Counterterrorism and the State. Dorle Hellmuth

representatives from state, local, and federal agencies and were engaged in not only horizontal interagency (across one level of government) but also vertical (across local, state, and federal governments) information sharing.

      Quest for More Reorganization: The 2004 Intelligence Reform Act

      Championed by Senators Joe Lieberman and John McCain (R-Ariz.), Congress pressed the Bush administration to convene an independent, bipartisan commission to investigate the intelligence failures leading up to the 9/11 attacks.²²⁵ The 9/11 Commission presented its highly anticipated report in July 2004. Amid an emotionally and politically charged atmosphere—with victims’ families demanding action and the presidential elections only three months away—President Bush acted fast to implement its two most “attention-grabbing”²²⁶ recommendations. As directed by executive order, TTIC became the foundation of the new National Counterterrorism Center (NCTC) in August 2004, which would perform the same functions as TTIC.²²⁷ A second order directed the director of central intelligence “to perform the functions of the National Intelligence Director … until Congress establishes [a] law.”²²⁸ It essentially left the traditional budgetary hierarchy intact, so that the Pentagon remained in control of over 80 percent of national intelligence spending (which, for the most part, was being distributed to technical intelligence like the National Security Agency, the National Reconnaissance Office, and the National-Geospatial Agency).

      Even before summer recess, Majority Leader Bill Frist (R-Tenn.) decided that the Government Affairs Committee would have sole responsibility for the bill in the Senate. By early October, Chairwoman Susan Collins and ranking member Joe Lieberman had introduced legislation that—if adopted—would have stripped the Pentagon of a significant portion of this budgetary power, as well as granted the director of national intelligence (DNI) immense reprogramming authority. In the House, the decisionmaking process was much more fragmented, as the bill would be assembled by five different committees—all eager to defend their established turf. The approach was thus in stark contrast to the strategy the House leadership adopted two years earlier, when Speaker Hastert sought to secure support for the Homeland Security bill by establishing a new committee especially designed for that purpose.²²⁹

      President Bush soon reversed his initially muted reaction and announced support for a DNI with “full budgetary authority,”²³⁰ effectively endorsing the Senate position. His announcement was followed up with a White House legislative proposal that put the DNI in charge of up to 75 percent of the intelligence budget.²³¹ However, even though Bush proceeded to call on Congress to pass the bill, “Republicans who opposed the legislation … sensed that the president’s support was lukewarm, a campaign necessity, not a personal endorsement.”²³² Others thought it likely that Bush secretly preferred the House version of the bill. Not only did it leave in place the institutions and authorities previously authorized per executive order but it also broadened executive authorities at the expense of Congress, such as granting the president fast-track intelligence overhaul authorities.²³³ Yet others thought it important that the Pentagon—represented by the president’s most powerful cabinet member, Secretary Donald Rumsfeld—was opposed to the Senate plan for a strong DNI.²³⁴

      While Rumsfeld did not openly defy the administration’s position in support of the Senate bill, Pentagon officials launched what some described as a massive behind-the-scenes campaign in Congress, in which House Representatives Duncan Hunter (R-Ca.) and James Sensenbrenner emerged as staunch opponents of the Senate bill. As DOD’s most reliable ally, Hunter argued that the proposed reforms would cut the lifeline between satellite intelligence and the troops in the field. Sensenbrenner, by contrast, sought to include additional law enforcement powers that would facilitate the surveillance, detention, and deportation of noncitizens; because these went far beyond the 9/11 Commission recommendations, these provisions were considered poison pills by many.²³⁵ In fact, several had been part of a 2003 Bush administration proposal that was soon dropped because the public response to it was so negative. Ironically, Sensenbrenner had played an instrumental role in blocking Justice Department efforts back then; he also blocked efforts to make all U.S.A. Patriot Act sunset provisions permanent.²³⁶ Dubbed Patriot II, the draft version of the “Domestic Security Enhancement Act” targeted foreign nationals, illegal immigrants, and U.S. citizens alike, and granted the Attorney General unilateral powers to authorize secret arrests in combination with unlimited detentions, summary deportations, and new surveillance measures.²³⁷

      The Sensenbrenner-Hunter alliance prevailed: the final House intelligence reform bill included Sensenbrenner’s controversial measures and also left the DOD in charge of the intelligence budget. As a result, members of the Conference Committee were unable to resolve their differences before the November elections. As the negotiations continued, calls on the newly reelected president to step up his personal engagement intensified, with lawmakers demanding that “Mr. Bush had better put aside polite telephone entreaties and try grabbing recalcitrant Republicans by the lapels.”²³⁸ Nevertheless, the White House appeared unsuccessful: Speaker Dennis Hastert refused to call a House vote on the conference bill on November 19, even though the bill could have been passed with the votes of the Democrats who pledged their support for it.²³⁹ Arguing that it was not carried by the “majority of the majority,” Hastert yielded to heavyweights like Hunter and Sensenbrenner who were still opposed to the bill. Some have used the House’s defiance of the administration’s position to illuminate the importance of presidential leadership and legislative involvement, even in times of unified government. Under an alternative scenario, the White House’s lacking resolve at the negotiation table might be more indicative of ulterior motives and opposition to the bill that were indirectly served by Hunter’s and Hastert’s stalling tactic.²⁴⁰ Adding to suspicions about the administration’s underlying intentions was an open letter to Congress, in which the Chairman of the Joint Chiefs of Staff, General Richard Myers, voiced his support for Hunter’s version of the bill.²⁴¹ Accordingly, yet others argue that decision-making processes best illustrate bureaucratic pressures at work—the president yielded to a DOD that was simply too powerful and unwilling to cede any budget authority.

      While the White House did swing into action after the Hastert episode, with Dick Cheney stepping up pressure on Chairman Hunter,²⁴² those House lawmakers with a vested interest in maintaining the status quo remained in the better bargaining position. As the lame-duck session was seen by many as the last chance to take advantage of the momentum created by the 9/11 report, critics like Senator Robert Byrd worried about the “type of Faustian bargains [that] will be struck to jam this bill through the Congress.”²⁴³ Confirming Byrd’s concerns, Collins and Lieberman eventually conceded to Hunter’s demands, inserting language that the DNI may not “abrogate the statutory responsibilities” of the Department of Defense and other agencies and thereby overrule their budgetary decisions.²⁴⁴ After the House and Senate passed the bill, President Bush signed the Intelligence Reform and Terrorism Prevention Act into law on December 17, 2004.²⁴⁵

      The act created the new position of the director of national intelligence in addition to the director of the CIA, who now reported to the DNI. The DNI took the place of the former director of central intelligence, but with broader budgetary and management authority to exert direct influence over individual agency/department programs, personnel, and acquisitions, as well as establish intelligence collection and analysis priorities. While the legislation was intended to boost the authority of the DNI (and provide the position with the robust foundation needed to manage the intelligence community the former DCI was thought to be lacking), the same bill effectively curbed these powers.

      Suspicious of the potential of yet another “czar” position that “reigns over the intelligence community but does not rule it,”²⁴⁶ critics questioned the DNI ability to implement reforms while simultaneously having to fight and keep turf-conscious bureaucracies, including executive-branch heavyweights like the Pentagon and the CIA, at bay.²⁴⁷ In addition, the DNI would continue to face its various congressional allies, as Congress failed to meet its end of the bargain and did not implement 9/11 Commission recommendations aimed at streamlining its own structures.²⁴⁸ Because the DNI lacked the clout that comes with “owning” a department or an agency, the extent of the DNI’s influence