Similar to the other countries in this analysis, debates were either nonexistent or cut short during the brief legislative process that led to the 2001 reforms. Senate lawmakers had four hours to debate a Patriot Act proposal put together by a small group of key lawmakers, the White House, and Justice Department officials. House lawmakers adopted a similar version without any readings and debates. There were no conference reports.
Naturally, whenever standard legislative procedures were cut or bypassed, the level of public scrutiny and debate also declined. This was the case when the 2007 Protect America Act was passed within four days. Most important, the blueprint for one of the largest reorganization efforts in the history of the U.S. government was based on the secret discussions of a small group of White House advisers within the executive branch, and not subjected to any scrutiny or debate outside this exclusive circle. The White House plan could have been scrutinized once the Homeland Security bill was introduced to Congress—however, procedures were changed so that the final version of the bill was decided by a specially formed select committee and essentially left unchanged. In addition, the political context changed after the Democrats lost the Senate majority in the 2002 midterm elections. In fact, the elections paved the way for parliamentary-like conditions in which the White House proposal (largely left intact by House lawmakers) could pass the legislative process virtually untouched. The political process in the United States encourages preelection gambles like this one, as pending bills may still be adopted in the lame duck session.
Conversely, the 2004 intelligence reform bill was subject to considerable debate. The unusually high levels of public scrutiny also meant that principal Senate decision-makers, responsible for creating the 9/11 Commission in the first place, could not walk away from a watered-down bill in the lame duck session. By contrast, the debate over the 2005 Patriot Reauthorization Act did not stop in the face of the looming expiration date (admittedly, there was greater flexibility to extend the act, whereas lame duck sessions cannot be continued indefinitely). During the three-month conference debate, lawmakers focused on many of the same issues that went undiscussed when the original Patriot Act was rushed through Congress in 2001. They also succeeded in installing new oversight mechanisms on, for example, National Security Letters. While the debate over the merits of the 2007 FISA revisions was surely limited, and once again strategically backed up against a congressional recess, it was clear that any contentious issues could be revisited, as the law was scheduled to sunset eight months later. Likewise, the FISA Amendments Act passed after significant debate and more than four months after the temporary Protect America Act had expired. The act was reauthorized once in 2012, following standard committee procedures and floor debates.
After the initial debate about the Patriot Act Reauthorization in 2010 was essentially postponed, as the act was simply extended by another twelve months, legislative activities in 2011 were characterized by significant committee and floor deliberations, furthered by a three-month extension. Even if the additional time available did not translate into any actual statutory changes, the sunset clauses served as central instruments for post-legislative scrutiny and opportunities for continued debate of controversial measures. Interestingly, despite close coordination between the Obama White House and the Democrat-led Congress in 2010, concerted efforts to reform the Patriot Act failed. The legislative stalemate led to some voluntary, intraexecutive reforms instead—further suggesting that the executive branch preferred crafting its own solutions, thereby avoiding statutory restrictions and requirements in the first place.
Public debates were also lacking in the standing up of the OHS, TTIC, and TSC, as these were executive initiatives. However, after a brief honeymoon period lawmakers began scrutinizing Home Office and TTIC functions ruthlessly, insisting on creating a statutory footing for both.
Nature and Extent of Reforms—What was the focus and scope of the reforms? Did they affect the balance between executive, legislative, or judicial branches?
Similar to the other countries in this book, executive branch agencies in the United States gained significant powers as a result of the reforms. New counterterrorism measures strengthened intelligence collection and surveillance authorities, facilitated the sharing of public/private sector data with security services, and encouraged information sharing between security services, as well as preventive policing. The new National Security Branch, which consolidated all intelligence-related FBI directorates, is an example of the latter: while the FBI remains a law enforcement organization at heart, it also has been forced to expand its focus to embrace a more “preventive paradigm” that includes intelligence-led policing.
At first sight, post-9/11 counterterrorism reforms in the United States appear to have favored the federal executive branch considerably and gone at the expense of judicial and legislative oversight. For example, executive branch bureaucrats, and politicians, like FBI field officers, the DNI, or the Attorney General, now play a larger role in issuing administrative subpoenas and wiretap orders previously authorized by the FISA Court.
Congress has prominently been blamed and served as a scapegoat for these developments. Yet, even if lawmakers have not been on their most belligerent behavior, White House officials still had to overcome a number of structural hurdles inherent to decision-making in the U.S. separation of powers system. And even if lawmakers may have been susceptible to White House arguments that linked the need for reforms to the national security of the United States, the White House was equally affected by the same arguments and, therefore, could not openly defy the intelligence reform recommendations of the 9/11 Commission or ignore congressional scheming to create a new department to strengthen homeland security coordination.
On second view, Congress managed to impose significant legal boundaries on all new institutions and measures and, in so doing, shape counterterrorism outcomes. In fact, structural effects were particularly noticeable with regard to institutional reforms. While reorganization efforts were designed to centralize homeland security and intelligence coordination within the executive branch and thereby strengthen control over the highly fragmented security architecture, the degree of centralization varied depending on whether Congress was involved in the decision-making process. The initial response of the Bush administration merely consisted of creating a new coordination mechanism at the highest policy level, in form of a new White House Office of Homeland Security. Other executive initiatives designed to facilitate information sharing between security services pooled intelligence-analysis capacities and watch lists inside the Terrorist Threat Integration and Terrorist Screening Centers. Representing network-centric arrangements, these centers had flat organizational designs and served as nodal points of contact between stove-piped departments. Over time, however, these lightweight executive models gave way to more heavyweight congressional solutions. Legislated reorganization efforts resulted in far more hierarchical institutional arrangements as illustrated by the new Department of Homeland Security and the Office of the Director of National Intelligence. Illustrating the scope of the reorganizational effects, the DHS and DNI not only altered the interagency landscape within the executive branch but also affected congressional decision-making, oversight, and appropriations structures.
In the case of the intelligence reform, an area typically considered a presidential prerogative, Congress set the legal boundaries especially tight and specified the set up and rules of engagement of the DNI office in great detail (further putting it in stark contrast to the National Security Act of 1947, which left the creation of the CIA/DCI at the discretion of the president). The most controversial parts of the Patriot, Intelligence Reform, Patriot Reauthorization, and FISA Amendments Acts would have sunset if not reauthorized by Congress. Even the temporary FISA amendments contained in the 2007 Protect America Act, widely viewed as one of the Bush administration’s greatest “imperial” coups, imposed new legal boundaries on secret executive practices previously subject to only very limited congressional oversight (by means of the Gang of Eight). The temporary act was eventually replaced by the permanent FISA Amendments Act, which echoed many Protect America provisions and, by implication, validated the controversial NSA program to a certain extent. At the same time, it also expanded FISA Court protections for U.S. citizens, both at home and abroad, and introduced new oversight mechanisms, reinstituting Congress as a fundamental player in FISA decision-making and implementation.
Despite