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