It further bears mentioning that checks have been kept in place with regard to foreign–domestic security and intelligence–law enforcement divides (and more so than in, for example, Britain or France), even though increased information sharing has been a top reform priority. President Bush thus decided against adding homeland security responsibilities to the portfolio of his national security advisor, creating a separate homeland security advisor and Council framework inside the White House, and the Obama administration mostly held on to this arrangement. While the NCTC was created as an all-source intelligence fusion center, merging foreign, domestic, law enforcement, and intelligence data, the FBI remains in charge of all domestic source data, whereas NCTC is responsible for all foreign leads. Similarly, the director of national intelligence is subject to various checks that were specifically imposed to prevent power consolidation inside the executive branch.
Finally, efforts to better connect with state and local governments illustrate a two-pronged approach: while the FBI has increased its presence and more than tripled the number of Joint Terrorism Task Forces in the states since 9/11, the Department of Homeland Security has been looking to link up with states via the many state-run fusion centers. As will be seen in the forthcoming chapters, this is both similar to efforts in federal Germany, where state and federal security services were also newly connected via fusion center and database institutions, as well as responses in unitary France and Britain, where national governments decided to “decentralize” and permanently deploy counterterrorism units in the regions.
Chapter 3
Case Study II: Germany
Part 1: German Government Structures and Decision-Making
The German government system displays only few of the strong executive powers typically associated with parliamentary democracies. Instead, it is notorious for the various checks and restraints imposed on the executive branch. These are numerous within the executive branch, where the electoral system has given rise to additional power-sharing arrangements. The chancellor not only needs to drag along his or her party but must also secure support from the coalition partner. Additional interlocking powers characterize the intergovernmental dealings between the federal and state governments regarding domestic security affairs. In fact, the federal-state relationship in the domestic security arena brings about separation-of-powers effects usually reserved for presidential systems. Before analyzing counterterrorism responses after 9/11, a detailed assessment of the structural confines of German decision-making processes—how they have evolved since the founding of the federal republic in 1949, and the informal rules of engagement the constitution does not reflect—is in order.
German Power-Sharing Arrangements
It is no coincidence that foreign observers, especially hailing from presidential systems like that in the United States, refer to the British rather than the German parliamentary model when discussing the alleged “efficiency” of parliamentary systems. The German system is cumbersome, complex, and confusing, as it represents the epitome of power-sharing, political checks, and compromises. In other words, it is designed to restrain rather than facilitate executive power. Apart from the legislative checks common to all democratic government systems and the rather informal intraexecutive coalition and party checks (the latter being similar to those imposed on British prime ministers), the German system exhibits additional structural checks that go beyond anything we can find in British, French, or U.S. government systems. The German Länder (states) participate in the legislation and administration of the federation through their representation in the Bundesrat (federal council),1 which plays a role similar and yet more powerful to that of the upper houses in bicameral systems like those of the United States, Great Britain, and France. As the Bundesrat has essentially “veto powers” with regard to many domestic security laws, it serves as a powerful control mechanism on the Bundestag (federal diet) and, by extension, the executive branch in the domestic security realm.
In Germany, as in other parliamentary systems, the structural balance of power has tilted toward the governing majority made up of representatives from both executive and legislative branches. Like the British prime minister, the German chancellor can stay in power only as long as he or she is supported by a legislative majority in the Bundestag. Connected by “personal union,” the chancellor and cabinet members often serve as members of Parliament.2 Further illustrating this synergy, the executive uses its “affiliated” parliamentary groups to introduce cabinet bills to the Bundestag to speed up the decision-making process.3
Alternatively, Montesquieu’s principle (“que le pouvoir arrête le pouvoir”) is implemented through various inter- and intrabranch controls, as well as an elaborate and unique system of interlocking powers.4 Horizontal checks on executive power include, most important, the Bundestag’s right to replace the chancellor by means of the no-confidence vote. As the chancellor can only be forced out of office through a constructive vote of noconfidence (Article 67 of the German Basic Law), he or she has more job security than any British prime minister. The same members of Parliament who withdraw their support for the chancellor have to elect a successor with an absolute majority within 48 hours. The chancellor cannot actively dissolve the Bundestag, but can threaten to invoke a vote of confidence (Article 68). Intended as an instrument to discipline parliamentary critics within the chancellor’s own ranks, this article has served the sole purpose of calling in early elections in the event of a no-confidence vote.5 Other formal Bundestag powers include the right to establish investigative committees and summon executive testimony. Opposition parties may influence executive agenda-setting by introducing legislation, launching written inquiries, and publicly questioning cabinet resolutions and government conduct.6
Illustrating significant discrepancies with the British parliamentary system, the German electoral system prevents the Westminster-style “singular approximation” of executive and legislative power.7 In contrast to the British majoritarian two-party system, the German proportional election system ensures multiparty representation in Parliament.8 As a result of this multiparty competition, it is practically impossible for any one party to reach an absolute majority of over 50 percent necessary to gain control over all other parties. With one exception, since 1949 all majority parties in Germany have had to form governing coalitions with other parties. Illustrating the all-pervasive political culture of power-sharing commonly associated with consensus democracies like Germany, even when his Christian Democratic Union (Christliche Demokratische Union, CDU) party reached the absolute majority in the 1958 elections, Chancellor Konrad Adenauer opted for a coalition to improve his government’s legitimacy and thus decision-making powers. Needless to say, British-style majority voting is considered unfair and even undemocratic among German critics.
As a result of the coalition “fragmentation” in the executive branch, the Bundestag gains clout, so that parliamentary groups can and do play a more influential role in the decision-making process than the British Commons or French National Assembly.9 This is also symbolized by the fact that, in contrast to the British and French prime ministers, the chancellor is formally elected by the members of the Bundestag (Article 63) rather than nominated by his or her party (like in Britain) or president (like in France).
Party Democracy and Deparliamentarization
Despite the relative strength of the Bundestag as a structural check on the