Counterterrorism and the State. Dorle Hellmuth

personal resolve and political skill.²⁴⁹ The first Director of National Intelligence, John Negroponte, who was sworn into office in April 2005, thus used the opportunity to increase DNI manpower as provided by the act and established the National Counterproliferation Center within the Office of the DNI. This accumulation of new institutional resources and analysis capacities appeared necessary for more than one reason: apart from the role as chief intelligence coordinator, the DNI also took over CIA responsibilities as principal intelligence advisor to the White House and the federal government. In this capacity, the DNI needed to have access to intelligence across the federal government, while also ensuring that all federal departments, agencies, and intelligence committees have access to the intelligence needed to accomplish their work.²⁵⁰

      And yet, 9/11 Commission architects and lawmakers installed intentional checks on his authorities that would weaken the DNI’s standing even within his own office. With regard to covert operations, the CIA still reported directly to the president rather than the DNI. The president also retained the authority to issue operational orders to the CIA. While the DNI was in charge of the NCTC as the central hub for analyzing terrorism-related intelligence across the community, the NCTC director reported to the National Security Council on all issues related to strategic operational planning. The bifurcated lines of authority are designed to prevent the NCTC from policy-making and consolidating too “much power within one center of the government.”²⁵¹

      Apart from the organizational changes suggested by the 9/11 Commission, the Intelligence Reform Act also went beyond those recommendations. It included a number of law enforcement measures that had been on legislative plates as part of Patriot II and other stand-alone bills over the previous years.²⁵² Inter alia, the FBI would finally be authorized to target “lone wolf” terrorists not connected to foreign intelligence or terrorist organizations by way of surveillance and search warrants.²⁵³

      The act further established a new directorate of intelligence at the FBI. However, the Bureau’s largest post-9/11 shake-up did not occur until several months later. In a June 2005 memorandum, President Bush ordered the consolidation of the three FBI directorates responsible for domestic intelligence (foreign intelligence, counterintelligence, and counterterrorism) into the National Security Branch.²⁵⁴ The presidential order was subsequently sanctioned by Congress as part of the 2006 Patriot Reauthorization Act, which thus created the statutory foundation for a separate intelligence unit within the FBI.

      Reorganization Left Unfinished: Inside the Legislative Branch

      Revealing striking parallels to the earlier turf considerations in the executive branch, Congress has been reluctant to tackle its own organizational structure. When the Homeland Security Act was passed in November 2002, it merely stated that it is “the sense of Congress that each House of Congress should review its committee structure in light of the reorganization of responsibilities within the executive branch.”²⁵⁵ The task was left unfinished. The committee structures in both houses remained essentially unchanged, and the transferred components of the newly created department continued to be accountable to their many committees and subcommittees.²⁵⁶ As a result, in 2004 DHS officials still spent significant time preparing testimonies for hearings before eighty-eight committees and subcommittees,²⁵⁷ in addition to hundreds of informal briefings.²⁵⁸ The coordination dilemma was particularly apparent in the much bigger House.

      Both houses did establish new appropriation subcommittees for homeland security—a step that was easy to implement because jurisdiction did not have to change hands. However, critics noted that careful scrutiny of budgetary issues could not serve as a substitute for congressional oversight.²⁵⁹ They further warned that the widely dispersed authority threatened the effective consolidation and performance of DHS.²⁶⁰ By being responsible to everyone, DHS was effectively accountable to no one. In the view of many, the consolidation of more than twenty executive agencies and programs could only be achieved with the help of two permanent Homeland Security Committees.²⁶¹ These committees would provide focal points for overseeing DHS performance, spending, management, and technology; they would also be responsible for setting budget priorities, confirming nominations, and introducing future legislation.²⁶² In addition, the creation of new standing committees would ensure that non-homeland security issues again received full attention in their “old” committees.

      Not surprisingly, the chairmen of these “old” committees, notably heavyweights like Rep. Sensenbrenner of the Judiciary and Don Young of the Transportation Committee, were opposed to creating new committees. Rep. James L. Oberstar (D-Minn.), ranking member of the Transportation and Infrastructure Committee, had already warned that his “committee is going to fight like hell to make sure there’s no new Homeland Security Committee created.”²⁶³ Lawmakers feared losing control over “their” agencies—reflecting many of the same turf concerns that were voiced in the process of writing the DHS legislation.²⁶⁴ In addition, there were genuine concerns that the reorganization of jurisdiction would result in the loss of expertise and acquired knowledge.

      The House Select Committee on Homeland Security, established as a vehicle for passing the Homeland Security Act, represented a temporary compromise—it had no authority over department heads and budgets and could only issue recommendations to the standing committees. Its work largely depended on the ability of its chairman, Rep. Chris Cox (R-Ca.), and other big-name members, to assert themselves and facilitate a more coordinated process between the various committees. According to Rep. Jim Turner (D-Tex.), the committee was not very effective because chairmen of other committees “jealously guard[ed]” their jurisdiction and held competing hearings.²⁶⁵ Pessimistic about the chance of substantial committee realignment, Rep. Christopher Shays (R-Ct.) noted, “The chairmen have their own little armies. You can almost think of them as Afghan warlords.”²⁶⁶

      Stressing the need for “a single, principal point of oversight and review for homeland security”²⁶⁷ in both houses, the 9/11 Commission report reignited these reorganization efforts in the fall of 2004.²⁶⁸ This time, lawmakers took action. Almost two years after the passage of the Homeland Security Act, the Senate approved a resolution delegating oversight over various DHS components to the Governmental Affairs Committee. It is interesting to note, however, that a step designed to streamline the oversight process did not transfer jurisdiction of its main component agencies, including the TSA, the Coast Guard, the Secret Service, the Border Patrol, or Customs’ revenue functions. Senate heavyweights, therefore, managed to hold on to “their” agencies.²⁶⁹ Critics argued that the limited scope of the reform did not amount to much more than a name change (to Senate Committee on Homeland Security and Governmental Affairs).²⁷⁰ Yet others warned that adding new responsibilities to an existing committee would detract attention from the committees’ primary duties of overseeing governmental management reform issues.²⁷¹

      Not to be outdone, the House also acted. On January 4, 2005, the House Conference agreed to make the Select Committee on Homeland Security a permanent committee. It would have “exclusive authorization and primary oversight jurisdiction with respect to the Department of Homeland Security’s responsibilities and activities related to the prevention of, preparation for, and response to acts of terrorism within the United States.”²⁷² However, there were again exceptions to this authority. Having opposed reorganization all along, House chairmen like James Sensenbrenner and Don Young made certain that the committee would not have jurisdiction over FEMA’s natural disaster responsibilities, the non-homeland security missions of the Coast Guard, or immigration issues unrelated to homeland security.²⁷³ After everything was said in done, in 2011, DHS officials still counted 100 committees and subcommittees with oversight authority over DHS.²⁷⁴

      In the intelligence domain, the 9/11 Commission verdict was equally harsh, calling congressional oversight of intelligence and counterterrorism “dysfunctional.”²⁷⁵ The commission referred to the widely dispersed intelligence authorities that allowed the turf battles of the 16 competing agencies to spill over into numerous different committees responsible for oversight, authorization and appropriation and to play them off against one another.²⁷⁶ Amid these divided jurisdictions, coordinating interests and developing a coherent intelligence policy becomes a