Sources
My research relies on primary sources whenever possible, including parliamentary and government documents obtained during research stays in all four countries. Equally important, the book draws on more than fifty expert interviews with German, British, French, and U.S. government (representing either legislative or executive branches) and security officials (representing law enforcement, judicial, or domestic/foreign intelligence agencies). Interviewees either participated in the decision-making processes or were involved in implementing the reforms. The names of all interviewees are withheld by mutual agreement. I decided in favor of this kind of anonymous arrangement mainly because it seemed to encourage a more candid and productive exchange with individuals who, due to their government affiliation or line of work, were naturally more reluctant to share information. While it also makes it difficult to verify the information thus obtained, I have tried to supplement and corroborate materials from interviews with publicly available information whenever possible.
Chapter 2
Case Study I: The United States
Part 1: U.S. Government Structures and Decision-Making
The balance of power between the executive and legislative branches has undergone considerable changes since the signing of the U.S. constitution. After 1945 in particular, Congress has resembled the first branch of government only on paper. The executive branch, by contrast, gained significant institutional capacities and powers in the foreign policy/national security realm—often with the help of Congress. On other occasions, the ambiguity inherent in the constitution offered room for new legal precedents or reinterpretations. A review of these, as well as some of the unwritten, more informal rules that govern interbranch relations in the U.S. separation-of-powers system, helps shed light on the structural framework of decisionmaking on the eve of the 9/11 attacks.
U.S. Separation of Powers
The separation of powers is the most striking feature of the U.S. presidential system. While influenced by Montesquieu, the framers understood the practical limitations of his maxim that also reflected their own governing experiences in the colonies.1 To guard against human passions, factions, and power accumulation, they created three separate yet interconnected branches that cannot conduct much business without the others. James Madison elaborated on the need for these overlapping powers in the Federalist Papers, giving rise to Richard Neustadt’s contemporary description of interbranch dynamics as “separated institutions sharing powers.”2 While the president cannot introduce legislation of his own, Congress has invited executive bill drafting and advice since the first administration of George Washington.3 In addition, the president may recommend “measures … he shall judge necessary and expedient,” and use the State of the Union address as a platform for presidential initiatives. Once Congress passes a bill, it still needs to be signed by the president. His veto can only be overridden by two-thirds of the Senate and House. Because of the tremendous power of the veto threat, Woodrow Wilson referred to the president as the “third branch of the legislature.”4 Conversely, any executive action requiring funding needs to be sanctioned by Congress, which holds the power of the purse. As a result, the governing process is characterized by constant bargaining and negotiating. The president prevails by the “power to persuade” rather than dictating policies.5 Judicial review, different election cycles, and the bicameral system provide additional checks and balances.6
A prominent school of thought argues that cooperation between the executive and legislative branches is more complicated during periods of divided government, when the president’s party holds the minority position in one or both houses of Congress. For example, Democrat President Woodrow Wilson came to experience Congress’s “ruling power” when the Republican Senate refused to support the Treaty of Versailles in 1919.7 It is generally assumed that “bargaining ‘within the family’ has a rather different quality than bargaining with members of the rival clan.”8 As the most influential challenger of this view, David Mayhew has argued that “it does not seem to make all that much difference whether party control of the American government happens to be unified or divided.”9 To be sure, there are a number of examples in which instances of unified government did not help streamline the cumbersome political process. Commenting on the resistance Jimmy Carter faced from Democrat lawmakers throughout his presidency, Douglas Bennett suggested that “partisanship does not bind the majority in Congress to the White House as much as the separation of powers separates them.”10 More recently, Bill Clinton failed to retain support from the Democrat-led Congress for his multilateral peace operations policy in Somalia.11
The U.S. Constitution and Foreign Affairs: An Ambiguous Affair
However, the aforementioned examples are equally symptomatic of interbranch wrestling over the question of which branch gets to have a say in which foreign policy matter. The controversy is rooted in the constitution, which Edward Corwin famously described as “an invitation to struggle for the privilege of directing American foreign policy.”12 While it does not mention foreign policy per se, the framers created roles for its formulation and conduct in both branches, describing the specific powers granted to Congress. Apart from the president’s powers to make treaties and appoint ambassadors—albeit dependent on Senate approval—other powers granted to the president are only implied in his capacity as commander in chief and executor.13
The framers’ ambiguous views carried over to the allocation of war powers as well. While the president reserved the right to drive back sudden attacks due to his position as commander-in-chief, the power to declare war and raise and support armies was vested in the legislature. James Madison insisted on separating the purse and the sword because “those who are to conduct war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded.”14 Alexander Hamilton, by contrast, concluded that congressional war powers were mere “exceptions out of the general ‘executive power’ vested in the president” that ought to be “construed strictly.”15 Since executive powers were not limited to the ones “herein granted,” Hamilton further concluded that—unless excluded by the constitution—the president had residual executive and foreign policy powers.16 All framers/federalists recognized that, in practice, foreign policy business would require unique privileges and often under the leadership of one man. Hamilton stressed the need for executive energy, decision, and activity, whereas John Jay focused on the “perfect secrecy and immediate dispatch” deemed necessary for successful diplomatic negotiations.17 It was in defense of the president’s prerogative to oversee treaty implementation that John Marshall presented his famous argument to the House of Representatives in 1800, calling the president “the sole organ of the nation in its external relations, and its sole representative with foreign nations.”18
Just like constitutional interpretations have relied on different framers’ views at different times, often reflecting the need to meet the practical needs at a particular time, so did constitutional understandings of presidents have different emphases. Reminiscent of Hamilton’s reading of the constitution, Teddy Roosevelt’s stewardship theory argues that it is “not only [the president’s] right but his duty to do anything that the needs of the Nation demanded unless such actions were forbidden by the Constitution or by the laws.”19 Reversing the burden of proof when espousing a more literalist view of the presidency, William Howard Taft maintained that “the President can exercise no power which cannot fairly and reasonably be traced to some specific grant of power … [which] must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof.”20
The courts have also had a significant say in the interpretation of executive national security powers. According to Gordon Silverstein and other critics, a 1939 watershed ruling by Justice George Sutherland established a precedent that created new justifications for an executive prerogative in international affairs.21 Sutherland’s opinion in United States v. Curtiss-Wright Export Corp. changed Marshall’s original connotation22