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.
“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.
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.
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.
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.”
“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.
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.
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 the Washington 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.”
“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.
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.
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.