 9/11, is no more.
Analysts disagree over whether the new incarnation of
al-Qaeda — smaller and more fragmented — is weaker or stronger than it once
was. But one thing is certain. It is different. The only thing that has
remained the same is that one sentence: 60 words and a war without end.
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CORRECTION: An earlier version of this story stated that Eleanor Holmes
Norton had voted for the resolution; as a representative of the District of
Columbia, she did not have a vote, as pointed out by reader abp07.
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