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.