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.