Counterterrorism and the State. Dorle Hellmuth

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