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Chapter 1

The Conceptual Debate: Setting the Stage for Structural Analysis

Scholars of world politics continue to disagree about the domestic sources of foreign and national security policy and the level of analysis in foreign policy/national security decision-making. While one school of thought has focused on how different domestic governmental structures produce variations in decision-making processes and the foreign policy/national security output, another stresses the importance of the perceptions, motivations, and workings of bureaucracies, organizations, and individual decisionmakers. Beginning in the early 1970s, scholars of foreign policy decisionmaking shifted their focus to ever lower levels of analysis. Dissecting the inner life and doings of executive branch agencies, Graham Allison formulated the organizational-process and bureaucratic-politics models of decision-making. According to the former, executive leaders struggle to manage organizational agendas and their standard operating procedures. According to the latter, they might be powerless to control the competitive and skilled tugging and pulling of bureaucratic players; policy is an unintended byproduct of this pulling and hauling.¹

Morton Halperin argued that foreign policy is largely shaped by bureaucratic objectives rather than international agendas.² In the cognitive realm, Irving Janis developed the theory of groupthink; groups are prone to miscalculations because members give up their individual judgment and conform to collective decision-making.³ John Steinbruner introduced the cybernetic paradigm, according to which leaders draw on intuitive repositories of past experiences to break down complex situations into simple problems, which are then dealt with separately.⁴ Robert Jervis argued that executive leaders are bound to perceive their opponents’ actions as less objective and more hostile than their own.⁵

In a similar vein, decision-making works since 9/11 have used a bureaucratic or organizational perspective to explain counterterrorism outcomes. Pursuant to Amy Zegart’s analysis, the Terrorist Threat Integration Center (TTIC), renamed the National Counterterrorism Center in 2004, was therefore created by a president who chose the path of least resistance and “studiously avoided getting embroiled with the Defense Department.”⁶ Taking an organizational view (paired with rational choice elements), Zegart argued that the inability of security organizations to change, adapt to new threats, or else implement a thorough intelligence reform after 9/11 is due to a combination of three factors: the nature of organizations themselves, the rational self-interest of decision makers and stakeholders, and the decentralized structure of the U.S. federal government (the fragmented congressional committee system in particular).⁷ Moreover, she stressed the direct connection between agency designs and foreign policy outcomes. Arguing that bureaucratic organizations have not received enough attention, Zegart concluded that “too often … discussion of foreign policy success and failure treats individuals as the only important factors, ignoring the powerful organizational forces in the background.”⁸

In an attempt to explain differences between British and French counterterrorism approaches, Frank Foley focused on organizational routines that govern how security bureaucracies interact, in addition to societal norms and executive/judicial institutional conventions.⁹ According to Foley, “a focus on organizational routines provides the best understanding of states’ different approaches to reforming the coordination of intelligence and police agencies.”¹⁰

Proponents of the structural school, who instead focus on how powers distributed among the various branches of government affect policymaking, do not discount the existence of bureaucracies, political cultures, and perceptions, but view government structures as a powerful independent or at least an intervening variable. Stephen Krasner thus famously argued that the U.S. president can exert the necessary powers to control bureaucratic soli, as “the ability of bureaucracies to independently establish policies is a function of presidential attention.”¹¹ While some structural scholars argue that government systems and their inherent processes effectively curb and overwhelm any nonstructural/institutional effects,¹² others have noted a more indirect and symbiotic relationship between policy issues, government structures, governing capabilities, and societal identities.¹³ Yet others view government structures and processes as a manifestation of countries’ distinct political cultures and histories and argue that their make-up holds important information about the thresholds and limits, as well as opportunities, of national policy-making.¹⁴

A focus on bureaucratic politics and organizational procedures has considerable utility in explaining bureaucratic infighting and routines but, as this book argues, is of less use for explaining and predicting variances in countries’ counterterrorism outcomes. Peter Katzenstein has noted that “it is simply not clear to what extent the bureaucratic politics approach universalizes a particular American syndrome (the internal fragmentation of the American state) and how much it particularizes a universal phenomenon (the push and pull which accompany policy-making in all advanced industrial states).”¹⁵ Yet, even if Allison and other scholars succeeded in developing models for a universal phenomenon in modern societies, it is not clear how the bureaucratic politics model advances the findings of what Robert Art called the “first wave” of scholars. According to Art, these theorists analyzed U.S. foreign policy decision-making and outcomes through the lens of its most defining characteristic—the pluralistic political process and, while doing so, identified the “internal structural conditions or restraints under which foreign policy is made” in the U.S. system of government.¹⁶ When applying this political, pluralistic perspective to policy-making, first-wave scholars Samuel Huntington, Richard Neustadt, Warner Schilling, and Roger Hilsman also took note of extensive bargaining practices in the U.S. system—but as an expression of genuine political processes that bring forth policy compromises that are both intended and necessary for bridging divides.

As a prominent member of what Art referred to as the “policy via politics” wave, Samuel Huntington identified patterns of executive decisionmaking processes.¹⁷ Huntington showed how decision-making regarding defense strategy in the U.S. executive branch exhibits bargaining practices similar to those found in the legislative branch, because the president “has less control over his cabinet than … a corporal over his squad.”¹⁸ Huntington on the whole welcomes the pluralistic nature of executive negotiations, which are reflective of the fact that “Madison not Bagehot wrote the Constitution.”¹⁹ In his view, competition encourages result-oriented actions, intrinsically sensible policy choices, and the need to build consensus among the various participants.

Others do not view the U.S. system quite so positively. Warner Schilling argued that defense budgeting is the product of political choices, which are significantly influenced by the nature of the political process. Because power is so widely dispersed among “quasi-sovereign powers” and drawn from various independent sources, government elites involved in the foreign policy process face conflict and “strain toward agreement.”²⁰ Actors might succeed in persuading their opponents, but, so Schilling warns, these attributes can also take a toll on “the form of policy produced by that process.”²¹ Policies may lack cohesion, stability, and substance or might not be produced at all. The process might be slow, leaderless, or indecisive.²²

Similarly, Roger Hilsman focused on policy-making within the framework of an inherently convoluted, inconsistent, and competitive governmental process. In this system, major decisions are formulated incrementally and changes implemented through piecemeal modifications to existing policies.²³ “Partly … the turbulence derives from the nature of our constitution itself”:²⁴ all branches of government have a share in governing and legislating. In addition, presidents rarely command their own domain, the executive branch, but instead “maneuver, persuade, and pressure.”²⁵ This is because the process by which policy is made is politics, and therefore entails “conflict and consensus-building.”²⁶

Yet others have drawn attention to contrasting decision-making features in parliamentary and presidential systems. Richard Neustadt used the events of the Anglo-American Suez crisis and the Skybolt affair to illustrate that neither side considered the implications of the structural differences between their respective political systems. Moreover, both sides made the mistake of drawing analogies to positions and characteristics inherent to their own system.²⁷ During the Suez crisis, the American government misinterpreted Labor’s parliamentary opposition to Prime Minister Anthony Eden’s Suez plans, thinking it “weakened Eden’s hand.”²⁸ In the Westminster system, however, the minority party does not affect the decisionmaking process as long as the leading party carries a comfortable majority of seats in the House of Commons. On the other side of the Atlantic, the British leadership closed its eyes to the realities of the American budgetary process and the looming signals that the Skybolt program would be canceled before long.²⁹ The American decision to cancel the program, which would have meant an independent nuclear deterrent for the British, presented a huge dilemma to the prime minister: it threatened to undo a carefully crafted cabinet decision, thus making Prime Minister Harold Macmillan vulnerable to criticism within his own ranks.³⁰

Exactly one hundred years after Walter Bagehot published his tribute to the British constitution, Kenneth Waltz set out to disprove, inter alia, that the British system is superior to that of the United States when it comes to foreign policy formulation by analyzing their “politics and institutions.”³¹ Waltz emerged as a staunch proponent of the U.S. system. In his view, the diffusion of power within the U.S. government provides room for constant innovation and reform that the more rigid, less permeable British parliamentary system lacks. In the separation of powers system, the president is required to bargain and coordinate with the members of Congress at every step of the process, and needs strong leadership skills to get the job done. The many access points also provide for a plethora of interests and stakes, so that, ultimately, accountability and blame must be shared by all decisionmaking players. Issues and opponents are confronted in the open, encouraging competition of ideas. In the Westminster system, by contrast, almost all bargaining and discussion are contained within the cabinet. While British prime ministers appear strengthened by the centralization of legislative power in their cabinet, they also face a conundrum: their main concern is to maintain the party unity—even if this means disregarding concerns of the electoral base—but they also know that the public will hold their cabinet accountable for all decisions. Prime ministers, who typically serve in the House of Commons for many years, know these dynamics by heart and thus exercise prudence and caution accordingly. In the American “hands-on” approach, presidential candidates have not been molded into a structure; conversely, members of the two branches are locked in continuous competition, conscious they will have to deliver results to get reelected.

Like Waltz, R. Kent Weaver and Bert Rockman were concerned with the quality of policy outcomes and hypothesized that “political institutions shape the processes through which decisions are made and implemented and that these in turn influence government capabilities.”³² Weaver and Rockman go beyond Waltz by not only comparing a whole range of government systems but also by accounting for variations in parliamentary and presidential systems, in addition to other possible explanations independent of parliamentary or presidential features, including federalism, judicial review, or bicameralism. They stress that “the US system cannot be compared with the small minority of Westminster-style and single partydominant parliamentary systems, but must also be compared with the larger range of coalitional systems.”³³ In contrast to the UK fusion of power system, coalition governments increase the number of veto points and diffuse power. Among other things, their more eclectic analysis allows Weaver and Rockman to illustrate important similarities between the U.S. separation of powers system and parliamentary coalition governments with their plethora of stakeholders and extensive bargaining procedures.³⁴

More recently, David Auerswald argued that coalition parliamentary governments are less likely to engage in military action than weak presidents, who in turn are less likely to use force than majority parliamentary governments or strong presidents.³⁵ This is determined by whether executive leaders can be held responsible by the public, legislature, or coalition partners or by means of elections, votes of confidence, and termination of coalition agreements, respectively. Finally, among the rational choice literature devoted to institutional constraints, George Tsebelis’s research is of particular interest when analyzing decision-making processes. Tsebelis introduced the veto-player analysis as a means to determine and predict countries’ ability to produce policy changes and stability. According to Tsebelis, the potential for policy changes decreases with the number of veto players (both institutional and partisan), which are most abundant in presidential, coalitional parliamentary, and federal systems. His model, thus, permits comparison across different government systems, regardless of, for example, parliamentary-presidential distinctions, even if “counting the number of veto players in a given policy area is often a messy and subjective affair.”³⁶

While a series of excellent works have thus focused on the decisionmaking effects of government structures, there is currently no work that measures and compares structural restraints on counterterrorism decisionmaking after 9/11. This book is designed to fill this gap. By doing so, I hope not only to contribute to the structural-bureaucratic debate, but also to evaluate and improve existing theories on government structures and policy outcomes.

While I do not aim to assess the effectiveness or extremeness of measures, I can and do address changes in the relationships between executive, legislative (or judicial) branches as they relate to the workings of government structures. My findings, therefore, further complement a set of scholarly studies that have focused on the expansion of executive power in the post-9/11 United States in particular, while there seems to be less consensus when it comes to evaluating British counterterrorism responses.³⁷

Methodology and Definitions

At the interface of domestic and foreign policy-making, counterterrorism provides an ideal example for examining policy outcomes in relation to underlying structural processes. Programs, strategies, and institutions needed to contain and counter foreign threats are decided within the domestic framework.

Why Focus on National Governments?

As law enforcement and intelligence are among the last remaining cornerstones of sovereignty that states are reluctant to give up, states’ abilities to combine resources to counterterrorist activities are constrained by state jurisdiction and borders. The limited extent of European Union-wide counterterrorism structures and cooperation illustrates this dilemma well. The EU’s ability to shape counterterrorism cooperation (in the “area of freedom, security, and justice”) is still small and also varies greatly, depending on the nature of the issue and the member state, as “most CT responsibilities remain in the hands of the member states.”³⁸ While most decisions involving justice and home affairs matters are subject to qualified majority voting after the Lisbon Treaty, any decisions involving operational police cooperation require member states to take unanimous decisions.³⁹ Should the EU decide on measures that directly affect national counterterrorism practices, these often still need to be transposed into national law and, therefore, reviewed and approved by the national legislatures and/or courts. Finally, implementation is up to the member states and varies greatly. The only EU directive that carries direct relevance for this analysis was adopted in December 2005. Until 2014,⁴⁰ it obliged telecommunication providers in the EU to retain traffic data for a period of six to twenty-four months, “for the purpose of investigation, detection and prosecution of serious crimes.”⁴¹ Apart from the German government, which implemented the directive at the end of 2007,⁴² both Great Britain and France had addressed the issue of data retention years earlier.⁴³

While the role and responsibilities of the counterterrorism coordinator created in 2004 were broad in scope and also much in flux over the first few years,⁴⁴ it is clear that the coordinator still lacks the authority to counter the bureaucratic EU system or control member states’ activities. The position itself was a compromise between smaller member states who favored an EU intelligence agency and the larger members, who vetoed the idea.⁴⁵ At the operational level, a good argument can be made that the EU resembles much of a paper tiger as well.⁴⁶ The EU law enforcement organization Europol lacks executive authorities to this day.⁴⁷ Due to member states’ reservations about giving up sovereignty and lacking trust in Europol capacities,⁴⁸ reforms directed at strengthening cooperation between security agencies thus far have focused on increasing informationsharing capacities through the voluntary use of common databases and joint terrorism analysis.⁴⁹ Concerns about the lack of information sharing are voiced periodically, also in the context of the EU Intelligence Analysis Centre, which became part of the External Action Service in 2011.⁵⁰ While progress has arguably been made since 9/11, the EU remains on the sidelines of day-to-day operational counterterrorism matters. Cooperation is often based on bi- or multilateral arrangements between countries or informal groups and clubs outside the EU.⁵¹

The 9/11 Baseline

The 9/11 events mark the starting point of the baseline assessment for all four countries. While the three European states have extensive experience with varying kinds of domestic terrorism⁵² and these experiences resulted in responses that inform some of their current counterterrorism approaches, they have also reassessed these “older” institutional arrangements and policies or simply came up with new ones. Networked Jihadi suicide terrorism differs from the terrorism the three European countries experienced in the past. Regardless of prior experiences, all three states did introduce quite a few new policies and/or institutions to counter the new threats after 9/11. Further recognizing that some of their policy inheritances and experiences may have affected French, British, and German outcomes, the countries’ approaches are not judged by the number, quality, or extremeness of their reforms. Rather, the focus is on the question of what the nature and extent of the reforms reveal about the workings of government structures.

Even though European states did not suffer an attack on 9/11, Jihadi terrorism is viewed as a substantial security threat in all four countries since 9/11.⁵³ The number of casualties and the way the attacks were executed showed a new threat demanding new methods and answers. As counterterrorism is a dynamic process and terrorists learn to adapt, all four governments have continuously scrutinized and adjusted their own processes and methods accordingly, as well as analyzed trends and tools employed by terrorist networks to prevent future attacks and weaken terrorist logistical and operational structures.

Indeed, the events of 9/11 were such a sudden and traumatic shock that all states moved swiftly to improve their ability to meet the dangers posed by Jihadist terrorist networks. Because their responses have been carried out within an existing governmental structure, a comparison of national responses can reveal how differing structures affected countries’ responses—in areas where there were some or no existing policies or institutions in place.

Defining Domestic Counterterrorism

I define domestic counterterrorism in terms of its key institutional and operational features.⁵⁴ This focus is not accidental. Reflecting a need to counter increasingly transnational terrorist networks and in an effort to prevent Jihadi-style suicide terrorism, states after 9/11 especially targeted domestic institutional designs and policies to improve (1) informationsharing within the counterterrorism community, (2) interagency coordination among counterterrorism services, and (3) intelligence collection and analysis capacities.

In this context, a few more definitions are in order. The literature I discuss throughout this book uses the terms structural, institutional, and organizational often interchangeably. I, however, reserve the terms government structures and structural for executive and legislative (or judicial) branches of government, as well as the processes and dynamics between them. While these structures mostly affect horizontal relationships, in federal systems they may also run vertically, as there are separate federal, state, and local government levels. By implication, my references to institutions, organizations, and agencies relate to substructural units or bureaucracies, such as government departments, ministries, and agencies. The term “interagency” describes horizontal relationships, either between departments and ministries at the strategic, high policy level or among security agencies at the more tactical, operational level.

Measuring Government Structures

This book measures, compares, and contrasts the effect of structures and their policy outcomes in a cross-national analysis of four different parliamentary and presidential democracies. Toward this end, I look at four indicators across all four countries to determine whether and how differing structures impede or facilitate counterterrorism policy decision-making. The four empirical measures include (1) speed of response (how soon did countries respond? How long did decision-making processes take?); (2) decision-making per executive order or with congressional/parliamentary approval (the number of veto points encountered in the decision-making process likely has an impact on the scope and nature of agreed-upon measures); (3) level of public scrutiny and debate (whether the process allowed for an open debate, public hearings, or post-legislative scrutiny rather than secret and/or emergency procedures determines how far checks and balances were upheld); and (4) extent and nature of reforms (what was the focus, nature, and scope of the policy and institutional reforms? Did they affect the balance between executive, legislative, or judicial branches?)

The Case Study Method—Why Focus on Germany, Britain, and France?

The book is in the tradition of the method employed by other major comparative works on decision-making.⁵⁵ The case study approach yields the most nuanced and detailed approach to identifying the defining elements of national security policy processes, the often only fine differences between the responses, as well as the factors driving reforms. As government structures are only one of multiple other possible reform drivers, detailed case studies allow for the kind of qualitative analysis needed for the careful weighing and “weeding out” of alternative explanations. The most prominent of these include bureaucratic interests, political cultures, policy inheritances, threat perceptions, political conditions, and multilateral obligations. Moreover, the case study approach not only facilitates comparisons between the two presidential systems, the two parliamentary systems, the two unitary, and the two federal systems, but it allows comparisons across pairs: parliamentary versus presidential and unitary versus federal.

The cases are not selected at random but represent the most important U.S. NATO allies and the three most populous and powerful countries in Europe. The focus is thus deliberately on selected liberal democracies, as illiberal regimes, like Russia, do not hold lessons for U.S. practices. Understanding what reforms have been formulated in these three Western European countries, and also why, should facilitate international cooperation in general and also help determine whether some of the best practices could be replicated in the United States or elsewhere.

The four cases thus meet common criteria for strong case studies:⁵⁶ (1) they are data-rich cases; (2) they have a range of values on the independent variable “government structures,” which includes varying degrees and combinations of “stronger” fusion-of-powers and unitary systems as well as “weaker” separation-of-powers and federal systems; (3) they involve contemporary policy concerns, as there are numerous other Western countries that are affected by similar challenges; (4) they include prototypical background characteristics, as generic government systems feature either or both parliamentary or presidential characteristics and unitary or federal organization; (5) they are well matched for controlled cross-case comparison, as countries’ counterterrorism responses were formulated in response to the same threat and compared over the same time period; (6) at least two of the cases are outlier cases as, for example, Kenneth Waltz’s findings would predict that counterterrorism responses in parliamentary systems are few and far between; and (7) all four cases are of intrinsic importance as they evaluate responses to the 9/11 attacks, commonly considered a watershed event in world politics.

Sources

My research relies on primary sources whenever possible, including parliamentary and government documents obtained during research stays in all four countries. Equally important, the book draws on more than fifty expert interviews with German, British, French, and U.S. government (representing either legislative or executive branches) and security officials (representing law enforcement, judicial, or domestic/foreign intelligence agencies). Interviewees either participated in the decision-making processes or were involved in implementing the reforms. The names of all interviewees are withheld by mutual agreement. I decided in favor of this kind of anonymous arrangement mainly because it seemed to encourage a more candid and productive exchange with individuals who, due to their government affiliation or line of work, were naturally more reluctant to share information. While it also makes it difficult to verify the information thus obtained, I have tried to supplement and corroborate materials from interviews with publicly available information whenever possible.