Читать книгу Counterterrorism and the State - Dorle Hellmuth - Страница 10

Chapter 2

Case Study I: The United States

Part 1: U.S. Government Structures and Decision-Making

The balance of power between the executive and legislative branches has undergone considerable changes since the signing of the U.S. constitution. After 1945 in particular, Congress has resembled the first branch of government only on paper. The executive branch, by contrast, gained significant institutional capacities and powers in the foreign policy/national security realm—often with the help of Congress. On other occasions, the ambiguity inherent in the constitution offered room for new legal precedents or reinterpretations. A review of these, as well as some of the unwritten, more informal rules that govern interbranch relations in the U.S. separation-of-powers system, helps shed light on the structural framework of decisionmaking on the eve of the 9/11 attacks.

U.S. Separation of Powers

The separation of powers is the most striking feature of the U.S. presidential system. While influenced by Montesquieu, the framers understood the practical limitations of his maxim that also reflected their own governing experiences in the colonies.¹ To guard against human passions, factions, and power accumulation, they created three separate yet interconnected branches that cannot conduct much business without the others. James Madison elaborated on the need for these overlapping powers in the Federalist Papers, giving rise to Richard Neustadt’s contemporary description of interbranch dynamics as “separated institutions sharing powers.”² While the president cannot introduce legislation of his own, Congress has invited executive bill drafting and advice since the first administration of George Washington.³ In addition, the president may recommend “measures … he shall judge necessary and expedient,” and use the State of the Union address as a platform for presidential initiatives. Once Congress passes a bill, it still needs to be signed by the president. His veto can only be overridden by two-thirds of the Senate and House. Because of the tremendous power of the veto threat, Woodrow Wilson referred to the president as the “third branch of the legislature.”⁴ Conversely, any executive action requiring funding needs to be sanctioned by Congress, which holds the power of the purse. As a result, the governing process is characterized by constant bargaining and negotiating. The president prevails by the “power to persuade” rather than dictating policies.⁵ Judicial review, different election cycles, and the bicameral system provide additional checks and balances.⁶

A prominent school of thought argues that cooperation between the executive and legislative branches is more complicated during periods of divided government, when the president’s party holds the minority position in one or both houses of Congress. For example, Democrat President Woodrow Wilson came to experience Congress’s “ruling power” when the Republican Senate refused to support the Treaty of Versailles in 1919.⁷ It is generally assumed that “bargaining ‘within the family’ has a rather different quality than bargaining with members of the rival clan.”⁸ As the most influential challenger of this view, David Mayhew has argued that “it does not seem to make all that much difference whether party control of the American government happens to be unified or divided.”⁹ To be sure, there are a number of examples in which instances of unified government did not help streamline the cumbersome political process. Commenting on the resistance Jimmy Carter faced from Democrat lawmakers throughout his presidency, Douglas Bennett suggested that “partisanship does not bind the majority in Congress to the White House as much as the separation of powers separates them.”¹⁰ More recently, Bill Clinton failed to retain support from the Democrat-led Congress for his multilateral peace operations policy in Somalia.¹¹

The U.S. Constitution and Foreign Affairs: An Ambiguous Affair

However, the aforementioned examples are equally symptomatic of interbranch wrestling over the question of which branch gets to have a say in which foreign policy matter. The controversy is rooted in the constitution, which Edward Corwin famously described as “an invitation to struggle for the privilege of directing American foreign policy.”¹² While it does not mention foreign policy per se, the framers created roles for its formulation and conduct in both branches, describing the specific powers granted to Congress. Apart from the president’s powers to make treaties and appoint ambassadors—albeit dependent on Senate approval—other powers granted to the president are only implied in his capacity as commander in chief and executor.¹³

The framers’ ambiguous views carried over to the allocation of war powers as well. While the president reserved the right to drive back sudden attacks due to his position as commander-in-chief, the power to declare war and raise and support armies was vested in the legislature. James Madison insisted on separating the purse and the sword because “those who are to conduct war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded.”¹⁴ Alexander Hamilton, by contrast, concluded that congressional war powers were mere “exceptions out of the general ‘executive power’ vested in the president” that ought to be “construed strictly.”¹⁵ Since executive powers were not limited to the ones “herein granted,” Hamilton further concluded that—unless excluded by the constitution—the president had residual executive and foreign policy powers.¹⁶ All framers/federalists recognized that, in practice, foreign policy business would require unique privileges and often under the leadership of one man. Hamilton stressed the need for executive energy, decision, and activity, whereas John Jay focused on the “perfect secrecy and immediate dispatch” deemed necessary for successful diplomatic negotiations.¹⁷ It was in defense of the president’s prerogative to oversee treaty implementation that John Marshall presented his famous argument to the House of Representatives in 1800, calling the president “the sole organ of the nation in its external relations, and its sole representative with foreign nations.”¹⁸

Just like constitutional interpretations have relied on different framers’ views at different times, often reflecting the need to meet the practical needs at a particular time, so did constitutional understandings of presidents have different emphases. Reminiscent of Hamilton’s reading of the constitution, Teddy Roosevelt’s stewardship theory argues that it is “not only [the president’s] right but his duty to do anything that the needs of the Nation demanded unless such actions were forbidden by the Constitution or by the laws.”¹⁹ Reversing the burden of proof when espousing a more literalist view of the presidency, William Howard Taft maintained that “the President can exercise no power which cannot fairly and reasonably be traced to some specific grant of power … [which] must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof.”²⁰

The courts have also had a significant say in the interpretation of executive national security powers. According to Gordon Silverstein and other critics, a 1939 watershed ruling by Justice George Sutherland established a precedent that created new justifications for an executive prerogative in international affairs.²¹ Sutherland’s opinion in United States v. Curtiss-Wright Export Corp. changed Marshall’s original connotation²² by declaring that the “exclusive power of the President as the sole organ of the federal government in the field of international relations [is] a power which does not require as a basis for its exercise an act of Congress” but must conform to the relevant constitutional provisions.²³ Sure enough, the ruling paved the way for presidential leadership proponents to assert inherent presidential powers in foreign affairs—even in the absence of explicit statutory or constitutional authorization.²⁴

While the ruling facilitated the rise of the executive, other factors were at play as well. At the height of congressional “supremacy” in the late nineteenth century, Woodrow Wilson already noted the “greatly increased power and opportunity for constructive statesmanship given the President by the plunge into international politics” in the Spanish War that changed the “lodgment and exercise of power within [the] federal system.”²⁵ Demands on the executive branch and strong leadership became more and more pressing as the United States inched onto the international stage, amid a growing net of international relations and organizations and ever-frequent crises and wars. A keen observer of American democracy, Alexis de Tocqueville had predicted the rise of the executive under precisely these circumstances: “If the life of the Union was constantly under threat … one would see the prestige of the executive increase … because of what was expected from it and what it did.”²⁶ As it turned out, Congress itself supplied the executive with many of the national security instruments needed to boost and maintain its high standing.

Executive Ascendancy, Courtesy of Congress

Congress’s increasing deference to the executive branch after World War II must be interpreted in the context of the Cold War and the understanding that the United States needed to be prepared for a possible confrontation with the Soviet Union.²⁷ In the face of the Soviet threat, Congress followed President Harry Truman’s lead in passing the National Security Act in 1947.²⁸ The act altered the balance of power in favor of the executive branch, effectively furnishing it with the institutional capacities to carve out its paramount role in the national security realm.²⁹ Apart from the armed services, the president’s arsenal now included the National Security Council (NSC), Central Intelligence Agency (CIA) and Department of Defense (DOD). Lodged in the Executive Office of the White House and designed to assist the president in the coordination of the interagency process, the creation of the NSC was of particular significance as it would be exempt from congressional scrutiny. The NSC took the lead in directing U.S. foreign policy after only two decades. Depending on his or her relationship with the chief executive, various national security advisors appointed by the president since the Kennedy administration have filled the role of “most important foreign policy aide to the president.”³⁰

In another instance of tremendous foresight, Alexander Hamilton predicted this kind of executive capacity building: “Frequent war and constant apprehension, which requires a state of as constant preparation, will infallibly produce [standing armies]…. It is of the nature of war to increase the executive at the expense of the legislative authority.”³¹ While he could not have foreseen the extent of future technical advances, Hamilton’s prediction held true in the twentieth century especially, when nuclear weapons imposed new restraints on decision-making and the need to act quickly under single, decisive leadership. The commander in chief clause thus provided another stepping stone for “independent Presidential authority and initiative in foreign relations”³² and for settling the war powers question once and for all. Presidents have decided and ordered all military deployments abroad as well as the use of military force since Congress last declared war in 1941. Schlesinger concluded that “the imperial Presidency received its decisive impetus … from foreign policy; above all, from the capture by the presidency of the most vital of national decisions, the decision to go to war.”³³ Judicial deference to executive discretion regarding war powers is generally viewed as indicative of this trend.³⁴ The courts have treated the war powers controversy as a “political question” and refused to rule on it.

However, “the powers of the modern presidency … were not wrested by self-seeking chief executives in a serious of constitutional coups d’état,” but often established by means of congressional mandates and initiative.³⁵ For example, when Congress delegated its constitutional authorities to organize the executive branch for significant periods between 1932 and 1984, the White House secured additional institutional resources, which over time “facilitate[d] the president’s expanded legislative pres-ence.”³⁶ Similarly, lawmakers acquiesced in the proliferation of intelligence agencies.³⁷

While most executive proposals were subject to congressional approval and legislative vetoes (until 1983), the scope of these new institutions was often contested, especially of those exempted from congressional oversight. As the most prominent example, the national security advisor’s more operational roles have been mired in controversy as his/her position is protected by executive privilege.³⁸ Moreover, Congress certainly did not go along with every executive initiative. After Roosevelt created the Executive Office of the President in 1939, the growing uneasiness with executive expansion prompted fellow Democrat lawmaker Senator Richard Russell to object that the president was not vested “with one scintilla of authority to create by Executive Order an action agency of Government without the approval of the Congress.”³⁹ Pursuant to the Russell amendment passed in 1944, Congress may deny funding for any institutions created by executive order unless appropriations are specifically authorized by Congress.

The controversies surrounding new executive positions, agencies, and departments indicate that lawmakers have a significant stake in these reorganization efforts as well. A byproduct of the symbiotic interbranch relationship, committee turf grows with every new executive agency, and lawmakers are certainly interested in gaining new appropriating and oversight powers. It is usually not a win-win situation for all lawmakers, however. Because any executive branch shake-up jeopardizes the committee turf of some lawmakers (as new committees may be formed), Congress’s executive reform record has been poor since the executive reorganization authority expired in 1984.⁴⁰ On the rare occasions Congress manages to team up and formulate legal mandates for executive agencies, it is usually very vague about how these should be implemented—due to political compromise, congressional laymanship, or as part of a deliberate effort to ensure executive flexibility in the administration of laws.⁴¹ Calling statutory interpretation “one of the greatest of Executive powers,” William Howard Taft thus rejoiced: “Let any one make the laws of the country, if I can construe them.”⁴²

Congressional Ways of Shaping U.S. Foreign Policy

Congress undoubtedly also has a say in the creation and implementation of policies and is able to protect some of the statutory spirit. Congressional committees direct and manage programs and activities by placing conditions on appropriations and procedures, as “an effective foreign policy requires … institutions, agencies, people and money, and Congress controls them all.”⁴³ The Vietnam and Watergate fiascos triggered this kind of congressional involvement in the 1970s, epitomized by the War Powers Resolution of 1973. Congress further proceeded to impose restraints on executive spending and budget authority, arms sales, as well as reporting requirements on executive agreements, and confirmation of presidential aides.⁴⁴ As a prominent example of lawmakers’ tactics “to use procedure to structure the choices the executive branch makes,”⁴⁵ new institutionalists count the Hughes-Ryan Amendment of 1974, which required the CIA to report on all covert operations to the new select intelligence committees.⁴⁶ While the Iran/Contra affair is generally viewed as testimony for failed restraints imposed by Congress, Loch Johnson argued that “the very requirement of reporting on these operations serves as a strong deterrent against madcap proposals like those that surfaced within the intelligence bureaucracy more easily in the past.”⁴⁷ In 1987, Assistant CIA Director Robert Gates described his agency as “involuntarily poised equidistant between the executive and legislative branches.”⁴⁸

Others are more skeptical of Congress’s ability to hold agencies accountable and correct statutory (mis)interpretations, noting that “given the size and reach of federal programs … the legislature’s capacity to overlook exceeds its ability to oversee.”⁴⁹ Cosy relationships with executive departments further impede lawmakers’ oversight duties.⁵⁰ Worse, Congress is necessarily handicapped in an area that is “cloaked in great secrecy.”⁵¹ Due to these practical realities, constitutional checks and balances are not as rigidly applied.⁵² Or, as Judge Sutherland put it, foreign policy legislation “must often accord to the president a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.”⁵³

To be sure, congressional influence cannot be measured by the number of hearings scheduled, bills passed, or votes cast, as this ignores the “ocean” of day-to-day informal interactions where both branches work together to shape policy.⁵⁴ Like in parliamentary systems, most bargaining and negotiating takes place outside the official decision-making circles.⁵⁵ Common stakes might also facilitate cross-branch coalitions when interagency conflicts from within the executive branch “spill over” to legislative committees, as competing agencies are looking for congressional allies.⁵⁶ The White House is not exempted from these struggles either, as it may not always see eye to eye with its executive branch agencies.⁵⁷ Speaking of his successor, Dwight Eisenhower, Harry Truman mused, “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike—it won’t be a bit like the Army. He’ll find it very frustrating.”⁵⁸

Imperial Congress? Executive Agendas on the Eve of the 9/11 Attacks

According to its fiercest critics, Congress has abdicated its constitutional rights needed to rein in the executive and “not only fails to fight back but even volunteers in surrendering fundamental legislative powers, including the war power and the power of the purse.”⁵⁹ After Congress passed the War Powers Resolution in 1973, it never mastered the political will to invoke its key provisions. A more moderate school of critics points to the periodic ebb and flow of interbranch relations, arguing that Congress has periodically asserted its constitutional powers in shaping foreign and national security policies, most recently after the end of the Cold War.⁶⁰ Indeed, in the structurally mandated tugging and pulling, both branches have from time to time occupied stronger and weaker positions.⁶¹ While Congress played the leading role accorded by the framers during large parts of the nineteenth and twentieth centuries, after the end of World War II, the scales were tipped in favor of the president, giving rise to the terms “chief legislator” and “imperial presidency.”⁶² Arguably, the ebb and flow of presidential and congressional dominance is in the eye of the beholder. At a time of presidential ascendance, for example, John F. Kennedy famously noted that “Congress looks more powerful sitting here than it did when I was there.”⁶³ Yet others have pointed out that Congress has always focused on foreign policy issues with domestic application, so-called “intermestic” and transnational issues, especially those involving the allocation of people and resources.⁶⁴

Illustrating the gamut of opinions, others fear that congressional resurgence since the late 1970s has jeopardized U.S. foreign policy. In 1989, former presidential advisor Eugene Rostow addressed “Congress’s thrust for dominion,” worrying that, after the Vietnam War and Watergate scandal, the American president was starting to resemble “a prime minister,”⁶⁵ at the mercy of his party and parliament. Concerns about the imperial Congress of the 1980s resounded throughout the 1990s, after the unifying effects of the Cold War threat had dissipated.

On taking office in early 2001, Vice President Richard Cheney set out to correct the “erosion of [presidential] power” he had criticized since experiencing the “patterns of congressional overreaching during the Reagan administration.”⁶⁶ The 9/11 attacks represented a rare opportunity to execute these plans. As history has shown, in times of war Congress tends to fade into the background to facilitate quick and decisive decision-making.⁶⁷ By implication, lawmakers are more tolerant of presidential unilateral tools, including executive orders and presidential directives, and attempts to withhold information from Congress by means of executive privilege. While presidents have issued executive orders since the administration of George Washington, they became central mechanisms for bypassing congressional hurdles during noncrisis times in the Clinton and Bush administrations.⁶⁸ The usually classified presidential directives provide the foundation of military or diplomatic strategies, in addition to covert action, troop deployments, and military operations. Equally controversial, presidents have used them to create and reorganize executive agencies. The directives offer considerable freedom in the formulation of policies and commitment of government resources—also without congressional involvement.⁶⁹ Their secret nature also illustrates the fundamental weakness in the design of checks and balances in the national security realm, since Congress’s ability to exercise oversight and shape decision-making depends on the willingness of the executive branch to share information.⁷⁰

Even though wars and crises have always favored the executive, concerns about a new “imbalance of power” are more pronounced after 9/11, as the attacks represent an unprecedented convergence of foreign and domestic policy realms. In the face of the transnational threat posed by Jihadi terrorism, foreign policy and national security interests are easily conflated, offering a unique opportunity to apply more expansive foreign affairs powers on the domestic front. Following Silverstein’s line of reasoning, it is thus the logical extension of arguments put forth by Cold War administrations since Johnson and Nixon. In a hostile world, the expansion of executive prerogative in foreign affairs justified similar powers in the domestic realm, so that “when the national security was imperiled (a judgment left to the executive) the president was legitimately entitled to override constitutional constraints to preserve and protect that security.”⁷¹

While no stranger to political violence and domestic terrorist attacks prior to 9/11—only six years earlier, 168 people had died in the Oklahoma City bombing—the United States has not been subject to any sustained terrorist campaigns at home.⁷² On 9/11, the country suffered the single worst terrorist attack on American soil. The attacks were widely considered unprecedented in nature and scope: four commercial airliners were hijacked and crashed into the World Trade Center and Pentagon buildings in New York and Washington, in addition to a field in Pennsylvania, killing 2,977 people.

An analysis of measures undertaken in response to the 9/11 attacks helps reveal whether the executive branch managed to use the opportunities provided by 9/11 and claim additional powers at the expense of the legislative branch. By the same token, the process and outcomes should offer insights on how interbranch relations affected counterterrorism decisionmaking and outcomes.

Part 2: Post-9/11 Counterterrorism Responses

Initial Responses: A New Office of Homeland Security

Nine days after the attacks of September 11, President Bush announced the creation of the Office of Homeland Security (OHS) during his speech before a joint session of Congress, which would be headed by the newly appointed assistant to the president for homeland security, Pennsylvania Governor Tom Ridge.⁷³ The reason the administration was able to make such a rapid announcement was that its thinking about the establishment of such an office did not occur in a vacuum but was informed by the findings of various high-level studies and commission reports.⁷⁴ Since 1999, a series of commissions had concluded that the government needed to be reorganized to counter the growing terrorism threat. In May 2001, President Bush had asked Vice President Richard Cheney to prepare an analysis of the commission reports and other related works (albeit with a focus on domestic preparedness for an attack involving weapons of mass destruction).⁷⁵ In their discussions with other senior White House staff, including Chief of Staff Andrew Card and National Security Advisor Condoleezza Rice, Cheney and his senior aides quickly narrowed their options to two models. The first model would create an office with an advisor position inside the Executive Office of the President and establish a fourth policy council—much like the already existing National Security Council, Domestic Policy Council, and National Economic Council—that would be responsible for coordinating the many government agencies with homeland security functions. A second model went even further and recommended the creation of a whole new department that would consolidate many of the homeland security-related functions of existing agencies and departments.

These ideas had been voiced in one variation or another before by the various commissions.⁷⁶ Until 9/11, however, none of the commission recommendations received concerted attention from either Congress or the White House. Following the attacks, senior officials at the White House saw a need for immediate and visible action.⁷⁷ Heeding the advice of his working group, Vice President Cheney became the chief sponsor of a plan to set up an Office of Homeland Security within the White House, to be directed by a homeland security advisor who would have cabinet rank.⁷⁸

The appointment of a homeland security advisor would represent a focal point for coordinating all homeland security efforts.⁷⁹ Its location in the West Wing of the White House would guarantee priority access to the president and complement the high-profile plan. Most important, it did not require Congress to pass a new law. Officials agreed that any effort to pursue more far-reaching government reorganization would entail a drawn-out process and require the long-term commitment of resources and time. At a time in which the country was believed to be under attack, this was seen as practically unfeasible and politically irresponsible.⁸⁰

The mission and functions of the newly established Office of Homeland Security were further specified in the executive order President Bush signed on October 8, 2001.⁸¹ The homeland security advisor would become the “principal point of contact for and to the president” for all issues involving homeland security. The Office of Homeland Security would serve as a clearinghouse for policy issues while coordinating “the executive branch’s efforts to detect, prepare for, prevent, protect against, respond to and recover from terrorist attacks within the United States.”⁸² Its primary mission would not only be the development but also coordination of a comprehensive strategy to protect the United States against terrorism.⁸³ Its seven policy directorates were responsible for issues such as intelligence and detection, protection and prevention, and response and recovery.

To accomplish its complex task, the Office of Homeland Security would further rely on the Homeland Security Council (HSC), responsible for “advising and assisting the president with respect to all aspects of homeland security.”⁸⁴ The cabinet-level HSC paralleled the statutory NSC, with the OHS serving as the equivalent of the NSC staff. But the OHS/HSC process would be even more wide-ranging than the NSC; not only would it be responsible for facilitating executive interagency coordination along the horizontal axis of government, but it would also have to create new vertical communication structures and channels between federal, state, and local governments, as well as the private sector.⁸⁵

As the Homeland Security Council was directly modeled after the NSC process, it had a very similar hierarchical committee makeup.⁸⁶ At the top, the HSC served as the highest decision-making body and chaired by the president. At the next highest level, the cabinet-level principals committee was chaired by the OHS director and homeland security advisor. Below that, the deputies committee was made up of cabinet deputies and chaired by the deputy homeland security advisor. The eleven Policy Coordinating Committees—which represented the assistant secretary level and were interagency in their specific areas—built the foundation of the HSC process and were chaired by senior staff.

In the end, the White House senior staff decided against integrating the OHS/HSC with the NSC for two main reasons.⁸⁷ First, there were practical considerations. It would have been extremely difficult for National Security Advisor Condoleezza Rice to coordinate the homeland security efforts in addition to her NSC responsibilities.⁸⁸ Richard Falkenrath, who served as the first OHS senior director of policy and plans and special assistant to the president, summed up the president’s decision to establish a separate system for homeland security by saying that “it’s such an important area of governance today that he believes it requires that specialization and that expertise. There is also a fair bit going on in the rest of the world which the National Security Council and the national security advisor need to stay focused on.”⁸⁹ There are also differences in levels of focus: the national security advisor is geared toward the top level of the executive, while the homeland security advisor needs to ensure that decisions made at the top will be implemented at the state and local level.⁹⁰

Initial Responses: The 2001 U.S.A. Patriot Act

In the aftermath of 9/11, various investigations determined the attacks had been made possible in part by failures in the areas of intelligence collection and information sharing. While the U.S. government did not know everything it needed to know about the attacks, it knew a great deal—but information that did exist at the time was not analyzed in a timely fashion, was simply not recognized as a missing piece of a puzzle, or did not reach the right places. In other words, members of the intelligence community failed to “connect the dots.”⁹¹

Even though the United States does not have an independent domestic intelligence service, the Federal Bureau of Investigation (FBI) has significant powers to detect foreign intelligence and terrorist activities that even resemble those of domestic intelligence services in other Western democracies. In the aftermath of the domestic spying scandals in the 1960s and 1970s, Congress sought to limit these FBI powers by passing the Foreign Intelligence Surveillance Act (FISA). In the context of foreign intelligence investigations, FBI agents had to obtain special wiretapping warrants from the FISA Court established in 1978. In addition, the Department of Justice (DOJ) adopted an even stricter interpretation of the law, creating a “wall [that] left intelligence agents afraid to talk with criminal prosecutors or agents.”⁹²

In a step designed to change these dynamics, eight days after the attacks Attorney General John Ashcroft presented a White House bill to Congress.⁹³ Explaining the speed of the executive branch, many of the provisions had been on the government “wish list” for many years or were even introduced to Congress in the aftermath of the 1993 World Trade Center and 1995 Oklahoma City bombings.⁹⁴ Noting similarities with its own proposal, the Justice Department concentrated its lobbying efforts on the Senate bill prepared by the Judiciary Committee under the leadership of Senator Patrick Leahy (D-Vt.). The Democrat-run Senate also represented the bigger political challenge to White House officials, who were less concerned that the Republican-run House would eventually fall in line with administration objectives.

The most controversial provisions of the administration proposal included the detention of noncitizens, information sharing between security services, and the rules governing electronic surveillance. Both houses opposed the proposed measure to detain noncitizen terrorist suspects indefinitely.⁹⁵ Lawmakers were also hesitant to support a provision that would let law enforcement agencies share wiretap and grand jury information with intelligence agencies.⁹⁶ However, there were significant differences in their approaches: the House would agree only to sharing wiretaps and installed additional breaks, therefore granting not nearly as much authority to law enforcement as the Senate did. Equally important, the House bill did not allow secret sneak-and-peek searches (where suspects’ homes could be searched while delaying their notification) and included sunset clauses for most surveillance and information-sharing provisions.

In the absence of any substantive debate—each house conducted only one hearing, and there are no conference reports—the remarkable speed of executive-legislative cooperation was made possible because traditional decision-making procedures were largely bypassed. In fact, the Senate bill was the product of negotiations within a small circle of decision-makers, including Committee Chairman Patrick Leahy, ranking member Arlen Specter (R-Pa.), White House staff, and the Senate leadership, and not voted on by the Judiciary Committee. Amid FBI warnings of new attacks and anthrax findings on Capitol Hill, Chairman Leahy admitted that, “despite my misgivings, I have acquiesced in some of the administration’s proposals because it is important to preserve national unity in this time of crisis and move the legislative process forward.”⁹⁷

Even though the House Judiciary Committee approved its version by unanimous vote shortly thereafter, the bill never reached the House floor. Instead, House Speaker Dennis Hastert (R-Ill.) opted to use the Senate bill—passed with overwhelming bipartisan support after four hours of debate and significant backing from White House—as the blueprint for a new House bill.⁹⁸ Put together overnight with the help of Judiciary Committee Chairman James Sensenbrenner (R-Wis.) and White House staff, the new House version was very similar to the Senate proposal, essentially retaining only the name of the old bill as well as more stringent sunset clauses as a bargaining chip for the upcoming conference negotiations.⁹⁹ Reminiscent of parliamentary procedures where the opposition is usually presented with a fait accompli, House members approved the new version of the bill the next morning—with no time for debate much less a reading of the bill.¹⁰⁰ Less than two weeks later, both houses agreed on a compromise bill with sunset clauses for sixteen provisions that would expire in December 2005 unless renewed by Congress.¹⁰¹ President Bush signed the U.S.A. Patriot Act (which stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act) into law on October 26, 2001.

The most ground-breaking reforms would facilitate (foreign intelligence) information collection by means of electronic surveillance and physical search orders, as well as information sharing between security services. Searches and wiretaps that were part of intelligence investigations would no longer be attached to individual cell phones/landlines/computer terminals but now extended to individual suspects and all their communications under court-ordered “roving” wiretaps. Email communications would now be treated like phone calls, thus requiring subpoenas for pen register and trap-and-trace device orders (used to identify the source of wire or electronic communications).¹⁰² Stored communications like voicemail and credit card information could now be accessed with the help of search warrants and subpoenas, respectively (instead of court orders that were more difficult to obtain). Among its two most controversial provisions, the act authorized court-ordered access to all tangible items rather than a limited number of business records of specific services offering lodging, car, and locker rentals. In addition, law enforcement could now conduct secret searches of homes while delaying notification for a “reasonable” time; these new “sneak-and-peek” warrants could not just be used in terrorism but in all criminal investigations. Except for the last provision, all tools had been available to law enforcement agencies for several years but not been applicable to terrorism cases so far.¹⁰³

Among the more controversial provisions not scheduled to expire were the FBI’s expanded authorities to attain information through so-called National Security Letters.¹⁰⁴ In contrast to “tangible item” orders, the letters could not be used to secure content but more transactional data like email addresses and numbers dialed, in addition to financial data and full credit reports. As administrative subpoenas, the letters did not require court approval; they could now be issued by the heads of any field office, rather than selected senior officials at the FBI headquarters. The letters also no longer had to pertain to foreign powers or agents but merely needed to be relevant to national security investigations.

The U.S.A. Patriot Act also removed a number of legal barriers that had prevented law enforcement and intelligence agents from sharing wiretap and grand jury information before 9/11.¹⁰⁵ When applying to the FISA Court for surveillance or search orders, authorities now only needed to show that “a significant” rather than “the primary purpose” of the orders was to collect foreign intelligence. Concerns that the more easily obtainable FISA orders with lower criminal standards¹⁰⁶ would provide a back door for acquiring evidence in criminal prosecution cases were so great that they triggered an unprecedented FISA Court ruling in May 2002, which rejected those very Patriot Act provisions designed to facilitate information sharing. The verdict thus reflected a long history of rulings designed to prevent the use of FISA wiretaps for criminal cases.¹⁰⁷ However, the Foreign Intelligence Surveillance Court of Review subsequently reversed this decision, stressing that the primary purpose of the wiretaps was irrelevant as long as the investigation involved terrorism or espionage. In November 2002—more than one year after the Patriot Act was passed—the FISA Court began issuing surveillance orders according to the new regulations.

Creating the Department of Homeland Security

Like the Bush administration, Congress had looked into the need for government reorganization several months before the attacks of 9/11. The various commission reports and recommendations served as the driving engine and foundation for these early efforts, which were spearheaded by legislation introduced by Rep. William M. “Mac” Thornberry (R-Tex.) in March 2001, and followed by other proposals.¹⁰⁸ The events of September 11, 2001, reignited these efforts, with the resulting legislation reflecting the same models that had been discussed among the White House staff—either creating a homeland security coordinating mechanism inside the White House or establishing a central operational entity in the form of a new department or agency.

Congressional proposals that aimed at strengthening the “coordinating mechanism” took up the recommendations of the Gilmore Commission and developed ideas closely resembling the existing OHS/HSC arrangement.¹⁰⁹ A second school of thought supported large-scale reorganization. According to Senator Joseph I. Lieberman (D-Ct.), Ridge’s “office does not give him the power he needs to ensure that he will get the job of homeland security done … we need to create a robust cabinet-level agency led by a strong director that has the clout and resources to make the homeland security mission work.”¹¹⁰ One month after the 9/11 attacks, Senators Lieberman and Arlen Specter introduced a bill that called for the creation of a cabinet-level Department of National Homeland Security.¹¹¹ The department would be headed by a secretary who would be accountable to both the president and the Congress (and therefore require Senate confirmation) and would also be a member of the National Security Council. Modeled on the recommendations of the Hart-Rudman Commission, the bill would have brought the Coast Guard, Customs Service, and Border Patrol “under a single administrative umbrella” with the Federal Emergency Management Agency (FEMA).¹¹² Reflecting the lawmakers’ view that the executive action did not go far enough, the proposals were bipartisan and launched after President Bush made the announcement to create an Office of Homeland Security.¹¹³

In contrast to the White House OHS model, a common feature to all congressional proposals was that any new office or department would require both statutory authority and Senate confirmation of the office or department head. Lawmakers viewed this authority as the basis for implementing real changes among and inside the mostly autonomous agencies and departments dealing with homeland security. While the president’s ear could provide for the most influence in the short run, various lawmakers were convinced that a homeland security advisor and office without institutionalized leverage would sooner or later sink into insignificance.¹¹⁴ As Senator Arlen Specter put it, “When he [former governor Tom Ridge] says that he can walk down the hall and get matters resolved with the President … it’s pretty hard to walk down the hall every time there is a controversy…. And it may be that the next Director of Homeland Security will not have a very close relationship, which Governor Ridge enjoys with the President.”¹¹⁵ In a much quoted statement, former Senator Gary Hart argued that “The czar model will not suffice. Without budgetary or statutory authority, Ridge is doomed to not succeed. If he only has the power to exhortation, the disparate agencies will do what he asks them only when that is approved by their own superiors…. He will have to keep going to the Oval Office to make things happen. Anyone who knows Washington knows this won’t work.”¹¹⁶

In the meantime, critics began questioning Ridge’s ability to facilitate interagency coordination.¹¹⁷ Since early March 2002, Ridge had become caught up in a struggle between the legislative and the executive branches over his unwillingness to testify before the Senate Appropriations Committee.¹¹⁸ Stressing that Ridge did not have any authority over departments and agencies, the White House did not think it necessary for him to appear before Congress.¹¹⁹ The White House asserted executive privilege, noting that the President and his advisors are entitled to confidential communications that they cannot be compelled to disclose. According to the White House, violating this convention would not only go against the overarching principle of separation of powers but would also set a legal precedent that could be used to demand testimonies in the future. From the White House perspective, the argument about Ridge’s testimony was therefore seen as part of a larger effort to “reverse what it sees as decades of congressional encroachment on executive power.”¹²⁰ But the debate was also symbolic of another matter of contention. The executive branch was interested in solutions that did not require legislative approval, therefore allowing greater executive flexibility and homeland security policies that could be owned by and changed at the discretion of the president.

Congress, of course, was not merely concerned with improving Ridge’s ability to influence agency and department activities. Its insistence on obtaining authority grounded in statute as well as confirmable positions that would compel appearances on the Hill spoke to a larger goal of protecting legislative authority in homeland security issues. Statutory authority, after all, meant budget authority, and this would draw Congress directly into the decisions of the new homeland security advisor. Congress viewed such a role as the natural extension of its constitutional duty to exercise oversight of the OHS/HSC and the appropriation of public funds.¹²¹ An OHS created by executive order undermined this capacity, a concern symbolized by the fact that the office had been funded with money from the emergency response fund established after 9/11 that could be used at the president’s discretion.¹²² Senator Richard Russell’s reservations about the operational nature of the White House Executive Office without congressional oversight (leading to the Russell Amendment of 1944) were thus echoed sixty-five years later when lawmakers pressed for statutory authorization of the new Office of Homeland Security they considered an action agency. Lawmakers’ objections reflected a bias toward legislative branch prerogatives rather than party loyalty and were fully bipartisan in character. Representative Ernest J. Istook (R-Okla.) noted, “I find the concern among members is building. The point is not whether a presidential advisor testifies, it’s whether somebody can be given express major responsibilities under an executive order and then be exempted from accountability. I see it as respecting the Constitution.”¹²³

With Ridge having declined several informal requests to testify, the controversy about his position further escalated when he turned down a formal invitation by Senators Robert C. Byrd (D-W.Va.) and Ted Stevens (R-Alas.), the chairman and ranking Republican on the Appropriations Committee.¹²⁴ Other members demanded that Ridge testify about public spending on homeland protection and the $38 billion President Bush was requesting for domestic security programs.¹²⁵ Senator Fred Thompson (R-Tenn.) noted, “it appears that the job that Governor Ridge has is turning into more of an operational one and certainly more of a public one than some of the other entities, comparable entities, such as the NSC that’s being used sometimes to draw comparisons.”¹²⁶

By the end of March, both Senator Lieberman and Senate Majority Leader Tom Daschle (D-S.D.) threatened to subpoena Tom Ridge.¹²⁷ When Ridge also rejected an invitation by Istook’s subcommittee, the Republican representative from Oklahoma warned that his refusal could affect appropriations for the Executive Office of the President.¹²⁸ Even though Ridge agreed to meet in private sessions with Istook’s subcommittee and other congressional committees,¹²⁹ the move represented only a temporary compromise and did not resolve the issue.¹³⁰ Soon after, a signal emerged from the administration that its opposition to more fundamental reorganization plans might be faltering. When Senators Joe Lieberman and Arlen Specter discussed a revised version of their original October bill in a hearing on April 11, 2002, the Director of the Office of Management and Budget (OMB), Mitchell Daniels, stated that “the administration is very open to alternative arrangements and they’re being looked at actively, as they have been from the outset.”¹³¹ Daniels’s announcement—which seemed to imply possible White House interest in a new department—was surprising, especially because Senator Lieberman had not been working with White House staff.¹³²

From Congress’s point of view, the White House move could only be interpreted as a last-minute step to regain the initiative it was about to lose.¹³³ After all, Lieberman and Specter had introduced on May 2, 2002, their revised legislation designed to establish a new department, which envisioned the creation of a White House office in addition to a new department.¹³⁴ Representative Mac Thornberry introduced a copy of the bill in the House for himself and six cosponsors the same day.¹³⁵ In the Senate committee vote, with the White House still opposed, the vote was partisan—the Committee on Governmental Affairs approved the Lieberman bill on a 7–3 party-line vote.¹³⁶ Nonetheless, bipartisan momentum was building outside the committee, and many questioned how long the White House could hold off the stampede for fundamental reorganization. There seemed a good chance that the legislation introduced by Lieberman and company could move forward—even without the involvement of the White House.¹³⁷

Senior White House officials were convinced that any attempt at government reorganization would be a too complex and cumbersome undertaking.¹³⁸ Early experiences in the OHS/HSC process, though, changed many minds. In December 2001, members of the OHS had developed a plan to strengthen and streamline border security functions. According to the plan, the Immigration Naturalization Service (INS), Coast Guard, and Customs would be combined into one border protection agency.¹³⁹ After President Bush had given the green light for presenting the plan to the rest of the cabinet, Ridge convened a principals committee meeting.

It soon became clear, however, that the cabinet heads did not support the plan. Attorney General John Ashcroft, who would be losing the INS, and Transportation Secretary Norman Mineta, who would be losing the Coast Guard, were determined to fight it. With the exception of Treasury Secretary Paul O’Neill, other cabinet members joined in to criticize the plan.¹⁴⁰ Secretary of State Colin Powell warned it would be nearly impossible to garner support on Capitol Hill because it would not be endorsed by any of the standing committees (which were destined to lose jurisdictional power as a result of the consolidation).¹⁴¹

In a second attempt to streamline border authorities, Ridge proposed in March of 2002 to merge the Customs Service and INS in the Justice Department.¹⁴² In comparison to the first proposal, the plan represented a compromise and yielded to the interests of the Justice Department—Treasury Secretary Paul O’Neill, the only cabinet member who did not veto the first border security plan, had already indicated that he was not intent on keeping Customs. Attorney General Ashcroft, on the other hand, would now be gaining an agency. Both cabinet officials signed off on the plan, but it came apart in Congress, where lawmakers with jurisdiction over Customs expressed strong opposition.¹⁴³ The episode illustrated that the “sense of [executive branch] departmental entrenchment is mirrored on Capitol Hill, where separate authorization and oversight committees protect each ‘stovepipe’—national security, law enforcement, disaster relief, public health, and so on—as jealously as the executive agencies themselves.”¹⁴⁴

To President Bush and his senior White House staff, it had now become clear that a top-down approach would be needed to implement any reorganization plans.¹⁴⁵ At the beginning of April, Bush gave his Chief of Staff Andrew Card the green light to explore options for reorganizing homeland security “from scratch.”¹⁴⁶ A select number of senior assistants were chosen for the task of creating a new roadmap for homeland security. For six weeks in April and May, the “small group” met in the President’s Emergency Operations Center.¹⁴⁷ Beginning early in the process, the group presented tentative decisions to its immediate superiors. Even though the circle of insiders would expand to include senior White House staff, the deliberations were purposely kept quiet until the end of the process.¹⁴⁸ Knowing that a large-scale reorganization effort would upset many special interests in Washington, President Bush stressed the need for keeping the plan secret from anyone who had a stake in the existing composition of the executive branch—including most of his own cabinet officials.¹⁴⁹

President Bush had assured Andrew Card that all options should be considered, that nothing was “off the table.” Card was in favor of bold action and encouraged planning that did not yield to fears about looming turf battles.¹⁵⁰ The group looked at a number of models, beginning with the then-current OHS/HSC set up and including such options as a small-scale plan to merge INS and Customs into the Justice Department; a medium-scale plan to merge Customs, INS, and Coast Guard into a new border authority; and more radical options for a new department.¹⁵¹ The small group soon decided to pursue the large-scale consolidation model and creation of a new department because the members viewed it as the most efficient solution.¹⁵² Their uneven experience with the OHS/HSC model had convinced them of the need for radical changes that would fundamentally alter the bureaucratic dynamic in the homeland security field.

The grand design was also attractive because it offered a solution to the statute controversy. After one of his meetings on Capitol Hill in March, OMB Director Mitch Daniels had warned that the administration faced serious problems if it continued rejecting Ridge’s testimony before Congress.¹⁵³ After all, Ridge had played a central role in designing the budget plan and in allocating public funds.¹⁵⁴ A new department would solve the testimony problem because its secretary would have to be confirmed by the Senate and become accountable to Congress. At the same time, the group also planned on retaining the current OHS/HSC design with an advisor position that did not require Senate confirmation, in part because it recognized that the need for interagency coordination would continue even after the creation of a new department.

The most difficult questions concerned the composition of the department. If the small group could determine that certain functions, exercised by an existing agency, were a core part of homeland security, the group would move it to the new department. Hence, there was relatively little discussion about transferring FEMA (for disaster management), Secret Service (for protection of senior-level leadership), Customs, Coast Guard, and the newly created Transportation Security Administration (TSA, which played a central role in border security) into the new agency. In cases that were not as straightforward, the group decided to make a decision on the basis of “what was doable and digestible.”¹⁵⁵ If an agency or program had numerous responsibilities unrelated to homeland security, the group would take a second look to determine if the homeland security functions would justify the transfer and outweigh the potential burden of these tasks.¹⁵⁶ Another tough decision involved the department’s law enforcement functions.¹⁵⁷ The group decided against moving the FBI’s capacities to the new agency. Both Andrew Card and Condoleezza Rice were opposed to concentrating too much power in one agency and agreed on the need to maintain a division of power.¹⁵⁸

When President Bush announced the final plan on June 6, 2002, he proposed to merge a total of twenty-two agencies into the new Department of Homeland Security.¹⁵⁹ Those agencies included FEMA, Coast Guard, TSA, Customs, INS (with Border Control), and Secret Service. In addition, the new department would absorb a number of offices cleaved from other agencies, such as the National Infrastructure Protection Center at the FBI. Reflecting the secrecy of the process, many cabinet officials first heard of the plan when it was announced. All in all, the proposed changes would go beyond the most far-reaching recommendations of the Hart-Rudman Commission and the Lieberman/Specter plan. With a total of 170,000 employees, the new entity would be the third largest cabinet department.

The initial response on the Hill was generally positive, and both Democratic leaders, Richard Gephardt (D-Mo.) and Tom Daschle, were optimistic that the proposal would pass both houses before the September 11 anniversary.¹⁶⁰ Noting that the Bush proposal was “at least two-thirds similar” to the Lieberman proposal, Daschle also reminded the American public that “Democrats were for a homeland defense cabinet-level agency before it was cool.”¹⁶¹ From Congress’s point of view, the White House had succumbed to growing congressional pressure and decided to give up opposition to homeland security legislation so they could play a more active role in the process.¹⁶² Key officials at the White House remained convinced that the Lieberman legislation was not going anywhere,¹⁶³ and later said they were inspired by the initial experiences of the HSC/OHS process, not a fear of being left behind by Congress.¹⁶⁴

The Bush strategy of “thinking big” seemed to work. When the Republican House committee chairmen staked off their claims in their first meeting with President Bush, their demands appeared to be reconcilable with the proposal.¹⁶⁵ Rep. Don Young (R-Alas.), chairman of the House Transportation Committee, noted he would not be opposed to losing the Coast Guard to the new department if the legislation contained a provision that would protect its traditional non-homeland security functions (including ice breaking and environmental controls in his home state of Alaska). Rep. Harold Rogers (R-Ky.), chairman of the House Appropriations Transportation Subcommittee, which held jurisdiction over the TSA, was willing to support the proposal if his committee would be able to expand its jurisdiction over the whole new department. While President Bush recognized that many “turf battles” lay ahead,¹⁶⁶ cabinet members demonstrated a united front during subsequent congressional testimonies—in part due to stern marching orders they had received from the White House.¹⁶⁷

But consensus was short-lived. Critics of the proposal immediately expressed concerns about the non-homeland security functions of the agencies selected for transferal.¹⁶⁸ As these programs might find it difficult to identify with their new mission, the skeptics argued, they might also be considered of only marginal importance and not receive sufficient resources. Daalder had warned in 2001 that centralization was not the solution to the problem: “You cannot put the entire U.S. government under one roof. Too many agencies are involved in homeland security.”¹⁶⁹

As it turned out, however, by far the most contentious sections of the proposal stemmed from a surprising, and arguably not even central, component of the legislation, provisions on management rules in the new department that, in the eyes of Congress, would result in the expansion of executive authority.¹⁷⁰ Under the proposal, the president would not need Senate approval to specify the appointments and responsibilities of up to ten assistant secretaries for the department. Furthermore, the proposal allowed the head of the new department to transfer up to 5 percent of appropriations in any fiscal year among department accounts without congressional approval and unilaterally initiate certain reorganization measures he or she deemed necessary. But the section of the proposal that proved most controversial of all called for “significant flexibility in hiring processes, compensation systems and practices, and performance management to recruit, retain, and develop a motivated, high performance and accountable workforce.”¹⁷¹

In the view of federal civil service lobbyists and many Democrats, these provisions would amount to a veritable repeal of Title V protections of federal employees, which had historically shielded them from political retribution and unfair labor practices. The White House and its Republican allies saw it differently: Exceptions to such regulations had always existed in the national security field, and homeland security was an analogous activity.¹⁷² Richard Falkenrath explained the rationale behind the provision as follows: “We didn’t just want to move the boxes around … We wanted to make sure that the new Secretary … would have the ability to make it work better than it’s working right now. We didn’t just want a confederation of existing offices with a new super secretary sitting on top of it with no real power to make any difference.”¹⁷³ In any event, White House officials signaled to the Hill an unwillingness to compromise and a refusal to decouple the issue from the homeland security legislation.¹⁷⁴

According to an alternative view of the administration’s intentions, this one prominent among senior Democratic political leaders, the White House had not wanted a new department in the first place. Confronted with political momentum for reform—and the risk that the Democrats, notably Senator Lieberman, would garner major credit for the change—the administration had to throw a proposal into the ring. But it attached explosive management provisions that it knew would alienate major Democratic stakeholders (civil service unions) as a “poison pill” that would send the bill down to defeat, allowing the administration to get everything it wanted: no new department, and the ability to blame Democrats for the outcome.¹⁷⁵

The administration soon secured a procedural victory, dealing with the mechanism by which the final version of the legislation would be handled in the House. While the initial Bush proposal would be reviewed by the standing committees, House Speaker J. Dennis Hastert and Minority Leader Richard Gephardt decided that the bill’s final version would be written by a newly assembled Select Committee on Homeland Security, in which the Republicans would have a one-seat majority.¹⁷⁶ They assigned the chairmanship to House Majority Leader Richard Armey (R-Tex.), who was not seeking reelection and would, therefore, not have to suffer the scorn of his fellow chairmen who would be losing jurisdiction under the new arrangement.¹⁷⁷ Since the select committee would have full jurisdiction and, therefore, final say over the legislation that would be sent to the House floor, the administration did not become overly concerned with the emerging voting patterns in the standing committees (determined to defend their turf).¹⁷⁸ All these changes would be reshaped by the new select committee, which restored much of the administration’s original language.¹⁷⁹

The White House launched a concerted lobbying campaign to garner support for the Bush proposal.¹⁸⁰ While focusing on close Republican allies and members of the House Homeland Security Committee, lobbying efforts were designed to ensure that the final version of the bill included acceptable provisions on issues most important to the president. At the same time, it represented a long-term strategy for garnering broad-based support for the final House-Senate conference.¹⁸¹ After several weeks, thanks in part to the role of the new select committee and its tightly run process under the leadership of Richard Armey, it became clear that the Bush plan would not be significantly modified in the House.¹⁸² Specifically, the House version continued to include the administration’s request for flexible management and specified that the secretary would be granted authority for determining human resources management arrangements in the areas of pay, discipline, firing, performance appraisals, labor relations, and appeals.¹⁸³ The bill was introduced to the floor of the House on July 25, and a day later a slightly modified version passed on a 295–132 vote.¹⁸⁴

Things did not proceed as smoothly in the Senate, where the Democrats had the majority. This was in part due to the fact that an amended version of the Lieberman-Specter bill, rather than an administration draft, would serve as the foundation for developing a mandate in that chamber.¹⁸⁵ In terms of the department set up, the bill continued to hold on to six department directorates (instead of the four envisioned by the Bush proposal). Moreover, it represented an ambitious attempt to merge FBI and CIA analysis and collection capacity in the new department. Therefore, the Lieberman-Specter bill was in stark contrast to the Bush proposal, which left all of the CIA and most of the FBI intact.¹⁸⁶

Senator Lieberman eventually agreed to postpone the issue until the new department was established.¹⁸⁷ Still, under a revised version of the Lieberman proposal, the new department would have the right to demand “unevaluated data” from the CIA and the FBI.¹⁸⁸ In addition, it called for an “independent intelligence directorate,” led by an undersecretary, which would fuse information from a wide variety of agencies.¹⁸⁹

From the perspective of the executive branch, the detailed language of the Lieberman proposal was unacceptable. For one thing, it would not allow the administration to carve out solutions that were seen as crucial “carrots” for garnering Republican support for the proposal.¹⁹⁰ White House plans focused not on creating something new but instead on the idea of restructuring existing agencies. In addition, officials questioned whether a newly established department would be the right place for handling intelligence information integral to the protection of the country; in other words, White House planners did not want to throw all their eggs into one new intelligence analysis basket. The question about the department’s future intelligence capacities also touched on a larger constitutional issue considered an executive branch prerogative. Because the executive branch has primary authority over foreign policy and intelligence matters, it was seeking to maintain control over any changes that would be made in these areas. The language of the Bush proposal (and the subsequent homeland security legislation that adopted most provisions of the Bush plan) thus left room for broad interpretation and subsequent adjustments.

Most important, the Senate bill gave the executive branch none of the management flexibility it was seeking.¹⁹¹ In response to the Senate version of the bill, therefore, the White House issued its first veto threat.¹⁹² When Congress reconvened after summer recess at the beginning of September 2002, Senator Lieberman made another attempt to hold on to his version of the Senate bill.¹⁹³ As the Senate debate intensified, Lieberman’s proposal underwent additional amendments but remained irreconcilable with the House version. The White House tried to work through its strong Senate ally, Phil Gramm (R-Tex.), who introduced an amendment seeking to replace the civil service provisions and department layout of the Lieberman substitute, followed by other compromise amendments.¹⁹⁴ Perhaps unsurprisingly, no one bill could generate sufficient support to pass, and the stalemate continued through the November midterm elections. In the meantime, the White House made the failure to pass a homeland security bill a central theme of the Republican campaign for the midterm elections.¹⁹⁵

When Congress reconvened on November 12 for a lame duck session, it was clear that the Republicans would have the majority when the new Senate took office in January. This fact gave the White House immense leverage, and it set about using it. Key legislators from both chambers worked with the White House to craft a minor compromise on the management issues.¹⁹⁶ A slightly modified bill was rushed through the House.¹⁹⁷ House members then left Washington for the weekend, leaving the legislation to the Senate—“saying effectively,” Tom Daschle would later write, “take it or leave it.”¹⁹⁸

Nonetheless, the issue was effectively decided by the election. The White House had won, and a Senate version of the House bill became a sort of fait accompli.¹⁹⁹ On November 25, 2002, President Bush signed the bill into law, creating the Department of Homeland Security (DHS).

Executive Initiatives: The New TTIC and TSC

According to the Homeland Security Act of 2002, the newly created DHS would have its own intelligence analysis capacity as part of the Information Analysis and Infrastructure Protection (IAIP) Directorate. Since it did not absorb any existing intelligence or law enforcement agencies and would not have any collection abilities, IAIP would thus become a “customer” of raw intelligence, finished reports from all federal agencies, as well as incidental intelligence collection through its Coast Guard, Customs, and Border Patrol component agencies. As a member of the intelligence community, DHS would, theoretically, still have a say in how intelligence collection and analysis priorities should be set.

It is important to note, however, that the legislation did not specify how the new regime would be implemented. Nor did it provide any instructions on how information would be moved and how it would be used once it was received by DHS. According to the bill, IAIP would be responsible for assessing vulnerabilities of “key resources and critical infrastructures” and developing a national plan for protecting them, issuing warnings on terrorist attacks, and disseminating information to state and local governments, other federal entities, and the private sector.²⁰⁰ Furthermore, IAIP would “access, receive, and analyze law enforcement information, intelligence information, and other information from agencies of the Federal Government …, and private sector entities, and … integrate such information in order to identify and assess the nature and scope of terrorist threats to the homeland.”²⁰¹

In fact, the legislation was so broad that it essentially set the stage for subsequent executive initiatives to establish new ground rules for information sharing and a new center in which all terrorism-related threat information would be integrated (which would, as it turned out, emerge outside DHS). As a symbol of the growing effort to coordinate intelligence, the director of central intelligence, attorney general, and secretary of homeland security signed a Memorandum of Understanding on Information Sharing in March 2003. The new framework required intelligence, federal law enforcement, and homeland security agencies to share terrorist-related information “on an unprecedented scale.”²⁰² Most important, the memorandum specified the institutional arrangement needed to facilitate the routinization of information-sharing processes; the new information-sharing mechanism would be implemented in the Terrorist Threat Integration Center (TTIC) President Bush announced in his 2003 State of the Union address.

Just one month after Congress had passed the 2002 Homeland Security Act, creating DHS and its IAIP, President Bush “instructed the leaders of the FBI, the CIA, the Department of Homeland Security, and the Department of Defense, to develop a Terrorist Threat Integration Center”—known as TTIC—“to merge and analyze all threat information in a single location”²⁰³—which many had assumed was precisely the IAIP’s job. It soon became clear that TTIC would not become part of DHS and that the new center would perform many of the same functions that had been assigned to DHS’s information analysis division.

TTIC was first discussed during a meeting in Andrew Card’s office in December 2002. Bush’s chief of staff had convened senior-level officials representing the FBI, CIA, DHS, and Departments of State and Defense to brief them about the plan to create an all-source intelligence fusion center. President Bush wanted to use his State of the Union address as a venue for announcing that the FBI, CIA, and DHS would join forces to close the seams between foreign- and domestic-source terrorist threat-analysis and “connect the dots.”²⁰⁴ The Director of Central Intelligence, George Tenet, was put in charge of the process. The actual planning was done by a senior steering group, which consisted of one senior representative of the Departments of Justice/FBI, Defense, State, and Homeland Security, in addition to the CIA and OMB. The group was further supported by a working group of experts from the respective agencies and departments familiar with concrete practical issues and real-world problems.

Illustrating his strong interest in TTIC, Bush personally engaged in the planning process on two separate occasions.²⁰⁵ From the White House point of view, TTIC was the best compromise the CIA and FBI could expect amid growing public and legislative pressure for reform. While advocates of the plan argued that the TTIC initiative was a strong signal of the president’s support of the CIA and FBI, the established agencies did not quite see it that way.²⁰⁶ The CIA was opposed to the idea because it would take away from its responsibilities as lead agency for threat analysis and assessment; the FBI too would have preferred to be in charge of the process. From an FBI standpoint, the new arrangement, created and later managed under CIA leadership, was a clear setback for the bureau.²⁰⁷ The FBI—which until then had held sole responsibility for domestic intelligence and counterterrorism—would have to start sharing this responsibility with a range of other agencies.

At the same time, the agencies most affected by the creation of TTIC recognized they had a common interest in cutting their losses.²⁰⁸ Reflecting the experimental nature of the plan, they were tasked with building something new that would create synergies between their diverse cultures while leaving all the existing structures intact; TTIC had to be designed so it would not affect their respective future analysis or collection capacities. TTIC would be made up of representatives detailed from their respective agencies who would bring their own funding with them. The center would not have any collection authority and not be able to hire any people. Established under CIA leadership and housed at CIA headquarters, TTIC would rely on the agency to furnish it with organizational capabilities, from computer systems to analysis.²⁰⁹ As it was designed, then, the new venture depended on the goodwill and collaboration of the very agencies whose failure to work together provided the reason for TTIC in the first place.

The loose nature of the TTIC organization was also crucial because it meant legislation could be avoided. After the struggle over the DHS legislation, the president had made it clear that he did not want to go back to Congress.²¹⁰ Instead, the White House wanted to use the lowest level of authority for implementing the changes because it would allow the most executive flexibility. The State of the Union address represented an opportune venue for announcing the creation of TTIC while also establishing a surrogate mandate. All in all, TTIC offered an opportunity for a solution to a problem that the administration could truly own.

On May 1, 2003, TTIC started operating under former CIA Deputy Executive Director John Brennan. Two months later, the joint venture had built a cadre of 100 analysts and liaison officials, one-third of its final capacity. Very quickly it became clear that TTIC would either carry out many of the functions intended for DHS or overlap with DHS’s IAIP in the area of threat-related analysis. TTIC was designed as the new focal point for terrorist threat analysis. As an interagency joint venture, it was supposed to ensure “rapid and unfettered sharing of relevant information across departmental lines … collaps[ing] bureaucratic barriers and clos[ing] inter-jurisdictional seams.”²¹¹ TTIC would also be responsible for compiling daily all-source terrorist threat assessments for the president and other members of the senior leadership—for the first time, the president would be able to rely on a single stream of intelligence on terrorism.

Lawmakers viewed the decision to create TTIC outside DHS as a violation of the new department’s statutory mandate. From a legislative point of view, DHS was created in part as an “intelligence fusion center” with the core responsibility of consolidating, analyzing and acting on all terrorist-related threat information.²¹² Placing the information fusion center outside the department seemed to violate a core purpose for creating it in the first place.²¹³ Members of Congress also worried that the center had created an accountability vacuum. While TTIC as a whole reported to the CIA director, its various components continued to report to their respective agencies and departments. Asked about who would take responsibility “when some bit of intelligence is not properly viewed or vetted for what it is and something bad happens as a result,” TTIC Director John Brennan could only suggest that it would be “very case-specific.”²¹⁴ Some lawmakers also feared that the work of the new center could violate the law that prohibits the CIA from law enforcement or internal security functions, since TTIC would also be responsible for the analysis of domestically collected information—a concern magnified by TTIC’s organizational affiliation with and physical proximity to the CIA.²¹⁵

In a letter to the CIA, FBI, DHS, and TTIC heads, Senators Susan Collins (R-Me.) and Carl Levin (D-Mich.) raised questions pertaining to TTIC’s responsibilities and those of other federal intelligence collection divisions, especially the IAIP Directorate of the DHS.²¹⁶ In response, representatives of DHS and TTIC stressed that DHS is solely responsible for information related to domestic counterterrorism, while TTIC’s “terrorism analytic mission is global in nature.”²¹⁷ This distinction was highlighted in a joint response letter by the FBI, CIA, DHS, and TTIC heads. If information has no link to international terrorism, the responsibility is divided between FBI and DHS. And while the FBI has primary responsibility with regard to analysis of such information, IAIP is charged with “matching the assessment of the risk posed by identified threats and terrorist capabilities to our Nation’s vulnerabilities.” In addition, DHS “also has significant responsibilities with regard to … its critical infrastructure protection, customs, immigration, and other statutory responsibilities.”

In September 2003, President Bush further announced the creation of a FBI-run Terrorist Screening Center (TSC) by means of presidential directive. TSC would be responsible for compiling a master database with information on all “known and suspected” terrorists.²¹⁸ Bearing close resemblance to the TTIC concept, the joint venture included the DOJ, DCI, DOS, and DHS and was designed to resolve the “watch list” dilemma. In a highly publicized report, the General Accounting Office determined in April 2003 that, almost two years after 9/11, the U.S. government still relied on twelve different terrorist “watch lists” run by nine different federal agencies, which were not designed for interagency exchange and held different information.²¹⁹ The new TSC would consolidate data from these twelve separate “watch lists” and for the first time make the data available across agency lines, allowing more efficient and comprehensive background checks. According to Attorney General Ashcroft, “the Terrorist Screening Center will provide ‘one-stop shopping’ so that every federal anti-terrorist screener is working off the same page—whether it’s an airport screener, an embassy official issuing visas overseas, or an FBI agent on the street.”²²⁰ Due to its long-time expertise in running nationwide criminal databases, the FBI was the natural candidate to lead this venture.²²¹ According to some observers, the arrangement also served another purpose: after delegating TTIC authority to the CIA, the other bureaucratic monster needed to be fed as well.²²² In any event, by June 2005, the Terrorist Screening Center had assembled a single, consolidated watch list that could be accessed with the help of TSC’s 24-hour call center.

Some DHS officials pointed out that IAIP was never intended to be similar to or in competition with TTIC or TSC. Instead, it was designed to fulfill a unique mission of building new vertical information sharing structures between the local, state, and federal levels of government and facilitate information flows in both directions.²²³ However, critics soon questioned the uniqueness of this mission. Starting in 2004, for example, state and local governments began pooling their counterterror intelligence and policing capacities at so-called fusion centers. By summer 2007, more than fifty-eight state and local centers, as well as six regional centers, had been or were being created nationwide.²²⁴ While a key reason for building the centers in the first place was to make up for insufficient federal information-sharing mechanisms, it remained doubtful in how far the state-run centers could improve two-way vertical information flows between federal, state, and local governments. In the meantime, the FBI proceeded to boost its own state presence by effectively tripling the number of FBI-run Joint Terrorism Task Forces (JTTFs) in the fifty states. Similar to the fusion centers, the 101 JTTFs included counterterrorism representatives from state, local, and federal agencies and were engaged in not only horizontal interagency (across one level of government) but also vertical (across local, state, and federal governments) information sharing.

Quest for More Reorganization: The 2004 Intelligence Reform Act

Championed by Senators Joe Lieberman and John McCain (R-Ariz.), Congress pressed the Bush administration to convene an independent, bipartisan commission to investigate the intelligence failures leading up to the 9/11 attacks.²²⁵ The 9/11 Commission presented its highly anticipated report in July 2004. Amid an emotionally and politically charged atmosphere—with victims’ families demanding action and the presidential elections only three months away—President Bush acted fast to implement its two most “attention-grabbing”²²⁶ recommendations. As directed by executive order, TTIC became the foundation of the new National Counterterrorism Center (NCTC) in August 2004, which would perform the same functions as TTIC.²²⁷ A second order directed the director of central intelligence “to perform the functions of the National Intelligence Director … until Congress establishes [a] law.”²²⁸ It essentially left the traditional budgetary hierarchy intact, so that the Pentagon remained in control of over 80 percent of national intelligence spending (which, for the most part, was being distributed to technical intelligence like the National Security Agency, the National Reconnaissance Office, and the National-Geospatial Agency).

Even before summer recess, Majority Leader Bill Frist (R-Tenn.) decided that the Government Affairs Committee would have sole responsibility for the bill in the Senate. By early October, Chairwoman Susan Collins and ranking member Joe Lieberman had introduced legislation that—if adopted—would have stripped the Pentagon of a significant portion of this budgetary power, as well as granted the director of national intelligence (DNI) immense reprogramming authority. In the House, the decisionmaking process was much more fragmented, as the bill would be assembled by five different committees—all eager to defend their established turf. The approach was thus in stark contrast to the strategy the House leadership adopted two years earlier, when Speaker Hastert sought to secure support for the Homeland Security bill by establishing a new committee especially designed for that purpose.²²⁹

President Bush soon reversed his initially muted reaction and announced support for a DNI with “full budgetary authority,”²³⁰ effectively endorsing the Senate position. His announcement was followed up with a White House legislative proposal that put the DNI in charge of up to 75 percent of the intelligence budget.²³¹ However, even though Bush proceeded to call on Congress to pass the bill, “Republicans who opposed the legislation … sensed that the president’s support was lukewarm, a campaign necessity, not a personal endorsement.”²³² Others thought it likely that Bush secretly preferred the House version of the bill. Not only did it leave in place the institutions and authorities previously authorized per executive order but it also broadened executive authorities at the expense of Congress, such as granting the president fast-track intelligence overhaul authorities.²³³ Yet others thought it important that the Pentagon—represented by the president’s most powerful cabinet member, Secretary Donald Rumsfeld—was opposed to the Senate plan for a strong DNI.²³⁴

While Rumsfeld did not openly defy the administration’s position in support of the Senate bill, Pentagon officials launched what some described as a massive behind-the-scenes campaign in Congress, in which House Representatives Duncan Hunter (R-Ca.) and James Sensenbrenner emerged as staunch opponents of the Senate bill. As DOD’s most reliable ally, Hunter argued that the proposed reforms would cut the lifeline between satellite intelligence and the troops in the field. Sensenbrenner, by contrast, sought to include additional law enforcement powers that would facilitate the surveillance, detention, and deportation of noncitizens; because these went far beyond the 9/11 Commission recommendations, these provisions were considered poison pills by many.²³⁵ In fact, several had been part of a 2003 Bush administration proposal that was soon dropped because the public response to it was so negative. Ironically, Sensenbrenner had played an instrumental role in blocking Justice Department efforts back then; he also blocked efforts to make all U.S.A. Patriot Act sunset provisions permanent.²³⁶ Dubbed Patriot II, the draft version of the “Domestic Security Enhancement Act” targeted foreign nationals, illegal immigrants, and U.S. citizens alike, and granted the Attorney General unilateral powers to authorize secret arrests in combination with unlimited detentions, summary deportations, and new surveillance measures.²³⁷

The Sensenbrenner-Hunter alliance prevailed: the final House intelligence reform bill included Sensenbrenner’s controversial measures and also left the DOD in charge of the intelligence budget. As a result, members of the Conference Committee were unable to resolve their differences before the November elections. As the negotiations continued, calls on the newly reelected president to step up his personal engagement intensified, with lawmakers demanding that “Mr. Bush had better put aside polite telephone entreaties and try grabbing recalcitrant Republicans by the lapels.”²³⁸ Nevertheless, the White House appeared unsuccessful: Speaker Dennis Hastert refused to call a House vote on the conference bill on November 19, even though the bill could have been passed with the votes of the Democrats who pledged their support for it.²³⁹ Arguing that it was not carried by the “majority of the majority,” Hastert yielded to heavyweights like Hunter and Sensenbrenner who were still opposed to the bill. Some have used the House’s defiance of the administration’s position to illuminate the importance of presidential leadership and legislative involvement, even in times of unified government. Under an alternative scenario, the White House’s lacking resolve at the negotiation table might be more indicative of ulterior motives and opposition to the bill that were indirectly served by Hunter’s and Hastert’s stalling tactic.²⁴⁰ Adding to suspicions about the administration’s underlying intentions was an open letter to Congress, in which the Chairman of the Joint Chiefs of Staff, General Richard Myers, voiced his support for Hunter’s version of the bill.²⁴¹ Accordingly, yet others argue that decision-making processes best illustrate bureaucratic pressures at work—the president yielded to a DOD that was simply too powerful and unwilling to cede any budget authority.

While the White House did swing into action after the Hastert episode, with Dick Cheney stepping up pressure on Chairman Hunter,²⁴² those House lawmakers with a vested interest in maintaining the status quo remained in the better bargaining position. As the lame-duck session was seen by many as the last chance to take advantage of the momentum created by the 9/11 report, critics like Senator Robert Byrd worried about the “type of Faustian bargains [that] will be struck to jam this bill through the Congress.”²⁴³ Confirming Byrd’s concerns, Collins and Lieberman eventually conceded to Hunter’s demands, inserting language that the DNI may not “abrogate the statutory responsibilities” of the Department of Defense and other agencies and thereby overrule their budgetary decisions.²⁴⁴ After the House and Senate passed the bill, President Bush signed the Intelligence Reform and Terrorism Prevention Act into law on December 17, 2004.²⁴⁵

The act created the new position of the director of national intelligence in addition to the director of the CIA, who now reported to the DNI. The DNI took the place of the former director of central intelligence, but with broader budgetary and management authority to exert direct influence over individual agency/department programs, personnel, and acquisitions, as well as establish intelligence collection and analysis priorities. While the legislation was intended to boost the authority of the DNI (and provide the position with the robust foundation needed to manage the intelligence community the former DCI was thought to be lacking), the same bill effectively curbed these powers.

Suspicious of the potential of yet another “czar” position that “reigns over the intelligence community but does not rule it,”²⁴⁶ critics questioned the DNI ability to implement reforms while simultaneously having to fight and keep turf-conscious bureaucracies, including executive-branch heavyweights like the Pentagon and the CIA, at bay.²⁴⁷ In addition, the DNI would continue to face its various congressional allies, as Congress failed to meet its end of the bargain and did not implement 9/11 Commission recommendations aimed at streamlining its own structures.²⁴⁸ Because the DNI lacked the clout that comes with “owning” a department or an agency, the extent of the DNI’s influence would depend on his relationship with the president, as well as his personal resolve and political skill.²⁴⁹ The first Director of National Intelligence, John Negroponte, who was sworn into office in April 2005, thus used the opportunity to increase DNI manpower as provided by the act and established the National Counterproliferation Center within the Office of the DNI. This accumulation of new institutional resources and analysis capacities appeared necessary for more than one reason: apart from the role as chief intelligence coordinator, the DNI also took over CIA responsibilities as principal intelligence advisor to the White House and the federal government. In this capacity, the DNI needed to have access to intelligence across the federal government, while also ensuring that all federal departments, agencies, and intelligence committees have access to the intelligence needed to accomplish their work.²⁵⁰

And yet, 9/11 Commission architects and lawmakers installed intentional checks on his authorities that would weaken the DNI’s standing even within his own office. With regard to covert operations, the CIA still reported directly to the president rather than the DNI. The president also retained the authority to issue operational orders to the CIA. While the DNI was in charge of the NCTC as the central hub for analyzing terrorism-related intelligence across the community, the NCTC director reported to the National Security Council on all issues related to strategic operational planning. The bifurcated lines of authority are designed to prevent the NCTC from policy-making and consolidating too “much power within one center of the government.”²⁵¹

Apart from the organizational changes suggested by the 9/11 Commission, the Intelligence Reform Act also went beyond those recommendations. It included a number of law enforcement measures that had been on legislative plates as part of Patriot II and other stand-alone bills over the previous years.²⁵² Inter alia, the FBI would finally be authorized to target “lone wolf” terrorists not connected to foreign intelligence or terrorist organizations by way of surveillance and search warrants.²⁵³

The act further established a new directorate of intelligence at the FBI. However, the Bureau’s largest post-9/11 shake-up did not occur until several months later. In a June 2005 memorandum, President Bush ordered the consolidation of the three FBI directorates responsible for domestic intelligence (foreign intelligence, counterintelligence, and counterterrorism) into the National Security Branch.²⁵⁴ The presidential order was subsequently sanctioned by Congress as part of the 2006 Patriot Reauthorization Act, which thus created the statutory foundation for a separate intelligence unit within the FBI.

Reorganization Left Unfinished: Inside the Legislative Branch

Revealing striking parallels to the earlier turf considerations in the executive branch, Congress has been reluctant to tackle its own organizational structure. When the Homeland Security Act was passed in November 2002, it merely stated that it is “the sense of Congress that each House of Congress should review its committee structure in light of the reorganization of responsibilities within the executive branch.”²⁵⁵ The task was left unfinished. The committee structures in both houses remained essentially unchanged, and the transferred components of the newly created department continued to be accountable to their many committees and subcommittees.²⁵⁶ As a result, in 2004 DHS officials still spent significant time preparing testimonies for hearings before eighty-eight committees and subcommittees,²⁵⁷ in addition to hundreds of informal briefings.²⁵⁸ The coordination dilemma was particularly apparent in the much bigger House.

Both houses did establish new appropriation subcommittees for homeland security—a step that was easy to implement because jurisdiction did not have to change hands. However, critics noted that careful scrutiny of budgetary issues could not serve as a substitute for congressional oversight.²⁵⁹ They further warned that the widely dispersed authority threatened the effective consolidation and performance of DHS.²⁶⁰ By being responsible to everyone, DHS was effectively accountable to no one. In the view of many, the consolidation of more than twenty executive agencies and programs could only be achieved with the help of two permanent Homeland Security Committees.²⁶¹ These committees would provide focal points for overseeing DHS performance, spending, management, and technology; they would also be responsible for setting budget priorities, confirming nominations, and introducing future legislation.²⁶² In addition, the creation of new standing committees would ensure that non-homeland security issues again received full attention in their “old” committees.

Not surprisingly, the chairmen of these “old” committees, notably heavyweights like Rep. Sensenbrenner of the Judiciary and Don Young of the Transportation Committee, were opposed to creating new committees. Rep. James L. Oberstar (D-Minn.), ranking member of the Transportation and Infrastructure Committee, had already warned that his “committee is going to fight like hell to make sure there’s no new Homeland Security Committee created.”²⁶³ Lawmakers feared losing control over “their” agencies—reflecting many of the same turf concerns that were voiced in the process of writing the DHS legislation.²⁶⁴ In addition, there were genuine concerns that the reorganization of jurisdiction would result in the loss of expertise and acquired knowledge.

The House Select Committee on Homeland Security, established as a vehicle for passing the Homeland Security Act, represented a temporary compromise—it had no authority over department heads and budgets and could only issue recommendations to the standing committees. Its work largely depended on the ability of its chairman, Rep. Chris Cox (R-Ca.), and other big-name members, to assert themselves and facilitate a more coordinated process between the various committees. According to Rep. Jim Turner (D-Tex.), the committee was not very effective because chairmen of other committees “jealously guard[ed]” their jurisdiction and held competing hearings.²⁶⁵ Pessimistic about the chance of substantial committee realignment, Rep. Christopher Shays (R-Ct.) noted, “The chairmen have their own little armies. You can almost think of them as Afghan warlords.”²⁶⁶

Stressing the need for “a single, principal point of oversight and review for homeland security”²⁶⁷ in both houses, the 9/11 Commission report reignited these reorganization efforts in the fall of 2004.²⁶⁸ This time, lawmakers took action. Almost two years after the passage of the Homeland Security Act, the Senate approved a resolution delegating oversight over various DHS components to the Governmental Affairs Committee. It is interesting to note, however, that a step designed to streamline the oversight process did not transfer jurisdiction of its main component agencies, including the TSA, the Coast Guard, the Secret Service, the Border Patrol, or Customs’ revenue functions. Senate heavyweights, therefore, managed to hold on to “their” agencies.²⁶⁹ Critics argued that the limited scope of the reform did not amount to much more than a name change (to Senate Committee on Homeland Security and Governmental Affairs).²⁷⁰ Yet others warned that adding new responsibilities to an existing committee would detract attention from the committees’ primary duties of overseeing governmental management reform issues.²⁷¹

Not to be outdone, the House also acted. On January 4, 2005, the House Conference agreed to make the Select Committee on Homeland Security a permanent committee. It would have “exclusive authorization and primary oversight jurisdiction with respect to the Department of Homeland Security’s responsibilities and activities related to the prevention of, preparation for, and response to acts of terrorism within the United States.”²⁷² However, there were again exceptions to this authority. Having opposed reorganization all along, House chairmen like James Sensenbrenner and Don Young made certain that the committee would not have jurisdiction over FEMA’s natural disaster responsibilities, the non-homeland security missions of the Coast Guard, or immigration issues unrelated to homeland security.²⁷³ After everything was said in done, in 2011, DHS officials still counted 100 committees and subcommittees with oversight authority over DHS.²⁷⁴

In the intelligence domain, the 9/11 Commission verdict was equally harsh, calling congressional oversight of intelligence and counterterrorism “dysfunctional.”²⁷⁵ The commission referred to the widely dispersed intelligence authorities that allowed the turf battles of the 16 competing agencies to spill over into numerous different committees responsible for oversight, authorization and appropriation and to play them off against one another.²⁷⁶ Amid these divided jurisdictions, coordinating interests and developing a coherent intelligence policy becomes a herculean task.²⁷⁷ The failure to reform cuts across political divides. Even though they pledged to implement the 9/11 recommendations once in power, Democrat lawmakers failed to fulfill their promise after the 2006 midterm elections.²⁷⁸

The Secret NSA-Program and 2006 Patriot Act Reauthorization

In December 2005, details of a secret wiretapping program President Bush had ordered per presidential directive soon after the 9/11 attacks became public. As part of the program, the NSA had monitored large volumes of phone and email transactions between U.S. nationals and foreign individuals abroad and without FISA Court approval.²⁷⁹ Facing significant public outcry, the Bush administration argued that the program did not violate the rules governing foreign intelligence-related surveillance within the United States but instead provided security services with the speed and flexibility needed to detect patterns of domestic terrorist activities.²⁸⁰ According to the White House, the president’s power to authorize the program derived from an assortment of different constitutional, statutory, and judicial authorities: the inherent authority vested in him under Article II of the Constitution, including the commander in chief clause, was reinforced by the September 18, 2001, Authorization for the Use of Military Force (better known as AUMF), which authorized the president to “use all necessary … force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 … in order to prevent any future acts of international terrorism against the United States.”²⁸¹ In addition, Justice Department officials pointed to Katz v. United States (1967), in which the Supreme Court recognized the long-exercised right of presidents to order warrantless surveillance for national security purposes, and the FISA Court’s 2002 opinion that cited “the president’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance.”²⁸² Subsequent reports confirmed that NSA data-mining programs had sifted through large volumes of phone records and email data, but also indicated that the data were voluntarily provided by companies and remained anonymous until patterns and links had been identified.²⁸³ To be sure, in contrast to the reactive FISA system based on concrete leads and probable terrorist connections of individual suspects, the network-centric search program was a much broader but also more preventive approach.

Yet, despite this array of justifications, during the program’s initial stages, the Justice Department seemed to have considered ways to establish a legal foundation for FISA-free surveillance.²⁸⁴ Parts of the 2003 Patriot II draft sought to strengthen unilateral executive powers for narrow circumstances that did not require FISA approval; it further included wartime authorities for “electronic surveillance, physical searches, or the use of pen registers” for all cases in which “Congress authorizes the use of military force, or after the United States has suffered an attack creating a national emergency.”²⁸⁵ Another section would have expanded the president’s authority to authorize surveillance of communications between foreign powers to include spoken content.

While the Patriot II bill was never introduced in Congress—Attorney General Alberto Gonzales conceded that the administration decided against introducing legislation because it “would be difficult, if not impossible”²⁸⁶ to pass—lawmakers did pass other legislation that went beyond the U.S.A. Patriot Act to broaden unilateral law enforcement powers. Part of the Intelligence Authorization Act of Fiscal Year 2004, for example, authorized the wider use of administrative subpoenas (aka National Security Letters) to facilitate FBI information collection from financial institutions.²⁸⁷

Discovery of the secret NSA program fueled the debate over Patriot Act sunset provisions that were set to expire at the end of December 2005. While the “Gang of Eight” (the House and Senate leaders from both parties, plus the chairmen and ranking members of the House and Senate Intelligence Committees) had been regularly briefed about the NSA program, most lawmakers were kept in the dark about its existence.²⁸⁸ After more than ten months of intense legislative debate and White House lobbying, during which the Patriot Act was extended twice per emergency resolution, Congress finally passed the U.S.A. Patriot Improvement and Reauthorization Act in March 2006, making 14 of its 16 sunset provisions permanent. These were kept in place for its two most controversial provisions, the FISA-granted “roving” wiretaps and “tangible records” orders, now set to expire in December 2009. Furthermore, the act made permanent the “material support” clause included in the Intelligence Reform Act and also extended the FISA Court’s authority to target “lone wolf” terrorists until December 2009.

The Patriot Reauthorization Act included several new checks: National Security Letters were now subject to judicial review, if challenged by their recipients, as well as annual audits by the DOJ Inspector General. In addition, Congress would strengthen its own oversight of “sneak and peek” searches through annual reporting requirements and time restrictions. The new restraints were mostly a result of the Senate’s insistence on adding additional safeguards. By contrast, House members had approved the main provisions of the 2001 act largely unchanged as early as July 2005 and even sought to broaden surveillance and law enforcement powers.²⁸⁹ Initially, compromise seemed likely in July, but a bipartisan group of senators resisted White House pressure to pass the bill quickly,²⁹⁰ defying various attempts to break the filibuster in December and forcing fellow lawmakers to extend the act, before its enhanced version was finally passed in March 2006.²⁹¹

The debates and factions that emerged over the Patriot Act renewal also carried over into negotiations about legislation designed to sanction the NSA program; the latter had been ruled illegal by a federal judge in August 2006.²⁹² After the Republican-run Congress failed to reach a compromise before the November midterm elections, the Bush administration abruptly changed its course—now facing a more hostile, Democrat majority in both houses—and in January 2007 announced its decision to disband the NSA program. All international communications, provided there was probable cause to believe that one of the parties was affiliated with a terrorist group, would again be overseen and sanctioned by the FISA Court. While the White House succeeded in evading more restrictive legislation, this arrangement likely allowed Bush administration officials to maintain significant control over the scope of the new warrants to be issued by the secret FISA Court. The details of the arrangement remained undisclosed.²⁹³

2007 and 2008 FISA Reforms

In April 2007, the White House changed direction once again. A White House draft submitted to Congress proposed broad revisions to FISA.²⁹⁴ Most important, the administration sought warrantless surveillance of foreign communications in the United States. Communications referred to foreign calls and emails merely routed through the country but would also include those directed toward U.S. citizens. Representing a major change to previous policy, the surveillance targets abroad no longer had to be associated with foreign terrorism suspects or groups. According to the 66-page proposal, it would be possible to delay FISA Court notification for a week. Even if denied, and contrary to previous practices, the FBI would be able to retain all the collected information. Another controversial provision would grant immunity to those telecommunication companies that had cooperated with the Bush administration and helped implement the secret NSA program.

The chances for success were bleak, as the White House faced a Democrat-led Congress. Over the past year or so, lawmakers had spent significant time debating FISA changes but had been unable to strike a consensus. Spearheaded by the Director of National Intelligence, Mike McConnell, the White House launched a massive lobbying campaign, featuring public appeals in the form of speeches, editorials, and public hearings before the Joint Intelligence Committee.²⁹⁵ In his May briefing, DNI McConnell warned that the technological changes since 1978, in particular the switch from satellite communication to fiber optic cables, had disastrous effects on a FISA system designed to protect domestic phone lines based on fixed cable wires. Because international calls in 2008 were almost exclusively relayed through fiber optic cables, FISA warrants were now required for all foreign communications, even those merely routed through the United States. The result, according to DNI McConnell, was a dangerously backlogged FISA system that threatened overseas data collection.

In what turned out to be a strategic blunder, Democrat lawmakers decided to hold out for a political trade. In exchange for the legislation, they wanted access to administration documents of the warrantless NSA program. The White House did not budge. Instead, fully aware that Congress was preparing for its annual August recess, it stepped up the pressure in late July. Citing the recent National Intelligence Estimate on the heightened Al-Qaeda threat, DNI McConnell brought forward another, much shorter legislative draft that left out controversial issues, like immunity from lawsuits for telecommunications companies. On August 1, 2008, Senate Minority Leader Mitch McConnell (R-Ky.) introduced a bill based on the shorter draft.²⁹⁶ Most controversial and unacceptable to many Democrats, under the proposal the attorney general and the DNI would have sole responsibility for authorizing warrantless wiretaps. These would apply to all foreign communications, even those involving persons in the United States. Opposed to these sweeping powers, a compromise plan put forth by the chairs of the House Intelligence and Judiciary Committees foresaw a central role for the FISA Court. The court would continue to issue warrants for foreign-to-domestic communications, albeit much broader ones under relaxed rules.²⁹⁷ In other words, Democrats were more willing to support warrantless spying on communications involving Americans if one party was a terrorist suspect.²⁹⁸ The compromise plan did not get much traction. Amid the bargaining, news about a secret FISA ruling earlier in the year confirmed the DNI’s assertions about convoluted bureaucratic processes in place for purely foreign communication that merely happened to be transiting through the United States.²⁹⁹ Soon after, the White House conceded to a sunset clause that would make the act temporary and thus more acceptable to moderate Democrats. Finally, President Bush also stepped up the pressure, threatening to hold Congress in session unless it supports “a bill I can sign.” That same day, the Senate passed the White House-endorsed bill, virtually unchanged.³⁰⁰ The Senate adjourned after the vote on August 4, essentially forcing House lawmakers to follow suit or else leave them vulnerable to charges that they had jeopardized the national security of the United States.³⁰¹ The following day the bill was agreed to in the House as well. On August 5, 2007, President Bush signed the 2007 Protect America Act.

At the center of the reform was the new definition of “electronic surveillance.” FISA would no longer apply to communications (aka electronic surveillance) of persons “reasonably believed” to be located outside the United States, even if they were in contact with U.S. citizens inside the country. In a major change, it would now be up to executive branch officials (the DNI and Attorney General), rather than the FISA Court, to authorize acquisition of such foreign intelligence information for up to one year. There would be no audits by the DOJ Inspector General. Instead, the Attorney General was to report to Congress twice a year. The FISA Court role would be reduced to reviewing the procedures to determine that operations do not constitute electronic surveillance and that persons were indeed outside the United States.

Absent the sunset clause, the White House got its way. A close look at the act revealed that the administration had been granted those same warrantless wiretapping powers it had previously seized unilaterally as part of the secret NSA program. Parts of the draft would even go beyond the NSA program, as surveillance targets were no longer required to have terrorism links. Democrat lawmakers grudgingly approved the bill under the condition that the law was to sunset after 180 days, on February 1, 2008.

In the meantime, Congress got ready to pass a permanent FISA bill that could replace the temporary arrangement. House representatives moved quickly to pass their version of the bill in mid-November 2007. However, things were more complicated in the Senate, where two bills, reported out of the Judiciary and Intelligence Committees, competed. As the Senate failed to come to a decision, both houses, on January 29, 2008, decided on a fifteen-day extension of the Protect America Act to give lawmakers more time to evaluate, approve, and go to conference on the various FISA reform bills.

The Senate eventually passed its FISA reform bill on February 12, 2008. Not surprisingly, White House and senior administration officials, among them DNI Michael McConnell, strongly endorsed the bill, which contained many of the expired Protect America Act provisions.³⁰² For the same reason, the Senate bill did not receive the necessary support in the House. Despite President Bush’s warning that the House needed to pass the Senate bill “immediately” as the “failure to pass the bipartisan Senate bill would jeopardize the security of our citizens,” the Democrat-led House refused.³⁰³ Bush, in return, refused to grant another (twenty-one-day) extension. The Protect America Act expired on February, 16, 2008.

A new House version of the Senate bill passed in March was also opposed by both Republican senators and President Bush, who threatened to veto it.³⁰⁴ Most of the criticism focused on the fact that the House bill did not grant retroactive immunity to companies that assisted in the secret NSA program—which the Senate version accounted for.³⁰⁵ Furthermore, the FISA Court would play a much larger role in granting prior approval and certification of, for example, minimization and targeting procedures involving surveillance of non-U.S. persons abroad. The House version also required an Inspector General audit and would further establish a commission to look into the warrantless NSA program. Finally, it imposed a sunset date that was less than two years away (December 31, 2009)—as opposed to the Senate bill, which listed December 31, 2013, as sunset date.

However, House representatives switched gears three months later. A House bill that was passed on June 20 did afford those telecommunications companies that assisted the Bush administration in the warrantless interception of emails and phone calls “blanket immunity,” granting retroactive liability protection to these companies. In addition, it granted future protection from lawsuits to telecommunication service providers, which would also be able to challenge government requests before the FISA Court. The Senate followed suit and approved the bill three weeks later, on July 9, 2008. President Bush signed the FISA Amendments Act of 2008 into law the same day.³⁰⁶

Based on the 2008 FISA Amendments Act, the government would need individualized, FISA Court-approved warrants for any surveillance that targeted US citizens—whether they were located on domestic soil or abroad, and even if their communications involved non-US persons overseas. Purely domestic-to-domestic communications, even among non-U.S. persons inside the United States, would require a warrant as well. Emergency provisions allowed the DNI and the attorney general to start surveillance without FISA approval, but the latter had to be retrieved within a seven-day time frame.

However, FISA warrants were no longer needed to intercept communications of non-U.S. persons “reasonably believed” to be located outside of the country, even if their phone calls or e-mails passed through the United States. While the DNI and Attorney General would be responsible for determining what constitutes “reasonably abroad,” the role of the FISA Court would be limited to reviewing the procedures used to determine whether persons were indeed outside the United States. These procedures would be renewed annually.

The FISA Amendments Act further reiterated that the legislation served as the “exclusive means” by which the president is authorized to conduct foreign intelligence surveillance on U.S. soil. In other words, all foreign intelligence surveillance is supposed to be governed by FISA. To ensure this, the act enhanced oversight powers of both Congress and the inspectors general of the DOJ and the intelligence agencies. The latter would be responsible for assessing surveillance measures, including the number of surveillance cases requested and conducted, U.S. citizens targeted, and overall efforts designed to minimize the scope and intrusiveness of the methods. In addition to the intelligence committees, the judiciary committee would also oversee surveillance programs and measures.

Critics argued that the 2008 act essentially legalized most parts (at least those that were known to the public) of the NSA program. When comparing the March version, passed by both houses, to the final bill, it does appear that Democrat lawmakers, in control of both houses, did end up meeting many White House and Republican demands that were also reflected in the Senate versions of the bill.³⁰⁷ Reminiscent of the timing of previous political battles surrounding major counterterrorism reforms, the FISA reform coincided with another presidential election, the 2008 presidential campaign.³⁰⁸ Congressional leaders accused Bush and fellow Republicans of once again “trying to use this issue to scare the American people into believing that congressional Democrats have left America vulnerable to terrorist attack,”³⁰⁹ arguably, successfully so.

At the same time, the 2008 FISA bill was consistent with Congress’s efforts to put a stop to unilateral executive advances in the counterterrorism realm. While adjusting the law to technological changes, it provided for a more tailored approach, and, most important, also reinstalled statutory oversight over intelligence agencies engaged in electronic surveillance.³¹⁰

2010 and 2011 Patriot Act Skirmishes, Continued

Absent new authorization from Congress, the three remaining Patriot Act sunset provisions were set to expire in February 2010. Before tackling the Patriot Act reauthorization, however, as one of his first acts in office, President Obama ordered a review of the White House homeland security and counterterrorism structure.³¹¹ Short of merging the Homeland Security Council with the National Security Council or scrapping the homeland security advisor position, however, he decided only the HSC staff should be consolidated with that of the NSC.³¹²

The Patriot Act sunset provisions that were up for renewal included roving wiretaps, surveillance of lone wolves, and seizure of tangible items. As this was an all Democrat-led Congress, President Obama’s administration did not anticipate a lot of opposition from the legislative branch. Both houses began hearings in September 2009.³¹³ Soon after, the Senate Judiciary Committee approved its bill (the USA Patriot Act Sunset Extension Act of 2009), which had been coordinated with various members of the Obama administration (including the DOJ and several intelligence agencies). If adopted, the bill would apply various legal changes to all three existing provisions.³¹⁴ The changes, albeit minor, were designed, inter alia, to strengthen safeguards (by, for example, introducing more DOJ audits), judicial review (by, for example, facilitating legal challenges of FISA-authorized nondisclosure orders), and congressional oversight. The bill would impose a new four-year sunset clause—interestingly enough, not just on the three expiring provisions but also on National Security Letters, which were made permanent in 2005. In the House, the most promising bill was reported by the Judiciary Committee in early November.³¹⁵ It went slightly farther in terms of safeguards and new restrictions and included similar amendments regarding the four aforementioned provisions. One of the most significant changes involved the repeal of the lone wolf clause, which had not been used by government authorities.

At the core of the debate in both houses, however, were the so-called National Security Letters. The letters referred to (mostly FBI) requests for transactional business records. These records, as redefined by the Intelligence Authorization Act of 2004, referred to “any record held by a financial institution pertaining to the relationship to a customer’s relationship with the financial institution.”³¹⁶ The more expansive definition, therefore, included transactional records obtained from travel agencies, real estate agents, postal services, jewelers, insurance companies, casinos, or car dealerships.³¹⁷ Also known as administrative subpoenas, the letters were already controversial because they did not require a court order.

Adding fuel to the fire, a Justice Department audit of National Security Letters, as instituted by the 2005 Patriot Reauthorization Act, called attention to the “FBI’s widespread and serious misuse of its national security letter authorities.”³¹⁸ Several of the mishandlings had not been corrected by the time the Justice Department issued its second audit report in 2008.³¹⁹

Another contentious issue involved their secrecy, combined with limited legal review options. FBI requests to service providers were equipped with a “gag order,” prohibiting recipients to disclose issuance of the letter.³²⁰ And while it was possible to challenge the nondisclosure provisions in court, the courts had been siding with the government and upheld nondisclosure rules as long as the government certified a threat to national security. After the 2005 Reauthorization Act also made it possible to challenge National Security Letters themselves, a 2008 landmark decision of the U.S. Court of Appeals for the Second Circuit ruled the nondisclosure provisions unconstitutional.³²¹ The House and Senate bills, as reported, would streamline and expedite the legal review process of nondisclosure provisions and give the courts more latitude to override any governmental compliance orders.

However, at the end of the legislative battle, none of the amendments appeared in the bill that was passed by both houses in late February. This was despite the fact that both Attorney General Eric Holder and DNI James Clapper had repeatedly endorsed the Senate bill in written communications with Congress. Instead, as part of a compromise struck on February 27, 2010, Congress extended the three provisions for another year, albeit unchanged, and President Obama signed the legislation into law.³²² Amid rising concerns about homegrown terrorism, a Democrat-led Congress and White House opted not to impose additional legal restraints on either permanent or sunset provisions of the Patriot Act.

The Department of Justice, in the meantime, decided to voluntarily implement those more stringent oversight provisions contained in the Judiciary Committee’s amendment bill (dubbed USA Patriot Act Sunset Extension Act of 2011), which had also been prepared in close coordination with the DOJ.³²³ While these voluntary changes did not ensure statutory oversight, various Democrat lawmakers viewed this announcement an improvement.³²⁴

By the time the Patriot Act was again up for reauthorization in February 2011, the Senate reintroduced an almost identical version of the bill (minus the voluntary DOJ policy changes) that had been written in tandem with Obama administration officials one year earlier. Senior DOJ and intelligence officials once again endorsed the bill. While the bill contained more safeguards in form of, for example, additional audits, legal review options, congressional oversight, and publicly available information on FISA-authorized surveillance, the biggest difference remained that it reintroduced a sunset clause for the use of National Security Letters.

However, the political environment appeared not nearly as opportune since the Democrats had lost the majority in the House of Representatives. In fact, House Republicans soon attempted to fast-track a vote on extending the three provisions until December 2011 but, due to bipartisan opposition, failed to obtain the necessary two-thirds majority. A significant number of House Republicans did not even view the remaining Patriot Act sunset provisions as controversial and instead wanted to make them permanent. Others, including the White House, were looking to extend the bill until 2013, the sunset date that was also contained in the Senate bill. Without a consensus in sight, congressional leaders opted to give members of Congress more time to review the legislation. On February 17, both houses extended the Patriot Act once more, for another three months, allowing for additional hearings, expert briefings, and debate.

While a deal was eventually struck on May 14, 2011, once again the compromise did not entail any changes to the provisions themselves.³²⁵ As part of the deal, the three provisions would be extended for another four years but not made permanent. Nearly a decade after 9/11, with homegrown terrorism on the rise and only months after intelligence services tracked down Osama bin Laden, many lawmakers were still reluctant to amend any surveillance provisions. In a letter to congressional leaders, DNI James Clapper had urged lawmakers to reauthorize the provisions, warning that all intelligence collection powers were needed to analyze information collected at bin Laden’s compound and prevent any related plots and planned attacks.³²⁶

Among the notable exceptions was Senator Rand Paul (R-Ky.), who sought to stall the bill until he was allowed two amendment votes, which were subsequently defeated. Hours before the act was set to expire on May 27, 2011, Congress voted to reauthorize the three provisions until June 1, 2015.

Reauthorizing the FISA Amendments Act in 2012

By the time the 2008 FISA Amendments Act was scheduled for reauthorization in the fall of 2012, the Obama administration still faced a Republican House and Democrat Senate. House lawmakers soon agreed, despite some Democrat opposition, to extend the FISA Amendments Act for another five years, until 2017.³²⁷ The Senate held out until after the presidential elections in December, even though the Senate Intelligence Committee had reported the bill in May,³²⁸ and eventually narrowly defeated attempts by Democrats to impose new safeguards and restrictions. For example, an amendment put forth by Ron Wyden (D-Ore.) would have forced the DNI to publicize data on the scope and use of surveillance of, for example, U.S. citizens and residents. Senator Jeff Markley’s (D-Ore.) amendment would have required the Attorney General to share classified FISA Court decisions with the public. Another amendment by Senator Patrick Leahy attempted to cut down the sunset period to three years and impose new Inspector General audits.³²⁹ After everything was said and done, however, the FISA Amendments Act was reauthorized unchanged, mirroring the outcome of previous negotiations about Patriot Act reauthorizations in 2009 and 2011.

Part 3: Analysis and Conclusion

How Did Government Structures Influence Counterterrorism Decision-Making?

Speed of Response—How quickly did the United States respond to the 9/11 attacks and/or others? How long did decision-making processes take?

The initial response of the Bush administration after 9/11 was swift. The Office of the Homeland Security Advisor and Homeland Security Council inside the White House were created within a few days per executive order. However, Congress and the Democrat-led Senate also did not stand in the way of the 2001 Patriot Act drafted by the Justice Department, which only took five weeks to pass and was adopted into law October 26, 2001.

With the exception of the TTIC and TSC joint ventures created by executive order, the tables began to turn soon after, when it seemed that the U.S. separation of powers system was reverting to its more typical decision-making mode characterized by long-term bargaining (put positively) or deadlock (put negatively). Senate opposition to the White House-sponsored Homeland Security bill stalled the process for five months, until the November 2002 midterm elections produced Republican majorities in both houses. Conditions typically associated with unified government did not take effect, however, suggesting that the legislative battles were not dominated by partisan concerns but instead pitted the two branches against each other. Due to House opposition, the Intelligence Reform Act of 2004 was not passed until after the 2004 presidential elections, after more than ten weeks of stalemate. The Patriot Act expired twice before the Senate eventually agreed to reauthorize it after a ten-month struggle in 2006. Conversely, after the 2006 midterm elections, divided government features did not seem to take a toll on the speed of decision-making. Exhibiting the flexibility inherent in the U.S. system and suggesting the relative unimportance of the changed political environment, a Democrat-led Congress took less than five days to adopt amendments to the FISA law (based on a White House/DNI proposal) and pass the temporary Protect America Act of 2007. That same Democrat-led Congress took more than four months after the latter expired in February 2008 to agree on the 2008 FISA Amendments Act. Similarly, when it became time to reauthorize the Patriot Act in 2009, the Obama administration was unable to reap the benefits from unified government conditions, so that the Patriot Act had to be renegotiated once again just twelve months later. Faced with a Republican majority in the House that time around, Congress only managed to reauthorize the act after a three-month extension. By comparison, the re-authorization of the FISA Amendment Acts in fall 2012 fared quickly and was completed by the end of the year, even though Obama still faced a Republican-led House.

Decision-Making Mode—Were decisions made by means of executive order, or did they require congressional approval?

Institutional reforms were initially created by executive order and without congressional involvement. In fact, executive initiatives like the Homeland Security Office OHS and the Terrorist Threat Integration Center TTIC (which would later become the National Counterterrorism Center NCTC) were intentionally loosely designed so that congressional meddling, jurisdictional questions, and time-consuming legislative procedures could be avoided. Interestingly, as will be seen in the next chapter, similar concerns existed with regard to the new German counterterrorism center, also created by means of executive order and in an effort to avoid structural hurdles.

While this approach facilitated expedient decision-making in the immediate aftermath of a catastrophic event, it also helped retain executive independence in intelligence matters, commonly considered a presidential prerogative. Even so, it is particularly striking that all new institutions and positions thus created (with the exception of the Terrorist Screening Center, which subsequently became part of the FBI’s National Security Branch) were sooner or later put on a statutory basis. The legislative decision mode changed the scope of the institutional reforms; lightweight executive institutions gave way to more heavyweight congressional solutions.

Over time, Congress managed to impose legal boundaries on all those institutions and programs initially stood up by executive order—including the Homeland Security Office/advisor, the Terrorist Threat Integration Center, the FBI National Security Branch and the secret NSA surveillance program. In some instances, lawmakers compelled White House action with the power of the purse; in other cases, the 9/11 Commission report and court rulings offered additional political cover and opportunities for legislative action. The U.S. Congress has a vested interest in producing legislation that translates into tangible electoral results and additional oversight powers over executive institutions and programs. Once the White House had been maneuvered into the legislative corner, however, it still made sure to have a significant say over the contents of the legislation—either by taking charge of process (in the case of the Patriot, Homeland Security and FISA Reform Acts) or by disengaging and thereby encouraging watered-down solutions (in the case of the Intelligence Reform Act).

Regardless of the branch responsible for the reforms, both had to overcome significant hurdles inherent to the decision-making process. These came in the form of interbranch resistance, like the showdown between the White House and Senate that stalled the 2002 Homeland Security and 2005 Patriot Reauthorization Acts, or House opposition to the 2008 FISA Amendments Act or the 2010/11 Patriot Act Reauthorization. In the case of the 2003 Patriot II Act, a bill that was circulated but never introduced to Congress, decision-making hurdles appeared too high, leading to secret measures (the NSA program) by means of executive order and alternative routes of decision-making instead.

Decision-making hurdles also came in the form of interagency conflicts which either played out within the executive branch (when, for example, cabinet members shot down the 2001 White House proposal to create a new border agency) or as proxy wars in Congress, where executive departments formed alliances with their respective oversight committees. Reps. Sensenbrenner and Hunter thus became the Pentagon’s (and likely the White House’s) most valuable allies in the battle against the sweeping intelligence reform bill in the Senate. As these examples of interagency turf battles also illustrate, they were limited to organizational reforms and did not appear to have much of an impact on security policy reforms like the Patriot Act and FISA bills (which instead pitted the branches against each other).

Bureaucratic attempts to whittle down reorganization proposals could only be prevented by shutting the bureaucratic stakeholders out of the executive planning and/or legislative process, as happened in the case of the 2002 Homeland Security legislation. In fact, herein appears to lie a critical key to legislative solutions reflecting executive branch preferences: the White House can influence the process (and, by extension, outcomes) to a significant extent through concerted lobbying efforts or else, by disengaging. During the passage of the 2001 Patriot and 2002 Homeland Security Acts, White House officials had a significant say in the conditions of legislative decision-making that would serve executive interests best, particularly in the House of Representatives. The typically disjointed decision-making procedures were bypassed in the mark up of the Patriot Act (the House committee bill was exchanged for a version prepared by small group of key lawmakers and White House staff) and the 2007 Protect America Act and also sidestepped in the making of the Homeland Security Act (the standing House committees had no veto powers and adopted the proposal prepared by a small group of White House advisors). When refusing to extend the temporary Protect America Act a second time, President Bush was arguably looking to force the House to agree to the Senate version of the 2008 FISA Amendments Act, and successfully so.

In the case of intelligence reform, fragmented decision-making procedures were left in place while the White House kept a conspicuously low profile in the process. This time around, “cleaved” committee structures worked to the advantage of not only the DOD and House lawmakers but also, conceivably, the White House; the latter did not seem to take much interest in the sweeping intelligence proposal, considered an infringement on executive branch powers and national security prerogatives, until its provisions were further watered down.

Level of Public Scrutiny and Debate—Did the decision-making process allow for an open debate, public hearings and/or post-legislative scrutiny rather than secret and/or emergency procedures?

Similar to the other countries in this analysis, debates were either nonexistent or cut short during the brief legislative process that led to the 2001 reforms. Senate lawmakers had four hours to debate a Patriot Act proposal put together by a small group of key lawmakers, the White House, and Justice Department officials. House lawmakers adopted a similar version without any readings and debates. There were no conference reports.

Naturally, whenever standard legislative procedures were cut or bypassed, the level of public scrutiny and debate also declined. This was the case when the 2007 Protect America Act was passed within four days. Most important, the blueprint for one of the largest reorganization efforts in the history of the U.S. government was based on the secret discussions of a small group of White House advisers within the executive branch, and not subjected to any scrutiny or debate outside this exclusive circle. The White House plan could have been scrutinized once the Homeland Security bill was introduced to Congress—however, procedures were changed so that the final version of the bill was decided by a specially formed select committee and essentially left unchanged. In addition, the political context changed after the Democrats lost the Senate majority in the 2002 midterm elections. In fact, the elections paved the way for parliamentary-like conditions in which the White House proposal (largely left intact by House lawmakers) could pass the legislative process virtually untouched. The political process in the United States encourages preelection gambles like this one, as pending bills may still be adopted in the lame duck session.

Conversely, the 2004 intelligence reform bill was subject to considerable debate. The unusually high levels of public scrutiny also meant that principal Senate decision-makers, responsible for creating the 9/11 Commission in the first place, could not walk away from a watered-down bill in the lame duck session. By contrast, the debate over the 2005 Patriot Reauthorization Act did not stop in the face of the looming expiration date (admittedly, there was greater flexibility to extend the act, whereas lame duck sessions cannot be continued indefinitely). During the three-month conference debate, lawmakers focused on many of the same issues that went undiscussed when the original Patriot Act was rushed through Congress in 2001. They also succeeded in installing new oversight mechanisms on, for example, National Security Letters. While the debate over the merits of the 2007 FISA revisions was surely limited, and once again strategically backed up against a congressional recess, it was clear that any contentious issues could be revisited, as the law was scheduled to sunset eight months later. Likewise, the FISA Amendments Act passed after significant debate and more than four months after the temporary Protect America Act had expired. The act was reauthorized once in 2012, following standard committee procedures and floor debates.

After the initial debate about the Patriot Act Reauthorization in 2010 was essentially postponed, as the act was simply extended by another twelve months, legislative activities in 2011 were characterized by significant committee and floor deliberations, furthered by a three-month extension. Even if the additional time available did not translate into any actual statutory changes, the sunset clauses served as central instruments for post-legislative scrutiny and opportunities for continued debate of controversial measures. Interestingly, despite close coordination between the Obama White House and the Democrat-led Congress in 2010, concerted efforts to reform the Patriot Act failed. The legislative stalemate led to some voluntary, intraexecutive reforms instead—further suggesting that the executive branch preferred crafting its own solutions, thereby avoiding statutory restrictions and requirements in the first place.

Public debates were also lacking in the standing up of the OHS, TTIC, and TSC, as these were executive initiatives. However, after a brief honeymoon period lawmakers began scrutinizing Home Office and TTIC functions ruthlessly, insisting on creating a statutory footing for both.

Nature and Extent of Reforms—What was the focus and scope of the reforms? Did they affect the balance between executive, legislative, or judicial branches?

Similar to the other countries in this book, executive branch agencies in the United States gained significant powers as a result of the reforms. New counterterrorism measures strengthened intelligence collection and surveillance authorities, facilitated the sharing of public/private sector data with security services, and encouraged information sharing between security services, as well as preventive policing. The new National Security Branch, which consolidated all intelligence-related FBI directorates, is an example of the latter: while the FBI remains a law enforcement organization at heart, it also has been forced to expand its focus to embrace a more “preventive paradigm” that includes intelligence-led policing.

At first sight, post-9/11 counterterrorism reforms in the United States appear to have favored the federal executive branch considerably and gone at the expense of judicial and legislative oversight. For example, executive branch bureaucrats, and politicians, like FBI field officers, the DNI, or the Attorney General, now play a larger role in issuing administrative subpoenas and wiretap orders previously authorized by the FISA Court.

Congress has prominently been blamed and served as a scapegoat for these developments. Yet, even if lawmakers have not been on their most belligerent behavior, White House officials still had to overcome a number of structural hurdles inherent to decision-making in the U.S. separation of powers system. And even if lawmakers may have been susceptible to White House arguments that linked the need for reforms to the national security of the United States, the White House was equally affected by the same arguments and, therefore, could not openly defy the intelligence reform recommendations of the 9/11 Commission or ignore congressional scheming to create a new department to strengthen homeland security coordination.

On second view, Congress managed to impose significant legal boundaries on all new institutions and measures and, in so doing, shape counterterrorism outcomes. In fact, structural effects were particularly noticeable with regard to institutional reforms. While reorganization efforts were designed to centralize homeland security and intelligence coordination within the executive branch and thereby strengthen control over the highly fragmented security architecture, the degree of centralization varied depending on whether Congress was involved in the decision-making process. The initial response of the Bush administration merely consisted of creating a new coordination mechanism at the highest policy level, in form of a new White House Office of Homeland Security. Other executive initiatives designed to facilitate information sharing between security services pooled intelligence-analysis capacities and watch lists inside the Terrorist Threat Integration and Terrorist Screening Centers. Representing network-centric arrangements, these centers had flat organizational designs and served as nodal points of contact between stove-piped departments. Over time, however, these lightweight executive models gave way to more heavyweight congressional solutions. Legislated reorganization efforts resulted in far more hierarchical institutional arrangements as illustrated by the new Department of Homeland Security and the Office of the Director of National Intelligence. Illustrating the scope of the reorganizational effects, the DHS and DNI not only altered the interagency landscape within the executive branch but also affected congressional decision-making, oversight, and appropriations structures.

In the case of the intelligence reform, an area typically considered a presidential prerogative, Congress set the legal boundaries especially tight and specified the set up and rules of engagement of the DNI office in great detail (further putting it in stark contrast to the National Security Act of 1947, which left the creation of the CIA/DCI at the discretion of the president). The most controversial parts of the Patriot, Intelligence Reform, Patriot Reauthorization, and FISA Amendments Acts would have sunset if not reauthorized by Congress. Even the temporary FISA amendments contained in the 2007 Protect America Act, widely viewed as one of the Bush administration’s greatest “imperial” coups, imposed new legal boundaries on secret executive practices previously subject to only very limited congressional oversight (by means of the Gang of Eight). The temporary act was eventually replaced by the permanent FISA Amendments Act, which echoed many Protect America provisions and, by implication, validated the controversial NSA program to a certain extent. At the same time, it also expanded FISA Court protections for U.S. citizens, both at home and abroad, and introduced new oversight mechanisms, reinstituting Congress as a fundamental player in FISA decision-making and implementation.

Despite the broadening of executive branch powers after 9/11, lawmakers continue to have a say in future decisions regarding any of the new counterterrorism programs and institutions herein discussed—the extent of the congressional impact depends on whether lawmakers decide to use their voice and vote. They have and may continue to hold the executive branch accountable, impose corrections, or compel executive action with the help of the significant budgetary and oversight powers they attain by passing legislation in the first place. Whether lawmakers will be able and willing to identify shortfalls, influence counterterrorism decisions, and exercise genuine oversight remains to be seen. Thus far, Congress has largely failed to reform its own committee structure to reflect executive branch reorganization after 9/11. Ironically, the resulting committee fragmentation may have served as an alternative means of tying executive branch officials down (even if this was only an accidental side effect).³³⁰

It further bears mentioning that checks have been kept in place with regard to foreign–domestic security and intelligence–law enforcement divides (and more so than in, for example, Britain or France), even though increased information sharing has been a top reform priority. President Bush thus decided against adding homeland security responsibilities to the portfolio of his national security advisor, creating a separate homeland security advisor and Council framework inside the White House, and the Obama administration mostly held on to this arrangement. While the NCTC was created as an all-source intelligence fusion center, merging foreign, domestic, law enforcement, and intelligence data, the FBI remains in charge of all domestic source data, whereas NCTC is responsible for all foreign leads. Similarly, the director of national intelligence is subject to various checks that were specifically imposed to prevent power consolidation inside the executive branch.

Finally, efforts to better connect with state and local governments illustrate a two-pronged approach: while the FBI has increased its presence and more than tripled the number of Joint Terrorism Task Forces in the states since 9/11, the Department of Homeland Security has been looking to link up with states via the many state-run fusion centers. As will be seen in the forthcoming chapters, this is both similar to efforts in federal Germany, where state and federal security services were also newly connected via fusion center and database institutions, as well as responses in unitary France and Britain, where national governments decided to “decentralize” and permanently deploy counterterrorism units in the regions.