1

A Quiet, Almost Smoldering Determination

We are supported by the collective will of the world.

When I walked into the Democratic Caucus room just twodays after September 11, I was entering well-known territory. Even afterSenator Jim Jeffords of Vermont left the Republican Caucus to join ours in thespring of 2001, we Democrats continued to meet in the smaller of the two roomsused for Senate caucuses in the US Capitol building. Despite the Republicans'sudden loss of control of the Senate for the first time since 1994, the tenuousDemocratic majority allowed them to continue to convene in the spacious MikeMansfield Room, where the majority caucus traditionally gathered for the weeklyparty lunch meetings. This room is named after the mild-mannered but reveredformer Democratic majority leader from Montana, whose portrait dominates theroom. Maybe Tom Daschle enjoyed the thought of the minority Republicans havingto meet under the watchful eye of a looming Mansfield, informally posed, andholding his beloved pipe.

The much smaller Lyndon Johnson Room, where we had beenmeeting since our huge loss of majority in 1994, was certainly familiar by now.What was unfamiliar-and incongruous-was the whiteboard resting on an easel inthe middle of this ornately old-fashioned, chandeliered room. For a moment Iassumed that someone had forgotten to remove the board from a previous meeting.As senators filed into the room, though, I read the words scrawled on it ingreen felt-tip pen:

That the President is authorized to use all necessary andappropriate force against those nations, organizations, or persons hedetermines planned, authorized, harbored, committed, or aided in the planningor commission of the attacks against the United States that occurred onSeptember 11, 2001, and to deter and preempt any related future acts ofterrorism or aggression against the United States.

I had wondered whether our initial response to the shockof 9/11 would be measured or reckless and this was a first sign that it couldbe heartbreakingly reckless indeed. Despite the fact that we had a RepublicanHouse and, of course, a Republican president, Jeffords's switch made the SenateDemocratic majority partly responsible for the critical post-9/11 choices thathad to be made. This was the challenge for the Democratic Caucus. I believedthat Tom Daschle's very determined and skillful luring of Jeffords could proveto be exceptionally fortunate timing, allowing the Senate Democratic majorityto both check Republican excesses in response to 9/11 and provide bipartisanunity for good decisions that could be reached across the aisle.

Once I understood that the language on the easel wasactually the proposal for our caucus to consider, I began to wonder if I wasgoing to be placed in a very difficult position. I had already stated on thefloor of the Senate the day after September 11 that there was no question in mymind that military action against Al Qaeda was not only warranted butnecessary. It was fully justified under our own laws as well as under Article51 of the United Nations Charter, which guarantees the right of self-defense toall nations-a time-honored principle of international law. I considered joiningthe queue to raise my objections to the imprecise wording, which I could do byslightly raising my hand until the majority leader noticed and wrote down myname. This proved to be unnecessary.

Almost immediately some of our most seasoned members,including Senator Joe Biden of Delaware and Senator Carl Levin of Michigan,chairmen of the Senate Foreign Relations Committee and the Senate ArmedServices Committee, respectively, pointed out the obvious flaws in passing aresolution using open-ended terms like terrorism, rather than focusing thelanguage on those who actually had attacked us. As justified as it was topursue real terrorist organizations, either militarily or through lawenforcement, for generations virtually every repressive regime in the worldfrom Ethiopia to Uzbekistan has tried to demonize their political opposition bydescribing them as "terrorist organizations." I was not only relievedbut proud to hear my colleagues successfully persuade a very nervous group ofsenators to carefully tailor the language into what ultimately became theAuthorization for the Use of Military Force, or "AUMF." The wordingwas adjusted to read:

That the President is authorized to use all necessary andappropriate force against those nations, organizations, or persons hedetermines planned, authorized, committed or aided the terrorist attacks thatoccurred on September 11, 2001, or harbored such organizations or persons, inorder to prevent any future acts of international terrorism against the UnitedStates by such nations, organizations or persons.

While this language came to be cited by the Bushadministration (and to a much lesser extent by the Obama administration) tojustify everything from certain illegal torture practices, to aspects ofGuantánamo detention, to extreme claims regarding the power to wiretap withouta warrant, the fact is that the comparatively narrow wording that ultimatelypassed rendered these arguments weak and almost bogus. As the caucus ended,amid all the sorrow and fear, I did feel proud of my Democratic colleagues andof the institution of the United States Senate, whose special role in issues ofwar and self-defense is enshrined in the Constitution. I was guardedlyoptimistic: If the Senate majority played a similar role as other key decisionswere made, we would be able to pursue Al Qaeda and preserve fundamentalconstitutional principles. Unfortunately, the next major piece of legislationto follow the AUMF proved to be just the opposite-a rush to judgment and acapitulation to political fear: the USA Patriot Act. (A fuller discussion ofthe Patriot Act's passage follows later, in chapter 6.)

Given the intense divisiveness that characterized theGeorge W. Bush era after the Iraq War began, it is easy to forget that it wasnot always so. For a brief period after September 11, 2001, it seemed to methat both the Washington political establishment and the public at large wereresolved to put aside prior differences and agendas to get the response to thissurprise attack right. Perhaps I was naïve, but I actually believed that theterrorist attacks would alter the post-Cold War political landscape for asustained period of time. As Professor Theodore J. Lowi of Cornell Universitysaid to the New York Times on September 12, the attack had moved the politicaldynamic even beyond bipartisanship. "We will be operating as if we have anational unity party." That is exactly how I assumed things would evolveand this meant a significant change of emphasis for most members of Congress,including myself. In this vein, my policy director, Sumner Slichter, came intomy office on the morning of September 12 and said wistfully but realistically,"There goes our agenda."

Sumner had been with me and advised me on every vote Ihad taken starting in the Wisconsin Senate in 1983, and he played this rolethroughout my legislative career. He's the guy you would turn to in a situationwhere somebody had to come up with the best answer in one minute. He was-andis-that quick to analyze things. I've often thought about Sumner's comment. Iagreed with him in large part, for none of us felt that "our agenda"could begin to rival the new circumstances and challenges that now confrontedus. At the same time, I was a legislator and these were highly professionallegislative aides working with me on what we believed were very important issuesfor the state of Wisconsin and the nation as a whole. We had picked upsignificant momentum on efforts to legislate against racial profiling, apractice followed by some law enforcement officials of stopping motorists basedon their race alone, an offense nicknamed "driving while black" or"driving while brown." We had had the first signs of positivemovement on my goal of abolishing the death penalty throughout America, just asWisconsin had done in 1851. In 2000, Governor George Ryan of Illinois had declareda moratorium on the death penalty in that state after DNA evidence led to therelease of several death row inmates, and the national conversation was slowlymoving our way. People at my listening sessions, from the neighborhoods ofMilwaukee and Madison to the relatively unpopulated communities like thegorgeous Lake Superior town of Bayfield, were increasingly talking about theneed for more affordable housing. When I brought this back to DC, I found thatpeople like Senator John Kerry of Massachusetts and Senator Jack Reed of RhodeIsland were hearing similar concerns, and we set out to work together to createa much-needed National Housing Trust Fund.

By the morning of September 12, 2001, all of this wasstopped in its tracks. Ironically, the issue I assumed would most quickly bederailed was the one I was most associated with-campaign finance reform.Somehow, in the midst of all the tumult between September 2001 and the lead?upto the Iraq War, we were able to pass the McCain-Feingold bill and have itsigned into law. But on September 12 that was the last thing I expected tohappen. What I also can say is that as important as these matters were andstill are, at the time I didn't care. I was completely consumed by the eventsof the previous few hours. And that's exactly how I found most otherlegislators felt for some weeks to come.

The battles over the budget and Social Security weresuddenly pushed from the headlines. Instead we began to hear the initialreactions of members of Congress to the terrorist attacks. To be sure, sometried to outdo one another with tough talk. The Democratic senator fromGeorgia, Zell Miller, took the cake with "I say bomb the hell out of them.If there's collateral damage, so be it. They certainly found our civilians tobe expendable." Others looked immediately for people to blame within theUS government. It is not surprising that this contingent was led by theflamboyant Congressman Rohrabacher of California, who stated, "It's a dayof disgrace. The president needs to clean house and wipe away the seniorexecutives of the intelligence agency." But this was not typical. Thefocus was on measured expressions of unity and nonpartisanship led by thechairs of the two major political parties. Terry McAuliffe of the DemocraticNational Committee noted that "the budget debate and everything else is onthe back burner now," while Virginia Governor James Gilmore of theRepublican National Committee declared that "partisanship at this point isexactly the wrong approach."

This mood was reflected among the lawmakers most directlyinvolved in working with the White House in the hours after 9/11. When arequest for a doubling of the initial commitment of $20 billion for New York to$40 billion was assented to by President Bush, Senator Chuck Schumer of NewYork reported, with some emotion, "He said, 'I'm for it.' There was a lumpin my throat." The negotiations that led to this outcome were actuallyinterrupted on Thursday, September 13, because of a frenzied evacuation of theCapitol in response to a telephone bomb threat. In an example of goodwill andeven humor at such a tough time, John McCain, standing with John Kerry on theCapitol lawn, quipped, as the negotiations continued outside, "I know I'mdying in bed. John and I have been through too much already."

Although I later became his leading congressional critic,the person I most credit for creating the tone and resolve that Americaevidenced in those first critical days after 9/11 is George W. Bush. His briefaddress on the evening of September 11 was a vast improvement over the hurriedand fuzzy attempt to broadcast earlier in the day, when he was still far awayfrom the White House. His tone was measured as he said, "These actsshatter steel, but they cannot dent the steel of American resolve." Hismanner was firm as he reassured us. "Our military is powerful, and it'sprepared." In the following days the president made repeated and strongstatements warning all Americans "not to discriminate against or retaliateagainst Arab Americans and Muslims in our nation." His performance whentouring the World Trade Center with Mayor Rudy Giuliani of New York heartenedvirtually all Americans.

For many Democrats, the president's reaction and mannerwere more surprising for their skill than their restraint. After the bitterelection of 2000, when many felt that he had gained the presidency only byvirtue of an abysmal decision of the United States Supreme Court, the mostcommon criticism of Bush was that he was not up to the job or that he was notreally interested in the substance of the work. He was not expected to be anextremist in foreign policy any more than his relatively moderate father,President George H. W. Bush, had been, and he was not likely to go off the deepend even in the cataclysmic environment in the days and weeks after 9/11. Ishared this view of George W. Bush and indeed thought that both Vice PresidentDick Cheney and Secretary of Defense Don Rumsfeld were of a similarpersuasion-not my cup of tea but still in the more moderate tradition of theFord administration. (On the other hand, US Attorney General John Ashcroft was,at best, an archconservative in the Ronald Reagan line.) In fact, over the lasttwenty years Cheney and Rumsfeld had been frequently mentioned as possibleRepublican vice presidential candidates because of their business backgroundsand relative moderation compared to the Goldwater/Reagan wing of the RepublicanParty. All of this suggested an almost ideal combination going forward in responseto 9/11: a Democratic Senate countering the extreme conservative tendencies ofthe remaining "Contract with America" House, refereed by a moderateand reasonably cautious administration.

This impression was not only confirmed but enhanced ninedays after September 11, when, on the evening of September 20, the presidentaddressed a joint session of Congress. This speech was perhaps the best I hadever heard by a president in my lifetime. At the time, one of my closestfriends, John Sylvester (Sly), a progressive talk-radio host in Madison, wasvisiting me to see what was going on after the 9/11 attacks. I had had a briefmoment with the president as he left the chamber after his speech. Sly recallsmy coming back to my apartment and saying, "Did you see me with thepresident? I told the president 'we will get this done together. You will havemy full support.' That was one hell of a speech." Of course, I had a seatright at the front of the House chamber and the emotion of the occasion made allof us susceptible to hyperbole, but I did feel Bush chimed perfectly with thetone of the country and truly led the nation this time.

He had reminded us that the only other attack like thison American soil in the entire 136 years since the Civil War had been PearlHarbor. And, regarding the uniqueness of this attack, he said that"Americans have known the casualties of war-but not at the center of agreat city on a peaceful morning." He accurately stated that "AlQaeda is to terror what the mafia is to crime," but he immediatelyreminded all Americans that "the terrorists practice a fringe form ofIslamic extremism that has been rejected by Muslim scholars and the vastmajority of Muslim clerics, a fringe movement that perverts the peaceful teachingsof Islam." He pointed out that "there are thousands of theseterrorists in more than sixty countries." (Later we discovered that thelist on which Bush based this comment did not include Iraq.) This carefullyconsidered performance contrasted well with his subsequent "axis ofevil" speech, not to mention his "crusade" and "wanted deador alive" gaffes.