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