Part 3: Analysis and Conclusion
How Did Government Structures Influence Counterterrorism Decision-Making?
Speed of Response—How quickly did the United States respond to the 9/11 attacks and/or others? How long did decision-making processes take?
The initial response of the Bush administration after 9/11 was swift. The Office of the Homeland Security Advisor and Homeland Security Council inside the White House were created within a few days per executive order. However, Congress and the Democrat-led Senate also did not stand in the way of the 2001 Patriot Act drafted by the Justice Department, which only took five weeks to pass and was adopted into law October 26, 2001.
With the exception of the TTIC and TSC joint ventures created by executive order, the tables began to turn soon after, when it seemed that the U.S. separation of powers system was reverting to its more typical decision-making mode characterized by long-term bargaining (put positively) or deadlock (put negatively). Senate opposition to the White House-sponsored Homeland Security bill stalled the process for five months, until the November 2002 midterm elections produced Republican majorities in both houses. Conditions typically associated with unified government did not take effect, however, suggesting that the legislative battles were not dominated by partisan concerns but instead pitted the two branches against each other. Due to House opposition, the Intelligence Reform Act of 2004 was not passed until after the 2004 presidential elections, after more than ten weeks of stalemate. The Patriot Act expired twice before the Senate eventually agreed to reauthorize it after a ten-month struggle in 2006. Conversely, after the 2006 midterm elections, divided government features did not seem to take a toll on the speed of decision-making. Exhibiting the flexibility inherent in the U.S. system and suggesting the relative unimportance of the changed political environment, a Democrat-led Congress took less than five days to adopt amendments to the FISA law (based on a White House/DNI proposal) and pass the temporary Protect America Act of 2007. That same Democrat-led Congress took more than four months after the latter expired in February 2008 to agree on the 2008 FISA Amendments Act. Similarly, when it became time to reauthorize the Patriot Act in 2009, the Obama administration was unable to reap the benefits from unified government conditions, so that the Patriot Act had to be renegotiated once again just twelve months later. Faced with a Republican majority in the House that time around, Congress only managed to reauthorize the act after a three-month extension. By comparison, the re-authorization of the FISA Amendment Acts in fall 2012 fared quickly and was completed by the end of the year, even though Obama still faced a Republican-led House.
Decision-Making Mode—Were decisions made by means of executive order, or did they require congressional approval?
Institutional reforms were initially created by executive order and without congressional involvement. In fact, executive initiatives like the Homeland Security Office OHS and the Terrorist Threat Integration Center TTIC (which would later become the National Counterterrorism Center NCTC) were intentionally loosely designed so that congressional meddling, jurisdictional questions, and time-consuming legislative procedures could be avoided. Interestingly, as will be seen in the next chapter, similar concerns existed with regard to the new German counterterrorism center, also created by means of executive order and in an effort to avoid structural hurdles.
While this approach facilitated expedient decision-making in the immediate aftermath of a catastrophic event, it also helped retain executive independence in intelligence matters, commonly considered a presidential prerogative. Even so, it is particularly striking that all new institutions and positions thus created (with the exception of the Terrorist Screening Center, which subsequently became part of the FBI’s National Security Branch) were sooner or later put on a statutory basis. The legislative decision mode changed the scope of the institutional reforms; lightweight executive institutions gave way to more heavyweight congressional solutions.
Over time, Congress managed to impose legal boundaries on all those institutions and programs initially stood up by executive order—including the Homeland Security Office/advisor, the Terrorist Threat Integration Center, the FBI National Security Branch and the secret NSA surveillance program. In some instances, lawmakers compelled White House action with the power of the purse; in other cases, the 9/11 Commission report and court rulings offered additional political cover and opportunities for legislative action. The U.S. Congress has a vested interest in producing legislation that translates into tangible electoral results and additional oversight powers over executive institutions and programs. Once the White House had been maneuvered into the legislative corner, however, it still made sure to have a significant say over the contents of the legislation—either by taking charge of process (in the case of the Patriot, Homeland Security and FISA Reform Acts) or by disengaging and thereby encouraging watered-down solutions (in the case of the Intelligence Reform Act).
Regardless of the branch responsible for the reforms, both had to overcome significant hurdles inherent to the decision-making process. These came in the form of interbranch resistance, like the showdown between the White House and Senate that stalled the 2002 Homeland Security and 2005 Patriot Reauthorization Acts, or House opposition to the 2008 FISA Amendments Act or the 2010/11 Patriot Act Reauthorization. In the case of the 2003 Patriot II Act, a bill that was circulated but never introduced to Congress, decision-making hurdles appeared too high, leading to secret measures (the NSA program) by means of executive order and alternative routes of decision-making instead.
Decision-making hurdles also came in the form of interagency conflicts which either played out within the executive branch (when, for example, cabinet members shot down the 2001 White House proposal to create a new border agency) or as proxy wars in Congress, where executive departments formed alliances with their respective oversight committees. Reps. Sensenbrenner and Hunter thus became the Pentagon’s (and likely the White House’s) most valuable allies in the battle against the sweeping intelligence reform bill in the Senate. As these examples of interagency turf battles also illustrate, they were limited to organizational reforms and did not appear to have much of an impact on security policy reforms like the Patriot Act and FISA bills (which instead pitted the branches against each other).
Bureaucratic attempts to whittle down reorganization proposals could only be prevented by shutting the bureaucratic stakeholders out of the executive planning and/or legislative process, as happened in the case of the 2002 Homeland Security legislation. In fact, herein appears to lie a critical key to legislative solutions reflecting executive branch preferences: the White House can influence the process (and, by extension, outcomes) to a significant extent through concerted lobbying efforts or else, by disengaging. During the passage of the 2001 Patriot and 2002 Homeland Security Acts, White House officials had a significant say in the conditions of legislative decision-making that would serve executive interests best, particularly in the House of Representatives. The typically disjointed decision-making procedures were bypassed in the mark up of the Patriot Act (the House committee bill was exchanged for a version prepared by small group of key lawmakers and White House staff) and the 2007 Protect America Act and also sidestepped in the making of the Homeland Security Act (the standing House committees had no veto powers and adopted the proposal prepared by a small group of White House advisors). When refusing to extend the temporary Protect America Act a second time, President Bush was arguably looking to force the House to agree to the Senate version of the 2008 FISA Amendments Act, and successfully so.
In the case of intelligence reform, fragmented decision-making procedures were left in place while the White House kept a conspicuously low profile in the process. This time around, “cleaved” committee structures worked to the advantage of not only the DOD and House lawmakers but also, conceivably, the White House; the latter did not seem to take much interest in the sweeping intelligence proposal, considered an infringement on executive branch powers and national security prerogatives, until its provisions were further watered down.
Level of Public Scrutiny and Debate—Did the decision-making process allow for an open debate,