Counterterrorism and the State: Western Responses to 9/11 [1 ed.] 9780812247435, 2015009520

Table of contents :
Cover
Front matter
Half title
Title page
Copyright
Contents
Abbreviations
Introduction
1. The Conceptual Debate: Setting the Stage for Structural Analysis
Methodology and Definitions
Why Focus on National Governments?
The 9/11 Baseline
Defining Domestic Counterterrorism
The Case Study Method—Why Focus on Germany, Britain, and France?
Sources
2. Case Study I: The United States
Part 1: U.S. Government Structures and Decision-Making
U.S. Separation of Powers
The U.S.Constitution and Foreign Affairs: An Ambiguous Affair
Executive Ascendancy, Courtesy of Congress
Congressional Ways of Shaping U.S. Foreign Policy
Imperial Congress? Executive Agendas on the Eve of the 9/11 Attacks
Part 2: Post-9/11 Counterterrorism Responses
Initial Responses: A New Office of Homeland Security
Initial Responses: The 2001 U.S.A. Patriot Act
Creating the Department of Homeland Security
Executive Initiatives: The New TTIC and TSC
Quest for More Reorganization: The 2004 Intelligence Reform Act
Reorganization Left Unfinished: Inside the Legislative Branch
The Secret NSA-Program and 2006 Patriot Act Reauthorization
2007 and 2008 FISA Reforms
2010 and 2011 Patriot Act Skirmishes, Continued
Reauthorizing the FISA Amendments Act in 2012
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?
Decision-Making Mode—Were decisions made by means of executive order, or did they require congressional approval?
Level of Public Scrutiny and Debate—Did the decision-making process allow for an open debate, public hearings, and/or post-legislative scrutiny, rather than secret and/or emergency procedures?
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?
3. Case Study II: Germany
Part 1: German Government Structures and Decision-Making
German Power-Sharing Arrangements
Party Democracy and Deparliamentarization
Chancellor Democracy or Presidential Chancellors?Neither, Quite Yet
Interlocking Powers and Federalism in Domestic Security Affairs
Reforms Needed? The 9/11 Attacks from the German Perspective
Part 2: Post-9/11 Counterterrorism Responses
Initial Responses: The 2001 Counterterrorism Packages
Initial Responses: BKA Preventive Power Struggles
After the Madrid Attacks: The New GTAZ
After the Madrid Attacks: Attempts to Reorganize
Reforms at Last: The 2006 Antiterrorism Database Act
Extending the Second Counterterrorism Package: The 2006 TBEG Act
Legislating the 2008 BKA Reform
Reforms in Waiting: The EU Directive on Data Retention
Third Time’s the Charm: Reauthorizing TBEG in 2011
Part 3: Analysis and Conclusion: How Did Government Structures Influence Counterterrorism Decision-Making?
Speed of Response—How quickly did Germany respond to the 9/11 attacks and/or others? How long did decision-making processes take?
Decision-Making Mode—Were decisions made by means of executive order, or did they require parliamentary approval?
Level of Public Scrutiny and Debate—Did the decision-making process allow for an open debate, public hearings, and/or post-legislative scrutiny, rather than secret and/or emergency procedures?
Nature and Extent of Reforms—What was the focus and scope of the reforms? Did the measures affect the balance between executive, legislative, or judicial branches?
4. Case Study III: Great Britain
Part 1: British Government Structures and Decision-Making
British Fusion of Power
Decline of the Cabinet and Rise of the Presidential Prime Minister
Informal Checks on the Prime Minister, Courtesy of Party Government
The Fiction of Parliamentary Sovereignty and Emancipation of the Lords
Reforms Needed? The 9/11 Attacks from the British Perspective
Part 2: Post-9/11 Counterterrorism Responses
Initial Response: The 2001 Anti-Terrorism, Crime and Security Act
A Strengthened Intelligence Coordinator and a New JTAC
The 2005 Prevention of Terrorism Act
After the London Attacks: Reorganization and Regional Connectedness
After the London Attacks: The 2006 Terrorism Act
Reorganizing the Home Office
The 2008 Counter-Terrorism Act: Pre-charge Detention Battles Continue
Pre-Charge Reversals: The 2011 Protection of Freedoms Act
Reforming Control Orders: The 2011 TPIMs Act
Part 3: Summary Analysis and Conclusion: How Did Government Structures Influence Counterterrorism Decision-Making?
Speed of Response—How quickly did Great Britain respond to the 9/11 attacks and/or others? How long did decision-making processes take?
Decision-Making Mode—Were decisions made by means of executive order, or did they require parliamentary approval?
Level of Public Scrutiny and Debate—Did the decision-making process allow for an open debate, public hearings, and/or post-legislative scrutiny, rather than secret and/or emergency procedures?
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?
5. Case Study IV: France
Part 1: French Government Structures and Decision-Making
A ‘‘Republican Monarchy’’: Presidential Power à la France
Structural Restraints on Presidential Power: Cohabitation
Governing Realities: The Prime Minister Rules the Roost
Reforms Needed? The 9/11 Attacks from the French Perspective
Part 2: Post-9/11 Counterterrorism Responses
Initial Responses: The 2001 Everyday Security Act
New Security Czar and Council, Beholden to the President
The 2002 LOPSI Guidance Act...
...Followed by the 2003 Domestic Security Act
After the Madrid Attacks: Coordination and Regional Connectedness
After the London Attacks: The 2006 Combating Terrorism Act
Reorganization: A New Directorate of Domestic Intelligence
The 2010 LOPPSIII Act
The 2012 Security Act
Part 3: Analysis and Conclusion: How Did Government Structures Influence Counterterrorism Decision-Making?
Speed of Response—How quickly did France respond to the 9/11 attacks and/or others? How long did decision-making processes take?
Decision-Making Mode—Were decisions made by means of executive order, or did they require parliamentary approval?
Level of Public Scrutiny and Debate—Did the decision-making process allow for an open debate, public hearings, and/or post-legislative scrutiny, rather than secret and/or emergency procedures?
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?
6. Comparative Analysis of Structural Effects on Counterterrorism Decision-Making
How Do Counterterrorism Responses Differ?
1. Speed: How quickly did governments respond to the attacks?
2. Decision-Making Mode: Were the reforms implemented by executive orders, or did they require legislative approval?
3. Extent of Public Scrutiny or Debate: Did the decision-making process allow for an open debate?What is the extent of post-legislative scrutiny?
4. Extent and Nature of Reforms: How did institutional and policy responses differ?
Alternative Explanations and Analysis
1. Bureaucracies
2. Multilateral Obligations
3. Threat Perceptions
4. Political Cultures
5. Political Conditions
6. Policy Inheritances
1. Speed of Response
Conclusion
2. Decision-Making Mode
Table 1: Counterterrorism Reforms in the United States, Germany, Great Britain, and France, 2001–2013
Conclusion
3. Public Scrutiny and Debate
Conclusion
4. Extent and Nature of Reforms
Horizontal Coordination
Table 2: Nature and Scope of Horizontal Institutional Reforms
Table 3: Nature of Vertical Reforms
Vertical Coordination
Information Sharing, Analysis, and Collection
Conclusion
5. Summary
Literature Revisited: Flaws of the Structural School
The British-U.S. Comparison
Table 4: U.S. and British Counterterrorism Measures, 2001–2013
The German-U.S. Comparison
Table 5: U.S. and German Counterterrorism Measures, 2001–2013
The British-French Comparison
Table 6: British and French Counterterrorism Measures, 2001–2013
The U.S.-French Comparison
Table 7: Counterterrorism Reforms in Presidential Systems, 2001–13
The British-German Comparison
Table 8: Counterterrorism Reforms in Parliamentary Systems, 2001–201
Summary of Findings and Conclusion
Notes
Introduction
1. The Conceptual Debate: Setting the Stage for Structural Analysis
2. Case Study I: The United States
3. Case Study II: Germany
4. Case Study III: Great Britain
5. Case Study IV: France
6. Comparative Analysis of Structural Effects on CounterterrorismDecision-Making
Summary of Findings and Conclusion
Index
Acknowledgements

Citation preview

Counterterrorism and the State

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COUNTERTERRORISM AND THE STATE WESTERN RESPONSES TO 9/11

DORLE HELLMUTH

U N I V E R S I T Y O F P E N N S Y LVA N I A P R E S S PHIL ADELPHIA

Copyright 䉷 2016 University of Pennsylvania Press All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher. Published by University of Pennsylvania Press Philadelphia, Pennsylvania 19104-4112 www.upenn.edu/pennpress Printed in the United States of America on acid-free paper 10 9 8 7 6 5 4 3 2 1 Library of Congress Cataloging-in-Publication Data Hellmuth, Dorle, author. Counterterrorism and the state : Western responses to 9/11 / Dorle Hellmuth. pages cm Includes bibliographical references and index. ISBN 978-0-8122-4743-5 (alk. paper) 1. Terrorism—Prevention—United States—Decision making. 2. Terrorism— Prevention—Germany—Decision making. 3. Terrorism—Prevention—Great Britain—Decision making. 4. Terrorism—Prevention—France—Decision making. 5. Terrorism—Prevention—Law and legislation—United States. 6. Terrorism— Prevention—Law and legislation—Germany. 7. Terrorism—Prevention—Law and legislation—Great Britain. 8. Terrorism—Prevention—Law and legislation—France. 9. Comparative government. I. Title. HV6431.H4185

2015

363.325⬘16—dc23

2015009520

To Benjamin

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Contents

List of Abbreviations ix Introduction 1 1. The Conceptual Debate: Setting the Stage for Structural Analysis 8 2. Case Study I: The United States

20

3. Case Study II: Germany 78 4. Case Study III: Great Britain 128 5. Case Study IV: France 183 6. Comparative Analysis of Structural Effects on Counterterrorism Decision-Making 234 Summary of Findings and Conclusion 282 Notes 289 Index

355

Acknowledgments

377

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Abbreviations

United States CIA DCI DHS DNI DOD DOJ DOS FBI FEMA FISA GAO HSC IAIP INS JTTF NCTC NSA NSB NSC ODNI OHS OMB TSA TSC TTIC

Central Intelligence Agency Director of Central Intelligence Department of Homeland Security Director of National Intelligence Department of Defense Department of Justice Department of State Federal Bureau of Investigation Federal Emergency Management Agency Foreign Intelligence Surveillance Act General Accounting Office Homeland Security Council Information Analysis and Infrastructure Protection (directorate) Immigration and Naturalization Service Joint Terrorism Task Force National Counterterrorism Center National Security Agency National Security Branch National Security Council Office of the Director of National Intelligence Office of Homeland Security Office of Management and Budget Transportation Security Administration Terrorist Screening Center Terrorist Threat Integration Center

x Abbreviations

Germany BAMF BfV BKA BMI BMJ BND BP CDU FDP GBA GSG GTAZ IMK IMSI LfV LKA MAD NIAZ PDS PIAZ RAF SPD TBEG

Bundesamt fu¨r Migration und Flu¨chtlinge (Federal Office for Migration and Refugees) Bundesamt fu¨r Verfassungsschutz (Federal Office for the Protection of the Constitution) Bundeskriminalamt (Federal Criminal Police Office) Bundesministerium des Inneren (Federal Ministry of Interior) Bundesministerium der Justiz (Federal Ministry of Justice) Bundesnachrichtendienst (Federal Intelligence Service) Bundespolizei (Federal Police) Christlich Demokratische Union (Christian Democratic Union) Freie Demokratische Partei (Free Democratic Party) Generalbundesanwalt (Federal Attorney General) Grenzschutzgruppe (Border Guard Group) Gemeinsames Terrorismusabwehrzentrum (Joint CounterTerrorism Center) Innenministerkonferenz (Interior Minister Conference) International Mobile Subscriber Identity Landesamt fu¨r Verfassungsschutz (State Office for the Protection of the Constitution) Landeskriminalamt (State Criminal Police Office) Milita¨rischer Abschirmdienst (Military Counter-Intelligence Service) Nachrichtendienstliches Informations- und Analysezentrum (Intelligence Center for Information and Analysis) Partei des Demokratischen Sozialismus (Party of Democratic Socialism) Polizeiliches Informations- und Analysezentrum (Police Center for Information and Analysis) Rote Armee Fraktion (Red Army Faction) Sozialdemokratische Partei Deutschlands (Social Democratic Party of Germany) Terrorismusbeka¨mpfungserga¨nzungsgesetz (Counterterrorism Supplemental Act)

Abbreviations xi

Great Britain ATB CTC CTU CTIU GCHQ IRA ISC JIC JTAC MI5 MI6 NSC OSCT RIPA TPIMs

Anti-Terrorist Branch Counter Terrorism Command Counter Terrorism Unit Counter Terrorism Intelligence Unit Government Communications Headquarters Irish Republican Army Intelligence and Security Committee Joint Intelligence Committee Joint Terrorism Analysis Centre Military Intelligence 5 (or Security Service) Military Intelligence 6 (or Secret Intelligence Service) National Security Council Office for Security and Counter-Terrorism Regulation of Investigatory Powers Act Terrorism Prevention and Investigation Measures

France CDSN CILAT CIR CNCIS

CNIL CNR CRI CSI

Conseil de De´fense et de Se´curite´ Nationale (Defense and National Security Council) Comite´ Interministe´riel de Lutte Anti-Terroriste (Interministerial Committee of the Fight Against Terrorism) Comite´ Interministe´riel du Renseignement (Interministerial Committee of Intelligence) Commission Nationale du Controˆle des Interceptions de Securite´ (National Commission for the Control of Security Wiretaps) Commission Nationale de l’Informatique et des Liberte´s (Commission on Information Technology and Liberties) Conseil National du Renseignement (National Intelligence Council) Conseil du Renseignement Inte´rieur (Domestic Intelligence Council) Conseil de Se´curite´ Inte´rieur (Domestic Security Council)

xii Abbreviations

DCPJ DCRG DCRI DGPN DGSE DGSI DNAT DPSD DRM DST GIR GSPC LOPSI

LOPPSI

LSI LSQ RGPP SCTIP SDAT

Direction Centrale de la Police Judiciaire (Central Directorate of the Judicial Police) Direction Centrale des Renseignements Ge´ne´raux (Central Directorate of General Intelligence) Direction Centrale du Renseignement Inte´rieur (Central Directorate of Domestic Intelligence) Direction Ge´ne´rale de la Police Nationale (DirectorateGeneral of the National Police) Direction Ge´ne´rale de la Se´curite´ Exte´rieure (DirectorateGeneral of External Security) Direction Ge´ne´rale de la Se´curite´ Inte´rieure (DirectorateGeneral of Domestic Security) Division Nationale Anti-Terroriste (National Anti-Terrorism Division) Direction de la Protection et de la Se´curite´ de la De´fense (Directorate of the Protection and Security of Defense) Direction du Renseignement Militaire (Directorate of Military Intelligence) Direction de la Surveillance du Territoire (Directorate of Territorial Surveillance) Groupements d’Intervention Re´gionaux (Regional Intervention Units) Groupe Salafiste pour la Pre´dication et le Combat (Salafist Group for Preaching and Combat) Loi d’Orientation et de Programmation pour la Se´curite´ Inte´rieure (Domestic Security Orientation and Programming Act) Loi d’Orientation et de Programmation pour la Performance de la Se´curite´ Inte´rieure (Orientation and Programming for the Effectiveness of Domestic Security Act) Loi sur la Se´curite´ Inte´rieure (Domestic Security Act) Loi sur la Se´curite´ Quotidienne (Everyday Security Act) Renseignements Ge´ne´raux de la Pre´fecture de Police (General Intelligence of the Police Prefecture) Service de Coope´ration Technique Internationale de Police (Service of International Technical Police Cooperation) Sous-Direction Anti-Terroriste (Subdirectorate AntiTerrorism)

Abbreviations xiii

SDIG SGDN UCLAT

Sous-Direction de l’Information Ge´ne´rale (Subdirectorate General Information) Secre´tariat Ge´ne´ral de la De´fense Nationale (SecretariatGeneral of National Defense) Unite´ de Coordination de la Lutte Anti-Terroriste (AntiTerrorism Coordination Unit)

Miscellaneous AT CT ECHR ECJ EU UN

Antiterrorism Counterterrorism European Convention on Human Rights European Court of Justice European Union United Nations

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Introduction

The post-9/11 era continues to raise questions about how to manage transnational security threats directed against Western liberal democracies like the United States, Germany, Great Britain, and France. As Jihadi terrorism has been catapulted to the forefront of states’ security agendas, national governments have had to find new political and legal instruments to detect and counter these threats. This book posits that the nature of countries’ responses is shaped by the particular governmental framework and process within which counterterrorism measures are decided. Understanding the nature, scope, and trends of national decision-making processes in Western democracies is imperative to identifying new mechanisms for containing transnational terrorist networks beyond national borders. The purpose of this book is to examine how political structures, both horizontal and vertical, affect processes and policy outcomes in liberal democracies. In particular, it tries to understand counterterrorism responses in each of four countries by examining variations among presidential and parliamentary systems and various degrees of federalization and centralization in the United States (presidential and federal), France (semipresidential and unitary), Great Britain (parliamentary and unitary), and Germany (parliamentary and federal). The two central research questions this book focuses on are how government structures influence counterterrorism policies in these Western democracies and how similar or different the responses have been on both sides of the Atlantic. The examination of government structures places this book at the center of an ongoing debate about the domestic sources of foreign policy/ national security. Specifically, scholars of world politics disagree about the level of analysis in foreign policy/national security decision-making processes. One school of thought has focused on how different domestic governmental structures produce variations in decision-making processes and the

2 Introduction

policy output.1 Other scholars over the past forty-five years have shifted their focus from state level analyses to organizations and individual decision-makers. The latter approach stresses the importance of the perceptions and motivations of decision-makers, bureaucracies, and organizations.2 Structural proponents, by contrast, place particular importance on the question of how executive and legislative branches stand in relation to each other, and (in federal systems) to lower levels of government, and how power is allocated within the various branches and levels of government. Decision-making works since 9/11 have used a bureaucratic or organizational perspective to explain counterterrorism outcomes. There is no current book available that measures and compares structural effects on decision-making in the national security arena after 9/11. This book is designed to fill this gap in the literature and contribute to the ongoing debate about the domestic sources of foreign policy/national security decision-making. I further argue that the bureaucratic focus does not suffice to explain reform outcomes, precisely because it cannot account for the structural underpinnings that shape policy-making processes. The transnational nature of the challenge makes the focus on government structures all the more imperative. Transnational terrorist networks not only transcend international borders but also go beyond jurisdictions and stove-piped hierarchies. While counterterrorism responses include measures designed to debilitate terrorist networks directly, states also have to find ways to complement traditional vertical organization and communication lines with more flexible, networked interactions. Governments have introduced new information-sharing policies and institutional arrangements so that government hierarchies (intelligence and law enforcement agencies, among others) on all levels can be better linked to detect and prevent terrorist activities at home and abroad.3 In some instances, governments reorganized and attempted to strengthen the coordination of structures and processes within their own executive and legislative branches. While reorganization needs can be and have also been addressed at the bureaucratic level, the changes in the security policy realm have been so fundamental (as they often affect the traditional balance between security and civil liberties) that they involve legislative actions in all Western democracies. For example, all governments have shifted from mostly reactive to more preventive law enforcement approaches, broadened data collection, created new partnerships between

Introduction 3

intelligence and law enforcement services, and begun breaking down other long-established foreign-domestic or executive-judicial divides. Beyond this primary purpose, this book contributes to a debate within the structural school. Ever since Charles de Secondat Montesquieu formulated the theory of the separation of executive, legislative, and judicative powers, the members of this school have argued about the most efficient and effective ways of translating the principle into government structures. In Montesquieu’s view, the interlocking branches of the British constitution embodied his ideal, as executive power is checked by its dependence on legislative support. Ironically, the principle of checks and balances had the most visible influence on the American framers, who adopted it as the core of the U.S. presidential separation of powers system. With specific reference to the British system, James Madison warned about the ‘‘danger from legislative usurpations; which by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.’’4 Like Montesquieu, British journalist Walter Bagehot in the nineteenth century advocated the merits of the centralized British government, contrasting it to the American presidential system with its ‘‘many sovereign authorities’’ and the hope ‘‘that their multitude may atone for their inferiority.’’5 Following Alexis de Tocqueville’s line of argument, American power-sharing government structures are particularly ill-equipped to ‘‘fix on one plan and follow it through with persistence’’ and are ‘‘not capable of devising secret measures’’ in the foreign policy realm.6 Indeed, in the longstanding debate between advocates of parliamentary and presidential systems, the shortcomings of the U.S. separation of powers system are typically taken for granted. On the domestic stage, so the critics claim, the fragmentation of power leads to stalemate and gridlock—as the number of decision-makers increases, buck-passing is more common than consensus-building and policy-making.7 Because of the lack of centralized power, the argument continues, the U.S. government finds it difficult to follow a coherent course in the foreign policy arena and often cannot operate with the speed and resolve needed to face international challenges.8 However, contemporary literature on foreign policy/national security decision-making lacks a systematic analysis of countries’ varying parliamentary and presidential designs and their effects on policymaking capabilities and outcomes.9 One reason for this lack of systematic analysis is that the discussion has frequently centered on the comparison of Anglo-Saxon government attributes. To this day, ‘‘the British party government model

4 Introduction

serves as the implicit, if unattainable, ideal for many critics of existing American political institutions.’’10 The study of reorganization a` la Britain has not been limited to the scholarly realm. Evaluating the British war cabinet experience during World Wars I and II, and the Committee of Imperial Defense in particular, the Eberstadt Report of 1945 noted that ‘‘there are certain features of the British experience (such as the Committee of Imperial Defense) which offer a sound development of a similar organization within the framework of our own Constitution.’’11 It went on to recommend a National Security Council for the United States. U.S. lawmakers proceeded to import the British cabinet traditions in 1947—despite the differences between presidential and cabinet government that are also noted in the report.12 Constitutional or procedural reforms have typically been discussed in the context of adopting Westminster-style parliamentary attributes.13 Before and especially after the 9/11 attacks, British-style domestic intelligence organization has often been viewed as possibly helpful in bridging U.S. law enforcement and intelligence stove-pipes (hierarchically organized bureaucratic pillars resistant to sharing information with each other).14 As the Westminster system cannot function as a model for all parliamentary systems, two non-Anglo-Saxon cases, Germany and France, provide additional opportunities to assess how variations in government structure affect counterterrorism policymaking in these countries. At the national level, the type of legislature and electoral system, inter alia, determines the balance of power between the branches of government and results in varying degrees of centralized parliamentary or presidential systems of representation. While state and local governments have little independent power in France or Britain, they possess significant veto powers in the federal system of Germany. Moreover, the existence or absence of vertical power-sharing arrangements determines how national governments connect and coordinate reforms with their regions and states. So far, existing literature also does not provide for this kind of comprehensive cross-national analysis of how government structures shape policy responses in one specific policy area. This issue-specific focus can help distinguish variations in structural effects across all four countries as well as differences in government capabilities within systems. That executivelegislative balances and decision-making processes can change depending on the nature of the policy issue15 is particularly obvious in the French and German cases. Issues regarding national security policy translate into more

Introduction 5

informal powers for the French president and result in higher structural barriers in the German case, where the La¨nder (states) gain important veto powers through the upper house, the Bundesrat.16 Systematic research on the effects of government structures and capabilities has been hampered by the fact that they cannot be ‘‘observed and measured directly.’’17 As noted by Peter Gourevitch, only ‘‘big events in world politics provide students of international relations and comparative politics with the closest thing to a natural experiment.’’18 Recognizing that the cataclysmic events of 9/11 offer a unique opportunity for such a quasiexperimental research design, this book uses the attacks as a benchmark for comparative analysis. Indeed, the attacks offer an unusually clear opportunity to see government structures at work. Confronted with a new level of terrorist threat, Western-style democracies have been reorienting their focus toward the same problem at the same time. Beyond their initial counterterrorism responses in 2001, an examination of domestic counterterrorism reforms adopted between 2002 and 2013 offers additional insights on structural effects and opportunities for weighing political and bureaucratic factors vis-a`-vis structural explanations. During this twelve-year time frame, inter alia, two additional terror attacks occurred in Madrid and London; various other terrorist plots were staged; new governments came to power in all four countries; and the Bush and Obama administrations governed under both unified and divided government conditions in the United States. The focus on domestic counterterrorism is neither arbitrary nor coincidental. The research opportunity provided by the 9/11 events is further enhanced by the fact that—while reorienting their focus—all four states have paid particular attention to reforming their institutional and operational counterterrorism capacities.19 Specifically, these four states have all targeted their own domestic policies and institutional designs to improve (1) intelligence gathering, analysis, and dissemination; (2) information sharing within the intelligence and counterterrorism community; and (3) coordination among security agencies. The domestic focus is all the more relevant, as international counterterrorism responses are not only often decided outside the legislative realm but also tend to be more classified and less affected by civil liberty restraints. Policy literature typically describes the broad evolution of domestic and foreign counterterrorism responses in individual countries, highlighting methods that are unique to national counterterrorism arsenals, but the

6 Introduction

literature lacks a systematic comparison of their approaches.20 By contrast, I seek to identify corresponding institutions and practices in all four countries and point out those that exist in some but not all national counterterrorism arsenals. A comprehensive analysis of decision-making processes and resulting security architectures, as well as the political cultures they represent, further helps determine whether certain best practices represent appropriate or viable solutions for other government systems. Dissecting domestic decision-making processes and resulting responses should help improve mechanisms needed to forge counterterrorism responses within and among these four allies and NATO member states. However, it is also crucial with regard to counterterrorism cooperation within Europe. European Union counterterrorism institutions lack executive authorities and remain mostly excluded from day-to-day counterterrorism matters, as operational cooperation remains based on bi- or multilateral arrangements between countries. To this effect, I also seek to clear up common misperceptions about domestic counterterrorism efforts that—depending on the U.S. or European perspective—are considered too lax or over the top. From a European standpoint, the 2001 U.S.A. Patriot Act and colossal bureaucratic creations like the U.S. Department of Homeland Security represent examples of executive power grabs after the 9/11 attacks and a checks-and-balances system gone awry. On the other side of the transatlantic divide, U.S. officials and lawmakers have continuously warned about ‘‘extremists from visa-waiver countries, who are merely an e-ticket away from the United States’’21 and the threats to the United States that come from Europe due to countries’ lax security provisions.22 According to popular opinion, overall U.S. and European approaches to terrorism since the 9/11 attacks could not be more different. However, a closer look at post-9/11 responses in the domestic counterterrorism arena illustrates that reform objectives have actually been very similar in the United States and three of its closest NATO allies (also known as Europe’s ‘‘Big Three’’), Great Britain, Germany, and France. While European states did not suffer an attack on 9/11, the impact of the events was considerable; subsequently, there have been more attacks in Europe. Indeed, since 9/11, Jihadi terrorism is viewed as a major security threat in all four countries.23 The number of casualties and the way the attacks were executed showed a new threat requiring new methods and answers. Even though the three European states have dealt with domestic terrorism in the past24 and these experiences resulted in reforms, they have

Introduction 7

reviewed or even revised these ‘‘older’’ institutional arrangements and policies. Whereas I recognize that some of their policy inheritances and past experiences may have affected French, British, and German responses after 9/11, it is important to note that countries’ approaches are not judged by the quantity and scope of their responses per se. Rather, the focus is on the question of what the nature and extent of the reforms can tell us about the workings of government structures. Interestingly, the list of domestic counterterrorism reforms continues to grow in all three countries—not only after 9/11 but also long after the 2004 Madrid and 2005 London attacks. That being said, the latter observation is not supposed to indicate a preference for government action or other prescriptive considerations. I do not assume that any responses are needed, nor am I seeking to provide normative judgments regarding the effectiveness or extremeness of countries’ counterterrorism policies. The rest of the book is organized as follows. Chapter 1 synthesizes the conceptual approaches of the structural school, outlines the theoretical models of the bureaucratic and cognitive schools of thought, and explains methodology and definitional considerations. Chapters 2, 3, 4, and 5 are devoted to the case studies, which recap and analyze counterterrorism decision-making in the United States, Germany, Great Britain, and France. Each case study consists of three parts. The first part reviews formal constitutional powers and relationships between executive and legislative branches and how they have translated into practice and changed over time.25 Second, each case study outlines the decision-making processes leading to counterterrorism policies and reforms that have been reviewed and/ or adopted since the 9/11 attacks. In a third step, each case study chapter concludes with a summary analysis of how structural factors influenced decision-making processes and outcomes. Chapter 6 synthesizes the individual findings of the case studies in a comparative analysis to illustrate the different nuances in structural effects on decision-making and policy outcomes and to evaluate alternative explanations. The findings are then discussed in the context of the existing ‘‘structural’’ literature, followed by the concluding chapter.

Chapter 1

The Conceptual Debate: Setting the Stage for Structural Analysis

Scholars of world politics continue to disagree about the domestic sources of foreign and national security policy and the level of analysis in foreign policy/national security decision-making. While one school of thought has focused on how different domestic governmental structures produce variations in decision-making processes and the foreign policy/national security output, another stresses the importance of the perceptions, motivations, and workings of bureaucracies, organizations, and individual decisionmakers. Beginning in the early 1970s, scholars of foreign policy decisionmaking shifted their focus to ever lower levels of analysis. Dissecting the inner life and doings of executive branch agencies, Graham Allison formulated the organizational-process and bureaucratic-politics models of decision-making. According to the former, executive leaders struggle to manage organizational agendas and their standard operating procedures. According to the latter, they might be powerless to control the competitive and skilled tugging and pulling of bureaucratic players; policy is an unintended byproduct of this pulling and hauling.1 Morton Halperin argued that foreign policy is largely shaped by bureaucratic objectives rather than international agendas.2 In the cognitive realm, Irving Janis developed the theory of groupthink; groups are prone to miscalculations because members give up their individual judgment and conform to collective decision-making.3 John Steinbruner introduced the cybernetic paradigm, according to which leaders draw on intuitive repositories of past experiences to break down complex situations into simple problems, which are then dealt with separately.4 Robert Jervis argued that

The Conceptual Debate 9

executive leaders are bound to perceive their opponents’ actions as less objective and more hostile than their own.5 In a similar vein, decision-making works since 9/11 have used a bureaucratic or organizational perspective to explain counterterrorism outcomes. Pursuant to Amy Zegart’s analysis, the Terrorist Threat Integration Center (TTIC), renamed the National Counterterrorism Center in 2004, was therefore created by a president who chose the path of least resistance and ‘‘studiously avoided getting embroiled with the Defense Department.’’6 Taking an organizational view (paired with rational choice elements), Zegart argued that the inability of security organizations to change, adapt to new threats, or else implement a thorough intelligence reform after 9/11 is due to a combination of three factors: the nature of organizations themselves, the rational self-interest of decision makers and stakeholders, and the decentralized structure of the U.S. federal government (the fragmented congressional committee system in particular).7 Moreover, she stressed the direct connection between agency designs and foreign policy outcomes. Arguing that bureaucratic organizations have not received enough attention, Zegart concluded that ‘‘too often . . . discussion of foreign policy success and failure treats individuals as the only important factors, ignoring the powerful organizational forces in the background.’’8 In an attempt to explain differences between British and French counterterrorism approaches, Frank Foley focused on organizational routines that govern how security bureaucracies interact, in addition to societal norms and executive/judicial institutional conventions.9 According to Foley, ‘‘a focus on organizational routines provides the best understanding of states’ different approaches to reforming the coordination of intelligence and police agencies.’’10 Proponents of the structural school, who instead focus on how powers distributed among the various branches of government affect policymaking, do not discount the existence of bureaucracies, political cultures, and perceptions, but view government structures as a powerful independent or at least an intervening variable. Stephen Krasner thus famously argued that the U.S. president can exert the necessary powers to control bureaucratic soli, as ‘‘the ability of bureaucracies to independently establish policies is a function of presidential attention.’’11 While some structural scholars argue that government systems and their inherent processes effectively curb and overwhelm any nonstructural/institutional effects,12 others have noted a more indirect and symbiotic relationship between policy

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issues, government structures, governing capabilities, and societal identities.13 Yet others view government structures and processes as a manifestation of countries’ distinct political cultures and histories and argue that their make-up holds important information about the thresholds and limits, as well as opportunities, of national policy-making.14 A focus on bureaucratic politics and organizational procedures has considerable utility in explaining bureaucratic infighting and routines but, as this book argues, is of less use for explaining and predicting variances in countries’ counterterrorism outcomes. Peter Katzenstein has noted that ‘‘it is simply not clear to what extent the bureaucratic politics approach universalizes a particular American syndrome (the internal fragmentation of the American state) and how much it particularizes a universal phenomenon (the push and pull which accompany policy-making in all advanced industrial states).’’15 Yet, even if Allison and other scholars succeeded in developing models for a universal phenomenon in modern societies, it is not clear how the bureaucratic politics model advances the findings of what Robert Art called the ‘‘first wave’’ of scholars. According to Art, these theorists analyzed U.S. foreign policy decision-making and outcomes through the lens of its most defining characteristic—the pluralistic political process and, while doing so, identified the ‘‘internal structural conditions or restraints under which foreign policy is made’’ in the U.S. system of government.16 When applying this political, pluralistic perspective to policy-making, firstwave scholars Samuel Huntington, Richard Neustadt, Warner Schilling, and Roger Hilsman also took note of extensive bargaining practices in the U.S. system—but as an expression of genuine political processes that bring forth policy compromises that are both intended and necessary for bridging divides. As a prominent member of what Art referred to as the ‘‘policy via politics’’ wave, Samuel Huntington identified patterns of executive decisionmaking processes.17 Huntington showed how decision-making regarding defense strategy in the U.S. executive branch exhibits bargaining practices similar to those found in the legislative branch, because the president ‘‘has less control over his cabinet than . . . a corporal over his squad.’’18 Huntington on the whole welcomes the pluralistic nature of executive negotiations, which are reflective of the fact that ‘‘Madison not Bagehot wrote the Constitution.’’19 In his view, competition encourages result-oriented actions, intrinsically sensible policy choices, and the need to build consensus among the various participants.

The Conceptual Debate 11

Others do not view the U.S. system quite so positively. Warner Schilling argued that defense budgeting is the product of political choices, which are significantly influenced by the nature of the political process. Because power is so widely dispersed among ‘‘quasi-sovereign powers’’ and drawn from various independent sources, government elites involved in the foreign policy process face conflict and ‘‘strain toward agreement.’’20 Actors might succeed in persuading their opponents, but, so Schilling warns, these attributes can also take a toll on ‘‘the form of policy produced by that process.’’21 Policies may lack cohesion, stability, and substance or might not be produced at all. The process might be slow, leaderless, or indecisive.22 Similarly, Roger Hilsman focused on policy-making within the framework of an inherently convoluted, inconsistent, and competitive governmental process. In this system, major decisions are formulated incrementally and changes implemented through piecemeal modifications to existing policies.23 ‘‘Partly . . . the turbulence derives from the nature of our constitution itself’’:24 all branches of government have a share in governing and legislating. In addition, presidents rarely command their own domain, the executive branch, but instead ‘‘maneuver, persuade, and pressure.’’25 This is because the process by which policy is made is politics, and therefore entails ‘‘conflict and consensus-building.’’26 Yet others have drawn attention to contrasting decision-making features in parliamentary and presidential systems. Richard Neustadt used the events of the Anglo-American Suez crisis and the Skybolt affair to illustrate that neither side considered the implications of the structural differences between their respective political systems. Moreover, both sides made the mistake of drawing analogies to positions and characteristics inherent to their own system.27 During the Suez crisis, the American government misinterpreted Labor’s parliamentary opposition to Prime Minister Anthony Eden’s Suez plans, thinking it ‘‘weakened Eden’s hand.’’28 In the Westminster system, however, the minority party does not affect the decisionmaking process as long as the leading party carries a comfortable majority of seats in the House of Commons. On the other side of the Atlantic, the British leadership closed its eyes to the realities of the American budgetary process and the looming signals that the Skybolt program would be canceled before long.29 The American decision to cancel the program, which would have meant an independent nuclear deterrent for the British, presented a huge dilemma to the prime minister: it threatened to undo a

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carefully crafted cabinet decision, thus making Prime Minister Harold Macmillan vulnerable to criticism within his own ranks.30 Exactly one hundred years after Walter Bagehot published his tribute to the British constitution, Kenneth Waltz set out to disprove, inter alia, that the British system is superior to that of the United States when it comes to foreign policy formulation by analyzing their ‘‘politics and institutions.’’31 Waltz emerged as a staunch proponent of the U.S. system. In his view, the diffusion of power within the U.S. government provides room for constant innovation and reform that the more rigid, less permeable British parliamentary system lacks. In the separation of powers system, the president is required to bargain and coordinate with the members of Congress at every step of the process, and needs strong leadership skills to get the job done. The many access points also provide for a plethora of interests and stakes, so that, ultimately, accountability and blame must be shared by all decisionmaking players. Issues and opponents are confronted in the open, encouraging competition of ideas. In the Westminster system, by contrast, almost all bargaining and discussion are contained within the cabinet. While British prime ministers appear strengthened by the centralization of legislative power in their cabinet, they also face a conundrum: their main concern is to maintain the party unity—even if this means disregarding concerns of the electoral base—but they also know that the public will hold their cabinet accountable for all decisions. Prime ministers, who typically serve in the House of Commons for many years, know these dynamics by heart and thus exercise prudence and caution accordingly. In the American ‘‘handson’’ approach, presidential candidates have not been molded into a structure; conversely, members of the two branches are locked in continuous competition, conscious they will have to deliver results to get reelected. Like Waltz, R. Kent Weaver and Bert Rockman were concerned with the quality of policy outcomes and hypothesized that ‘‘political institutions shape the processes through which decisions are made and implemented and that these in turn influence government capabilities.’’32 Weaver and Rockman go beyond Waltz by not only comparing a whole range of government systems but also by accounting for variations in parliamentary and presidential systems, in addition to other possible explanations independent of parliamentary or presidential features, including federalism, judicial review, or bicameralism. They stress that ‘‘the US system cannot be compared with the small minority of Westminster-style and single partydominant parliamentary systems, but must also be compared with the

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larger range of coalitional systems.’’33 In contrast to the UK fusion of power system, coalition governments increase the number of veto points and diffuse power. Among other things, their more eclectic analysis allows Weaver and Rockman to illustrate important similarities between the U.S. separation of powers system and parliamentary coalition governments with their plethora of stakeholders and extensive bargaining procedures.34 More recently, David Auerswald argued that coalition parliamentary governments are less likely to engage in military action than weak presidents, who in turn are less likely to use force than majority parliamentary governments or strong presidents.35 This is determined by whether executive leaders can be held responsible by the public, legislature, or coalition partners or by means of elections, votes of confidence, and termination of coalition agreements, respectively. Finally, among the rational choice literature devoted to institutional constraints, George Tsebelis’s research is of particular interest when analyzing decision-making processes. Tsebelis introduced the veto-player analysis as a means to determine and predict countries’ ability to produce policy changes and stability. According to Tsebelis, the potential for policy changes decreases with the number of veto players (both institutional and partisan), which are most abundant in presidential, coalitional parliamentary, and federal systems. His model, thus, permits comparison across different government systems, regardless of, for example, parliamentary-presidential distinctions, even if ‘‘counting the number of veto players in a given policy area is often a messy and subjective affair.’’36 While a series of excellent works have thus focused on the decisionmaking effects of government structures, there is currently no work that measures and compares structural restraints on counterterrorism decisionmaking after 9/11. This book is designed to fill this gap. By doing so, I hope not only to contribute to the structural-bureaucratic debate, but also to evaluate and improve existing theories on government structures and policy outcomes. While I do not aim to assess the effectiveness or extremeness of measures, I can and do address changes in the relationships between executive, legislative (or judicial) branches as they relate to the workings of government structures. My findings, therefore, further complement a set of scholarly studies that have focused on the expansion of executive power in the post-9/11 United States in particular, while there seems to be less consensus when it comes to evaluating British counterterrorism responses.37

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Methodology and Definitions At the interface of domestic and foreign policy-making, counterterrorism provides an ideal example for examining policy outcomes in relation to underlying structural processes. Programs, strategies, and institutions needed to contain and counter foreign threats are decided within the domestic framework.

Why Focus on National Governments? As law enforcement and intelligence are among the last remaining cornerstones of sovereignty that states are reluctant to give up, states’ abilities to combine resources to counterterrorist activities are constrained by state jurisdiction and borders. The limited extent of European Union-wide counterterrorism structures and cooperation illustrates this dilemma well. The EU’s ability to shape counterterrorism cooperation (in the ‘‘area of freedom, security, and justice’’) is still small and also varies greatly, depending on the nature of the issue and the member state, as ‘‘most CT responsibilities remain in the hands of the member states.’’38 While most decisions involving justice and home affairs matters are subject to qualified majority voting after the Lisbon Treaty, any decisions involving operational police cooperation require member states to take unanimous decisions.39 Should the EU decide on measures that directly affect national counterterrorism practices, these often still need to be transposed into national law and, therefore, reviewed and approved by the national legislatures and/or courts. Finally, implementation is up to the member states and varies greatly. The only EU directive that carries direct relevance for this analysis was adopted in December 2005. Until 2014,40 it obliged telecommunication providers in the EU to retain traffic data for a period of six to twenty-four months, ‘‘for the purpose of investigation, detection and prosecution of serious crimes.’’41 Apart from the German government, which implemented the directive at the end of 2007,42 both Great Britain and France had addressed the issue of data retention years earlier.43 While the role and responsibilities of the counterterrorism coordinator created in 2004 were broad in scope and also much in flux over the first few years,44 it is clear that the coordinator still lacks the authority to counter the bureaucratic EU system or control member states’ activities. The

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position itself was a compromise between smaller member states who favored an EU intelligence agency and the larger members, who vetoed the idea.45 At the operational level, a good argument can be made that the EU resembles much of a paper tiger as well.46 The EU law enforcement organization Europol lacks executive authorities to this day.47 Due to member states’ reservations about giving up sovereignty and lacking trust in Europol capacities,48 reforms directed at strengthening cooperation between security agencies thus far have focused on increasing informationsharing capacities through the voluntary use of common databases and joint terrorism analysis.49 Concerns about the lack of information sharing are voiced periodically, also in the context of the EU Intelligence Analysis Centre, which became part of the External Action Service in 2011.50 While progress has arguably been made since 9/11, the EU remains on the sidelines of day-to-day operational counterterrorism matters. Cooperation is often based on bi- or multilateral arrangements between countries or informal groups and clubs outside the EU.51

The 9/11 Baseline The 9/11 events mark the starting point of the baseline assessment for all four countries. While the three European states have extensive experience with varying kinds of domestic terrorism52 and these experiences resulted in responses that inform some of their current counterterrorism approaches, they have also reassessed these ‘‘older’’ institutional arrangements and policies or simply came up with new ones. Networked Jihadi suicide terrorism differs from the terrorism the three European countries experienced in the past. Regardless of prior experiences, all three states did introduce quite a few new policies and/or institutions to counter the new threats after 9/11. Further recognizing that some of their policy inheritances and experiences may have affected French, British, and German outcomes, the countries’ approaches are not judged by the number, quality, or extremeness of their reforms. Rather, the focus is on the question of what the nature and extent of the reforms reveal about the workings of government structures. Even though European states did not suffer an attack on 9/11, Jihadi terrorism is viewed as a substantial security threat in all four countries since 9/11.53 The number of casualties and the way the attacks were executed

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showed a new threat demanding new methods and answers. As counterterrorism is a dynamic process and terrorists learn to adapt, all four governments have continuously scrutinized and adjusted their own processes and methods accordingly, as well as analyzed trends and tools employed by terrorist networks to prevent future attacks and weaken terrorist logistical and operational structures. Indeed, the events of 9/11 were such a sudden and traumatic shock that all states moved swiftly to improve their ability to meet the dangers posed by Jihadist terrorist networks. Because their responses have been carried out within an existing governmental structure, a comparison of national responses can reveal how differing structures affected countries’ responses—in areas where there were some or no existing policies or institutions in place.

Defining Domestic Counterterrorism I define domestic counterterrorism in terms of its key institutional and operational features.54 This focus is not accidental. Reflecting a need to counter increasingly transnational terrorist networks and in an effort to prevent Jihadi-style suicide terrorism, states after 9/11 especially targeted domestic institutional designs and policies to improve (1) informationsharing within the counterterrorism community, (2) interagency coordination among counterterrorism services, and (3) intelligence collection and analysis capacities. In this context, a few more definitions are in order. The literature I discuss throughout this book uses the terms structural, institutional, and organizational often interchangeably. I, however, reserve the terms government structures and structural for executive and legislative (or judicial) branches of government, as well as the processes and dynamics between them. While these structures mostly affect horizontal relationships, in federal systems they may also run vertically, as there are separate federal, state, and local government levels. By implication, my references to institutions, organizations, and agencies relate to substructural units or bureaucracies, such as government departments, ministries, and agencies. The term ‘‘interagency’’ describes horizontal relationships, either between departments and ministries at the strategic, high policy level or among security agencies at the more tactical, operational level.

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Measuring Government Structures This book measures, compares, and contrasts the effect of structures and their policy outcomes in a cross-national analysis of four different parliamentary and presidential democracies. Toward this end, I look at four indicators across all four countries to determine whether and how differing structures impede or facilitate counterterrorism policy decision-making. The four empirical measures include (1) speed of response (how soon did countries respond? How long did decision-making processes take?); (2) decision-making per executive order or with congressional/parliamentary approval (the number of veto points encountered in the decision-making process likely has an impact on the scope and nature of agreed-upon measures); (3) level of public scrutiny and debate (whether the process allowed for an open debate, public hearings, or post-legislative scrutiny rather than secret and/or emergency procedures determines how far checks and balances were upheld); and (4) extent and nature of reforms (what was the focus, nature, and scope of the policy and institutional reforms? Did they affect the balance between executive, legislative, or judicial branches?)

The Case Study Method—Why Focus on Germany, Britain, and France? The book is in the tradition of the method employed by other major comparative works on decision-making.55 The case study approach yields the most nuanced and detailed approach to identifying the defining elements of national security policy processes, the often only fine differences between the responses, as well as the factors driving reforms. As government structures are only one of multiple other possible reform drivers, detailed case studies allow for the kind of qualitative analysis needed for the careful weighing and ‘‘weeding out’’ of alternative explanations. The most prominent of these include bureaucratic interests, political cultures, policy inheritances, threat perceptions, political conditions, and multilateral obligations. Moreover, the case study approach not only facilitates comparisons between the two presidential systems, the two parliamentary systems, the two unitary, and the two federal systems, but it allows comparisons across pairs: parliamentary versus presidential and unitary versus federal.

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The cases are not selected at random but represent the most important U.S. NATO allies and the three most populous and powerful countries in Europe. The focus is thus deliberately on selected liberal democracies, as illiberal regimes, like Russia, do not hold lessons for U.S. practices. Understanding what reforms have been formulated in these three Western European countries, and also why, should facilitate international cooperation in general and also help determine whether some of the best practices could be replicated in the United States or elsewhere. The four cases thus meet common criteria for strong case studies:56 (1) they are data-rich cases; (2) they have a range of values on the independent variable ‘‘government structures,’’ which includes varying degrees and combinations of ‘‘stronger’’ fusion-of-powers and unitary systems as well as ‘‘weaker’’ separation-of-powers and federal systems; (3) they involve contemporary policy concerns, as there are numerous other Western countries that are affected by similar challenges; (4) they include prototypical background characteristics, as generic government systems feature either or both parliamentary or presidential characteristics and unitary or federal organization; (5) they are well matched for controlled cross-case comparison, as countries’ counterterrorism responses were formulated in response to the same threat and compared over the same time period; (6) at least two of the cases are outlier cases as, for example, Kenneth Waltz’s findings would predict that counterterrorism responses in parliamentary systems are few and far between; and (7) all four cases are of intrinsic importance as they evaluate responses to the 9/11 attacks, commonly considered a watershed event in world politics.

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

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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.

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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-ofpowers 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

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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

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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

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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. CurtissWright Export Corp. changed Marshall’s original connotation22 by declaring that the ‘‘exclusive power of the President as the sole organ of the federal government in the field of international relations [is] a power which does not require as a basis for its exercise an act of Congress’’ but must conform to the relevant constitutional provisions.23 Sure enough, the ruling paved the way for presidential leadership proponents to assert inherent presidential powers in foreign affairs—even in the absence of explicit statutory or constitutional authorization.24 While the ruling facilitated the rise of the executive, other factors were at play as well. At the height of congressional ‘‘supremacy’’ in the late nineteenth century, Woodrow Wilson already noted the ‘‘greatly increased power and opportunity for constructive statesmanship given the President by the plunge into international politics’’ in the Spanish War that changed the ‘‘lodgment and exercise of power within [the] federal system.’’25 Demands on the executive branch and strong leadership became more and more pressing as the United States inched onto the international stage, amid a growing net of international relations and organizations and everfrequent crises and wars. A keen observer of American democracy, Alexis de Tocqueville had predicted the rise of the executive under precisely these circumstances: ‘‘If the life of the Union was constantly under threat . . . one would see the prestige of the executive increase . . . because of what was expected from it and what it did.’’26 As it turned out, Congress itself supplied the executive with many of the national security instruments needed to boost and maintain its high standing. Executive Ascendancy, Courtesy of Congress Congress’s increasing deference to the executive branch after World War II must be interpreted in the context of the Cold War and the understanding

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that the United States needed to be prepared for a possible confrontation with the Soviet Union.27 In the face of the Soviet threat, Congress followed President Harry Truman’s lead in passing the National Security Act in 1947.28 The act altered the balance of power in favor of the executive branch, effectively furnishing it with the institutional capacities to carve out its paramount role in the national security realm.29 Apart from the armed services, the president’s arsenal now included the National Security Council (NSC), Central Intelligence Agency (CIA) and Department of Defense (DOD). Lodged in the Executive Office of the White House and designed to assist the president in the coordination of the interagency process, the creation of the NSC was of particular significance as it would be exempt from congressional scrutiny. The NSC took the lead in directing U.S. foreign policy after only two decades. Depending on his or her relationship with the chief executive, various national security advisors appointed by the president since the Kennedy administration have filled the role of ‘‘most important foreign policy aide to the president.’’30 In another instance of tremendous foresight, Alexander Hamilton predicted this kind of executive capacity building: ‘‘Frequent war and constant apprehension, which requires a state of as constant preparation, will infallibly produce [standing armies]. . . . It is of the nature of war to increase the executive at the expense of the legislative authority.’’31 While he could not have foreseen the extent of future technical advances, Hamilton’s prediction held true in the twentieth century especially, when nuclear weapons imposed new restraints on decision-making and the need to act quickly under single, decisive leadership. The commander in chief clause thus provided another stepping stone for ‘‘independent Presidential authority and initiative in foreign relations’’32 and for settling the war powers question once and for all. Presidents have decided and ordered all military deployments abroad as well as the use of military force since Congress last declared war in 1941. Schlesinger concluded that ‘‘the imperial Presidency received its decisive impetus . . . from foreign policy; above all, from the capture by the presidency of the most vital of national decisions, the decision to go to war.’’33 Judicial deference to executive discretion regarding war powers is generally viewed as indicative of this trend.34 The courts have treated the war powers controversy as a ‘‘political question’’ and refused to rule on it. However, ‘‘the powers of the modern presidency . . . were not wrested by self-seeking chief executives in a serious of constitutional coups d’e´tat,’’

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but often established by means of congressional mandates and initiative.35 For example, when Congress delegated its constitutional authorities to organize the executive branch for significant periods between 1932 and 1984, the White House secured additional institutional resources, which over time ‘‘facilitate[d] the president’s expanded legislative presence.’’36 Similarly, lawmakers acquiesced in the proliferation of intelligence agencies.37 While most executive proposals were subject to congressional approval and legislative vetoes (until 1983), the scope of these new institutions was often contested, especially of those exempted from congressional oversight. As the most prominent example, the national security advisor’s more operational roles have been mired in controversy as his/her position is protected by executive privilege.38 Moreover, Congress certainly did not go along with every executive initiative. After Roosevelt created the Executive Office of the President in 1939, the growing uneasiness with executive expansion prompted fellow Democrat lawmaker Senator Richard Russell to object that the president was not vested ‘‘with one scintilla of authority to create by Executive Order an action agency of Government without the approval of the Congress.’’39 Pursuant to the Russell amendment passed in 1944, Congress may deny funding for any institutions created by executive order unless appropriations are specifically authorized by Congress. The controversies surrounding new executive positions, agencies, and departments indicate that lawmakers have a significant stake in these reorganization efforts as well. A byproduct of the symbiotic interbranch relationship, committee turf grows with every new executive agency, and lawmakers are certainly interested in gaining new appropriating and oversight powers. It is usually not a win-win situation for all lawmakers, however. Because any executive branch shake-up jeopardizes the committee turf of some lawmakers (as new committees may be formed), Congress’s executive reform record has been poor since the executive reorganization authority expired in 1984.40 On the rare occasions Congress manages to team up and formulate legal mandates for executive agencies, it is usually very vague about how these should be implemented—due to political compromise, congressional laymanship, or as part of a deliberate effort to ensure executive flexibility in the administration of laws.41 Calling statutory interpretation ‘‘one of the greatest of Executive powers,’’ William Howard Taft thus rejoiced: ‘‘Let any one make the laws of the country, if I can construe them.’’42

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Congressional Ways of Shaping U.S. Foreign Policy Congress undoubtedly also has a say in the creation and implementation of policies and is able to protect some of the statutory spirit. Congressional committees direct and manage programs and activities by placing conditions on appropriations and procedures, as ‘‘an effective foreign policy requires . . . institutions, agencies, people and money, and Congress controls them all.’’43 The Vietnam and Watergate fiascos triggered this kind of congressional involvement in the 1970s, epitomized by the War Powers Resolution of 1973. Congress further proceeded to impose restraints on executive spending and budget authority, arms sales, as well as reporting requirements on executive agreements, and confirmation of presidential aides.44 As a prominent example of lawmakers’ tactics ‘‘to use procedure to structure the choices the executive branch makes,’’45 new institutionalists count the Hughes-Ryan Amendment of 1974, which required the CIA to report on all covert operations to the new select intelligence committees.46 While the Iran/Contra affair is generally viewed as testimony for failed restraints imposed by Congress, Loch Johnson argued that ‘‘the very requirement of reporting on these operations serves as a strong deterrent against madcap proposals like those that surfaced within the intelligence bureaucracy more easily in the past.’’47 In 1987, Assistant CIA Director Robert Gates described his agency as ‘‘involuntarily poised equidistant between the executive and legislative branches.’’48 Others are more skeptical of Congress’s ability to hold agencies accountable and correct statutory (mis)interpretations, noting that ‘‘given the size and reach of federal programs . . . the legislature’s capacity to overlook exceeds its ability to oversee.’’49 Cosy relationships with executive departments further impede lawmakers’ oversight duties.50 Worse, Congress is necessarily handicapped in an area that is ‘‘cloaked in great secrecy.’’51 Due to these practical realities, constitutional checks and balances are not as rigidly applied.52 Or, as Judge Sutherland put it, foreign policy legislation ‘‘must often accord to the president a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.’’53 To be sure, congressional influence cannot be measured by the number of hearings scheduled, bills passed, or votes cast, as this ignores the ‘‘ocean’’ of day-to-day informal interactions where both branches work together to shape policy.54 Like in parliamentary systems, most bargaining

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and negotiating takes place outside the official decision-making circles.55 Common stakes might also facilitate cross-branch coalitions when interagency conflicts from within the executive branch ‘‘spill over’’ to legislative committees, as competing agencies are looking for congressional allies.56 The White House is not exempted from these struggles either, as it may not always see eye to eye with its executive branch agencies.57 Speaking of his successor, Dwight Eisenhower, Harry Truman mused, ‘‘He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike—it won’t be a bit like the Army. He’ll find it very frustrating.’’58

Imperial Congress? Executive Agendas on the Eve of the 9/11 Attacks According to its fiercest critics, Congress has abdicated its constitutional rights needed to rein in the executive and ‘‘not only fails to fight back but even volunteers in surrendering fundamental legislative powers, including the war power and the power of the purse.’’59 After Congress passed the War Powers Resolution in 1973, it never mastered the political will to invoke its key provisions. A more moderate school of critics points to the periodic ebb and flow of interbranch relations, arguing that Congress has periodically asserted its constitutional powers in shaping foreign and national security policies, most recently after the end of the Cold War.60 Indeed, in the structurally mandated tugging and pulling, both branches have from time to time occupied stronger and weaker positions.61 While Congress played the leading role accorded by the framers during large parts of the nineteenth and twentieth centuries, after the end of World War II, the scales were tipped in favor of the president, giving rise to the terms ‘‘chief legislator’’ and ‘‘imperial presidency.’’62 Arguably, the ebb and flow of presidential and congressional dominance is in the eye of the beholder. At a time of presidential ascendance, for example, John F. Kennedy famously noted that ‘‘Congress looks more powerful sitting here than it did when I was there.’’63 Yet others have pointed out that Congress has always focused on foreign policy issues with domestic application, so-called ‘‘intermestic’’ and transnational issues, especially those involving the allocation of people and resources.64 Illustrating the gamut of opinions, others fear that congressional resurgence since the late 1970s has jeopardized U.S. foreign policy. In 1989,

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former presidential advisor Eugene Rostow addressed ‘‘Congress’s thrust for dominion,’’ worrying that, after the Vietnam War and Watergate scandal, the American president was starting to resemble ‘‘a prime minister,’’65 at the mercy of his party and parliament. Concerns about the imperial Congress of the 1980s resounded throughout the 1990s, after the unifying effects of the Cold War threat had dissipated. On taking office in early 2001, Vice President Richard Cheney set out to correct the ‘‘erosion of [presidential] power’’ he had criticized since experiencing the ‘‘patterns of congressional overreaching during the Reagan administration.’’66 The 9/11 attacks represented a rare opportunity to execute these plans. As history has shown, in times of war Congress tends to fade into the background to facilitate quick and decisive decision-making.67 By implication, lawmakers are more tolerant of presidential unilateral tools, including executive orders and presidential directives, and attempts to withhold information from Congress by means of executive privilege. While presidents have issued executive orders since the administration of George Washington, they became central mechanisms for bypassing congressional hurdles during noncrisis times in the Clinton and Bush administrations.68 The usually classified presidential directives provide the foundation of military or diplomatic strategies, in addition to covert action, troop deployments, and military operations. Equally controversial, presidents have used them to create and reorganize executive agencies. The directives offer considerable freedom in the formulation of policies and commitment of government resources—also without congressional involvement.69 Their secret nature also illustrates the fundamental weakness in the design of checks and balances in the national security realm, since Congress’s ability to exercise oversight and shape decision-making depends on the willingness of the executive branch to share information.70 Even though wars and crises have always favored the executive, concerns about a new ‘‘imbalance of power’’ are more pronounced after 9/11, as the attacks represent an unprecedented convergence of foreign and domestic policy realms. In the face of the transnational threat posed by Jihadi terrorism, foreign policy and national security interests are easily conflated, offering a unique opportunity to apply more expansive foreign affairs powers on the domestic front. Following Silverstein’s line of reasoning, it is thus the logical extension of arguments put forth by Cold War administrations since Johnson and Nixon. In a hostile world, the expansion of executive prerogative in foreign affairs justified similar powers in the

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domestic realm, so that ‘‘when the national security was imperiled (a judgment left to the executive) the president was legitimately entitled to override constitutional constraints to preserve and protect that security.’’71 While no stranger to political violence and domestic terrorist attacks prior to 9/11—only six years earlier, 168 people had died in the Oklahoma City bombing—the United States has not been subject to any sustained terrorist campaigns at home.72 On 9/11, the country suffered the single worst terrorist attack on American soil. The attacks were widely considered unprecedented in nature and scope: four commercial airliners were hijacked and crashed into the World Trade Center and Pentagon buildings in New York and Washington, in addition to a field in Pennsylvania, killing 2,977 people. An analysis of measures undertaken in response to the 9/11 attacks helps reveal whether the executive branch managed to use the opportunities provided by 9/11 and claim additional powers at the expense of the legislative branch. By the same token, the process and outcomes should offer insights on how interbranch relations affected counterterrorism decisionmaking and outcomes.

Part 2: Post-9/11 Counterterrorism Responses Initial Responses: A New Office of Homeland Security Nine days after the attacks of September 11, President Bush announced the creation of the Office of Homeland Security (OHS) during his speech before a joint session of Congress, which would be headed by the newly appointed assistant to the president for homeland security, Pennsylvania Governor Tom Ridge.73 The reason the administration was able to make such a rapid announcement was that its thinking about the establishment of such an office did not occur in a vacuum but was informed by the findings of various high-level studies and commission reports.74 Since 1999, a series of commissions had concluded that the government needed to be reorganized to counter the growing terrorism threat. In May 2001, President Bush had asked Vice President Richard Cheney to prepare an analysis of the commission reports and other related works (albeit with a focus on domestic preparedness for an attack involving weapons of mass destruction).75 In their discussions with other senior White House staff, including

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Chief of Staff Andrew Card and National Security Advisor Condoleezza Rice, Cheney and his senior aides quickly narrowed their options to two models. The first model would create an office with an advisor position inside the Executive Office of the President and establish a fourth policy council—much like the already existing National Security Council, Domestic Policy Council, and National Economic Council—that would be responsible for coordinating the many government agencies with homeland security functions. A second model went even further and recommended the creation of a whole new department that would consolidate many of the homeland security-related functions of existing agencies and departments. These ideas had been voiced in one variation or another before by the various commissions.76 Until 9/11, however, none of the commission recommendations received concerted attention from either Congress or the White House. Following the attacks, senior officials at the White House saw a need for immediate and visible action.77 Heeding the advice of his working group, Vice President Cheney became the chief sponsor of a plan to set up an Office of Homeland Security within the White House, to be directed by a homeland security advisor who would have cabinet rank.78 The appointment of a homeland security advisor would represent a focal point for coordinating all homeland security efforts.79 Its location in the West Wing of the White House would guarantee priority access to the president and complement the high-profile plan. Most important, it did not require Congress to pass a new law. Officials agreed that any effort to pursue more far-reaching government reorganization would entail a drawn-out process and require the long-term commitment of resources and time. At a time in which the country was believed to be under attack, this was seen as practically unfeasible and politically irresponsible.80 The mission and functions of the newly established Office of Homeland Security were further specified in the executive order President Bush signed on October 8, 2001.81 The homeland security advisor would become the ‘‘principal point of contact for and to the president’’ for all issues involving homeland security. The Office of Homeland Security would serve as a clearinghouse for policy issues while coordinating ‘‘the executive branch’s efforts to detect, prepare for, prevent, protect against, respond to and recover from terrorist attacks within the United States.’’82 Its primary mission would not only be the development but also coordination of a comprehensive strategy to protect the United States against

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terrorism.83 Its seven policy directorates were responsible for issues such as intelligence and detection, protection and prevention, and response and recovery. To accomplish its complex task, the Office of Homeland Security would further rely on the Homeland Security Council (HSC), responsible for ‘‘advising and assisting the president with respect to all aspects of homeland security.’’84 The cabinet-level HSC paralleled the statutory NSC, with the OHS serving as the equivalent of the NSC staff. But the OHS/HSC process would be even more wide-ranging than the NSC; not only would it be responsible for facilitating executive interagency coordination along the horizontal axis of government, but it would also have to create new vertical communication structures and channels between federal, state, and local governments, as well as the private sector.85 As the Homeland Security Council was directly modeled after the NSC process, it had a very similar hierarchical committee makeup.86 At the top, the HSC served as the highest decision-making body and chaired by the president. At the next highest level, the cabinet-level principals committee was chaired by the OHS director and homeland security advisor. Below that, the deputies committee was made up of cabinet deputies and chaired by the deputy homeland security advisor. The eleven Policy Coordinating Committees—which represented the assistant secretary level and were interagency in their specific areas—built the foundation of the HSC process and were chaired by senior staff. In the end, the White House senior staff decided against integrating the OHS/HSC with the NSC for two main reasons.87 First, there were practical considerations. It would have been extremely difficult for National Security Advisor Condoleezza Rice to coordinate the homeland security efforts in addition to her NSC responsibilities.88 Richard Falkenrath, who served as the first OHS senior director of policy and plans and special assistant to the president, summed up the president’s decision to establish a separate system for homeland security by saying that ‘‘it’s such an important area of governance today that he believes it requires that specialization and that expertise. There is also a fair bit going on in the rest of the world which the National Security Council and the national security advisor need to stay focused on.’’89 There are also differences in levels of focus: the national security advisor is geared toward the top level of the executive, while the homeland security advisor needs to ensure that decisions made at the top will be implemented at the state and local level.90

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Initial Responses: The 2001 U.S.A. Patriot Act In the aftermath of 9/11, various investigations determined the attacks had been made possible in part by failures in the areas of intelligence collection and information sharing. While the U.S. government did not know everything it needed to know about the attacks, it knew a great deal—but information that did exist at the time was not analyzed in a timely fashion, was simply not recognized as a missing piece of a puzzle, or did not reach the right places. In other words, members of the intelligence community failed to ‘‘connect the dots.’’91 Even though the United States does not have an independent domestic intelligence service, the Federal Bureau of Investigation (FBI) has significant powers to detect foreign intelligence and terrorist activities that even resemble those of domestic intelligence services in other Western democracies. In the aftermath of the domestic spying scandals in the 1960s and 1970s, Congress sought to limit these FBI powers by passing the Foreign Intelligence Surveillance Act (FISA). In the context of foreign intelligence investigations, FBI agents had to obtain special wiretapping warrants from the FISA Court established in 1978. In addition, the Department of Justice (DOJ) adopted an even stricter interpretation of the law, creating a ‘‘wall [that] left intelligence agents afraid to talk with criminal prosecutors or agents.’’92 In a step designed to change these dynamics, eight days after the attacks Attorney General John Ashcroft presented a White House bill to Congress.93 Explaining the speed of the executive branch, many of the provisions had been on the government ‘‘wish list’’ for many years or were even introduced to Congress in the aftermath of the 1993 World Trade Center and 1995 Oklahoma City bombings.94 Noting similarities with its own proposal, the Justice Department concentrated its lobbying efforts on the Senate bill prepared by the Judiciary Committee under the leadership of Senator Patrick Leahy (D-Vt.). The Democrat-run Senate also represented the bigger political challenge to White House officials, who were less concerned that the Republican-run House would eventually fall in line with administration objectives. The most controversial provisions of the administration proposal included the detention of noncitizens, information sharing between security services, and the rules governing electronic surveillance. Both houses opposed the proposed measure to detain noncitizen terrorist suspects

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indefinitely.95 Lawmakers were also hesitant to support a provision that would let law enforcement agencies share wiretap and grand jury information with intelligence agencies.96 However, there were significant differences in their approaches: the House would agree only to sharing wiretaps and installed additional breaks, therefore granting not nearly as much authority to law enforcement as the Senate did. Equally important, the House bill did not allow secret sneak-and-peek searches (where suspects’ homes could be searched while delaying their notification) and included sunset clauses for most surveillance and information-sharing provisions. In the absence of any substantive debate—each house conducted only one hearing, and there are no conference reports—the remarkable speed of executive-legislative cooperation was made possible because traditional decision-making procedures were largely bypassed. In fact, the Senate bill was the product of negotiations within a small circle of decision-makers, including Committee Chairman Patrick Leahy, ranking member Arlen Specter (R-Pa.), White House staff, and the Senate leadership, and not voted on by the Judiciary Committee. Amid FBI warnings of new attacks and anthrax findings on Capitol Hill, Chairman Leahy admitted that, ‘‘despite my misgivings, I have acquiesced in some of the administration’s proposals because it is important to preserve national unity in this time of crisis and move the legislative process forward.’’97 Even though the House Judiciary Committee approved its version by unanimous vote shortly thereafter, the bill never reached the House floor. Instead, House Speaker Dennis Hastert (R-Ill.) opted to use the Senate bill—passed with overwhelming bipartisan support after four hours of debate and significant backing from White House—as the blueprint for a new House bill.98 Put together overnight with the help of Judiciary Committee Chairman James Sensenbrenner (R-Wis.) and White House staff, the new House version was very similar to the Senate proposal, essentially retaining only the name of the old bill as well as more stringent sunset clauses as a bargaining chip for the upcoming conference negotiations.99 Reminiscent of parliamentary procedures where the opposition is usually presented with a fait accompli, House members approved the new version of the bill the next morning—with no time for debate much less a reading of the bill.100 Less than two weeks later, both houses agreed on a compromise bill with sunset clauses for sixteen provisions that would expire in December 2005 unless renewed by Congress.101 President Bush signed the U.S.A. Patriot Act (which stands for Uniting and Strengthening America by

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Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act) into law on October 26, 2001. The most ground-breaking reforms would facilitate (foreign intelligence) information collection by means of electronic surveillance and physical search orders, as well as information sharing between security services. Searches and wiretaps that were part of intelligence investigations would no longer be attached to individual cell phones/landlines/computer terminals but now extended to individual suspects and all their communications under court-ordered ‘‘roving’’ wiretaps. Email communications would now be treated like phone calls, thus requiring subpoenas for pen register and trap-and-trace device orders (used to identify the source of wire or electronic communications).102 Stored communications like voicemail and credit card information could now be accessed with the help of search warrants and subpoenas, respectively (instead of court orders that were more difficult to obtain). Among its two most controversial provisions, the act authorized court-ordered access to all tangible items rather than a limited number of business records of specific services offering lodging, car, and locker rentals. In addition, law enforcement could now conduct secret searches of homes while delaying notification for a ‘‘reasonable’’ time; these new ‘‘sneak-and-peek’’ warrants could not just be used in terrorism but in all criminal investigations. Except for the last provision, all tools had been available to law enforcement agencies for several years but not been applicable to terrorism cases so far.103 Among the more controversial provisions not scheduled to expire were the FBI’s expanded authorities to attain information through so-called National Security Letters.104 In contrast to ‘‘tangible item’’ orders, the letters could not be used to secure content but more transactional data like email addresses and numbers dialed, in addition to financial data and full credit reports. As administrative subpoenas, the letters did not require court approval; they could now be issued by the heads of any field office, rather than selected senior officials at the FBI headquarters. The letters also no longer had to pertain to foreign powers or agents but merely needed to be relevant to national security investigations. The U.S.A. Patriot Act also removed a number of legal barriers that had prevented law enforcement and intelligence agents from sharing wiretap and grand jury information before 9/11.105 When applying to the FISA Court for surveillance or search orders, authorities now only needed to show that ‘‘a significant’’ rather than ‘‘the primary purpose’’ of the orders

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was to collect foreign intelligence. Concerns that the more easily obtainable FISA orders with lower criminal standards106 would provide a back door for acquiring evidence in criminal prosecution cases were so great that they triggered an unprecedented FISA Court ruling in May 2002, which rejected those very Patriot Act provisions designed to facilitate information sharing. The verdict thus reflected a long history of rulings designed to prevent the use of FISA wiretaps for criminal cases.107 However, the Foreign Intelligence Surveillance Court of Review subsequently reversed this decision, stressing that the primary purpose of the wiretaps was irrelevant as long as the investigation involved terrorism or espionage. In November 2002—more than one year after the Patriot Act was passed—the FISA Court began issuing surveillance orders according to the new regulations.

Creating the Department of Homeland Security Like the Bush administration, Congress had looked into the need for government reorganization several months before the attacks of 9/11. The various commission reports and recommendations served as the driving engine and foundation for these early efforts, which were spearheaded by legislation introduced by Rep. William M. ‘‘Mac’’ Thornberry (R-Tex.) in March 2001, and followed by other proposals.108 The events of September 11, 2001, reignited these efforts, with the resulting legislation reflecting the same models that had been discussed among the White House staff—either creating a homeland security coordinating mechanism inside the White House or establishing a central operational entity in the form of a new department or agency. Congressional proposals that aimed at strengthening the ‘‘coordinating mechanism’’ took up the recommendations of the Gilmore Commission and developed ideas closely resembling the existing OHS/HSC arrangement.109 A second school of thought supported large-scale reorganization. According to Senator Joseph I. Lieberman (D-Ct.), Ridge’s ‘‘office does not give him the power he needs to ensure that he will get the job of homeland security done . . . we need to create a robust cabinet-level agency led by a strong director that has the clout and resources to make the homeland security mission work.’’110 One month after the 9/11 attacks, Senators Lieberman and Arlen Specter introduced a bill that called for the creation of a

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cabinet-level Department of National Homeland Security.111 The department would be headed by a secretary who would be accountable to both the president and the Congress (and therefore require Senate confirmation) and would also be a member of the National Security Council. Modeled on the recommendations of the Hart-Rudman Commission, the bill would have brought the Coast Guard, Customs Service, and Border Patrol ‘‘under a single administrative umbrella’’ with the Federal Emergency Management Agency (FEMA).112 Reflecting the lawmakers’ view that the executive action did not go far enough, the proposals were bipartisan and launched after President Bush made the announcement to create an Office of Homeland Security.113 In contrast to the White House OHS model, a common feature to all congressional proposals was that any new office or department would require both statutory authority and Senate confirmation of the office or department head. Lawmakers viewed this authority as the basis for implementing real changes among and inside the mostly autonomous agencies and departments dealing with homeland security. While the president’s ear could provide for the most influence in the short run, various lawmakers were convinced that a homeland security advisor and office without institutionalized leverage would sooner or later sink into insignificance.114 As Senator Arlen Specter put it, ‘‘When he [former governor Tom Ridge] says that he can walk down the hall and get matters resolved with the President . . . it’s pretty hard to walk down the hall every time there is a controversy. . . . And it may be that the next Director of Homeland Security will not have a very close relationship, which Governor Ridge enjoys with the President.’’115 In a much quoted statement, former Senator Gary Hart argued that ‘‘The czar model will not suffice. Without budgetary or statutory authority, Ridge is doomed to not succeed. If he only has the power to exhortation, the disparate agencies will do what he asks them only when that is approved by their own superiors. . . . He will have to keep going to the Oval Office to make things happen. Anyone who knows Washington knows this won’t work.’’116 In the meantime, critics began questioning Ridge’s ability to facilitate interagency coordination.117 Since early March 2002, Ridge had become caught up in a struggle between the legislative and the executive branches over his unwillingness to testify before the Senate Appropriations Committee.118 Stressing that Ridge did not have any authority over departments and agencies, the White House did not think it necessary for him

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to appear before Congress.119 The White House asserted executive privilege, noting that the President and his advisors are entitled to confidential communications that they cannot be compelled to disclose. According to the White House, violating this convention would not only go against the overarching principle of separation of powers but would also set a legal precedent that could be used to demand testimonies in the future. From the White House perspective, the argument about Ridge’s testimony was therefore seen as part of a larger effort to ‘‘reverse what it sees as decades of congressional encroachment on executive power.’’120 But the debate was also symbolic of another matter of contention. The executive branch was interested in solutions that did not require legislative approval, therefore allowing greater executive flexibility and homeland security policies that could be owned by and changed at the discretion of the president. Congress, of course, was not merely concerned with improving Ridge’s ability to influence agency and department activities. Its insistence on obtaining authority grounded in statute as well as confirmable positions that would compel appearances on the Hill spoke to a larger goal of protecting legislative authority in homeland security issues. Statutory authority, after all, meant budget authority, and this would draw Congress directly into the decisions of the new homeland security advisor. Congress viewed such a role as the natural extension of its constitutional duty to exercise oversight of the OHS/HSC and the appropriation of public funds.121 An OHS created by executive order undermined this capacity, a concern symbolized by the fact that the office had been funded with money from the emergency response fund established after 9/11 that could be used at the president’s discretion.122 Senator Richard Russell’s reservations about the operational nature of the White House Executive Office without congressional oversight (leading to the Russell Amendment of 1944) were thus echoed sixty-five years later when lawmakers pressed for statutory authorization of the new Office of Homeland Security they considered an action agency. Lawmakers’ objections reflected a bias toward legislative branch prerogatives rather than party loyalty and were fully bipartisan in character. Representative Ernest J. Istook (R-Okla.) noted, ‘‘I find the concern among members is building. The point is not whether a presidential advisor testifies, it’s whether somebody can be given express major responsibilities under an executive order and then be exempted from accountability. I see it as respecting the Constitution.’’123

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With Ridge having declined several informal requests to testify, the controversy about his position further escalated when he turned down a formal invitation by Senators Robert C. Byrd (D-W.Va.) and Ted Stevens (R-Alas.), the chairman and ranking Republican on the Appropriations Committee.124 Other members demanded that Ridge testify about public spending on homeland protection and the $38 billion President Bush was requesting for domestic security programs.125 Senator Fred Thompson (R-Tenn.) noted, ‘‘it appears that the job that Governor Ridge has is turning into more of an operational one and certainly more of a public one than some of the other entities, comparable entities, such as the NSC that’s being used sometimes to draw comparisons.’’126 By the end of March, both Senator Lieberman and Senate Majority Leader Tom Daschle (D-S.D.) threatened to subpoena Tom Ridge.127 When Ridge also rejected an invitation by Istook’s subcommittee, the Republican representative from Oklahoma warned that his refusal could affect appropriations for the Executive Office of the President.128 Even though Ridge agreed to meet in private sessions with Istook’s subcommittee and other congressional committees,129 the move represented only a temporary compromise and did not resolve the issue.130 Soon after, a signal emerged from the administration that its opposition to more fundamental reorganization plans might be faltering. When Senators Joe Lieberman and Arlen Specter discussed a revised version of their original October bill in a hearing on April 11, 2002, the Director of the Office of Management and Budget (OMB), Mitchell Daniels, stated that ‘‘the administration is very open to alternative arrangements and they’re being looked at actively, as they have been from the outset.’’131 Daniels’s announcement—which seemed to imply possible White House interest in a new department—was surprising, especially because Senator Lieberman had not been working with White House staff.132 From Congress’s point of view, the White House move could only be interpreted as a last-minute step to regain the initiative it was about to lose.133 After all, Lieberman and Specter had introduced on May 2, 2002, their revised legislation designed to establish a new department, which envisioned the creation of a White House office in addition to a new department.134 Representative Mac Thornberry introduced a copy of the bill in the House for himself and six cosponsors the same day.135 In the Senate committee vote, with the White House still opposed, the vote was partisan—the Committee on Governmental Affairs approved the

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Lieberman bill on a 7–3 party-line vote.136 Nonetheless, bipartisan momentum was building outside the committee, and many questioned how long the White House could hold off the stampede for fundamental reorganization. There seemed a good chance that the legislation introduced by Lieberman and company could move forward—even without the involvement of the White House.137 Senior White House officials were convinced that any attempt at government reorganization would be a too complex and cumbersome undertaking.138 Early experiences in the OHS/HSC process, though, changed many minds. In December 2001, members of the OHS had developed a plan to strengthen and streamline border security functions. According to the plan, the Immigration Naturalization Service (INS), Coast Guard, and Customs would be combined into one border protection agency.139 After President Bush had given the green light for presenting the plan to the rest of the cabinet, Ridge convened a principals committee meeting. It soon became clear, however, that the cabinet heads did not support the plan. Attorney General John Ashcroft, who would be losing the INS, and Transportation Secretary Norman Mineta, who would be losing the Coast Guard, were determined to fight it. With the exception of Treasury Secretary Paul O’Neill, other cabinet members joined in to criticize the plan.140 Secretary of State Colin Powell warned it would be nearly impossible to garner support on Capitol Hill because it would not be endorsed by any of the standing committees (which were destined to lose jurisdictional power as a result of the consolidation).141 In a second attempt to streamline border authorities, Ridge proposed in March of 2002 to merge the Customs Service and INS in the Justice Department.142 In comparison to the first proposal, the plan represented a compromise and yielded to the interests of the Justice Department— Treasury Secretary Paul O’Neill, the only cabinet member who did not veto the first border security plan, had already indicated that he was not intent on keeping Customs. Attorney General Ashcroft, on the other hand, would now be gaining an agency. Both cabinet officials signed off on the plan, but it came apart in Congress, where lawmakers with jurisdiction over Customs expressed strong opposition.143 The episode illustrated that the ‘‘sense of [executive branch] departmental entrenchment is mirrored on Capitol Hill, where separate authorization and oversight committees protect each ‘stovepipe’—national security, law enforcement, disaster relief, public health, and so on—as jealously as the executive agencies themselves.’’144

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To President Bush and his senior White House staff, it had now become clear that a top-down approach would be needed to implement any reorganization plans.145 At the beginning of April, Bush gave his Chief of Staff Andrew Card the green light to explore options for reorganizing homeland security ‘‘from scratch.’’146 A select number of senior assistants were chosen for the task of creating a new roadmap for homeland security. For six weeks in April and May, the ‘‘small group’’ met in the President’s Emergency Operations Center.147 Beginning early in the process, the group presented tentative decisions to its immediate superiors. Even though the circle of insiders would expand to include senior White House staff, the deliberations were purposely kept quiet until the end of the process.148 Knowing that a large-scale reorganization effort would upset many special interests in Washington, President Bush stressed the need for keeping the plan secret from anyone who had a stake in the existing composition of the executive branch—including most of his own cabinet officials.149 President Bush had assured Andrew Card that all options should be considered, that nothing was ‘‘off the table.’’ Card was in favor of bold action and encouraged planning that did not yield to fears about looming turf battles.150 The group looked at a number of models, beginning with the then-current OHS/HSC set up and including such options as a smallscale plan to merge INS and Customs into the Justice Department; a medium-scale plan to merge Customs, INS, and Coast Guard into a new border authority; and more radical options for a new department.151 The small group soon decided to pursue the large-scale consolidation model and creation of a new department because the members viewed it as the most efficient solution.152 Their uneven experience with the OHS/HSC model had convinced them of the need for radical changes that would fundamentally alter the bureaucratic dynamic in the homeland security field. The grand design was also attractive because it offered a solution to the statute controversy. After one of his meetings on Capitol Hill in March, OMB Director Mitch Daniels had warned that the administration faced serious problems if it continued rejecting Ridge’s testimony before Congress.153 After all, Ridge had played a central role in designing the budget plan and in allocating public funds.154 A new department would solve the testimony problem because its secretary would have to be confirmed by the Senate and become accountable to Congress. At the same time, the group also planned on retaining the current OHS/HSC design with an advisor

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position that did not require Senate confirmation, in part because it recognized that the need for interagency coordination would continue even after the creation of a new department. The most difficult questions concerned the composition of the department. If the small group could determine that certain functions, exercised by an existing agency, were a core part of homeland security, the group would move it to the new department. Hence, there was relatively little discussion about transferring FEMA (for disaster management), Secret Service (for protection of senior-level leadership), Customs, Coast Guard, and the newly created Transportation Security Administration (TSA, which played a central role in border security) into the new agency. In cases that were not as straightforward, the group decided to make a decision on the basis of ‘‘what was doable and digestible.’’155 If an agency or program had numerous responsibilities unrelated to homeland security, the group would take a second look to determine if the homeland security functions would justify the transfer and outweigh the potential burden of these tasks.156 Another tough decision involved the department’s law enforcement functions.157 The group decided against moving the FBI’s capacities to the new agency. Both Andrew Card and Condoleezza Rice were opposed to concentrating too much power in one agency and agreed on the need to maintain a division of power.158 When President Bush announced the final plan on June 6, 2002, he proposed to merge a total of twenty-two agencies into the new Department of Homeland Security.159 Those agencies included FEMA, Coast Guard, TSA, Customs, INS (with Border Control), and Secret Service. In addition, the new department would absorb a number of offices cleaved from other agencies, such as the National Infrastructure Protection Center at the FBI. Reflecting the secrecy of the process, many cabinet officials first heard of the plan when it was announced. All in all, the proposed changes would go beyond the most far-reaching recommendations of the Hart-Rudman Commission and the Lieberman/Specter plan. With a total of 170,000 employees, the new entity would be the third largest cabinet department. The initial response on the Hill was generally positive, and both Democratic leaders, Richard Gephardt (D-Mo.) and Tom Daschle, were optimistic that the proposal would pass both houses before the September 11 anniversary.160 Noting that the Bush proposal was ‘‘at least two-thirds similar’’ to the Lieberman proposal, Daschle also reminded the American public that ‘‘Democrats were for a homeland defense cabinet-level agency before

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it was cool.’’161 From Congress’s point of view, the White House had succumbed to growing congressional pressure and decided to give up opposition to homeland security legislation so they could play a more active role in the process.162 Key officials at the White House remained convinced that the Lieberman legislation was not going anywhere,163 and later said they were inspired by the initial experiences of the HSC/OHS process, not a fear of being left behind by Congress.164 The Bush strategy of ‘‘thinking big’’ seemed to work. When the Republican House committee chairmen staked off their claims in their first meeting with President Bush, their demands appeared to be reconcilable with the proposal.165 Rep. Don Young (R-Alas.), chairman of the House Transportation Committee, noted he would not be opposed to losing the Coast Guard to the new department if the legislation contained a provision that would protect its traditional non-homeland security functions (including ice breaking and environmental controls in his home state of Alaska). Rep. Harold Rogers (R-Ky.), chairman of the House Appropriations Transportation Subcommittee, which held jurisdiction over the TSA, was willing to support the proposal if his committee would be able to expand its jurisdiction over the whole new department. While President Bush recognized that many ‘‘turf battles’’ lay ahead,166 cabinet members demonstrated a united front during subsequent congressional testimonies—in part due to stern marching orders they had received from the White House.167 But consensus was short-lived. Critics of the proposal immediately expressed concerns about the non-homeland security functions of the agencies selected for transferal.168 As these programs might find it difficult to identify with their new mission, the skeptics argued, they might also be considered of only marginal importance and not receive sufficient resources. Daalder had warned in 2001 that centralization was not the solution to the problem: ‘‘You cannot put the entire U.S. government under one roof. Too many agencies are involved in homeland security.’’169 As it turned out, however, by far the most contentious sections of the proposal stemmed from a surprising, and arguably not even central, component of the legislation, provisions on management rules in the new department that, in the eyes of Congress, would result in the expansion of executive authority.170 Under the proposal, the president would not need Senate approval to specify the appointments and responsibilities of up to ten assistant secretaries for the department. Furthermore, the proposal allowed the head of the new department to transfer up to 5 percent of

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appropriations in any fiscal year among department accounts without congressional approval and unilaterally initiate certain reorganization measures he or she deemed necessary. But the section of the proposal that proved most controversial of all called for ‘‘significant flexibility in hiring processes, compensation systems and practices, and performance management to recruit, retain, and develop a motivated, high performance and accountable workforce.’’171 In the view of federal civil service lobbyists and many Democrats, these provisions would amount to a veritable repeal of Title V protections of federal employees, which had historically shielded them from political retribution and unfair labor practices. The White House and its Republican allies saw it differently: Exceptions to such regulations had always existed in the national security field, and homeland security was an analogous activity.172 Richard Falkenrath explained the rationale behind the provision as follows: ‘‘We didn’t just want to move the boxes around . . . We wanted to make sure that the new Secretary . . . would have the ability to make it work better than it’s working right now. We didn’t just want a confederation of existing offices with a new super secretary sitting on top of it with no real power to make any difference.’’173 In any event, White House officials signaled to the Hill an unwillingness to compromise and a refusal to decouple the issue from the homeland security legislation.174 According to an alternative view of the administration’s intentions, this one prominent among senior Democratic political leaders, the White House had not wanted a new department in the first place. Confronted with political momentum for reform—and the risk that the Democrats, notably Senator Lieberman, would garner major credit for the change—the administration had to throw a proposal into the ring. But it attached explosive management provisions that it knew would alienate major Democratic stakeholders (civil service unions) as a ‘‘poison pill’’ that would send the bill down to defeat, allowing the administration to get everything it wanted: no new department, and the ability to blame Democrats for the outcome.175 The administration soon secured a procedural victory, dealing with the mechanism by which the final version of the legislation would be handled in the House. While the initial Bush proposal would be reviewed by the standing committees, House Speaker J. Dennis Hastert and Minority Leader Richard Gephardt decided that the bill’s final version would be written by a newly assembled Select Committee on Homeland Security, in which the Republicans would have a one-seat majority.176 They assigned the

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chairmanship to House Majority Leader Richard Armey (R-Tex.), who was not seeking reelection and would, therefore, not have to suffer the scorn of his fellow chairmen who would be losing jurisdiction under the new arrangement.177 Since the select committee would have full jurisdiction and, therefore, final say over the legislation that would be sent to the House floor, the administration did not become overly concerned with the emerging voting patterns in the standing committees (determined to defend their turf).178 All these changes would be reshaped by the new select committee, which restored much of the administration’s original language.179 The White House launched a concerted lobbying campaign to garner support for the Bush proposal.180 While focusing on close Republican allies and members of the House Homeland Security Committee, lobbying efforts were designed to ensure that the final version of the bill included acceptable provisions on issues most important to the president. At the same time, it represented a long-term strategy for garnering broad-based support for the final House-Senate conference.181 After several weeks, thanks in part to the role of the new select committee and its tightly run process under the leadership of Richard Armey, it became clear that the Bush plan would not be significantly modified in the House.182 Specifically, the House version continued to include the administration’s request for flexible management and specified that the secretary would be granted authority for determining human resources management arrangements in the areas of pay, discipline, firing, performance appraisals, labor relations, and appeals.183 The bill was introduced to the floor of the House on July 25, and a day later a slightly modified version passed on a 295–132 vote.184 Things did not proceed as smoothly in the Senate, where the Democrats had the majority. This was in part due to the fact that an amended version of the Lieberman-Specter bill, rather than an administration draft, would serve as the foundation for developing a mandate in that chamber.185 In terms of the department set up, the bill continued to hold on to six department directorates (instead of the four envisioned by the Bush proposal). Moreover, it represented an ambitious attempt to merge FBI and CIA analysis and collection capacity in the new department. Therefore, the Lieberman-Specter bill was in stark contrast to the Bush proposal, which left all of the CIA and most of the FBI intact.186 Senator Lieberman eventually agreed to postpone the issue until the new department was established.187 Still, under a revised version of the Lieberman proposal, the new department would have the right to demand

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‘‘unevaluated data’’ from the CIA and the FBI.188 In addition, it called for an ‘‘independent intelligence directorate,’’ led by an undersecretary, which would fuse information from a wide variety of agencies.189 From the perspective of the executive branch, the detailed language of the Lieberman proposal was unacceptable. For one thing, it would not allow the administration to carve out solutions that were seen as crucial ‘‘carrots’’ for garnering Republican support for the proposal.190 White House plans focused not on creating something new but instead on the idea of restructuring existing agencies. In addition, officials questioned whether a newly established department would be the right place for handling intelligence information integral to the protection of the country; in other words, White House planners did not want to throw all their eggs into one new intelligence analysis basket. The question about the department’s future intelligence capacities also touched on a larger constitutional issue considered an executive branch prerogative. Because the executive branch has primary authority over foreign policy and intelligence matters, it was seeking to maintain control over any changes that would be made in these areas. The language of the Bush proposal (and the subsequent homeland security legislation that adopted most provisions of the Bush plan) thus left room for broad interpretation and subsequent adjustments. Most important, the Senate bill gave the executive branch none of the management flexibility it was seeking.191 In response to the Senate version of the bill, therefore, the White House issued its first veto threat.192 When Congress reconvened after summer recess at the beginning of September 2002, Senator Lieberman made another attempt to hold on to his version of the Senate bill.193 As the Senate debate intensified, Lieberman’s proposal underwent additional amendments but remained irreconcilable with the House version. The White House tried to work through its strong Senate ally, Phil Gramm (R-Tex.), who introduced an amendment seeking to replace the civil service provisions and department layout of the Lieberman substitute, followed by other compromise amendments.194 Perhaps unsurprisingly, no one bill could generate sufficient support to pass, and the stalemate continued through the November midterm elections. In the meantime, the White House made the failure to pass a homeland security bill a central theme of the Republican campaign for the midterm elections.195 When Congress reconvened on November 12 for a lame duck session, it was clear that the Republicans would have the majority when the new

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Senate took office in January. This fact gave the White House immense leverage, and it set about using it. Key legislators from both chambers worked with the White House to craft a minor compromise on the management issues.196 A slightly modified bill was rushed through the House.197 House members then left Washington for the weekend, leaving the legislation to the Senate—‘‘saying effectively,’’ Tom Daschle would later write, ‘‘take it or leave it.’’198 Nonetheless, the issue was effectively decided by the election. The White House had won, and a Senate version of the House bill became a sort of fait accompli.199 On November 25, 2002, President Bush signed the bill into law, creating the Department of Homeland Security (DHS).

Executive Initiatives: The New TTIC and TSC According to the Homeland Security Act of 2002, the newly created DHS would have its own intelligence analysis capacity as part of the Information Analysis and Infrastructure Protection (IAIP) Directorate. Since it did not absorb any existing intelligence or law enforcement agencies and would not have any collection abilities, IAIP would thus become a ‘‘customer’’ of raw intelligence, finished reports from all federal agencies, as well as incidental intelligence collection through its Coast Guard, Customs, and Border Patrol component agencies. As a member of the intelligence community, DHS would, theoretically, still have a say in how intelligence collection and analysis priorities should be set. It is important to note, however, that the legislation did not specify how the new regime would be implemented. Nor did it provide any instructions on how information would be moved and how it would be used once it was received by DHS. According to the bill, IAIP would be responsible for assessing vulnerabilities of ‘‘key resources and critical infrastructures’’ and developing a national plan for protecting them, issuing warnings on terrorist attacks, and disseminating information to state and local governments, other federal entities, and the private sector. 200 Furthermore, IAIP would ‘‘access, receive, and analyze law enforcement information, intelligence information, and other information from agencies of the Federal Government . . . , and private sector entities, and . . . integrate such information in order to identify and assess the nature and scope of terrorist threats to the homeland.’’201

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In fact, the legislation was so broad that it essentially set the stage for subsequent executive initiatives to establish new ground rules for information sharing and a new center in which all terrorism-related threat information would be integrated (which would, as it turned out, emerge outside DHS). As a symbol of the growing effort to coordinate intelligence, the director of central intelligence, attorney general, and secretary of homeland security signed a Memorandum of Understanding on Information Sharing in March 2003. The new framework required intelligence, federal law enforcement, and homeland security agencies to share terrorist-related information ‘‘on an unprecedented scale.’’202 Most important, the memorandum specified the institutional arrangement needed to facilitate the routinization of information-sharing processes; the new information-sharing mechanism would be implemented in the Terrorist Threat Integration Center (TTIC) President Bush announced in his 2003 State of the Union address. Just one month after Congress had passed the 2002 Homeland Security Act, creating DHS and its IAIP, President Bush ‘‘instructed the leaders of the FBI, the CIA, the Department of Homeland Security, and the Department of Defense, to develop a Terrorist Threat Integration Center’’— known as TTIC—‘‘to merge and analyze all threat information in a single location’’203 —which many had assumed was precisely the IAIP’s job. It soon became clear that TTIC would not become part of DHS and that the new center would perform many of the same functions that had been assigned to DHS’s information analysis division. TTIC was first discussed during a meeting in Andrew Card’s office in December 2002. Bush’s chief of staff had convened senior-level officials representing the FBI, CIA, DHS, and Departments of State and Defense to brief them about the plan to create an all-source intelligence fusion center. President Bush wanted to use his State of the Union address as a venue for announcing that the FBI, CIA, and DHS would join forces to close the seams between foreign- and domestic-source terrorist threat-analysis and ‘‘connect the dots.’’204 The Director of Central Intelligence, George Tenet, was put in charge of the process. The actual planning was done by a senior steering group, which consisted of one senior representative of the Departments of Justice/FBI, Defense, State, and Homeland Security, in addition to the CIA and OMB. The group was further supported by a working group of experts from the respective agencies and departments familiar with concrete practical issues and real-world problems.

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Illustrating his strong interest in TTIC, Bush personally engaged in the planning process on two separate occasions.205 From the White House point of view, TTIC was the best compromise the CIA and FBI could expect amid growing public and legislative pressure for reform. While advocates of the plan argued that the TTIC initiative was a strong signal of the president’s support of the CIA and FBI, the established agencies did not quite see it that way. 206 The CIA was opposed to the idea because it would take away from its responsibilities as lead agency for threat analysis and assessment; the FBI too would have preferred to be in charge of the process. From an FBI standpoint, the new arrangement, created and later managed under CIA leadership, was a clear setback for the bureau.207 The FBI—which until then had held sole responsibility for domestic intelligence and counterterrorism— would have to start sharing this responsibility with a range of other agencies. At the same time, the agencies most affected by the creation of TTIC recognized they had a common interest in cutting their losses.208 Reflecting the experimental nature of the plan, they were tasked with building something new that would create synergies between their diverse cultures while leaving all the existing structures intact; TTIC had to be designed so it would not affect their respective future analysis or collection capacities. TTIC would be made up of representatives detailed from their respective agencies who would bring their own funding with them. The center would not have any collection authority and not be able to hire any people. Established under CIA leadership and housed at CIA headquarters, TTIC would rely on the agency to furnish it with organizational capabilities, from computer systems to analysis.209 As it was designed, then, the new venture depended on the goodwill and collaboration of the very agencies whose failure to work together provided the reason for TTIC in the first place. The loose nature of the TTIC organization was also crucial because it meant legislation could be avoided. After the struggle over the DHS legislation, the president had made it clear that he did not want to go back to Congress.210 Instead, the White House wanted to use the lowest level of authority for implementing the changes because it would allow the most executive flexibility. The State of the Union address represented an opportune venue for announcing the creation of TTIC while also establishing a surrogate mandate. All in all, TTIC offered an opportunity for a solution to a problem that the administration could truly own. On May 1, 2003, TTIC started operating under former CIA Deputy Executive Director John Brennan. Two months later, the joint venture had

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built a cadre of 100 analysts and liaison officials, one-third of its final capacity. Very quickly it became clear that TTIC would either carry out many of the functions intended for DHS or overlap with DHS’s IAIP in the area of threat-related analysis. TTIC was designed as the new focal point for terrorist threat analysis. As an interagency joint venture, it was supposed to ensure ‘‘rapid and unfettered sharing of relevant information across departmental lines . . . collaps[ing] bureaucratic barriers and clos[ing] interjurisdictional seams.’’211 TTIC would also be responsible for compiling daily all-source terrorist threat assessments for the president and other members of the senior leadership—for the first time, the president would be able to rely on a single stream of intelligence on terrorism. Lawmakers viewed the decision to create TTIC outside DHS as a violation of the new department’s statutory mandate. From a legislative point of view, DHS was created in part as an ‘‘intelligence fusion center’’ with the core responsibility of consolidating, analyzing and acting on all terroristrelated threat information.212 Placing the information fusion center outside the department seemed to violate a core purpose for creating it in the first place.213 Members of Congress also worried that the center had created an accountability vacuum. While TTIC as a whole reported to the CIA director, its various components continued to report to their respective agencies and departments. Asked about who would take responsibility ‘‘when some bit of intelligence is not properly viewed or vetted for what it is and something bad happens as a result,’’ TTIC Director John Brennan could only suggest that it would be ‘‘very case-specific.’’214 Some lawmakers also feared that the work of the new center could violate the law that prohibits the CIA from law enforcement or internal security functions, since TTIC would also be responsible for the analysis of domestically collected information—a concern magnified by TTIC’s organizational affiliation with and physical proximity to the CIA.215 In a letter to the CIA, FBI, DHS, and TTIC heads, Senators Susan Collins (R-Me.) and Carl Levin (D-Mich.) raised questions pertaining to TTIC’s responsibilities and those of other federal intelligence collection divisions, especially the IAIP Directorate of the DHS.216 In response, representatives of DHS and TTIC stressed that DHS is solely responsible for information related to domestic counterterrorism, while TTIC’s ‘‘terrorism analytic mission is global in nature.’’217 This distinction was highlighted in a joint response letter by the FBI, CIA, DHS, and TTIC heads. If information has no link to international terrorism, the responsibility is divided

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between FBI and DHS. And while the FBI has primary responsibility with regard to analysis of such information, IAIP is charged with ‘‘matching the assessment of the risk posed by identified threats and terrorist capabilities to our Nation’s vulnerabilities.’’ In addition, DHS ‘‘also has significant responsibilities with regard to . . . its critical infrastructure protection, customs, immigration, and other statutory responsibilities.’’ In September 2003, President Bush further announced the creation of a FBI-run Terrorist Screening Center (TSC) by means of presidential directive. TSC would be responsible for compiling a master database with information on all ‘‘known and suspected’’ terrorists.218 Bearing close resemblance to the TTIC concept, the joint venture included the DOJ, DCI, DOS, and DHS and was designed to resolve the ‘‘watch list’’ dilemma. In a highly publicized report, the General Accounting Office determined in April 2003 that, almost two years after 9/11, the U.S. government still relied on twelve different terrorist ‘‘watch lists’’ run by nine different federal agencies, which were not designed for interagency exchange and held different information.219 The new TSC would consolidate data from these twelve separate ‘‘watch lists’’ and for the first time make the data available across agency lines, allowing more efficient and comprehensive background checks. According to Attorney General Ashcroft, ‘‘the Terrorist Screening Center will provide ‘one-stop shopping’ so that every federal anti-terrorist screener is working off the same page—whether it’s an airport screener, an embassy official issuing visas overseas, or an FBI agent on the street.’’220 Due to its long-time expertise in running nationwide criminal databases, the FBI was the natural candidate to lead this venture.221 According to some observers, the arrangement also served another purpose: after delegating TTIC authority to the CIA, the other bureaucratic monster needed to be fed as well.222 In any event, by June 2005, the Terrorist Screening Center had assembled a single, consolidated watch list that could be accessed with the help of TSC’s 24-hour call center. Some DHS officials pointed out that IAIP was never intended to be similar to or in competition with TTIC or TSC. Instead, it was designed to fulfill a unique mission of building new vertical information sharing structures between the local, state, and federal levels of government and facilitate information flows in both directions.223 However, critics soon questioned the uniqueness of this mission. Starting in 2004, for example, state and local governments began pooling their counterterror intelligence and policing capacities at so-called fusion centers. By summer 2007, more than

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fifty-eight state and local centers, as well as six regional centers, had been or were being created nationwide.224 While a key reason for building the centers in the first place was to make up for insufficient federal information-sharing mechanisms, it remained doubtful in how far the state-run centers could improve two-way vertical information flows between federal, state, and local governments. In the meantime, the FBI proceeded to boost its own state presence by effectively tripling the number of FBI-run Joint Terrorism Task Forces (JTTFs) in the fifty states. Similar to the fusion centers, the 101 JTTFs included counterterrorism representatives from state, local, and federal agencies and were engaged in not only horizontal interagency (across one level of government) but also vertical (across local, state, and federal governments) information sharing.

Quest for More Reorganization: The 2004 Intelligence Reform Act Championed by Senators Joe Lieberman and John McCain (R-Ariz.), Congress pressed the Bush administration to convene an independent, bipartisan commission to investigate the intelligence failures leading up to the 9/11 attacks.225 The 9/11 Commission presented its highly anticipated report in July 2004. Amid an emotionally and politically charged atmosphere— with victims’ families demanding action and the presidential elections only three months away—President Bush acted fast to implement its two most ‘‘attention-grabbing’’226 recommendations. As directed by executive order, TTIC became the foundation of the new National Counterterrorism Center (NCTC) in August 2004, which would perform the same functions as TTIC.227 A second order directed the director of central intelligence ‘‘to perform the functions of the National Intelligence Director . . . until Congress establishes [a] law.’’228 It essentially left the traditional budgetary hierarchy intact, so that the Pentagon remained in control of over 80 percent of national intelligence spending (which, for the most part, was being distributed to technical intelligence like the National Security Agency, the National Reconnaissance Office, and the National-Geospatial Agency). Even before summer recess, Majority Leader Bill Frist (R-Tenn.) decided that the Government Affairs Committee would have sole responsibility for the bill in the Senate. By early October, Chairwoman Susan Collins and ranking member Joe Lieberman had introduced legislation that—if

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adopted—would have stripped the Pentagon of a significant portion of this budgetary power, as well as granted the director of national intelligence (DNI) immense reprogramming authority. In the House, the decisionmaking process was much more fragmented, as the bill would be assembled by five different committees—all eager to defend their established turf. The approach was thus in stark contrast to the strategy the House leadership adopted two years earlier, when Speaker Hastert sought to secure support for the Homeland Security bill by establishing a new committee especially designed for that purpose.229 President Bush soon reversed his initially muted reaction and announced support for a DNI with ‘‘full budgetary authority,’’230 effectively endorsing the Senate position. His announcement was followed up with a White House legislative proposal that put the DNI in charge of up to 75 percent of the intelligence budget.231 However, even though Bush proceeded to call on Congress to pass the bill, ‘‘Republicans who opposed the legislation . . . sensed that the president’s support was lukewarm, a campaign necessity, not a personal endorsement.’’232 Others thought it likely that Bush secretly preferred the House version of the bill. Not only did it leave in place the institutions and authorities previously authorized per executive order but it also broadened executive authorities at the expense of Congress, such as granting the president fast-track intelligence overhaul authorities.233 Yet others thought it important that the Pentagon—represented by the president’s most powerful cabinet member, Secretary Donald Rumsfeld—was opposed to the Senate plan for a strong DNI.234 While Rumsfeld did not openly defy the administration’s position in support of the Senate bill, Pentagon officials launched what some described as a massive behind-the-scenes campaign in Congress, in which House Representatives Duncan Hunter (R-Ca.) and James Sensenbrenner emerged as staunch opponents of the Senate bill. As DOD’s most reliable ally, Hunter argued that the proposed reforms would cut the lifeline between satellite intelligence and the troops in the field. Sensenbrenner, by contrast, sought to include additional law enforcement powers that would facilitate the surveillance, detention, and deportation of noncitizens; because these went far beyond the 9/11 Commission recommendations, these provisions were considered poison pills by many.235 In fact, several had been part of a 2003 Bush administration proposal that was soon dropped because the public response to it was so negative. Ironically, Sensenbrenner had played an instrumental role in blocking Justice Department efforts back then; he also

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blocked efforts to make all U.S.A. Patriot Act sunset provisions permanent.236 Dubbed Patriot II, the draft version of the ‘‘Domestic Security Enhancement Act’’ targeted foreign nationals, illegal immigrants, and U.S. citizens alike, and granted the Attorney General unilateral powers to authorize secret arrests in combination with unlimited detentions, summary deportations, and new surveillance measures.237 The Sensenbrenner-Hunter alliance prevailed: the final House intelligence reform bill included Sensenbrenner’s controversial measures and also left the DOD in charge of the intelligence budget. As a result, members of the Conference Committee were unable to resolve their differences before the November elections. As the negotiations continued, calls on the newly reelected president to step up his personal engagement intensified, with lawmakers demanding that ‘‘Mr. Bush had better put aside polite telephone entreaties and try grabbing recalcitrant Republicans by the lapels.’’238 Nevertheless, the White House appeared unsuccessful: Speaker Dennis Hastert refused to call a House vote on the conference bill on November 19, even though the bill could have been passed with the votes of the Democrats who pledged their support for it.239 Arguing that it was not carried by the ‘‘majority of the majority,’’ Hastert yielded to heavyweights like Hunter and Sensenbrenner who were still opposed to the bill. Some have used the House’s defiance of the administration’s position to illuminate the importance of presidential leadership and legislative involvement, even in times of unified government. Under an alternative scenario, the White House’s lacking resolve at the negotiation table might be more indicative of ulterior motives and opposition to the bill that were indirectly served by Hunter’s and Hastert’s stalling tactic.240 Adding to suspicions about the administration’s underlying intentions was an open letter to Congress, in which the Chairman of the Joint Chiefs of Staff, General Richard Myers, voiced his support for Hunter’s version of the bill.241 Accordingly, yet others argue that decision-making processes best illustrate bureaucratic pressures at work—the president yielded to a DOD that was simply too powerful and unwilling to cede any budget authority. While the White House did swing into action after the Hastert episode, with Dick Cheney stepping up pressure on Chairman Hunter,242 those House lawmakers with a vested interest in maintaining the status quo remained in the better bargaining position. As the lame-duck session was seen by many as the last chance to take advantage of the momentum created by the 9/11 report, critics like Senator Robert Byrd worried about the

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‘‘type of Faustian bargains [that] will be struck to jam this bill through the Congress.’’243 Confirming Byrd’s concerns, Collins and Lieberman eventually conceded to Hunter’s demands, inserting language that the DNI may not ‘‘abrogate the statutory responsibilities’’ of the Department of Defense and other agencies and thereby overrule their budgetary decisions.244 After the House and Senate passed the bill, President Bush signed the Intelligence Reform and Terrorism Prevention Act into law on December 17, 2004.245 The act created the new position of the director of national intelligence in addition to the director of the CIA, who now reported to the DNI. The DNI took the place of the former director of central intelligence, but with broader budgetary and management authority to exert direct influence over individual agency/department programs, personnel, and acquisitions, as well as establish intelligence collection and analysis priorities. While the legislation was intended to boost the authority of the DNI (and provide the position with the robust foundation needed to manage the intelligence community the former DCI was thought to be lacking), the same bill effectively curbed these powers. Suspicious of the potential of yet another ‘‘czar’’ position that ‘‘reigns over the intelligence community but does not rule it,’’246 critics questioned the DNI ability to implement reforms while simultaneously having to fight and keep turf-conscious bureaucracies, including executive-branch heavyweights like the Pentagon and the CIA, at bay.247 In addition, the DNI would continue to face its various congressional allies, as Congress failed to meet its end of the bargain and did not implement 9/11 Commission recommendations aimed at streamlining its own structures.248 Because the DNI lacked the clout that comes with ‘‘owning’’ a department or an agency, the extent of the DNI’s influence would depend on his relationship with the president, as well as his 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,

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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 terrorismrelated 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

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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

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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

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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 herculean task.277 The failure to reform cuts across political divides. Even though they pledged to implement the 9/11 recommendations once in power, Democrat lawmakers failed to fulfill their promise after the 2006 midterm elections.278

The Secret NSA-Program and 2006 Patriot Act Reauthorization In December 2005, details of a secret wiretapping program President Bush had ordered per presidential directive soon after the 9/11 attacks became public. As part of the program, the NSA had monitored large volumes of phone and email transactions between U.S. nationals and foreign individuals abroad and without FISA Court approval.279 Facing significant public outcry, the Bush administration argued that the program did not violate the rules governing foreign intelligence-related surveillance within the United States but instead provided security services with the speed and flexibility needed to detect patterns of domestic terrorist activities.280 According to the White House, the president’s power to authorize the program derived from an assortment of different constitutional, statutory, and judicial authorities: the inherent authority vested in him under Article II of the Constitution, including the commander in chief clause, was reinforced by the September 18, 2001, Authorization for the Use of Military Force (better known as AUMF), which authorized the president to ‘‘use all necessary . . . force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 . . . in order to prevent any future acts of international terrorism against the United States.’’281 In addition, Justice Department officials pointed to Katz v. United States (1967), in which the Supreme

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Court recognized the long-exercised right of presidents to order warrantless surveillance for national security purposes, and the FISA Court’s 2002 opinion that cited ‘‘the president’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance.’’282 Subsequent reports confirmed that NSA data-mining programs had sifted through large volumes of phone records and email data, but also indicated that the data were voluntarily provided by companies and remained anonymous until patterns and links had been identified.283 To be sure, in contrast to the reactive FISA system based on concrete leads and probable terrorist connections of individual suspects, the network-centric search program was a much broader but also more preventive approach. Yet, despite this array of justifications, during the program’s initial stages, the Justice Department seemed to have considered ways to establish a legal foundation for FISA-free surveillance.284 Parts of the 2003 Patriot II draft sought to strengthen unilateral executive powers for narrow circumstances that did not require FISA approval; it further included wartime authorities for ‘‘electronic surveillance, physical searches, or the use of pen registers’’ for all cases in which ‘‘Congress authorizes the use of military force, or after the United States has suffered an attack creating a national emergency.’’285 Another section would have expanded the president’s authority to authorize surveillance of communications between foreign powers to include spoken content. While the Patriot II bill was never introduced in Congress—Attorney General Alberto Gonzales conceded that the administration decided against introducing legislation because it ‘‘would be difficult, if not impossible’’286 to pass—lawmakers did pass other legislation that went beyond the U.S.A. Patriot Act to broaden unilateral law enforcement powers. Part of the Intelligence Authorization Act of Fiscal Year 2004, for example, authorized the wider use of administrative subpoenas (aka National Security Letters) to facilitate FBI information collection from financial institutions.287 Discovery of the secret NSA program fueled the debate over Patriot Act sunset provisions that were set to expire at the end of December 2005. While the ‘‘Gang of Eight’’ (the House and Senate leaders from both parties, plus the chairmen and ranking members of the House and Senate Intelligence Committees) had been regularly briefed about the NSA program, most lawmakers were kept in the dark about its existence.288 After more than ten months of intense legislative debate and White House

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lobbying, during which the Patriot Act was extended twice per emergency resolution, Congress finally passed the U.S.A. Patriot Improvement and Reauthorization Act in March 2006, making 14 of its 16 sunset provisions permanent. These were kept in place for its two most controversial provisions, the FISA-granted ‘‘roving’’ wiretaps and ‘‘tangible records’’ orders, now set to expire in December 2009. Furthermore, the act made permanent the ‘‘material support’’ clause included in the Intelligence Reform Act and also extended the FISA Court’s authority to target ‘‘lone wolf’’ terrorists until December 2009. The Patriot Reauthorization Act included several new checks: National Security Letters were now subject to judicial review, if challenged by their recipients, as well as annual audits by the DOJ Inspector General. In addition, Congress would strengthen its own oversight of ‘‘sneak and peek’’ searches through annual reporting requirements and time restrictions. The new restraints were mostly a result of the Senate’s insistence on adding additional safeguards. By contrast, House members had approved the main provisions of the 2001 act largely unchanged as early as July 2005 and even sought to broaden surveillance and law enforcement powers.289 Initially, compromise seemed likely in July, but a bipartisan group of senators resisted White House pressure to pass the bill quickly,290 defying various attempts to break the filibuster in December and forcing fellow lawmakers to extend the act, before its enhanced version was finally passed in March 2006.291 The debates and factions that emerged over the Patriot Act renewal also carried over into negotiations about legislation designed to sanction the NSA program; the latter had been ruled illegal by a federal judge in August 2006.292 After the Republican-run Congress failed to reach a compromise before the November midterm elections, the Bush administration abruptly changed its course—now facing a more hostile, Democrat majority in both houses—and in January 2007 announced its decision to disband the NSA program. All international communications, provided there was probable cause to believe that one of the parties was affiliated with a terrorist group, would again be overseen and sanctioned by the FISA Court. While the White House succeeded in evading more restrictive legislation, this arrangement likely allowed Bush administration officials to maintain significant control over the scope of the new warrants to be issued by the secret FISA Court. The details of the arrangement remained undisclosed.293

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2007 and 2008 FISA Reforms In April 2007, the White House changed direction once again. A White House draft submitted to Congress proposed broad revisions to FISA.294 Most important, the administration sought warrantless surveillance of foreign communications in the United States. Communications referred to foreign calls and emails merely routed through the country but would also include those directed toward U.S. citizens. Representing a major change to previous policy, the surveillance targets abroad no longer had to be associated with foreign terrorism suspects or groups. According to the 66-page proposal, it would be possible to delay FISA Court notification for a week. Even if denied, and contrary to previous practices, the FBI would be able to retain all the collected information. Another controversial provision would grant immunity to those telecommunication companies that had cooperated with the Bush administration and helped implement the secret NSA program. The chances for success were bleak, as the White House faced a Democrat-led Congress. Over the past year or so, lawmakers had spent significant time debating FISA changes but had been unable to strike a consensus. Spearheaded by the Director of National Intelligence, Mike McConnell, the White House launched a massive lobbying campaign, featuring public appeals in the form of speeches, editorials, and public hearings before the Joint Intelligence Committee.295 In his May briefing, DNI McConnell warned that the technological changes since 1978, in particular the switch from satellite communication to fiber optic cables, had disastrous effects on a FISA system designed to protect domestic phone lines based on fixed cable wires. Because international calls in 2008 were almost exclusively relayed through fiber optic cables, FISA warrants were now required for all foreign communications, even those merely routed through the United States. The result, according to DNI McConnell, was a dangerously backlogged FISA system that threatened overseas data collection. In what turned out to be a strategic blunder, Democrat lawmakers decided to hold out for a political trade. In exchange for the legislation, they wanted access to administration documents of the warrantless NSA program. The White House did not budge. Instead, fully aware that Congress was preparing for its annual August recess, it stepped up the pressure in late July. Citing the recent National Intelligence Estimate on the heightened Al-Qaeda threat, DNI McConnell brought forward another, much

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shorter legislative draft that left out controversial issues, like immunity from lawsuits for telecommunications companies. On August 1, 2008, Senate Minority Leader Mitch McConnell (R-Ky.) introduced a bill based on the shorter draft.296 Most controversial and unacceptable to many Democrats, under the proposal the attorney general and the DNI would have sole responsibility for authorizing warrantless wiretaps. These would apply to all foreign communications, even those involving persons in the United States. Opposed to these sweeping powers, a compromise plan put forth by the chairs of the House Intelligence and Judiciary Committees foresaw a central role for the FISA Court. The court would continue to issue warrants for foreign-to-domestic communications, albeit much broader ones under relaxed rules.297 In other words, Democrats were more willing to support warrantless spying on communications involving Americans if one party was a terrorist suspect.298 The compromise plan did not get much traction. Amid the bargaining, news about a secret FISA ruling earlier in the year confirmed the DNI’s assertions about convoluted bureaucratic processes in place for purely foreign communication that merely happened to be transiting through the United States.299 Soon after, the White House conceded to a sunset clause that would make the act temporary and thus more acceptable to moderate Democrats. Finally, President Bush also stepped up the pressure, threatening to hold Congress in session unless it supports ‘‘a bill I can sign.’’ That same day, the Senate passed the White House-endorsed bill, virtually unchanged.300 The Senate adjourned after the vote on August 4, essentially forcing House lawmakers to follow suit or else leave them vulnerable to charges that they had jeopardized the national security of the United States.301 The following day the bill was agreed to in the House as well. On August 5, 2007, President Bush signed the 2007 Protect America Act. At the center of the reform was the new definition of ‘‘electronic surveillance.’’ FISA would no longer apply to communications (aka electronic surveillance) of persons ‘‘reasonably believed’’ to be located outside the United States, even if they were in contact with U.S. citizens inside the country. In a major change, it would now be up to executive branch officials (the DNI and Attorney General), rather than the FISA Court, to authorize acquisition of such foreign intelligence information for up to one year. There would be no audits by the DOJ Inspector General. Instead, the Attorney General was to report to Congress twice a year. The FISA Court role would be reduced to reviewing the procedures to

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determine that operations do not constitute electronic surveillance and that persons were indeed outside the United States. Absent the sunset clause, the White House got its way. A close look at the act revealed that the administration had been granted those same warrantless wiretapping powers it had previously seized unilaterally as part of the secret NSA program. Parts of the draft would even go beyond the NSA program, as surveillance targets were no longer required to have terrorism links. Democrat lawmakers grudgingly approved the bill under the condition that the law was to sunset after 180 days, on February 1, 2008. In the meantime, Congress got ready to pass a permanent FISA bill that could replace the temporary arrangement. House representatives moved quickly to pass their version of the bill in mid-November 2007. However, things were more complicated in the Senate, where two bills, reported out of the Judiciary and Intelligence Committees, competed. As the Senate failed to come to a decision, both houses, on January 29, 2008, decided on a fifteen-day extension of the Protect America Act to give lawmakers more time to evaluate, approve, and go to conference on the various FISA reform bills. The Senate eventually passed its FISA reform bill on February 12, 2008. Not surprisingly, White House and senior administration officials, among them DNI Michael McConnell, strongly endorsed the bill, which contained many of the expired Protect America Act provisions.302 For the same reason, the Senate bill did not receive the necessary support in the House. Despite President Bush’s warning that the House needed to pass the Senate bill ‘‘immediately’’ as the ‘‘failure to pass the bipartisan Senate bill would jeopardize the security of our citizens,’’ the Democrat-led House refused.303 Bush, in return, refused to grant another (twenty-one-day) extension. The Protect America Act expired on February, 16, 2008. A new House version of the Senate bill passed in March was also opposed by both Republican senators and President Bush, who threatened to veto it.304 Most of the criticism focused on the fact that the House bill did not grant retroactive immunity to companies that assisted in the secret NSA program—which the Senate version accounted for.305 Furthermore, the FISA Court would play a much larger role in granting prior approval and certification of, for example, minimization and targeting procedures involving surveillance of non-U.S. persons abroad. The House version also required an Inspector General audit and would further establish a commission to look into the warrantless NSA program. Finally, it imposed a sunset

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date that was less than two years away (December 31, 2009)—as opposed to the Senate bill, which listed December 31, 2013, as sunset date. However, House representatives switched gears three months later. A House bill that was passed on June 20 did afford those telecommunications companies that assisted the Bush administration in the warrantless interception of emails and phone calls ‘‘blanket immunity,’’ granting retroactive liability protection to these companies. In addition, it granted future protection from lawsuits to telecommunication service providers, which would also be able to challenge government requests before the FISA Court. The Senate followed suit and approved the bill three weeks later, on July 9, 2008. President Bush signed the FISA Amendments Act of 2008 into law the same day.306 Based on the 2008 FISA Amendments Act, the government would need individualized, FISA Court-approved warrants for any surveillance that targeted US citizens—whether they were located on domestic soil or abroad, and even if their communications involved non-US persons overseas. Purely domestic-to-domestic communications, even among non-U.S. persons inside the United States, would require a warrant as well. Emergency provisions allowed the DNI and the attorney general to start surveillance without FISA approval, but the latter had to be retrieved within a sevenday time frame. However, FISA warrants were no longer needed to intercept communications of non-U.S. persons ‘‘reasonably believed’’ to be located outside of the country, even if their phone calls or e-mails passed through the United States. While the DNI and Attorney General would be responsible for determining what constitutes ‘‘reasonably abroad,’’ the role of the FISA Court would be limited to reviewing the procedures used to determine whether persons were indeed outside the United States. These procedures would be renewed annually. The FISA Amendments Act further reiterated that the legislation served as the ‘‘exclusive means’’ by which the president is authorized to conduct foreign intelligence surveillance on U.S. soil. In other words, all foreign intelligence surveillance is supposed to be governed by FISA. To ensure this, the act enhanced oversight powers of both Congress and the inspectors general of the DOJ and the intelligence agencies. The latter would be responsible for assessing surveillance measures, including the number of surveillance cases requested and conducted, U.S. citizens targeted, and overall efforts designed to minimize the scope and intrusiveness of the

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methods. In addition to the intelligence committees, the judiciary committee would also oversee surveillance programs and measures. Critics argued that the 2008 act essentially legalized most parts (at least those that were known to the public) of the NSA program. When comparing the March version, passed by both houses, to the final bill, it does appear that Democrat lawmakers, in control of both houses, did end up meeting many White House and Republican demands that were also reflected in the Senate versions of the bill.307 Reminiscent of the timing of previous political battles surrounding major counterterrorism reforms, the FISA reform coincided with another presidential election, the 2008 presidential campaign.308 Congressional leaders accused Bush and fellow Republicans of once again ‘‘trying to use this issue to scare the American people into believing that congressional Democrats have left America vulnerable to terrorist attack,’’309 arguably, successfully so. At the same time, the 2008 FISA bill was consistent with Congress’s efforts to put a stop to unilateral executive advances in the counterterrorism realm. While adjusting the law to technological changes, it provided for a more tailored approach, and, most important, also reinstalled statutory oversight over intelligence agencies engaged in electronic surveillance.310

2010 and 2011 Patriot Act Skirmishes, Continued Absent new authorization from Congress, the three remaining Patriot Act sunset provisions were set to expire in February 2010. Before tackling the Patriot Act reauthorization, however, as one of his first acts in office, President Obama ordered a review of the White House homeland security and counterterrorism structure.311 Short of merging the Homeland Security Council with the National Security Council or scrapping the homeland security advisor position, however, he decided only the HSC staff should be consolidated with that of the NSC.312 The Patriot Act sunset provisions that were up for renewal included roving wiretaps, surveillance of lone wolves, and seizure of tangible items. As this was an all Democrat-led Congress, President Obama’s administration did not anticipate a lot of opposition from the legislative branch. Both houses began hearings in September 2009.313 Soon after, the Senate Judiciary Committee approved its bill (the USA Patriot Act Sunset Extension Act of 2009), which had been coordinated with various members of the

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Obama administration (including the DOJ and several intelligence agencies). If adopted, the bill would apply various legal changes to all three existing provisions.314 The changes, albeit minor, were designed, inter alia, to strengthen safeguards (by, for example, introducing more DOJ audits), judicial review (by, for example, facilitating legal challenges of FISAauthorized nondisclosure orders), and congressional oversight. The bill would impose a new four-year sunset clause—interestingly enough, not just on the three expiring provisions but also on National Security Letters, which were made permanent in 2005. In the House, the most promising bill was reported by the Judiciary Committee in early November.315 It went slightly farther in terms of safeguards and new restrictions and included similar amendments regarding the four aforementioned provisions. One of the most significant changes involved the repeal of the lone wolf clause, which had not been used by government authorities. At the core of the debate in both houses, however, were the so-called National Security Letters. The letters referred to (mostly FBI) requests for transactional business records. These records, as redefined by the Intelligence Authorization Act of 2004, referred to ‘‘any record held by a financial institution pertaining to the relationship to a customer’s relationship with the financial institution.’’316 The more expansive definition, therefore, included transactional records obtained from travel agencies, real estate agents, postal services, jewelers, insurance companies, casinos, or car dealerships.317 Also known as administrative subpoenas, the letters were already controversial because they did not require a court order. Adding fuel to the fire, a Justice Department audit of National Security Letters, as instituted by the 2005 Patriot Reauthorization Act, called attention to the ‘‘FBI’s widespread and serious misuse of its national security letter authorities.’’318 Several of the mishandlings had not been corrected by the time the Justice Department issued its second audit report in 2008.319 Another contentious issue involved their secrecy, combined with limited legal review options. FBI requests to service providers were equipped with a ‘‘gag order,’’ prohibiting recipients to disclose issuance of the letter.320 And while it was possible to challenge the nondisclosure provisions in court, the courts had been siding with the government and upheld nondisclosure rules as long as the government certified a threat to national security. After the 2005 Reauthorization Act also made it possible to challenge National Security Letters themselves, a 2008 landmark decision of the U.S. Court of Appeals for the Second Circuit ruled the nondisclosure

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provisions unconstitutional.321 The House and Senate bills, as reported, would streamline and expedite the legal review process of nondisclosure provisions and give the courts more latitude to override any governmental compliance orders. However, at the end of the legislative battle, none of the amendments appeared in the bill that was passed by both houses in late February. This was despite the fact that both Attorney General Eric Holder and DNI James Clapper had repeatedly endorsed the Senate bill in written communications with Congress. Instead, as part of a compromise struck on February 27, 2010, Congress extended the three provisions for another year, albeit unchanged, and President Obama signed the legislation into law.322 Amid rising concerns about homegrown terrorism, a Democrat-led Congress and White House opted not to impose additional legal restraints on either permanent or sunset provisions of the Patriot Act. The Department of Justice, in the meantime, decided to voluntarily implement those more stringent oversight provisions contained in the Judiciary Committee’s amendment bill (dubbed USA Patriot Act Sunset Extension Act of 2011), which had also been prepared in close coordination with the DOJ.323 While these voluntary changes did not ensure statutory oversight, various Democrat lawmakers viewed this announcement an improvement.324 By the time the Patriot Act was again up for reauthorization in February 2011, the Senate reintroduced an almost identical version of the bill (minus the voluntary DOJ policy changes) that had been written in tandem with Obama administration officials one year earlier. Senior DOJ and intelligence officials once again endorsed the bill. While the bill contained more safeguards in form of, for example, additional audits, legal review options, congressional oversight, and publicly available information on FISAauthorized surveillance, the biggest difference remained that it reintroduced a sunset clause for the use of National Security Letters. However, the political environment appeared not nearly as opportune since the Democrats had lost the majority in the House of Representatives. In fact, House Republicans soon attempted to fast-track a vote on extending the three provisions until December 2011 but, due to bipartisan opposition, failed to obtain the necessary two-thirds majority. A significant number of House Republicans did not even view the remaining Patriot Act sunset provisions as controversial and instead wanted to make them permanent. Others, including the White House, were looking to extend the bill until

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2013, the sunset date that was also contained in the Senate bill. Without a consensus in sight, congressional leaders opted to give members of Congress more time to review the legislation. On February 17, both houses extended the Patriot Act once more, for another three months, allowing for additional hearings, expert briefings, and debate. While a deal was eventually struck on May 14, 2011, once again the compromise did not entail any changes to the provisions themselves.325 As part of the deal, the three provisions would be extended for another four years but not made permanent. Nearly a decade after 9/11, with homegrown terrorism on the rise and only months after intelligence services tracked down Osama bin Laden, many lawmakers were still reluctant to amend any surveillance provisions. In a letter to congressional leaders, DNI James Clapper had urged lawmakers to reauthorize the provisions, warning that all intelligence collection powers were needed to analyze information collected at bin Laden’s compound and prevent any related plots and planned attacks.326 Among the notable exceptions was Senator Rand Paul (R-Ky.), who sought to stall the bill until he was allowed two amendment votes, which were subsequently defeated. Hours before the act was set to expire on May 27, 2011, Congress voted to reauthorize the three provisions until June 1, 2015.

Reauthorizing the FISA Amendments Act in 2012 By the time the 2008 FISA Amendments Act was scheduled for reauthorization in the fall of 2012, the Obama administration still faced a Republican House and Democrat Senate. House lawmakers soon agreed, despite some Democrat opposition, to extend the FISA Amendments Act for another five years, until 2017.327 The Senate held out until after the presidential elections in December, even though the Senate Intelligence Committee had reported the bill in May,328 and eventually narrowly defeated attempts by Democrats to impose new safeguards and restrictions. For example, an amendment put forth by Ron Wyden (D-Ore.) would have forced the DNI to publicize data on the scope and use of surveillance of, for example, U.S. citizens and residents. Senator Jeff Markley’s (D-Ore.) amendment would have required the Attorney General to share classified FISA Court decisions with the public. Another amendment by Senator Patrick Leahy attempted to cut down the sunset period to three years and impose new Inspector General

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audits.329 After everything was said and done, however, the FISA Amendments Act was reauthorized unchanged, mirroring the outcome of previous negotiations about Patriot Act reauthorizations in 2009 and 2011.

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 decisionmaking mode characterized by long-term bargaining (put positively) or deadlock (put negatively). Senate opposition to the White Housesponsored 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.

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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

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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

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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, public hearings and/or post-legislative scrutiny rather than secret and/ or emergency procedures?

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

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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.

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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

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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 networkcentric 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

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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 the broadening of executive branch powers after 9/11, lawmakers continue to have a say in future decisions regarding any of the new counterterrorism programs and institutions herein discussed—the extent of the congressional impact depends on whether lawmakers decide to use their voice and vote. They have and may continue to hold the executive branch accountable, impose corrections, or compel executive action with the help of the significant budgetary and oversight powers they attain by passing legislation in the first place. Whether lawmakers will be able and willing to identify shortfalls, influence counterterrorism decisions, and exercise genuine oversight remains to be seen. Thus far, Congress has largely failed to reform its own committee structure to reflect executive branch reorganization after 9/11. Ironically, the resulting committee fragmentation may have served as an alternative means of tying executive branch officials down (even if this was only an accidental side effect).330 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

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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-ofpowers 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

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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 La¨nder (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 arreˆte 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

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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 executive branch, it is still the party that imposes the strongest, if informal, checks on the executive. Like in Great Britain, the governing party holds a tight grip on the chancellor and sets policy-making guidelines. In fact, critics argue that party dominance in German decision-making violates John Stuart Mill’s principles of representative government, in which the executive branch and Bundestag serve as the central bodies for deliberations and

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decision-making among representatives.10 Increasingly, so these critics argue, MPs no longer serve as representatives of the people but merely follow the directives of their respective parliamentary groups. To the contrary, another school contends that the concept of representative government could never be realized in any parliamentary system.11 Party membership and cohesion are essential for gaining a mandate in the first place—the more important ‘‘second vote’’ (Zweitstimme) on the German ballot is reserved for the party—and for steering legislative initiatives through the decision-making process.12 The multiple hats of German government officials and parliamentary rules illustrate this linkage as well. Chancellors often serve as party chairpersons during their tenure, while cabinet members hold strategic positions in their parties.13 In contrast to the British system, legislative initiatives cannot be introduced by individual lawmakers but only by parliamentary party groups (or groups representing at least 5 percent of all MPs). Not surprisingly, party cohesion has consistently been high.14 Going beyond Bagehot’s observation that ‘‘party organisation is the vital principle of representative government,’’15 the German constitution even acknowledges the role of parties in the formulation of the political will of the people (Article 21). The principle was supported by a 1977 ruling of the Constitutional Court, which determined that the practice of parliamentary party discipline does not violate representative democratic principles.16 Rejecting criticism about the ‘‘creeping de-parliamentarization’’ of decision-making processes, the court further ruled the transfer of actual decision-making powers to working groups, committees, and commissions constitutional.17 In fact, since the founding of the German republic and very similar to developments leading to the loss of cabinet stature in Great Britain, administrations have rarely used the formal cabinet proceedings for actual decision-making.18 Decisions are not brokered inside official government bodies—the Bundestag or cabinet as a whole—but within informal settings. Only toward the end of the informal negotiation process are agreements introduced into the formal decision-making channels and adopted as the foundation of cabinet resolutions.19 Meetings are attended by leading executive and legislative representative as well as chairmen and secretary generals, ministerial state secretaries, and lobbying groups.20 First convened under Chancellor Konrad Adenauer in the early years of the German republic, these informal decision-making bodies reached unparalleled prominence during the Helmut Kohl administration (considered among the strongest German postwar governments,

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similar to the Blair administration in Great Britain) and represent the actual centers of cross-coalition, cross-parliamentary, and cross-intergovernmental party brokering. In other words, these informal meetings served as an important consultation forum for more independent chancellors like Konrad Adenauer and Helmut Kohl, who operated largely outside the party orbit.21 Parliamentary whips participate in the coalition steering committees and closed meetings at the ministries, while members of the executive take part in the board meetings of their parliamentary groups or the interparty federal-state working groups.22 In many cases, consultations with the La¨nder, especially when it comes to domestic security questions, are considered a mandatory step, without which proposals are not submitted to the interagency cabinet process.23 In general, ministers first secure support from their parliamentary groups before presenting controversial proposals to their fellow cabinet members.24 However, there are also limits to this close cooperation. For example, early on in the Schro¨der administration the chairmen of the Social Democratic Party (Sozialdemokratische Partei Deutschlands, SPD) and Alliance ‘90/The Greens (Bu¨ndnis 90/Die Gru¨nen) parliamentary groups resisted the chancellor’s invitations to participate in cabinet meetings on a regular basis. While it would seem a mere manifestation of the informal decision-making forums with many of the same members, the parliamentary chairs were hesitant to blur the formal line of demarcation separating government and legislative affairs.25 Chancellor Democracy or Presidential Chancellors? Neither, Quite Yet The first postwar chancellor, Konrad Adenauer, so skillfully drew on the powers vested in the head office that his dominant role gave rise to the term ‘‘chancellor democracy.’’26 Similarly, Chancellor Helmut Kohl’s unilateral management of the unification process has been described as a ‘‘manifestation of Chancellor democracy.’’27 A detailed analysis of all seven postwar administrations illustrates, however, that the chancellor’s position is not automatically paramount. It is instead greatly dependent on leadership styles, coalition, and cabinet appointments, as well as the chancellor’s relationship with his own party.28 In contrast to the first French president and ‘‘founding father’’ of the Fifth Republic, Charles de Gaulle, Chancellor Adenauer did not seek further to boost the chancellor’s powers and standing via constitutional amendments.

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The chancellor has the prerogative to determine the policy guidelines (Richtlinienkompetenz), as guaranteed by the constitution.29 However, this privilege is, in theory, offset by the principle of joint cabinet decisionmaking (Kabinettsprinzip) and, in practice, by the clout of cabinet members who run their respective ministries by means of ministerial autonomy (Ressortprinzip). In fact, the chancellor’s prerogative has never been invoked by any chancellor. Even if determined to ensure cabinet compliance—for example, by dismissing defiant cabinet members—he or she would still have to rely on extensive bargaining skills to gain the necessary support from the parliamentary majority, as well as that of the governing or coalition party. While, in theory, the chancellor has the right to dismiss ministers, in practice, this instrument of leverage has amounted to no more than hollow threats (contrary to the practice of British prime ministers). Because ministers are often leading party figures, chancellors avoid unilateral dismissals; cabinet members belonging to the coalition partner can only be dismissed by their own party.30 Therefore, the chancellor’s role has come to resemble that of a chief broker and ‘‘compromise manager throughout the whole process.’’31 To reach a political decision, the interests of the chancellor’s own cabinet members, parliamentary group, and party ought to be balanced with those of the coalition partner, resulting in a complex web of power-sharing and bargaining arrangements across parliamentary and party lines.32 According to a third school of thought, the debate about the merits of party and ‘‘chancellor democracy’’ distracts from the more recent revolutionary changes in German decision-making, namely, the ‘‘gradual shift towards a presidentialized mode of governance.’’33 As globalization and Europeanization have fostered an ‘‘executive bias that has become a structural condition of national politics,’’34 a development that has affected all other EU member states, the Bundestag’s role has gradually diminished. International treaties and agreements are no longer carefully scrutinized by the legislative branch.35 The transnational dimension of governance, thus, ‘‘injects an element of separation of powers . . . into parliamentary systems by making governments more independent of the legislature.’’36 Despite these EU-wide developments, the Bundestag plays a far more central role in German decision-making regarding security and foreign affairs than do its British or French counterparts. In contrast to the Commons and the National Assembly, the Bundestag grants approval to any foreign deployments of the German armed forces, which are periodically

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renewed and voted on. As this may not seem like such a huge hurdle given the inherent party discipline, it can turn into a more delicate affair if one of the coalition parties carries strong antimilitary sentiments.37 Moreover, the Parliamentary Control Committee (Parlamentarisches Kontrollgremium) oversees the activities of all three federal intelligence services, and, contrary to its British counterpart, its members are not nominated by and required to report to the German chancellor. The committee is further reinforced by the more stringent G10-Commission (G10-Kommission, where G10 stands for Article 10 of the Basic Law), also housed by the Bundestag, which determines and approves the necessity and legitimacy of all foreign, domestic, and military intelligence/surveillance measures affecting the privacy of correspondence (mail and telecommunication). In contrast to its French counterpart, the G10-Commission is more likely to veto and scrutinize surveillance measures, as its members do not have to be members of Parliament and are, therefore, not beholden to the government. More important, while recommendations of the French oversight commission for wiretaps are not binding, all German surveillance measures have to be approved by the G10-Commission.

Interlocking Powers and Federalism in Domestic Security Affairs The fusion of power characteristic of the English constitution is also significantly offset by intergovernmental power-sharing mechanisms in Germany. To eradicate centralized Nazi structures for all time, the Constitutional Council in 1948 combined executive power sharing with the territorial fragmentation of powers to the La¨nder. The ‘‘cumbersome decision-making mechanisms,’’38 were encouraged by the allied powers, and, according to Peter Katzenstein, created a ‘‘semi-sovereign state’’ with ‘‘severely circumscribed and widely diffused’’ executive powers.39 In fact, critics argue that ‘‘hardly any other democratic state is characterized by such a refined system of ‘checks and balances,’ of separated and interlocking powers, but also absence of power, like the German system.’’40 Federalism experts explain the lack of sweeping reforms in Germany with the ‘‘joint decision-making traps,’’41 with Katzenstein noting that ‘‘the decentralization of the state contributes to the political predisposition for incremental policy change.’’42

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As the system is grounded in federalism, the governing majority (drawn from the Bundestag) has to take into account the interests of the La¨nder represented in the Bundesrat. Until the 2006 federalism reform, the Bundesrat role became ever more dominant as an increasing number of legislative initiatives required mandatory La¨nder approval (Zustimmungsgesetze) and La¨nder decisions regarding these types of laws cannot be overturned by the Bundestag. These laws are therefore different from other bills that also have to be discussed and voted on by the Bundesrat, but can still be overruled by the lower house. Legislation that required this kind of compulsory Bundesrat approval included many bills that involved La¨nder jurisdiction or prerogatives in matters of domestic security.43 In an effort to provide uniform representation of state interests in the Bundesrat—against those of the federal government in the Bundestag—the La¨nder have formed the permanent steering committee of the Interior Minister Conference (Innenministerkonferenz, IMK). Apart from coordinating state strategies, IMK procedures are used to harmonize operational details and ensure uniform policy administration across the sixteen states.44 The closed IMK meetings are attended by the federal interior minister (who lacks veto power) and the sixteen interior ministers of the states, who also constitute the Interior Committee in the Bundesrat. While the interior ministers are the public face of this informal decision-making body, they rely on a complex administrative apparatus of issue-specific task forces and working groups for policy advice. Whenever the governing majority of the Bundestag and the La¨nder of the Bundesrat find themselves immersed in ‘‘separation of powers’’ struggles, the chancellor serves as a mediator between both chambers. Similar to the interplay between executive and legislative branches in the United States, chancellors can use the intergovernmental tug of war to shield themselves from demands of their own party, parliamentary group, or coalition (and vice versa). At the same time, interbranch struggles can be used to rally support within one’s own ranks or justify gridlock and failed reforms to the public.45 The same mechanism works on the state level as well, where joint decisionmaking serves as a pretext to deflect criticism for failed initiatives or claim responsibility for successful reforms.46 Unlike the U.S. system, however, federal and state governments as represented by the Bundestag and Bundesrat often do not share a common interest in producing tangible results. The parties frequently serve as the common denominator and negotiation vehicle between the federal government and the La¨nder, and ‘‘much

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of the political coordination between federal government, individual Land governments and the federal chamber (Bundesrat) is facilitated through party channels.’’47 Overall, Bundesrat voting patterns illustrate that state concerns have frequently taken a back seat against party interests.48 In fact, critics argue that the Bundesrat has become an instrument of entrenched party politics, abused by government and opposition alike.49 In times of ‘‘divided government,’’ when the majority of the states are governed by the same party that constitutes the main Bundestag opposition party, the Bundestag/Bundesrat mediation committee thus serves as a powerful venue to influence legislation.50 The notion that federal priorities are regularly overwhelmed by party interests does not hold consistently, however. La¨nder voting patterns have become less predictable since unification, in the course of which the number of the states represented in the Bundesrat increased to sixteen.51 While ‘‘governments can be said to be significantly better off under the conditions of ‘unified government’,’’52 state governments are prepared to sacrifice national party strategies when these run counter to state interests, particularly when they threaten to jeopardize state sovereignty and jurisdictions, for example, in the domestic security arena.

Reforms Needed? The 9/11 Attacks from the German Perspective On the eve of 9/11, the German political environment did not appear to be particularly conducive to far-reaching reforms in the counterterrorism realm. The governing coalition included the left-wing SPD and antiwar Green Party, many of whose members had been involved in both peaceful and violent civil rights movement protests during the 1970s. Some even sympathized with the Baader Meinhof group, officially known as the Red Army Faction (Rote Armee Fraktion, RAF). In an ironic twist, Interior Minister Otto Schily (SPD) had served as defense lawyer for various RAF members during the terrorism trials in the 1970s. Whatever the nature of the compromise struck by the governing coalition, the intricate decision-making structures discussed throughout the preceding sections meant that any counterterrorism bill affecting La¨nder sovereignty would also require approval of the Bundesrat, where the SPD-led government coalition faced a CDU-led La¨nder majority.

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A 1999 Jihadi plot to blow up the Christmas market in Strasbourg (a French town with a large German-speaking population at the German/ French border) was considered a first red flag by German security services but did not lead to any reforms. The 9/11 attacks, however, did lead to significant changes. In the days after 9/11, it soon became clear that the federal republic, with its rigid privacy rights and liberal asylum policies, had served as the logistic base for several Al-Qaeda members involved in planning and execution of the attacks.53 The notion of a German terrorist sanctuary in ‘‘Hamburgistan’’—four of the hijackers had lived and studied in the northern city of Hamburg—was unacceptable in the view of many.54 Antiterrorism laws passed to counter RAF terrorists in the 1970s and 1980s did not prevent the infiltration of Al-Qaeda cells into German society, further highlighting the difference between the transnational Jihadist movement and more traditional terrorist groups.55 Moreover, both differed in regard to, inter alia, political goals, methods, and organizational structure. For example, as opposed to Jihadi suicide terrorists aiming to inflict civilian mass casualties at any cost, left-wing revolutionary terrorists in Germany were more selective and ‘‘only’’ focused their ‘‘anti-imperialistic struggle’’ on high-profile targets,56 including corporate leaders, U.S. or NATO military bases, and representatives of the German state (mostly high-ranking members of the judiciary or police). In an effort to gain public support and achieve the revolutionary end goal, RAF members regularly explained and justified their actions by means of open letters to the general public.57 Overall, and in stark contrast to the scope of the 9/11 attacks that killed 2,977 people and also cost eleven German lives, the RAF campaign resulted in the total death of 34 people over a thirty-year time frame.58 While a historic review of the German terrorism experience goes beyond the scope of this book, a brief synopsis can still offer clues as to whether and how prior experiences may have influenced the post-911 response.59 The German experience with terrorism has been strongly influenced by the left-wing ideological terrorism of the Baader Meinhof group in the 1970s and 1980s. According to the top Chancellery counterterrorism official at the time, ‘‘1977 was by far the worst year,’’60 as ten civilians died at the hands of RAF terrorists during the so-called German autumn. Other high-profile terrorist incidents that involved international groups included the 1972 Munich Olympics massacre, when the Palestinian group Black September took eleven Israeli athletes hostage, killing all of them, and the

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1977 hijacking of a Lufthansa aircraft to Mogadishu, Somalia, a joint operation of the Palestinians and RAF. In fact, the highly publicized 1972 events and failed rescue attempt led to the creation of the Border Guard Group 9 (Grenzschutzgruppe 9, GSG 9).61 This elite counterterrorism police unit five years later helped rescue the hijacked Lufthansa aircraft in Mogadishu. The new unit complemented other institutional reforms, all part of a new program on internal security measures launched in 1969. These reforms further intensified after the RAF officially entered the scene in 1970. Among other things, the Federal Criminal Police Office (Bundeskriminalamt, BKA) and Federal Office for the Protection of the Constitution (Bundesamt fu¨r Verfassungschutz, BfV) gained powers, so they would no longer serve as a mere data repository of the sixteen German states.62 A key law enforcement instrument introduced to identify RAF terrorists was the so-called Rasterfahndung. The dragnet search screened public data records for specific characteristics associated with ‘‘standard’’ terrorist practices and ran the filtered names against police databases.63 In response to a series of terrorist attacks involving the RAF or international terrorist groups, and in an effort to facilitate the prosecution of key RAF members, the German government passed a total of five counterterrorism acts between 1971 and 1978.64 The laws, inter alia, established a contact ban on imprisoned terrorists and their defense attorneys (in response to allegations and evidence that the lawyers had smuggled weapons to and messages from their defendants); limited the rights of the defense (for example, prohibiting defense lawyers from jointly representing various defendants; excluding specific defense lawyers from serving as counsel); made it a punishable offense to form terrorist organizations and support serious violent crime; and created new offenses that prohibited aircraft hijackings, kidnappings, and hostage takings.65 From 1989 to 1999 the principal witness statute (Kronzeugenregelung) offered immunity or reduced sentences to those terrorists who provided crucial information in an effort to prosecute terrorist attacks or prevent new ones. While the Germans therefore did have significant counterterrorism experience, the focus of pre-9/11 reforms shows an emphasis on judicial proceedings, prison conditions, and tactical countermeasures. Apart from that, RAF goals and methods were different from those of Al Qaeda. After 9/11, German security officials quickly determined that Jihadi suicide bombers could not be deterred like RAF terrorists, who were generally interested in gaining public sympathy and surviving terrorist attacks. Furthermore, it seemed

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questionable that Jihadi terrorists could be investigated and prosecuted with the help of laws not yet adjusted to the information age.66 For example, at the center of past RAF reforms were penal code amendments designed to prohibit the creation and support of domestic terrorist organizations; these were defined as formal membership associations of three or more. The association provisions no longer applied to transnational or loosely networked Al-Qaeda-style terrorism. Similarly, the Rasterfahndung was soon deemed less useful to detect amorphous Al-Qaeda networks.67 The profile traits available for Al-Qaeda terrorists were much too broad to return useful results— in addition to the fact that illegal aliens and foreign visitors were excluded from the dragnet.68 According to many, ‘‘the attack on the United States on 11 September 2001 . . . proved to be a cardinal incision for Germany . . . , fundamentally altering threat perceptions and security priorities.’’69 Since 9/11, Islamic terrorism has been considered a major, if not ‘‘the paramount threat to national security,’’70 as demonstrated by annual government statements and official reports.71 After the German government decided to deploy troops in Afghanistan, making them the third largest NATO contributor, and the Horn of Africa in early 2002, Al-Qaeda’s leaders repeatedly identified Germany as a target.72 While Germans have only been victims of Al-Qaeda attacks abroad so far, there have been a number of close calls. Security services have uncovered at least two major Al-Qaeda-inspired plots on German soil since 9/11, in addition to various other homegrown ones. Calling the 9/11 attacks ‘‘unprecedented’’ and ‘‘dark day that will go down in history,’’73 Chancellor Schro¨der on September 11 immediately convened the Federal Security Council (Bundessicherheitsrat), to analyze the attacks and the question of what German responses should look like.

Part 2: Post-9/11 Counterterrorism Responses Initial Responses: The 2001 Counterterrorism Packages Eight days after 9/11, the Schro¨der cabinet introduced the first counterterrorism bill, dubbed security package I, which the Bundesrat and the Bundestag approved with overwhelming bipartisan support by November.74 The act revoked the ‘‘religion privilege’’ under which all religious associations

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previously had immunity from surveillance and criminal investigations. In other words, the legislation targeted extremist activities under the disguise of the religious banner. While the speed of the decision-making process was impressive, the banning of extremist religious associations had been discussed for several years.75 In fact, the Federal Ministry of the Interior (Bundesministerium des Inneren, BMI) introduced a first legislative draft before the attacks, indicating that the coalition government reached a consensus before 9/11.76 In contrast to the first package, the measures included in the second security package represented a direct response to the 9/11 attacks, aiming to rectify the legal loopholes that allowed Al-Qaeda terrorists to use Germany as a logistic sanctuary.77 Critics still maintained that the proposed measures resembled mere Schubladenentwu¨rfe—policy blueprints that had existed for many years and simply were pulled from ministry file cabinets. Most significantly, the package created the legal basis for expanding the preventive powers of the federal BKA and the sixteen state law enforcement bureaus; the federal BfV and the sixteen state intelligence bureaus; the Federal Intelligence Service responsible for foreign intelligence collection and analysis (Bundesnachrichtendienst, BND) and the Military CounterIntelligence Service (Milita¨rischer Abschirmdienst, MAD). In selected cases, the BfV and the sixteen state intelligence agencies would now be authorized to collect personal data from postal service and telecommunication providers, credit and financial institutions, and airline companies, provided activities were directed against the ‘‘peaceful co-existence of nations.’’78 The legislation also created voluntary information-sharing mechanisms between domestic intelligence and immigration services. New wiretapping provisions included the electronic surveillance of private residences for the protection of intelligence agents as well as preventive use of IMSI-catchers (used to locate cell phone holders). In the law enforcement realm, the federal BKA obtained the right to lead all investigations on cyberattacks directed against the domestic or international security of Germany or those causing the serious disruption of critical infrastructures. In its functions as data collection hub, the BKA would no longer have to go through the La¨nder bureaus when requesting information from nonpublic sources. Federal and state law enforcement would gain additional access to social security data for dragnet searches, including nationality, religion, address history, employer names/addresses, and credit history; in addition, they could

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request asylum and visa status information from the central registry of aliens (Ausla¨nderzentralregister). As these clauses also indicate, the sixteen German La¨nder have unique competences in the law enforcement and domestic intelligence realm. The sixteen State Criminal Police Offices (Landeskriminalamt, LKA) and State Offices for the Protection of the Constitution (Landesamt fu¨r Verfassungsschutz, LfV) resemble miniature FBIs and MI5s with full jurisdiction in their states. The phrase ‘‘police work is La¨nder business’’ best sums up the federal-state relationship: with few exceptions, in 2001 the federal BKA could not initiate independent investigations without the permission of the La¨nder but only assist state police in the prevention and investigation of crimes of international and transborder nature, as well as those of ‘‘considerable significance.’’79 Public support for the counterterrorism bill was widespread and reflected by the supporting votes of the main opposition party CDU as well as the CDU-led Bundesrat.80 The shocking nature of the attacks, as well as the desire to close some of the perceived legal loopholes, translated into support for immediate government action.81 Compared to the average time (approximately four months) a cabinet-approved bill takes to move through the formal legislative stages, its passage in less than three months was nothing short of remarkable.82 After Interior Minister Schily presented his first antiterrorism catalogue on September 26, 2001, the BMI submitted a first legislative draft for interagency and coalition negotiations on October 12. In early November, the coalition parliamentary groups introduced the cabinet-approved proposal to the Bundesrat, reflecting a common practice used to accelerate the formal legislative process. Less than six weeks later, the Bundestag and Bundesrat passed the bill. However, the second package was more controversial than the speedy process and final voting results indicated. In addition to the Green cabinet members and parliamentary group, some of Schily’s fellow SPD cabinet colleagues and backbenchers were strongly opposed to the legislative draft, whose security measures they considered excessive. On the opposite end of the political spectrum, the conservative CDU party, whose members traditionally advocated a tough approach on security issues, was in favor of more far-reaching measures.83 These were also echoed in a separate legislative proposal introduced in the Bundesrat (in which the CDU-governed

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states held the majority) that went nowhere because it was rejected by the coalition government.84 To be sure, other pressures or intervening variables may have been at work. For example, to galvanize support for his ‘‘Otto Catalogue,’’ Interior Minister Schily repeatedly stressed that Germany had an obligation to meet UN mandates. Passed seventeen days after the 9/11 attacks, UN Security Council resolution 1373 called on all members to report on the newly adopted antiterrorism measures within 90 days.85 In light of Germany’s strong multilateral orientation in the foreign policy realm, the December deadline likely served as an important unifying catalyst.86 Schily’s reform package may have benefited from local political developments as well: after the newly founded ‘‘law and order’’ Schill party in Hamburg emerged as a potential rival in the upcoming national elections, the more established and mainstream parties likely did not want to appear soft on national security. However, these pressures did not make the decision-making process less intricate. For one thing, Schily’s SPD could not ignore the reservations of its junior coalition partner. Extremely distrustful of executive security powers and domestic intelligence operations in particular, the Green Party traditionally considered itself an advocate and protector of civil liberties. Among the key provisions dropped from the original BMI list in the early stages of coalition negotiations were the principal witness program, first created in response to RAF terrorism but not in use since 1999, and a clause that would have granted the BKA preventive investigative powers.87 The Greens also succeeded in adding sunset provisions that required an evaluation and renewal of the act after five years. In an effort to limit the domestic reach of foreign and military intelligence, the Greens further insisted that the BND and MAD only receive a fraction of the new data collection authorities granted to the BfV.88 Other areas did not prove as suitable for compromise.89 As the final vote in the Bundestag neared, with a consensus nowhere in sight, Schily’s SPD offered additional carrots. Various ‘‘softening’’ modifications were introduced as part of an amendment motion on December 11, 2001. In the security realm, the amendments sought to include additional controls on the investigative powers of the intelligence services. Data inquiries by intelligence services would only be conducted on a case-by-case basis, as decreed by the agency heads and after the request had been reviewed by the G10Commission, in addition to the less stringent Parliamentary Control Committee. While the eight-member G10-Commission is an independent

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oversight mechanism that has final authority over the necessity and legitimacy of BND, MAD, and BfV surveillance measures, the nine members of the Parliamentary Control Committee are tasked with overseeing all activities of Germany’s three intelligence services, BND, MAD, and BfV, and mostly represent the coalition parties. However, it was not a one-sided horse trade. In exchange for these new control mechanisms and other concessions to the Greens, the SPD sought to satisfy key La¨nder demands and extended the same collection powers that were to be granted to the federal intelligence services to state intelligence LfVs—despite Green protest and representing a major victory for the La¨nder. Like the sixteen state law enforcement LKAs, the sixteen domestic intelligence offices LfVs operate independently and are coordinative with their hub, the federal BfV. Only cases involving two or more La¨nder warrant information collection through the federal LfV bureau, whose main function is to provide strategic and comprehensive analyses. The new draft further specified separate information-sharing procedures for state and federal intelligence and immigration services, ensuring that state immigration services would not bypass state intelligence services by contacting the federal intelligence bureau BfV directly. The parallel arrangement was thus kept in place: while the federal BfV would receive voluntary information from the Federal Office for Migration and Refugees (Bundesamt fu¨r Migration und Flu¨chtlinge, BAMF), its respective state migration bureaus would inform the corresponding LfV state bureaus. The fast-track negotiations left no room for the main Bundestag opposition parties, the CDU and Free Democratic Party (Freie Demokratische Partei, FDP), to influence the decision-making process directly. This became especially obvious when they were presented with a fait accompli during the last meeting of the Interior Committee. Last-minute changes to the proposal were made available to the opposition parties only the night before the committee was scheduled to vote on the final version of the bill (that was then resubmitted to the Bundestag for the final vote)—leaving no time for committee members to review the new proposal with their respective parliamentary groups.90 The amended proposal reflected expert suggestions presented at an Interior Committee hearing and also included various Bundesrat demands. To protest the railroading of the bill, CDU and FDP abstained from the final committee vote. Criticism about the lack of parliamentary debate was echoed in the Bundesrat as well.91 Insisting that final decision-making

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authority ought to rest with the Parliament instead of the cabinet, the FDP parliamentary group emerged as the main critic of the proposal in the Bundestag and voted against the package in the final Bundestag vote.92 Nevertheless, the Counterterrorism Act (Gesetz zur Beka¨mpfung des internationalen Terrorismus (Terrorismusbeka¨mpfungsgesetz)) passed with a large majority. Illustrating the complexities of German decision-making, the FDP still supported the bill through its Bundesrat vote six days later as a junior member of several CDU-led coalition governments in the La¨nder. In the Bundesrat, the stakes were significantly higher for all parties. As the bill was subject to mandatory Bundesrat approval, the La¨nder played an active role in the formulation of the Bundestag bill. Various Bundesrat recommendations, presented as part of the formal written statement on the Bundestag bill, were included in the amended Bundestag draft. Other La¨nder demands found their way into the proposal through more informal channels. For example, Schily held frequent meetings with the interior ministers of the La¨nder, using the permanent IMK and its working groups as a coordinating forum.93 Not surprisingly, the Bundesrat demands also corresponded with several of the central ideas advocated by the CDU opposition in the Bundestag, whose members had used party channels to coordinate their objectives with Bundesrat La¨nder representatives. Thanks to these ‘‘interbranch’’ party linkages, the largest opposition party could also participate in legislative brokering through its state government representation in the Bundesrat.94 Additional analysis will show that these opportunities only exist as long as party interests do not run counter La¨nder stakes.

Initial Responses: BKA Preventive Power Struggles Putting a stop to the expansion of BKA preventive powers constituted such a central La¨nder interest. In fact, the decision-making process surrounding the second counterterrorism package is particularly significant for what was not included in the bill—a clause that would have granted the federal BKA new preventive investigative powers.95 As one of the BMI’s core objectives, it was dropped early on in the coalition negotiations but remained an issue of contention throughout the process and for years to come.96 The controversy underlying the BKA clause warrants separate, detailed analysis because of what it reveals about German political culture, bureaucratic

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interagency players, as well as the structural stakeholders in the domestic security arena. While the La¨nder had the greatest stake in the outcome of the BKA-clause negotiations, they did not have to flex their muscles, as the provision already had fallen victim to a ‘‘coalition of convenience’’ across party, coalition, and bureaucratic lines.97 Apart from the states, Schily faced opposition from the Justice Ministry (led by his own SPD party), the Green coalition partner, and his own SPD parliamentary group/backbenchers. Intended as a mechanism against the abuse of intelligence and centralized police power, the responsibilities of the federal law enforcement agency BKA, when created in 1951, were confined to specific issue areas, which— with the exception of crimes against government officials—had to either involve internationally organized crimes or affect Germany as a whole.98 At the time of the 9/11 attacks, the BKA in its role as central hub (Zentralstelle) could only assist the La¨nder in the investigation and prevention of crimes of considerable gravity, those with an international connection or involving more than one state.99 In practice, this meant the BKA could not act on international terrorist tips at once but had first to identify the state police with original jurisdiction, which might decide to return the case to the BKA.100 If the state bureau established probable cause for an international terrorism connection, the federal attorney general (Generalbundesanwalt, GBA) could also assign the case to the BKA. Federal law enforcement officials were thus presented with a paradox. Even if the BKA was responsible for coordinating the investigations after a terrorist attack, it was legally prohibited from preventing it.101 The dragnet search activated after 9/11—the aforementioned Rasterfahndung—offers another prominent example for the constraints placed on the BKA.102 Because the BKA was only allowed to run the search in the specific context of criminal investigations (under supervision of the GBA), the sixteen states administered the preventive search for potential sleeper cells. To ensure a uniform approach—states have different screening criteria and regulations—the BKA still had to coordinate the search.103 Illustrating a third example for the complex relations between the federal government and the La¨nder, the BKA served as the point of contact for all international security services and governments but could not speak for any or all of the sixteen La¨nder services on the international stage. Under the first draft bill, the BKA would have been authorized to collect data and execute all necessary measures in its prescribed areas of responsibility, meaning it could operate preventively and develop actual leads on

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crimes;104 so far, it could only participate in criminal investigations after probable cause had been established or if the La¨nder requested assistance. After the SPD-led Justice Ministry issued a staunch critique of the proposed BKA clause105 and following intensive coalition talks with the Green Party, Interior Minister Schily agreed to drop the clause in late October, 2001.106 Subsequent drafts only contained a slimmed-down version of new BKA authorities (those that would also be included in the final bill). Apart from expanding BKA jurisdiction to investigations of severe cases of cybercrime, the draft now focused on strengthening the BKA’s authority in its role as collection hub, albeit only in support of the La¨nder bureaus. To facilitate the efficiency and timeliness of data inquiries and collection, the BKA would no longer have to check whether data were available at one of the sixteen La¨nder or other federal police offices but could directly procure information from domestic and international entities (public and private)—and without supervision from the Federal Attorney General’s office.107 The BKA’s new data collection powers were also a prominent topic in the media.108 Reservations about centralized police power are widespread in Germany and closely intertwined with concerns about the blurring of police and intelligence capacities.109 While the question of how to balance national security measures with the lawful protection of civil liberties represents a considerable challenge to all liberal democracies, it poses a particular dilemma for German authorities in light of German history. The Secret State Police (Geheime Staatspolizei, Gestapo) in Hitler’s Germany and the more recent example of the Ministry for State Security (Ministerium fu¨r Staatssicherheit, Stasi) in East Germany serve as reminders of clandestine police terror that needs to be prevented. Privacy rights and ‘‘informational self-determination’’110 have been considered paramount in Germany since World War II and are to be protected from government intrusion and surveillance. At the time of its founding, the young democracy needed to be protected from the kind of extremist undercurrents that undermined the democratic structures of the Weimar Republic. As a result, federal law enforcement and domestic intelligence authorities do exist, but were and remain strictly circumscribed and under stringent oversight. Modelled after the British domestic intelligence service MI5, German intelligence services have no compulsory powers. They cannot make arrests, lead house searches, confiscate evidence, or become in any way affiliated with police offices.111 The relationship between intelligence and law enforcement is further governed and confined by the Trennungsgebot principle, which refers to the

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strict separation of intelligence and police powers. While there is broad public agreement that police and intelligence services cannot share operational control, it is less clear to what extent they should be allowed to exchange and share information. The debate so far has focused on the question of whether the Trennungsgebot is of mere organizational nature or has constitutional status—and if so—whether it should be amended to facilitate cooperation needed to counter new transnational threats.112 Observers have noted the politicized nature of the debate, as the BKA and BfV belong to and interact as part of the same Interior Ministry. Yet others have pointed out that the BKA cooperates with intelligence agencies internationally, as part of Europol and other organizations.113 While the constitution makes no explicit reference to the separation of intelligence and law enforcement, an allied police letter from April 14, 1949, merely states that ‘‘the Federal Government will also be permitted to establish an agency to collect and disseminate information concerning subversive activities directed against the Federal Government (which) shall have no police authority.’’114 The Justice Ministry’s review of Interior Minister Schily’s first draft bill (which still contained BKA preventive powers) and expert testimonies presented at the Interior Committee hearing illustrate, however, that other more turf-related issues were at stake.115 According to the Justice Ministry, granting preventive investigative powers to the BKA would not only undermine the constitutionally mandated separation of executive and judicial powers but also threatened to permanently change the prosecutorpolice relationship in Germany’s criminal justice system. It would enable the BKA to conduct surveillance independent of the GBA and therefore broaden executive privileges at the expense of judicial tasking authority and oversight. Similar concerns were raised during a hearing held by the Interior Committee.116 Critics further suspected that the modified rules— under which the BKA would now be allowed to collect information without La¨nder involvement—could serve as a loophole for preventive law enforcement operations and for avoiding judicial supervision of police investigations.117 These concerns were grounded in the proposal arguments, which specified that the new information-collecting powers would be used to supplement and solidify existing leads on criminal activities— and, therefore, not require judicial involvement at this stage of the process.118 Last, the Justice Ministry warned that the threshold for law enforcement involvement was already so low that there was no room for any ‘‘pre-probable’’ cause investigations. Experts further warned that the

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extended use of intelligence services for information collection was an encroachment on judicial authorities. Because intelligence services operate under less stringent oversight—outside the criminal procedure code and without court orders or prosecutorial oversight—there was a danger that they would become the new vehicle of choice, representing the path of least resistance.119 Yet, several of the most controversial issues at the heart of the BKA debate about the separation of police and intelligence powers were already common practice at the state level. A number of LKAs could thus authorize preventive investigations and searches without ‘‘hard’’ probable cause and evidence of criminal activity.120 For example, Thuringia, Lower Saxony, and Rhineland Palatinate permitted warrantless phone wiretapping without probable cause.121 Most notably, in 1992 the interior and justice ministers of the La¨nder agreed that both prosecutors and police could initiate preventive investigations on transnational organized crime on the basis of only vague leads.122 Bundestag lawmakers used a similar logic to justify the BKA’s new cybercrime authorities. The diffuse nature of the threat and the inherent difficulty of locating the origins of cyberattacks served as the pretext for strengthening the BKA role. Even though the clause only applied to severe computer incidents, it did not require an international connection—the standard that had to be met to justify any kind of BKA involvement as lead agency up to this point. The controversy about BKA competences is therefore illustrative of the structural power struggle between federal and state governments, both determined to protect their turf.123 Knowing that the members of the coalition government were still negotiating the details of Schily’s BMI draft, the La¨nder proceeded to outline their main interests early on.124 When Baden Wu¨rttemberg, Bavaria, and Hesse introduced a separate antiterrorism bill to the Bundesrat in October 2001, fully knowing it would not come to pass, the BKA reform clauses were noticeably absent from the bill. Instead, the bill called for federal personnel and financial assistance in support of state law enforcement.125 Regarding security reforms, the proposal focused on facilitating information sharing between law enforcement and immigration/social services and called for expanding electronic surveillance and data collection authorities of intelligence services. While the CDU-ruled La¨nder soon signaled their support for the second counterterrorism package as put forth by the cabinet/Bundestag, they were also advocating more far-reaching changes—as long as these would not affect La¨nder jurisdiction and/or sovereignty.126

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Consequently, the Bundesrat’s official statement in response to the Bundestag proposal also sought to undo some of the new powers granted to the BKA.127 For example, it suggested limiting BKA jurisdiction on cybercrimes to cases that affected the federal republic ‘‘as a whole’’ (meaning all sixteen La¨nder) rather than the domestic security of Germany, a much broader formulation. According to La¨nder perspective, investigations involving the destruction of critical infrastructures should be led by the BKA only in cases where more than one state was affected.128 In addition, the Bundesrat opposed the BKA’s new disclosure powers, arguing that they created new parallel structures and ‘‘stovepipes,’’ as the BKA could now collect data without La¨nder help. Interestingly enough, the concerns about new stovepipes did not present a problem when the La¨nder argued that the collecting powers granted to the federal BfV needed to be extended to the sixteen state intelligence bureaus as well.129 Signifying the weight the Bundesrat carried in the process, the La¨nder eventually secured equal competences for their sixteen LfVs—against the massive protests of the Green party, junior member of the coalition government.130

After the Madrid Attacks: The New GTAZ The 2004 Madrid attacks triggered efforts to create new joint counterterrorism analysis facilities that, nine months after the attacks, were crowned with success. In late September 2004, the main opposition party, the CDU, introduced legislation for a new counterterrorism center to the Bundestag, fully knowing it would never find majority support.131 The center would integrate police and intelligence analysis capacities in the area of Islamic terrorism/extremism across all government levels. A 24-hour operations center would support and coordinate police and intelligence activities led by the La¨nder, but not have any operational capabilities of its own.132 The SPD-Green coalition government rejected the design, arguing that the creation of an operations center with coordinative functions threatened to usurp the separation of police and intelligence powers.133 However, as mentioned before, the Trennungsgebot did not seem much of an issue at state levels. In fact, various La¨nder proceeded to create their own fusion centers with more integrated police-intelligence collection and analysis capacities, often going beyond the carefully crafted compromise that would emerge at the federal level.134

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The new Joint Counter-Terrorism Center (Gemeinsames TerrorAbwehr Zentrum, GTAZ) set up in Berlin only three months later was similar to the one envisioned by the CDU—absent the central operations hub.135 The new GTAZ expanded on the so-called information board created in March 2001, a jointly run working group of the BKA, BfV, and BND designed to facilitate more systematic information exchanges between the agencies.136 Information-sharing arrangements that had started at the Chancellery level several weeks before 9/11 would continue as well. The heads of the BND, MAD, BfV, and BKA (as well as the GBA who participated on the first Tuesday of every month) would continue convening for weekly briefings at the Chancellery. The original BKA-run information board, in addition to the new analysis board that was created shortly after 9/11 and run by the BfV, formed the core of the new GTAZ.137 The information board became the center of information exchange, whereas the BfV-run projects on terrorist camps and recruitment served as the foundation of the analysis board. Other panels focused on daily briefings, pooling of language resources, imminent or long-term risk analyses, legal status of terror suspects, and analysis of terrorist profiles. Rather than a new bureaucratic body, the center represented an institutional arrangement that would be based on colocation and voluntary information exchange. It was designed as a forum for daily exchanges between the two counterterrorism analysis units of the BKA and BfV, which were moved to the same location but retained their organizational independence. The separation of police and intelligence powers was not only physically upheld through the spatial separation of the two analysis centers but also manifested in the organization of the information exchange. The Police Information and Analysis Center (Polizeiliches Informations- und Analysezentrum, PIAZ) and Intelligence Information and Analysis Center (Nachrichtendienstliches Informations- und Analysezentrum, NIAZ) were housed in two separate buildings on a former military base in Berlin Treptow. Apart from the daily joint meetings at the BKA operations center, joint analysis initially took place in the eight forums attended by the 400 BKA and 60 BfV analysts. In addition, the interagency meetings were soon attended by representatives of the BND, the Federal Police (Bundespolizei, BP), the Customs Service, and the MAD, all of which set up permanent liaison offices at the GTAZ facilities. GTAZ, thus, also answered the need for gathering the geographically dispersed security services in Berlin.138

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The La¨nder were more than skeptical about the center. Fearing the creation of a new federal agency and subsequent loss of power, the extent of their contribution was still unclear when the GTAZ was set up in December 2004.139 Even though one of the central objectives for creating the center was to facilitate coordination and information sharing between federal and state agencies, GTAZ was established by the federal Interior Ministry BMI, which could not force La¨nder participation. As it turned out, however, the states also could not afford to be excluded from the new institutional ‘‘switch board.’’ By November 2005, 31 of 32 state law enforcement and intelligence bureaus had established liaison offices at the GTAZ in Berlin.140 The center’s key attributes—voluntary participation and loose network design—were as much a condition for creating the counterterrorism center as they were the result of the way the BMI plan was implemented. Because the GTAZ left the federal security architecture intact and did not encroach on La¨nder competences, it could be created by means of executive organizational decree. More important, the choice of implementation meant that the center did not require the approval of the Bundestag or Bundesrat. For the same reason, plans for the GTAZ, as well as various other reorganization measures advocated by Schily’s BMI, were not included in the deliberations of the Federalism Commission (discussed below).141

After the Madrid Attacks: Attempts to Reorganize The March 2004 Madrid attacks prompted a flurry of other activity.142 In early July, the Coordinating Committee of the IMK announced that federal and state counterterrorism resources were to be pooled and requirements for creation of a central antiterror database evaluated.143 For the first time, such a joint database would provide common access to data collected and stored by both law enforcement and intelligence services. The announcement put an end to federal reorganization plans that were vehemently opposed by the La¨nder governments.144 Reorganization proponents like Interior Minister Otto Schily and prominent members of the CDU opposition had been advocating centralizing law enforcement and intelligence functions for many months. A letter to SPD-party chief Franz Mu¨ntefering in July 2004 detailed Schily’s plans for ‘‘modernization of the federal structure.’’145 Schily sought to concentrate all counterterrorism authorities at the federal level; the BKA and the BfV would gain instructive

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authority over the sixteen respective state offices.146 Other proposals suggested fusing intelligence offices of smaller and/or neighboring states.147 Even though the BKA and the BfV both belong to the German Interior Ministry, it would be naı¨ve to assume that the interior minister is in charge of or the sole coordinator of German counterterrorism efforts.148 The intergovernmental dimension of thirty-two autonomous state bureaus—in addition to the BND under the jurisdiction of the Chancellery and the MAD under the Ministry of Defense, as well as numerous other agencies involved in counterterrorism—prevent any kind of unified or centralized effort. The fragmentation of authorities and jurisdictions in the institutional clutter is reinforced by the Trennungsgebot principle previously mentioned. The reality of German federal security decision-making structures also meant, however, that these centralization plans would not be put into practice. According to a Su¨ddeutsche Zeitung editorial, Otto Schily would have to overcome no less than three hurdles, the ‘‘Green Party (difficult), the states (very difficult) and the federalism reform commission (even more difficult).’’149 Convened in late 2003, the thirty-two-member Federalism Commission included representatives from the government, the Bundestag, and all sixteen state governors and was designed to develop a reform catalogue that would strike a new balance between federal and state responsibilities. Indeed, the issue of federal security structures proved so contentious that—if a consensus was to be reached at all—it had to be excluded from the reform agenda.150 It was only after it became clear that the La¨nder Interior Minister Conference would once again reject Schily’s plans to expand BKA-jurisdiction that the interior minister considered the commission a last resort and possible vehicle for the BKA reform.151 Schily’s chances appeared less than slim: In the bipartisan commission, he not only faced La¨nder resistance but also Green Party representatives who vehemently opposed the reform.152 By December 2004, the commission was hopelessly deadlocked over education policy, effectively putting an end to Schily’s second attempt to strengthen BKA powers. An emotional media debate reiterated the strong sentiments against expanding BKA powers, as well as centralized security institutions. Using the newly created U.S. Department of Homeland Security as an example for centralization plans gone awry, plans to strengthen BKA authorities were derided as an attempt to create a German FBI.153 Schily himself was compared to Joseph Fouche´, the French interior minister who served during the Jacobin reign of terror with Robespierre and Napoleon.

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Nonetheless, the La¨nder also could not ignore the need for better coordination and information sharing between the respective thirty-four state and federal bureaus (vertically), as well as among the different law enforcement and intelligence cultures (horizontally).154 Even though there were established mechanisms and guidelines for data exchanges,155 information was usually only shared upon request. Information dissemination, even between state and federal offices, could take weeks or even months. The process was slow, often flawed, or sometimes did not occur at all.156 Rather than centralization, so the states argued, the solution lay in a networkcentric approach, such as a joint database that would facilitate information sharing between the fragmented law enforcement and intelligence pillars at state and federal levels—and, therefore, not encroach on La¨nder turf. The La¨nder were also particularly interested in this solution because it likely meant additional access to federal counterterrorism data. Soon after, the CDU-governed state of Lower Saxony introduced a bill to the Bundesrat for creating a central database for Islamic terrorists.157 The database was to be run by the BfV; all participating police and intelligence services would be required to store information regarding Islamic extremism and terrorism in full-text documents that could be accessed by all. Even though the Bundesrat proposal was formally endorsed by a majority of Bundesrat states, it was questionable from the start how much actual support it had.158 Not only was it vetoed by several CDU-governed states, but the La¨nder IMK (which serves as vehicle for all security-related decisions) had rejected the very same proposal in a recent meeting.159 In addition, the Bundesrat approach was not coordinated with the IMK federal-state working group that was convened specifically to analyze the feasibility of a joint database consisting of index files rather than full-text documents.160 Index files would refer the inquiring services to the agency responsible for the acronym data entry, thereby ensuring that the services would have to communicate with each other. BMI officials, as well as intelligence services, rejected the full-text solution on the grounds that it did not adequately protect covert sources.161 From an intelligence standpoint, sharing full-text documents with law enforcement would not only jeopardize covert sources but also threatened to undermine cooperation with foreign intelligence services.162 From a practical standpoint, it was also not clear whether data updates could be guaranteed in real time.163 Meanwhile, BMI plans for a joint database got off to a slow start and were cooking on the back burner for a long time. As the parliamentary

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debate surrounding the CDU database proposal had previously shown, central issues of contention involved the questions of how the information should be stored (in other words, how much of it should be visible to participating agencies) and who should have access to it—all without blurring the line between law enforcement and intelligence too much, jeopardizing covert operations or access to foreign intelligence.164 These same concerns were also used by the Greens to justify their opposition to a fulltext database. Only reluctantly did the Greens come around to SPD plans for an index database. Like a library database, it would only show where the information could be found; the actual contents would have to be requested from the respective services. While Schily’s BMI was expected to complete a draft proposal by April 2005, this unofficial deadline was missed due to differences with the Justice Ministry.165 By the time the BMI put together a legislative draft a few months later, the Schro¨der administration had disengaged from the issue, as Schro¨der was considered a lame duck. The SPD had suffered another heavy loss in the Baden Wu¨rttemberg state elections, and Chancellor Schro¨der planned on calling a Bundestag confidence vote in an effort to trigger early elections. In view of the government’s uncertain future, the database proposal would no longer be introduced in the Bundestag—even though calls for reform intensified in the wake of the London attacks in July 2005.166 Even if the coalition proposal had been introduced, however, the tight parliamentary timetable made it highly unlikely that it could have been passed before the September 2005 elections, which effectively prevented any immediate legislative reforms in response to the London attacks.

Reforms at Last: The 2006 Antiterrorism Database Act Indicating the priority the newly elected CDU/SPD coalition government under Chancellor Angela Merkel accorded to reforms in the domestic security realm, the coalition agreement of November 2005 included plans for installing a central antiterrorism database and expanding BKA preventive powers to combat the dangers of international terrorism.167 In part, this was arguably due to the fact that the two parties that made up the new coalition government shared more common ground in security affairs. This was also noted by Otto Schily who argued that the new interior minister,

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Wolfgang Scha¨uble, ‘‘has an easier time with his coalition partner than I did with the Greens.’’168 In June 2006, the coalition government issued a first BMI draft bill for the creation of a joint database. This time it was synchronized with the IMK and included many of the same provisions that were also part of a fall 2005 IMK blueprint.169 While the SPD had supported an index database under Chancellor Schro¨der’s reign, the BMI (in close cooperation with the IMK) preferred a more far-reaching database design that was adopted after the Interior Ministry changed hands to CDU’s Wolfgang Scha¨uble in November 2005.170 According to the new proposal, the BKA, sixteen LKAs, BfV, sixteen LfVs, MAD, and Customs would jointly store data on individuals, their contact persons, and associations, foundations, or companies thought to be connected to or engaged in terrorist activities (defined as international terrorism with a German connection). Illustrating a far less restrictive approach in terms of data availability and going far beyond the SPD-favored index-file approach, it granted automatic access to basic information about individuals and organizations. More detailed data would be available upon request. Recognizing that intelligence agencies could only be convinced to participate in the database if the protection of sources and operations could be ensured, intelligence services could opt for limited or concealed data storage.171 In these cases, the database would reveal results of search inquiries solely to the intelligence service responsible for entering the information, which, in turn, would be expected to initiate contact with the inquiring agency.172 The proposal received mixed responses: while the La¨nder called for the need to include more information in the database—in which case they would benefit from gaining access to an even larger pool of federal counterterrorism information—the SPD-run Justice Ministry was reluctant to include personal data on religion and terrorist camp visits due to privacy concerns.173 However, news about the foiled attacks at London’s Heathrow airport, in addition to the discovery of a plot to blow up German commuter trains in July 2006, served as the final unifying catalyst for action. Urging lawmakers to step up legislative proceedings, the IMK issued its resolutions in early September.174 According to the IMK, the ideal database would contain both ‘‘open’’ basic records (used to identify persons) and ‘‘concealed’’ extended records (for additional situational assessment), as well as selected ‘‘classified records’’ (to be maintained exclusively by the intelligence services). Under exigent circumstances, the concealed records could also be

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accessed online. In addition to all 17 state and federal intelligence offices, all 17 state and federal law enforcement bureaus and other state police agencies would have access to the database. Two weeks later, the Merkel cabinet approved a revised BMI proposal and submitted a legislative bill for a ‘‘joint standardized central antiterrorism database’’ to the Bundesrat.175 The bill was introduced to the Bundestag three weeks later. It took up most IMK provisions, so that additional state law enforcement units involved in counterterrorism could participate in the database. It also included records on contact persons, religious affiliations, and terrorist camp experiences—against the reservations of the SPD parliamentary group.176 However, reflecting the compromise arrangement designed by the SPD-led Justice Ministry that was also part of the IMK catalogue, only basic data records would be available instantly as part of file I.177 The database would not grant automatic access to the extended data records contained in file II. In response to SPD privacy concerns, the inquiring agency would have to initiate contact with the filing agency before it could view the extended records—thereby ensuring personal communication between services. In response to CDU and La¨nder demands, urgent circumstances would warrant direct online access to the extended data section, provided the head of the inquiring agency authorized such a step. The list of extended data characteristics contained additional information, including (1) membership in terrorist organizations, (2) gun ownership, (3) telecommunications and Internet traffic data, (3) bank accounts and safes, (4) education and employment, (5) family and religious status, (6) number of IDs lost in the past, (7) travel activity, and (8) time spent in terrorist training camps. All participating agencies would also have an option to leave comments on a database message board. While the SPD thus conceded to the creation of an ‘‘extended’’ index database, the bill remained unacceptable to the opposition parties.178 In an attempt to rectify what they considered a massive violation of the principle guarding separation of law enforcement and intelligence functions, both the Green Party and the Party of Democratic Socialism (Partei des Demokratischen Sozialismus, PDS) submitted amendment proposals, which were rejected.179 Illustrating their mere observer status in the process (also reminiscent of those same coalition tactics employed during the formulation of the second counterterrorism package), the opposition parties received the copy of final coalition amendments the night before the final committee meeting.180

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Conversely, decision-making powers wielded by the La¨nder were pronounced in the creation of the antiterrorism database. The states played a role at all stages of the process: they set the course through the informal channels of the IMK, which, according to Bundestag lawmakers increasingly critical of the IMK’s role, was acting like a ‘‘substitute lawmaker.’’181 This was all the more remarkable, as the database bill did not require compulsory Bundesrat consent post-2006 federalism reform.182 In other words, any upper house objections could potentially be overruled by the lower house. Needless to say, this arrangement meant that the Bundesrat still had significant leverage. To be sure, the La¨nder managed to shape the bill through the formal legislative process in the Bundesrat. The bill, therefore, featured several provisions proposed by the Bundesrat Interior Committee.183 For example, the bill now included a narrower definition of who qualified as a contact person, thus reflecting the exact wording proposed by the Bundesrat. Representing a minor setback to La¨nder interests, database access granted to additional (non-LKA) state law enforcement would first have to be authorized by the federal interior minister. Featuring CDU preferences and also those of the La¨nder, the sunset clause would come into effect after ten instead of the five years favored by the Bundestag SPD. Lastly, the final bill also reflected some changes made in response to expert testimony presented at a Bundestag Interior Committee hearing. On December 1, 2006, after more than two years of debate and bargaining, the Bundestag passed legislation that established the statutory framework for creating a standardized central antiterrorism database of federal and state law enforcement and intelligence services (Gesetz zur Errichtung einer standardisierten zentralen Antiterrordatei von Polizeibeho¨rden und Nachrichtendiensten von Bund und La¨ndern (Antiterrordateigesetz, ATDG)), followed by the Bundesrat two weeks later.

Extending the Second Counterterrorism Package: The 2006 TBEG Act Efforts to pass the database legislation coincided with the debate over the extension of the 2001 counterterrorism package, scheduled to sunset in January 2007. In contrast to the two-year struggle surrounding the creation of the database, the coalition parties agreed on a bill proposal quickly. The process was likely facilitated by the fact that the bill did not involve jurisdictional

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issues that required negotiations with or mandatory approval by the La¨nder. The cabinet adopted the bill in mid-July 2006.184 Reflecting previous practice, the bill was first introduced in the upper house to speed up the legislative process.185 As the name indicated, the Counterterrorism Supplemental Act (Gesetz zur Erga¨nzung des Terrorismusbeka¨mpfungsgesetzes (Terrorismusbeka¨mpfungserga¨nzungsgesetz, TBEG)) would not merely confirm the broader security powers that were granted as part of the 2001 package but serve as a vehicle for further ‘‘improvements.’’ According to the BMI, these reforms were designed to identify lesser and greater privacy encroachments and tailor respective authorization processes accordingly. This meant that disclosure requests by intelligence services involving airline passenger or telecommunication traffic data would no longer be subjected to the same elaborate authorization process as the ones required for installing phone wiretaps. In a welcome side effect, easing the issuance of certain data requests also meant that the executive hand would be strengthened at the expense of parliamentary oversight. Until now, the typical authorization process involved two administrative hurdles and required intelligence service heads to request permission from the BMI, as well as the G10-Commission. Pursuant to the cabinet bill, disclosure requests to postal and telecommunication services regarding basic personal data (used to open accounts or safes) could be made without prior permission by the Interior Ministry or G10-Commission if deemed necessary for intelligence purposes. Similarly, data requests involving flight, bank, and finance information no longer required permission from the G10-Commission but only the Interior Ministry. Requests regarding postal and telecommunication traffic data, as well as the use of IMSI catchers, would still be subject to G10Commission approval, as they were considered greater privacy infringements. All requests would have to be reported to the Parliamentary Control Committee twice a year.186 Moreover, all federal and state domestic intelligence services would now be able to use their disclosure powers not only in terrorism cases involving a foreign dimension (those threatening German foreign policy interests and the peaceful coexistence of nations or involving counterintelligence) but in cases considered a severe threat to the liberal-democratic order of Germany and thus domestic security (extremist actions directed against the liberaldemocratic order, existence, and security of the federal republic), albeit only if there were concrete leads. This new provision was designed to facilitate the targeting of hate preachers as well as right-wing extremists and

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homegrown terrorists. These and several other measures would again be subject to legislative reauthorization after five years, or else expire. This enhanced version of the 2001 act was based on BMI assessments and reviews, as well as the findings of the Parliamentary Control Committee, which had prepared a first report in mid-2005. Opposition parties soon questioned the use of a report that featured statistics from 2004.187 In response, the committee issued another report (one month after the bill was introduced to Parliament), confirming the results from the first report. Both times the committee found that the security agencies had exercised new surveillance rights responsibly and selectively.188 But not all data were in demand. Specifically, critics wondered about the need to simplify authorization procedures for postal and airline disclosure requests since, over a period of more than three years, the former was not approached at all and the latter about only four passengers. During a Bundestag Interior Committee hearing on November 7, 2006, critics further questioned the need to extend these powers to all three intelligence services, including military and foreign intelligence, MAD, and BND, rather than just the domestic intelligence service BfV. Last, skeptics questioned the validity of an evaluation report conducted by the very ministry in control of exercising surveillance provisions.189 When the Bundesrat made changes to the proposal on September 22, the La¨nder amended a critical text passage.190 Whereas the Bundestag version granted all new data collection powers on the basis of ‘‘actually existing threats,’’ the new La¨nder formulation only required security services to base their actions on ‘‘actual threat leads.’’ The Bundestag readily adopted the lesser hurdle into its revised version. As was the case in the past, the Bundesrat was also concerned with expanding La¨nder rights, even if the bill did not require compulsory Bundesrat approval (and therefore could not be vetoed by the upper house). In particular, the La¨nder argued that the opportunity to flag suspects in European police databases should be available to the La¨nder intelligence services as well, so they would not have to go through the more time-intensive BfV bureaucracy. Also, the La¨nder demanded that the BAMF directly relay its information to the La¨nder intelligence services, rather than through the federal BfV (which in turn disseminated the information to the La¨nder intelligence agencies). The Bundestag objected to both amendments, arguing that transborder movements involving interactions with international law enforcement lay in the federal jurisdiction. Furthermore, so Bundestag lawmakers argued, the federal

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Migration Office could not be expected to determine which of the sixteen La¨nder would have to be contacted. Instead, this fell into the area of responsibility of the BfV.191 In the end, the Bundesrat yielded, and the TBEG went into effect January 5, 2007.

Legislating the 2008 BKA Reform The coalition agreement of November 11, 2005, also included a provision to expand BKA preventive powers to combat international terrorism. As one of its first actions, the new CDU-SPD coalition government agreed to include the contested BKA provisions in the reform catalogue of the revived Federalism Commission.192 Only six months later, the federalism reform was passed and Article 73 of the Basic Law amended to reflect the new BKA powers. Pursuant to the revisions, the federal BKA would from now on be responsible for countering threats posed by international terrorism in all cases in which (1) more than one state is affected, (2) the jurisdiction of the responsible state police cannot be determined, or (3) on request of the state police.193 While its authority was thus still confined, for the first time the BKA would be authorized to act on international terrorist warnings without having first to locate and negotiate the terms of engagement with the responsible La¨nder LKAs.194 In exchange for federal ‘‘power gains’’ in the counterterrorism arena, the La¨nder gained greater independence in the emergency/disaster management domain. While the Federalism Commission set the stage for constitutional reform, the details of the BKA’s authorities within and vis-a`-vis the La¨nder would still require a statutory foundation in the form of a separate law. In the spring of 2007, Interior Minister Wolfgang Scha¨uble began drafting the BKA bill. From the very beginning, Scha¨uble was determined to make BKA counterterrorism powers equal to those of the La¨nder LKAs. At the same time, he was conscious that they would have to withstand the test of the Constitutional Court. After 9/11, the highest court had issued various rulings that restricted the use of new surveillance powers. These rulings were usually triggered by La¨nder practices but also applied to those of federal security agencies. Ironically, the La¨nder since 9/11 had been strengthening those very preventive police powers they were unwilling to grant the BKA. Scha¨uble’s wish list of new BKA counterterrorism powers included the Rasterfahndung dragnet searches under BKA auspices, which until now

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could only be conducted by the La¨nder (which subsequently forwarded the data to BKA headquarters for coordination purposes). In a May 2006 ruling, the Constitutional Court determined that the post-911 practice of the dragnet search could no longer be justified by the general threat posed by Islamic terrorism, as it violated the basic right of informational selfdetermination and privacy.195 After 9/11, the names of tens of thousands of Muslim students from flagged countries had been obtained from universities, cities, and immigration agencies and cross-referenced with those of pilot license holders and other relevant data. The court ruled that the datamining program could only be activated in response to concrete leads or probable cause involving the preparation or execution of terrorist attacks. Eleven states were affected by the ruling. While the BKA president called the verdict a massive blow to the preventive counterterrorism arsenal, it is not clear how far the dragnet search had been useful in identifying Jihadi terrorists.196 One year before, the highest German court declared Lower Saxony’s preventive wiretap law unconstitutional. The law permitted police to wiretap suspects when ‘‘there was reason to believe that they would commit crimes of significant weight in the future,’’197 which might also involve terrorism. As mentioned before, the verdict had implications for other La¨nder, which proceeded to review and amend their respective wiretapping provisions.198 Despite these rulings, Scha¨uble sought to acquire additional preventive powers for the BKA. Among these new powers, the authority to install secret spyware on private home computers proved to be most controversial. These Trojan programs would allow the BKA to search any saved data as well as record actual data processing and key logging. Scha¨uble’s timing for including this particular provision was not coincidental. Yet another 2004 Constitutional Court decision provided that the rules governing house searches, which, in contrast to FBI-led sneak and peek searches, had to be conducted openly, did not apply to secret online searches, meaning they needed to be put on a separate legal basis.199 Scha¨uble was looking to create this statutory basis. He first launched the idea of online searches as part of a ‘‘program designed to strengthen domestic security’’ that was introduced in response to the train bomber plot in the fall of 2006.200 Based on the BMI’s first draft issued in April 2007, online searches would have to meet probable cause standards. In addition, the data would be subject to review by a judge before it could be used by the BKA.201

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Interestingly, online searches were already permitted in the state of North Rhine-Westphalia, where the domestic intelligence service (rather than law enforcement) could search computer data on suspicion of serious crimes (like terrorist attacks). The requests were overseen by a ‘‘state commission of lawyers.’’ However, the Constitutional Court was called on to review the Westphalian law in March 2007. Scha¨uble’s BKA bill was opposed by a skeptical justice minister, Brigitte Zypries (SPD).202 More specifically, Zypries was vehemently opposed to granting the BKA online search powers. The SPD-led opposition to the proposal appeared somewhat dubious, however, as details of spyware installations that had been secretly authorized by the SPD-led Interior Ministry under Otto Schily became public.203 These searches were conducted by the intelligence service BfV and launched on the initiative of high-ranking BMI officials who, in an ironic twist, were now detailed to Zypries’s Justice Ministry.204 Scha¨uble put a preliminary halt to the controversial online searches that arguably lacked a legal basis, even if the Parliamentary Control Committee had been informed of the ‘‘less than twelve’’ spyware authorizations. In view of these revelations, a statutory mandate was deemed especially important. The SPD proceeded to repeatedly cancel the coalition negotiations about the BKA bill, supposed to begin in June 2007, and appeared to engage in other stalling tactics,205 even as German authorities uncovered another major terrorist plot, the second in only twelve months.206 This time around, the terror suspects included two German citizens who, together with their Turkish accomplice, planned to bomb various U.S. facilities in Germany. Regardless, the SPD was determined to hold out until the highest German court had cast a verdict regarding online searches in North RhineWestphalia. CDU politicians criticized the stance noting that ‘‘the verdict would be based on a poorly formulated state law’’ and further reminded their SPD coalition partner that ‘‘we are the legislator, not the Constitutional Court.’’207 At the same time, Interior Minister Scha¨uble refused to negotiate a law that decoupled online powers. In the meantime, the BKA bill was forwarded to the La¨nder for review. While the La¨nder signaled their general approval of circumscribed online searches, they shifted their attention and criticism to a different part of the proposal. Displaying a familiar pattern, they objected to the proposal’s broad formulation of BKA responsibilities and jurisdiction vis-a`-vis those of the La¨nder—forecasting a bumpy ride in the Bundesrat.208 After the

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Constitutional Court in February 2008 ruled that online searches could take place if certain conditions (including probable cause, judicial approval, and a new statutory foundation) were met, it was clear that the BKA act, in the works since spring 2007, would require more work. When the Justice and Interior Ministries finally did come to a compromise solution in May 2008, the most controversial provisions of the twentyfour new BKA powers209 involved the specifications of online computer searches (including hard drives but without physical access to computers), wiretapping and video surveillance in- and outside private residences, dragnet searches, use of IMSI catchers, and searches of residences. Another contested part of the BKA act would strip journalists, attorneys, and physicians of most privacy privileges so that they would be required to reveal the identity of their sources, clients, or patients in the context of counterterrorism investigations; special privileges were only retained by clergy, defense attorneys, and members of Parliament. As noted earlier, various La¨nder were also opposed to these new, ‘‘farreaching’’ BKA powers. Some observers called attention to the hypocrisy of these La¨nder—with the exception of online searches,210 all these powers had of course been available to the La¨nder LKAs for more than fifty years, as Scha¨uble and prominent members of the SPD parliamentary group frequently pointed out.211 Others wondered whether the actual reason for La¨nder opposition was related to the fact that they would soon lose unique powers vis-a`-vis the BKA and likely face more BKA involvement on La¨nder turf in the future.212 In fact, a key theme running through all Bundestag debates involved concerns about (1) changes to long-standing federal-state law enforcement relations and (2) the creation of a German ‘‘FBI,’’ one that would blur law enforcement and intelligence powers and increasingly utilize the latter. Both SPD and CDU kept insisting that the existing security architecture was not being undermined, but instead adjusted to new challenges, and that the BKA was to receive preventive powers considered standard by any ordinary police force. When the Bundesrat Legislative Committee took a first stab at the bill in August, the majority of state recommendations dealt with federal-state jurisdiction. Interestingly, the committee strongly supported online powers, as well as the need to gain physical access to computers, and further sought to strengthen clergy immunity.213 In the end, the Bundesrat La¨nder decided on two amendments to the Bundestag bill, one related to clergy privileges

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and another designed to clarify BKA jurisdiction.214 The Bundestag rejected the latter and vouched to address the former.215 Over the course of the next few months, the lower house did make other changes to the bill, for example, requiring that its online and dragnet search clauses be evaluated after five years and that—unless reauthorized—online provisions would sunset after twelve years. These amendments were strongly endorsed by the SPD, which even concluded that the BKA bill was better than any existing La¨nder police laws.216 The Bundestag, thus, adopted the bill within the typical fourmonth period in November 2008.217 However, the Bundesrat hurdle proved higher than usual. Various La¨nder, echoing earlier SPD concerns, continued to oppose the weakened immunity provisions as well as the online search powers. As per cabinet compromise and subsequent Bundestag amendments, any search programs had to be remotely installed and a designated BKA data privacy official would have to check the obtained data to ensure that data privacy was not violated. Any installation of spyware would require court approval, except in urgent cases that required immediate searches (approval would have to be granted retroactively within twenty-four hours).218 Various La¨nder, and not just those governed by the SPD,219 focused their opposition on the latter provision, considered unacceptable—even though a list assembled by the BMI demonstrated that the La¨nder relied on similar urgency clauses, utilized IMSI catchers, or conducted residence searches before obtaining a judicial warrant.220 On November 29, 2008, the Bundesrat vetoed the act, which was a first since the 9/11 attacks.221 A close reading of the preceding Bundesrat debate illustrates that a key concern had to do with the lacking demarcation of BKA versus La¨nder authorities.222 Unsurprisingly, BKA-La¨nder relations also took center stage in a speech by Interior Minister Scha¨uble, who addressed the Bundesrat La¨nder representatives insisting that the BKA act did not diminish La¨nder powers and jurisdiction.223 However, even though the CDU-SPD grand coalition had a majority (if only small) in the Bundesrat, three La¨nder224 abstained from the vote, and the act was, thus, rejected, as was a proposal to convene the federal-state mediation committee. While Saxony Anhalt justified its position by arguing that SPD/Zypries opposition to the bill had spilled over into the upper house,225 other La¨nder noted unresolved questions regarding BKA-LKA jurisdiction as a key obstacle.226 Even if ‘‘unfinished SPD business’’ did spill over into the Bundesrat and affected decision-making in the Bundesrat, it must be noted that these

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BKA-state jurisdictional dilemmas served as a common denominator for all La¨nder (including those governed by Chancellor Merkel’s and Interior Minister Scha¨uble’s CDU) with reservations about the bill. At the end of the day, it appears that SPD and La¨nder interests aligned over a few different issues, ultimately leading to the Bundesrat veto. In the federal-state mediation negotiations that followed, all sides quickly agreed on additional amendments with regard to the urgency clause. The revised bill no longer allowed emergency online searches without a judicial warrant. A judge, rather than a BKA official, would be responsible for assessing any data obtained from online searches as to avoid privacy violations.227 Scha¨uble’s BMI did not yield on the issue of journalists, lawyers, and physicians, however, who would still be exempt from any privileges. Very important, the La¨nder finally did force modifications that further delineated BKA vis-a`-vis LKA powers.228 The Bundesrat passed the amended version of the BKA act, creating the statutory basis for the BKA to counter international terrorist threats (Gesetz zur Abwehr von Gefahren des internationalen Terrorismus durch das Bundeskriminalamt), three weeks later, on December 19, 2008. Once again, Interior Minister Scha¨uble insisted that the act did not create a German FBI and did not do away with any La¨nder responsibilities, but merely gave the federal BKA law enforcement authorities the La¨nder had long held: not only to investigate but also to prevent terrorism, in specified circumstances, while using a counterterrorism arsenal that had been available to the La¨nder for quite some time.229 Of further note, in March 2009 the coalition government decided to strengthen the intelligence oversight powers of the Parliamentary Control Committee.230 Pursuant to the reforms, permanent staff would increase, the government would be subjected to stricter disclosure obligations, and members of the panel would gain physical access to all official intelligence bureaus.

Reforms in Waiting: The EU Directive on Data Retention In the fall of 2007, the CDU-SPD coalition also implemented an EU directive on the so-called provisional retention of telecommunication data.231 Launched in response to the 2004 Madrid attack (where stored phone records were used to trace the perpetrators of the attacks), the directive

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required all member states to adopt laws that required telecommunication providers to retain traffic data for at least six and a maximum of twentyfour months. The German decision-making process surrounding the EU directive holds two important lessons. First, it shows the importance of EU directives as key decision-making vehicles and perhaps only opportunity for introducing data-retention measures in Germany. Second, it illustrates German foot dragging in this particular area, as the provision had long been addressed by British and French antiterror legislation passed in 2001. In fact, knowing that the directive would be considered highly controversial in Germany, the German Justice Ministry had been actively involved in the EU negotiations over the length that telecommunication providers would be obligated to store traffic data, originally intended for thirty-six months.232 In the end, the data would only have to be stored for a minimum of six months. The police had to have a judicial warrant (based on probable cause) to access the data, which included the phone number, time of call, date, and cell phone location at the beginning of the call. By implication, cell phone locations at the end of the call were exempt, so movements could not be traced, as was information on attempted calls, call contents, and Internet pages looked at. Clerics, members of Parliament, and defense attorneys would be exempt from the rule that still applied to lawyers, doctors, and journalists. Going beyond the EU directive, the German bill also provided for access to stored traffic data in cases of (lesser) crimes committed by means of telecommunication devices. Following a familiar pattern, however, and reflecting the strong sentiments against the EU provisions, the clause was soon restricted by the Constitutional Court, which stressed that only serious crimes justified these types of disclosure powers. The verdict did not bode well for the act on the provisional retention of traffic data that went into effect on January 1, 2008. Two years later, the Constitutional Court ruled the act unconstitutional and incompatible with Article 10 of the German Basic Law, citing inadequate data security and ‘‘restriction of the purposes of use of the data.’’233 According to the Court, the act also did not ‘‘satisfy the constitutional requirements of transparency and legal protection.’’234 While provisional data retention for a fixed period of time would still be possible under a different arrangement, it would have to come with better safeguards. In fall 2014, Angela Merkel’s new coalition government had yet to find a legislative solution for data retention. By the time the court verdict was cast in 2010, the FDP, traditionally intent on data privacy protection, had

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replaced the SPD as junior coalition partner and assumed the justice minister cabinet post. In fact, Justice Minister Sabine LeutheusserSchnarrenberger, a long-time opponent of surveillance measures and data retention, was among the three plaintiffs who took the case to the Constitutional Court in the first place. Alternatively, Leutheusser-Schnarrenberger proposed a quick-freeze system, a nonstarter for the Interior Ministry. Based on this more individual case-by-case approach, transaction data from the last seven days could be frozen but only after concrete, probable cause had been established.235 Since the EU directive was under review starting in 2011, the Justice Ministry insisted German legislation should be tackled only after Brussels had come to a decision about whether the directive needed to be revised. Indeed, the EU Commissioner for Home Affairs, Cecilia Malmstro¨m, had launched an evaluation of the directive that found data retention requirements were being implemented vastly differently in the member states (not just in terms of how long the data were stored but also who had access to the data, data protection standards, and whether data could be used to counter terrorism, crimes, or even lesser misdemeanors).236 In line with the German Interior Ministry, Malmstro¨m called LeutheusserSchnarrenberger’s quick-freeze proposal insufficient and in violation of the EU directive. Be that as it may, the German justice minister decided to await further EU action. Because Germany had failed to implement the EU directive, the European Commission initiated legal action against the German government before the European Court of Justice (ECJ) in spring 2012.237 In April 2014, however, events took a different turn yet again, as the ECJ declared the EU directive invalid, arguing that it violated privacy rights and data safeguards and also exceeded the principle of proportionality.238 While the German government appears to have successfully outwaited EU action, the EU route does not seem available as an alternative decision-making venue in the near future.

Third Time’s the Charm: Reauthorizing TBEG in 2011 As per sunset provisions, the Counterterrorism Supplemental Act of 2006, which first originated in 2001, was due to expire in early 2012. When cabinet negotiations about the reauthorization of TBEG started in spring 2011, Merkel’s governing coalition was already strained over the unresolved issue

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of EU-mandated telecommunication data retention. As part of the coalition negotiations, the CDU had previously conceded to FDP demands that a federal judge be responsible for authorizing any BKA online searches, rather than a simple district court close to BKA headquarters.239 Not surprisingly, the FDP-run Justice Ministry was also highly critical of CDU-run Interior Ministry plans to reauthorize all those TBEG data collection powers that were initially afforded in 2001 and reauthorized in 2006. Justice Minister Leutheusser-Schnarrenberger argued that all eighteen powers should be evaluated (on whether they were still needed, successfully used, and proportional) and most sunset powers be allowed to lapse. Additional powers were out of the question.240 As a matter of fact, TBEG authorities had just been evaluated by an independent law expert, who was jointly selected by both the Interior and Justice ministries. Contrary to Leutheusser-Schnarrenberger, the expert report recommended making all TBEG provisions permanent, increasing parliamentary oversight, and limiting the number of officials eligible to authorize data inquiries.241 In the meantime, the new interior minister, Hans-Peter Friedrich (CDU), was looking to enhance data collection powers and also introduce fines for service providers who did not comply with intelligence service inquiries. Friedrich was further inclined to follow the expert’s recommendation on strengthening G10-Commission oversight.242 Friedrich’s list of demands, thus, allowed for some ‘‘symbolic’’ sacrifices in the negotiations with the Justice Ministry, and over the next several months, the Interior Ministry agreed to some corrective amendments. For example, while Friedrich had initially asked to make all measures permanent, he conceded to another sunset clause of four years. Two provisions (data inquiries into postal services and electronic surveillance of residences for the protection of field agents) were allowed to expire, as they had never been used and were considered outdated. In addition, Friedrich further agreed that the BMI should be charged with authorizing data inquiries rather than the intelligence services themselves. BMI officials would have to rely on concrete facts rather than factual leads (a change that, according to critics, resembled more of a semantic difference in the absence of judicial oversight).243 Friedrich also gave up on new ‘‘sneak and peek’’ powers that would have authorized security services to search safety deposit boxes at banks. Finally, he agreed on convening a commission that would be tasked with evaluating all counterterrorism laws and institutional reforms undertaken since 2001.244

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Reflecting Friedrich’s priorities, the final draft of the bill not only reauthorized all other existing authorities but further expanded intelligence collection powers in the areas of finance and airline travel. Under the new law, intelligence services would be authorized to collect airline travel and financial data by accessing the database of the Federal Financial Supervisory Authority (rather than having to approach individual financial institutions) and the central airline booking system Amadeus (as opposed to consulting with individual airlines). After the ministers struck a compromise in late June, the cabinet approved the proposal on August 17, 2011.245 On October 28, 2011, the Bundestag extended the TBEG act for another four years, followed by the Bundesrat on November 25, 2011.246

Part 3: Analysis and Conclusion How Did Government Structures Influence Counterterrorism Decision-Making? Speed of Response—How quickly did Germany respond to the 9/11 attacks and/or others? How long did decision-making processes take?

Even though the governing coalition was made up of parties traditionally critical of tough law enforcement and surveillance powers, the shocking nature of the 9/11 attacks helped subdue some of this inherent skepticism. Once the SPD/Green coalition decided to take action, the parliamentary structures facilitated the kind of quick decision-making usually associated with Great Britain’s majoritarian Westminster model. The overall legislative process for the second 2001 counterterrorism package lasted less than six weeks. This ‘‘decisiveness’’ soon fell victim to the more typical, delayed decision-making associated with coalition governments and Germany’s consensus democracy in particular. For example, when the 2001 counterterrorism package sunset provisions had to be renegotiated in 2006 and 2011, parliamentary decision-making lasted between three and four months. While the GTAZ was created by executive order and in response to the 2004 Madrid attacks, it took more than nine months to implement the organizational decree. Foot dragging prevented creation of a joint antiterror database (first proposed in the aftermath of the March 2004 Madrid attacks) for more than two years and the BKA bill, which took one and a

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half years to draft before it was even introduced to the cabinet—and despite the fact that two major terror plots were discovered in the meantime. Once introduced to the upper house, the 2006 Antiterrorism Database Act took close to three months to pass—a rather typical timeframe for the German Parliament—but the 2008 BKA reform more than six months before it was adopted into law—less representative of average decision-making times. The latter especially illustrated the delaying power of the La¨nder, which had significant stakes in the formulation of the BKA clauses and the structural veto-power leverage to reject the bill. Even if there was a temporary surge of activities after the fall 2005 elections brought the right-of-center CDU to power to form a grand coalition with the SPD (both parties arguably saw more eye to eye on security issues), it also took the new coalition government more than six months to draft the database bill. Coupled with the BKA and EU directive deadlocks experienced soon afterward, these developments illustrate that the slow workings of the German executive branch made up of coalition parties are the rule rather than the exception. Until 2007, neither coalition government even dared tackling a law mandating telecommunication data retention. The first Merkel coalition government eventually chose the more time-consuming indirect EU route to implement the provision, more than six years after the 9/11 attacks and more than six years after its British and French counterparts had adopted data retention measures. Once the Constitutional Court ruled the pursuant act unconstitutional, Merkel’s second coalition government made the formulation of a new law dependent on the outcome of EU reforms. After the European Court of Justice declared the directive invalid, the issue remained unresolved in 2014. Decision-Making Mode—Were decisions made by means of executive order, or did they require parliamentary approval?

With the exception of the new GTAZ erected by executive decree, all counterterrorism measures were put on a statutory basis. This insistence on legislation and the numerous intraexecutive (coalition and interagency) and intergovernmental (La¨nder) hurdles that are associated with the legislative processes are in stark contrast to counterterrorism decision-making in parliamentary Britain, as will be discussed in the next chapter, but very similar to that in the U.S. separation of powers system, illustrated in the previous chapter. Like the NSA surveillance program in the U.S. case, these

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decision-making hurdles may well have contributed to the BMI’s decision to authorize secret measures, such as online searches conducted by the domestic intelligence service BfV. Parliamentary hurdles also encouraged alternative routes of decisionmaking. For example, Germany was the only European Union member state that relied on an EU directive as a vehicle for counterterrorism reforms German security officials had previously advocated unsuccessfully, like the mandatory retention of telecommunication traffic data. In fact, after the 2014 ECJ verdict, the German government appears to consider a revised EU directive all the more imperative for any future German data retention legislation. Similarly, the various decision-making venues that set the stage for the BKA reform (in which case the Federalism Commission served as a vehicle) and the GTAZ (via organizational decree) also represented such alternative strategies, designed to bypass structural hurdles and interagency meddling. The BKA reform was, thus, initiated outside the traditional legislative arena as part of an alternative commission process that diminished the influence of the Justice Ministry and the La¨nder. In contrast to executive orders used to initiate institutional reforms in the British and French systems but similar to the U.S. case, the decision to create the GTAZ by means of executive order (without parliamentary approval) had significant consequences for the nature and scope of the reform, which may have also been very intentional. In other words, GTAZ’s loose ‘‘joint venture’’ features were the price BMI officials paid for staying clear of intergovernmental (regarding La¨nder turf) and/or jurisdictional concerns as advocated by the Justice Ministry (regarding the blurring of policing and intelligence authorities). A CDUsponsored legislative proposal even existed, though its contents proved unacceptable to the Schro¨der government. In any event, the GTAZ just as well could have been put on a statutory footing. However, such a decision likely would have affected and undermined its ‘‘network’’ features and also required many more months of coalition, cabinet, and parliamentary bargaining. Level of Public Scrutiny and Debate—Did the decision-making process allow for an open debate, public hearings and/or post-legislative scrutiny, rather than secret and/or emergency procedures?

Public scrutiny and debate were more limited during the fast-paced legislative process that led to the 2001 counterterrorism legislation, which

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only lasted one-third of the time most other counterterrorism bills took to pass (with the exception of the BKA bill), and were completely lacking in the setting up of the GTAZ, mandated by executive order. Certainly, scrutiny and debate were also lacking when it came to transposing the EU data retention directive into national law, and intentionally so, as this was a key reason for choosing an EU directive as decision-making vehicle in the first place. Once the formal legislative process took its course and cabinetapproved bills were introduced in the Bundestag, opposition parties did not have much opportunity to examine or influence the bill. They could, however, force additional changes through the Bundesrat—provided their interests happened to coincide with those of the La¨nder. For example, because the CDU had a majority in the Bundesrat (meaning a majority of La¨nder governments were CDU-led), CDU opposition lawmakers managed to influence the decision-making process in 2001. To the contrary, the antiterror database and BKA reforms were the subject of more intense public debate. In part, this was due to the drawnout coalition negotiations in the long pre-legislative phases, as well as the continual intergovernmental bargaining between the BMI/Bundestag and the La¨nder/Bundesrat. Junior coalition partners filled the role reserved for the legislative branch in the U.S. separation of powers system (or the one accorded to the Bundestag in an ideal-type German system) by insisting on sunset clauses and surveillance authorization through the G10Commission.247 While serving as a check on senior coalition partners, they further ensured periodic parliamentary reviews of and continued involvement in the post-legislative scrutiny of counterterrorism measures. Ten years after the 9/11 attacks, the FDP junior coalition partner even insisted on going beyond the ‘‘perfunctory’’ sunset evaluations, convening a special ten-member commission tasked with evaluating all statutory and institutional counterterrorism reforms undertaken since 2001. The sunset clauses served as vital tools for ensuring oversight, accountability, and legitimacy. The very process of having to reauthorize counterterrorism measures, in both 2006 and 2011, offered opportunities for renewed debate during less emotional times. Moreover, renewed legislative scrutiny provided insights into the either broad or narrow application of the newly acquired powers, as governments were compelled to provide more detailed explanations of the actual implementation of measures. In 2006, TBEG negotiations were further used to tailor authorization hurdles

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for disclosure requests, but this also meant that parliamentary G10Commission oversight was eased to facilitate intelligence collection in certain areas. The trend was reversed in 2011, when the CDU-FDP coalition decided that the G10-Commission should play a more prominent role in overseeing intelligence collection and also since data collection authorities were further expanded to financial and airline databases. Sunset reauthorizations were also used to adjust counterterrorism powers to new threat scenarios. For example, in 2006, intelligence services gained data collection powers in connection to domestic threats, reflecting a growing demand to address homegrown terrorism. In terms of post-legislative scrutiny, the Constitutional Court has also played a role, even if court decisions influenced decision-making only indirectly. After several rulings determined La¨nder counterterrorism laws unconstitutional, it became clear that new federal counterterrorism laws had to withstand court scrutiny or else become useless. Court decisions regarding preventive state surveillance powers deemed in violation of data privacy thereby played into BMI-scheming over online spyware when crafting the BKA act. Nature and Extent of Reforms—What was the focus and scope of the reforms? Did the measures affect the balance between executive, legislative, or judicial branches?

While counterterrorism reforms are not judged by the quantity or quality of the responses, the overall scope of German responses after 9/11 is of note. In fact, a good argument can be made that ‘‘never before has there been a comparable flood of security laws and reforms like in the . . . years after September 11, 2001.’’248 This is noteworthy also because German security services were not new to terrorism and did already have a few counterterrorism tools at their disposal (even if a lot of reforms in the 1970s and 1980s were focused on judicial proceedings). Nevertheless, existing policies and institutions called for adjustments and/or innovative approaches to counter the new Jihadi threat. At first sight, executive security agencies appear to have gained significant powers. New counterterrorism measures strengthened data collection authorities of both law enforcement and intelligence services, facilitated the sharing of public/private sector data with security services, and broadened preventive policing powers. Early reforms centralized selected law enforcement powers at the federal level, tasking the BKA with central data collection and cyberterrorism authorities. Pursuant to the 2008 BKA reform, the

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federal BKA gained a significant number of new investigative and preventive powers in the counterterrorism realm. Two new institutional arrangements, the GTAZ and the joint antiterror database, centralized counterterrorism data and analysis capacities. A closer look at the nature and extent of the measures reveal considerable parliamentary and judicial controls, as well as the large La¨nder imprint on counterterrorism outcomes. Even though the BKA eventually did gain new preventive powers as a result of the 2006 federalism and 2008 BKA reforms, these are tightly circumscribed and limited to international terrorism cases. This condition illustrates the difficulties of closing the domestic and international ‘‘fault lines’’ in Germany’s security architecture, as these serve as important mechanisms to delineate state turf (in the domestic realm) as opposed to federal responsibilities (against more serious and less common foreign threats) and thereby ensure vertical separation of powers.249 One foreign-domestic divide did get addressed by means of the 2006 TBEG, however, which granted state and federal domestic intelligence services data collection powers in terrorism cases involving a domestic or homegrown dimension, going beyond the previous international focus. These checks and restraints also shed light on the key decision-making hurdles and players, as well as the weight they pull within this particular parliamentary system. Apart from the La¨nder, coalition, interagency, and even opposition concerns shaped counterterrorism responses. Their input is made possible by the particular type of parliamentary system Germany features, one that is based on and characterized by power-sharing arrangements as opposed to power fusion. Due to the larger decision-making circle (at least two coalition parties in addition to the La¨nder), the process becomes more porous and accessible for additional decision-making players, input, and debate. Depending on the nature of the reform issue, the BMI first ran into resistance during the pre-legislative coalition and/or interagency negotiations within the executive branch and later during the structurally induced legislative ping pong between the Bundestag and the La¨nder of the Bundesrat (which were preceded and/or accompanied by informal negotiations of the Interior Minister Conference, IMK). Coalition negotiations offered access points and room for turf battles. Determined to defend the probable cause hurdle and separation of police and intelligence powers against BMI encroachment, the Justice Ministry had significant stakes in the counterterrorism outcomes. Justice was further determined to oppose BKA preventive

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investigative powers, for as long as possible, as these threatened to undermine existing relations between the Federal attorney general and the BKA and, so Justice warned, further contributed to an expansion of executive power. Illustrating the somewhat hypocritical nature of this line of argumentation, all these powers, and even preventive ones, had long been available to the La¨nder (while the separation of policing and intelligence powers principle was also being maintained). In any case, the 2008 BKA reform finally did afford the BKA the same preventive powers that La¨nder police forces had, albeit only in connection with international terrorism. Regardless, in this particular instance the balance of power has shifted toward the executive and away from judicial oversight. Speaking of the La¨nder, once the interagency players had staked their claims as part of an executive proposal, these could still be stalled and/or overridden by the La¨nder represented in the Bundesrat. Party and interagency interests and influences were, thus, trumped whenever they collided with La¨ nder interests. In fact, the La¨ nder left a large footprint whenever any of the proposed measures touched on La¨nder prerogatives or jurisdiction. The episodes surrounding the 2001 counterterrorism and 2008 BKA acts especially illustrate how the La¨ nder have been dealt a strong hand in the intergovernmental bargaining process. They even have the power to marginalize cabinet and coalition members of the executive branch. For example, despite Green coalition party protests in 2001, the La¨nder managed to secure equal competences for their sixteen domestic intelligence agencies. For the first time, the Bundesrat in 2008 even vetoed a counterterrorism bill put forth by the lower house. This is not surprising, as the Bundestag’s BKA bill represented the most significant encroachment on La¨nder turf since 9/11, and perhaps since the founding of the republic. However, the episode also illustrated that partisan party loyalties are more unpredictable when La¨nder prerogatives are threatened. Even though the CDU-SPD coalition still had a small majority in the Bundesrat, the La¨nder decided to stage a power play against the BKA bill. Similarly, unified government conditions in the United States did not seem to provide much of a comparative advantage either. While ‘‘structural’’ power plays are perhaps less surprising in the German context, as the German Bundesrat is determined to protect La¨nder rights and the status quo vis-a`-vis the federal government, by contrast, the U.S. Congress has a vested interest in producing legislation that translates into tangible electoral results.

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Regardless, some have called the 2008 veto a partisan decision,250 in the sense that the SPD coalition partner (led by Justice Minister Zypries) encouraged the SPD-ruled La¨nder to boycott the bill. However, even if SPD opposition to the bill carried into the upper house, partisan party loyalties did not represent the full picture; abstentions also involved CDU governments and concerns about La¨nder sovereignty featured prominently in parliamentary debates, speeches, and official La¨nder statements. At the end of the day, SPD and La¨nder interests appeared to coincide over various different issues. Protecting the status quo became a nonstarter for the Bundesrat after the federalism reform had passed. However, that did not mean that the La¨nder could not look out for their interests or had to serve as a mere retainer of federal party/ministry preferences. To the contrary, the Bundesrat provided La¨nder representatives with the structural cover to ensure that BKA jurisdiction became more specified and circumscribed. Just as the La¨nder insisted on extending intelligence collection powers to their own services in 2001, they secured equal access to the antiterror database, which was modelled on a design that was significantly influenced by the La¨nder, through the IMK and also the Bundesrat. Their opposition to centralization greatly influenced the look and scope of the GTAZ. Because of anticipated La¨nder resistance to federal centralization plans, the GTAZ became a loose organizational arrangement. The La¨nder were also strongly opposed to any solutions that involved the ‘‘federalization’’ of police and intelligence services, under which the BKA and BfV would gain instructive authority over their sixteen respective state offices. While these plans were initially pursued under Interior Minister Schily in the aftermath of the 2004 Madrid attacks, La¨nder opposition effectively meant that reforms instead resulted in the creation of new connective nodes and hubs in the form of the GTAZ and a joint antiterrorism database. By and large, the nature and scope of the GTAZ and database solutions confirm the federal security architecture and La¨nder sovereignty in the counterterrorism realm, as well as balance of power between the federal government and the La¨nder. Moreover, the fragmented nature of the German security architecture combined with intergovernmental decisionmaking structures resulted in two network-centric approaches. Even though the database solution centralized federal and state counterterrorism data, it also preserved the independence of state security services within the federal structure. Through the GTAZ, the many hierarchical security agency

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stovepipes were connected with new horizontal nodes, and time-consuming procedures supplemented with more direct, informal links between federal and state authorities, as well as across cultural—law enforcement, intelligence, and judicial—divides. The very informal nature of the arrangement had other, more indirect effects and benefits. It ensured the participation of agencies that would otherwise have been reluctant to or even legally prevented from joining a more formalized exchange, such as intelligence and law enforcement representatives from Great Britain, France, and the United States,251 German foreign and domestic intelligence services, and the GBA. The colocation of the latter two is of particular importance, as it helps foster new partnerships between the judiciary and domestic intelligence services for a more preventive counterterrorism approach.252 Intelligence collection practices that are coordinated with the GBA can be tailored to meet the higher criminal prosecution standards, and therefore help prosecute terror suspects. Similarly, as will be seen in the two forthcoming chapters, the British have sought to streamline relations between the evidence collecting Anti-Terror Branches and the domestic intelligence service MI5, while French antiterrorism magistrates have relied on close ties with the domestic intelligence service DST.

Chapter 4

Case Study III: Great Britain

Part 1: British Government Structures and Decision-Making The British notion of parliamentary sovereignty that does not permit any judicial or constitutional checks on the legislative branch effectively concentrates all powers in the hands of the prime minister. While the prime minister benefits from the flexibilities provided by an unwritten constitution, it also gives rise to uncertainties and informal restraints, such as the rules of engagement with his or her party. In addition, Britain’s government structures are more prone to change than those anchored in written constitutions. The role of the cabinet and Lords has evolved significantly since World War II, as have their relationship with the prime minister and executive branch. These dynamics warrant a closer look to determine the structural boundaries of counterterrorism decision-making on 9/11, as well as how they shaped counterterrorism outcomes. British Fusion of Power When analyzing the British government of the seventeenth century, Montesquieu famously praised the separation of powers between the three branches. Since then, the British government system more accurately has served as an example of what Bagehot called the ‘‘singular approximation’’ of the legislative and executive branches—a cabinet government drawn from and sustained by the majority party in Parliament. The centrality of the cabinet, which Bagehot described as the greatest committee of the legislature, is also symbolized in the Commons’ sitting order, where the backbenchers take their seats behind the government’s and opposition’s (shadow) cabinets in the center of Westminster Hall.1

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While this approximation of executive and legislative branches is the constitutional standard in most other parliamentary democracies, the British arrangement is unique because its ‘‘fusion of legislative and executive branches is subject to virtually none of the effective checks of a kind that exist in many parliamentary regimes, as well as in the United States.’’2 The prime minister’s powers are not checked by independent states or constitutional courts as the convention of parliamentary sovereignty holds all acts of Parliament supreme, recognizing ‘‘no person or body . . . as having a right to override or set aside the legislation of Parliament.’’3 The majoritarian electoral system based on single member, simple plurality (‘‘first past the post’’) elections has resulted in a two-party system, in which the majority party usually does not form coalitions. The fusion of power across Britain’s horizontal government structure is also reflected in the vertical organization of the British state. The powers of Westminster Palace extend to the local governments. Despite recent constitutional reforms that devolved power to the regional governments and Parliaments of Wales and Scotland, Great Britain remains a unitary state.4 This extraordinary concentration of power in the British executive continues to draw criticism, even from within executive ranks. In 1976, Lord Chancellor Quintin Hogg, Baron Hailsham of St. Marylebone, famously called the Westminster model an ‘‘elective dictatorship.’’5 More recently, MP Graham Allen claimed that ‘‘of all the democratic countries in the Western world the UK has the most centralized system of political and administrative power . . . . Not for Britain the foreign concepts of states’ rights as in the USA or powerful regional La¨nder as in Germany or the departments and mayoralties of France.’’6 In theory, the House of Commons has the power to withdraw confidence from the government and vote the prime minister out of office. In practice, however, no majority government has been forced to resign since 1895.7 Contrary to past convention, government bills that are defeated at the second reading stage (a general debate during which the bill’s main principles are discussed for the first time) are no longer considered an automatic vote of no-confidence.8 The House of Commons is expected to call an explicit vote of censure instead. However, in a system governed by conventions that are subject to change over time, the consequences of legislative defeats can never be predicted for sure. Only after the Blair government lost two whipped Commons votes during the report stage of the Terrorism bill in 2005 was it clear that ‘‘when a government is defeated the sky does not fall in, that no votes of confidence are called, and that the government does not collapse as a result.’’9 These unwritten conventions and acts of

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Parliament make up Britain’s constitutional law, which is constantly in flux and provides flexibility to respond to changing circumstances and pressures.10 Similarly, the prime minister’s role and powers have evolved over many years and are not defined by legislation. In fact, according to Helms, it would be more accurate to state that the ‘‘British constitution reflects rather than circumscribes or restricts the actual room for maneuver that individual actors enjoy within the political system.’’11 The scope of prime ministerial power is especially striking in the foreign affairs realm.12 Under the royal prerogative that allows the prime minister to exercise powers on behalf of the monarch, the prime minister may declare war, make treaties, and send troops into combat—without having to seek consent or approval from coalition partners, or the Senate or Bundestag, as in the United States and Germany.13 Also derived from the royal prerogative, the prime minister’s authority to appoint, re-assign, and dismiss cabinet members and other ministers, gives him significant powers to advance his own agenda.14 He or she may unilaterally create, abolish, split, or merge government departments by means of prime ministerial edict.15 In addition, the prime minister sets government priorities and agendas for cabinet meetings, which he also chairs, and sums up all discussions led therein.

Decline of the Cabinet and Rise of the Presidential Prime Minister These fusion of power characteristics and far-reaching prime ministerial prerogatives have given rise to an idealized American view of how the British system works. According to this view, government policy is collectively decided by a cabinet that is ruled by the prime minister, and subsequently whipped through the rubber-stamping Parliament. While the cabinet does indeed hold collective responsibility for all government decisions, it no longer serves as central forum for decision-making. Furthermore, the prime minister post is far from impervious: ‘‘Behind the veil of collective responsibility, ministers may pursue personal ambitions, interdepartmental battles, and even, on occasion, intrigues against the Prime Minister.’’16 In fact, more than anything, the party, and the prime minister’s standing within it, determine his or her ability to pursue political agendas. Since 1999, the emancipation of the Lords has further complicated executive strategizing and decision-making dynamics in the Commons.

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In what Helms calls ‘‘one of two most important structural developments within the British post-war executive,’’ the role of the full cabinet as a decision-making body has declined since World War II, reflecting the need for more centralized decision-making authority and coordination. The growing number of cabinet committees has empowered the prime minister and committee chairpersons but undermined the authority of the full cabinet. Whether resolved issues are to be introduced to the full cabinet at all has been at the discretion of the chairperson since the 1970s—a position the prime minister fills himself in the most important committees.17 Reflecting on his own experience, R. H. S. Crossman made a powerful argument in the 1960s that the prime minister has replaced Bagehot’s Cabinet as ‘‘the hyphen which joins, [and] the buckle which fastens, the legislative part of the state to the executive part.’’18 Crossman’s claims were reinforced by John Mackintosh’s seminal study on the British cabinet, in which he concluded that ‘‘the country is governed by the prime minister who leads, coordinates and maintains a series of ministers.’’19 This may be easier said than done. Neustadt illustrates how Macmillan and Wilson ‘‘tiptoed around their cabinets’’ and ‘‘engineer[ed] faits accomplis,’’ to support their foreign and defense policies.20 Neustadt’s detailed observations of behind-the-scene consultations and selective engagement of cabinet members also show, however, that the cabinet’s final approval can be sought while not actually involving the collective body in the decision-making process.21 With regard to defense and foreign policy decisions in particular, the full cabinet has rarely been involved.22 The decisions to develop nuclear weapons and test the first British atom bomb, for example, were settled by the defense subcommittee, rather than the full cabinet.23 Subsequent nuclear strategy issues were resolved by committees or informal groups of ministers. Similarly, plans for the attack on Port Said leading to the Suez fiasco were drawn up, without cabinet consultation, by a selective group including Prime Minister Anthony Eden’s closest colleagues and advisors.24 More recently, decisions by the Intelligence Services Committee, including heightened terror alerts, were never relayed to the full cabinet.25 According to Riddell, the cabinet never even met between July and September 2002, the time during which the Iraq intelligence dossiers were prepared.26 As in the U.S. and German systems, the prime minister often reaches decisions in informal deliberations involving ‘‘inner cabinets’’ or ‘‘kitchen cabinets,’’ individual advisors, or cabinet committees, or based on bilateral

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agreements with ministers.27 While the lack of cabinet meetings under Prime Minister Tony Blair was a mere continuation of a long-term trend prevalent throughout all postwar administrations, cabinet routines virtually ceased to exist under Blair.28 According to Hennessy, even cabinet committees merely served the purpose of providing an ‘‘audit trail,’’ while the decisions were made elsewhere.29 Many believed that core decisions may have been reserved to just Blair and his Chancellor Gordon Brown.30 Against this backdrop, the decision to set up war cabinets to coordinate the military campaigns in Afghanistan and Iraq was seen as a hollow gesture to mollify Blair’s critics.31 In his 2004 report on decision-making regarding the Iraq War, Lord Butler came to the same conclusion and was highly critical of the extent of informal decision-making that ‘‘reduced the scope for informed collective political judgment.’’32 As the most prominent opponents of the notion of prime ministerial predominance, G. W. Jones and Richard Rose have argued that prime ministers still rely on their cabinet members for expertise and access to information, as they lack institutional resources similar to theirs.33 However, prime ministers have been working on correcting this institutional deficiency. Procedural reforms in the Commons strengthened the prime minister’s position vis-a`-vis the executive departments. The introduction of the Question Time in 1961 increased the prime minister’s need for regular information on a wide variety of agency issues, providing an opportunity for the bolstering and integration of the cabinet and prime minister offices.34 Enhanced staff, resources, and responsibilities have resulted in creation of a quasi-Prime Ministerial Department at Whitehall35 —but just as the decline of the cabinet is rarely talked about, so too is ‘‘the concept of a ‘Prime Ministerial Department’ to maintain constitutional fiction and not to frighten the parliamentary horses.’’36 According to Burch and Holliday, ‘‘an executive office in all but name exists . . . quietly and without publicity, indeed in an evolutionary manner that is typically British, there has been a transformation of the centre of the state. The fact that it has not yet been labeled should not be taken to mean that it does not exist.’’37 Blair’s large numbers of special advisors, appointment of a chief of staff, creation of a press office at Downing Street, and regularly held, televised prime minister press conferences also are more typically associated with presidential systems.38 In addition, ‘‘Blair has gone further than any prime minister since Churchill in overriding and by-passing the advice of the Foreign Office,’’ by hiring his own diplomatic staff at Downing Street and

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placing the European Union policy shop in the Cabinet Office.39 The main foreign affairs private secretary at Downing Street, so notes Riddell, has ‘‘become in effect a national security advisor on the US model.’’40 Similar to the discussions about an increasingly popular support base of German chancellors Schro¨der and Merkel, Foley has argued that the British prime minister has grown increasingly independent of party politics and acted as if mandated by the public directly.41 Heffernan criticizes that these presidentialization42 proponents not only underplay the immense prime ministerial powers but also fail ‘‘to acknowledge the practical imperatives of institutional structures’’ that make it impossible for a president to ever become as powerful as the prime minister.43 No U.S. president, even if backed by Congress, could ‘‘determine the system of local governance in the U.S., prescribe a bill of rights or alter the mode of election of either the House of Representatives or the Senate.’’44 Addressing the British cabinet in 1997, President Bill Clinton noted, ‘‘I’d like to have a 179-seat majority.’’45 Even Foley grudgingly admits that the structural differences between the two systems cannot be fully reconciled, since no prime minister ever enjoys a ‘‘national constituency, a fixed term of office, and an electoral and political independence from the legislature.’’46 Most importantly, the popular mandate will not suffice to keep prime ministers in office. Only as long as ‘‘their political capital is in credit, not debit’’47 in terms of standing in their own party are prime ministers furnished with unparalleled authority. Blair may have been reelected by the British electorate in 2005, but he was forced out of office by his own party only two years later. Informal Checks on the Prime Minister, Courtesy of Party Government The party has the ultimate say on the prime ministerial future since ‘‘a Prime Minister is only as strong as his party, and particularly his chief colleagues let him be.’’48 Similar to all modern parliamentary systems, political parties have dramatically changed the political landscape in Britain since Bagehot’s days and precipitated the decline of Parliament.49 While Parliament is considered a prominent and still necessary venue for prime ministerial apprenticeships50 and constitutional convention since 1923 further holds that all prime ministers must be elected members of Parliament, it is the party that giveth and taketh power away.51

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Contrary to the German system, and seen as the most important power once vested in the Commons, prime ministers are no longer elected by the Commons but their own party, reflecting the conventional requirement that the monarch will only nominate party leaders as prime ministers.52 Likewise, the party initiates leadership changes and may force a prime minister to step down before the end of his or her term. Two of the most powerful and long-reigning prime ministers, Margaret Thatcher and Tony Blair, were thus forced out of office by their own party, which serves as the ‘‘ultimate check’’ on executive power.53 While prime ministers do not face ‘‘formal institutional veto points’’ from coalition parties, Parliament, or federal states, they need to be keenly aware of the informal boundaries set by their own party and colleagues.54 Therefore, it is in the prime minister’s interest to preempt intraparty dissent and facilitate compromise by forming broad-based administrations or alliances. Robin Butler summarizes the nature of the constitutional deal: ‘‘the instruments are all there for, if a prime minister gets off the leash, doing something about it . . . the deal is that you give people very considerable power for five years, then they can be thrown out, and, in the meantime, if things get bad enough there are ways of getting rid of them.’’55 Consequently, no prime minister can afford to take backbench support for granted. Backbench views are likely to have backing from the party and/ or government ministers; individual frustration might escalate into largescale rebellions. In an effort to accommodate backbench criticism, the government has increased the practice of circulating legislative drafts before they enter the official legislative process. While this pre-legislative scrutiny is at the discretion of government officials and still far from commonplace, it is in the government’s interest to take up some committee recommendations.56 For the same reason, the prime minister exercises a great deal of patronage in exchange for the so-called ‘‘payroll votes.’’57 Ministerial and secretarial appointments ensure that more than 50 percent of all majority MPs have a vested interest in seeing the government succeed.58 Certainly, the prime minister may not just rely on carrots but also sticks, as the parliamentary majority is also maintained by a regime of party discipline that is strictly enforced by means of a complex whip system. Even if MPs disagree with certain policies, they are expected to abstain from the vote rather than veto the party line.59 As the most drastic measure in an effort to toe the party line, the prime minister until 2011 could threaten to dissolve the Parliament and call for early elections, as a result of which the MPs risk

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losing their seats. However, the Fixed-term Parliaments Act 2011 established a set term for Parliament, and determined elections be scheduled every five years on the first Thursday in May. Early elections may occur only if the prime minister loses the confidence of the House of Commons, or if the Commons decide on early elections by means of a two-thirds majority. The timing of a general election is therefore no longer determined by prime ministers, who until 2011 had the power to schedule elections while their approval ratings were highest.60

The Fiction of Parliamentary Sovereignty and Emancipation of the Lords Reflecting on the decline of the Commons in 1967, Loewenstein noted, ‘‘the majority of English textbooks and foreign observers still speak of the sovereignty of Parliament, or rather of the Commons. Yet it is now no more than empty dogma. It does not reflect political reality.’’61 Thirty years later, Foster merely refers to parliamentary sovereignty as ‘‘legal fact, not political reality.’’62 If the parliamentary sovereignty doctrine was a misnomer for most of the twentieth century, since the 1970s, parliamentary sovereignty—or the executive reality of it—has further been eroded by the devolution of powers to elected bodies in Wales, Scotland, and Northern Ireland, the evolution of European Union law,63 and the decision to adopt the European Convention on Human Rights (ECHR) into British law. Ewing calls the Human Rights Act of 1998 an ‘‘unprecedented transfer of political power from the executive and legislature to the judiciary.’’64 If the courts find UK law incompatible with the convention, the Parliament needs to either pass a new law or opt for fast-track remedial orders that are subject to affirmative resolution in both houses. According to critics, the Human Rights Act, therefore, provides ample opportunity for judicial activism.65 In any event, these developments increased the number of outside rules and players that the Commons has to yield to—under the continued pretense of parliamentary sovereignty. The creation of a Supreme Court in 2009 by means of the Constitutional Reform Act 2005, ‘‘established to achieve a complete separation between the United Kingdom’s senior Judges and the Upper House of Parliament,’’66 has further reinforced the notion of a more independent judicial branch, and one with greater authority.

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The 2006 Legislative and Regulatory Reform Act gives government ministers additional unilateral powers to amend or repeal acts of Parliament or secondary legislation. Designed to reduce and remove administrative, legal, or financial ‘‘burdens’’ and facilitate reforms, the act has been criticized, inter alia, for usurping parliamentary powers and tipping the executivelegislative balance of power further away from Parliament and toward the executive branch.67 And yet, the British legislative branch fills important oversight and veto functions. Similar to the German Bundestag and U.S. Congress, the British Commons serves as a forum of debate and critique in which government members can be subjected to oral and written inquiries.68 The departmental select committees created in 1979 have institutionalized administrative oversight and, according to Norton, ‘‘constituted the most important reform of the latter half of the twentieth century; possibly of the whole century.’’69 However, the House of Commons has lacked independent intelligence oversight committee powers. The Security Service (MI5), Secret Intelligence Service (MI6), Government Communications Headquarters (GCHQ), Joint Intelligence Committee (JIC), Intelligence and Security Secretariat, and Assessments Staff have been overseen by a special Intelligence and Security Committee (ISC), created in 1994, and (until 2013) located within the Cabinet Office: ‘‘Appointed by the executive, reporting to the executive, and holding membership at the pleasure of the executive . . . (the ISC) has failed to explore the question of executive responsibility.’’70 Until its reform in 2013 (described below), the committee’s access to national security information was therefore solely at the discretion of the government/security agencies and could not be compelled by the committee or the courts.71 The opposition’s ability to influence legislation that reaches the parliamentary floor is usually very slim.72 However, opposition MPs have increasingly been courted by the government as the Lords have gained importance as structural veto points in the legislative decision-making process. Apart from creation of the oversight committees, the emancipation of the Lords must be considered the development with the most dramatic effects on the balance of power between the executive and legislative branches, particularly since 1999. The powers and composition of the unelected House of Lords have undergone significant changes over the past century.73 Even though the veto powers of the once coequal chamber were significantly curtailed in the parliamentary acts of 1911 and 1949, the peers retained powers to delay

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and amend parts of nonmonetary government bills for one session, or the equivalent of a calendar year. Life peerages created in 1958, and the 1999 House of Lords Act that left only ninety-two hereditary peers in the house, further increased the prime minister’s appointment powers and allegiance of peers to the prime minister.74 However, as Cowley has noted, the latest composition changes have had the opposite effect: ‘‘Far from removing an independent check on the government, the Lord’s reforms (perhaps unwittingly) have created a more assertive and confident body.’’75 Peers now feel more justified, if not obliged, to take up opposition issues previously lost in the Commons.76 In fact, the Lords role as a structural veto point appears to increase proportionately to the time restraints the government faces while seeking to rush legislation (for example, toward the end of the session).77 The boosted stature of the peers has not only affected the balance of power between the branches but also the decision-making dynamics in the Commons, traditionally dominated by only two parties. Because of the peers’ increasingly central role with regard to controversial legislation, third party Liberal Democrats—who help tip the scales in the Lords by forming strategic alliances with minority party peers—have been participating in pre-legislative negotiations together with the Conservatives and Labour Party.78 A more recent attempt designed to reform the upper house, the House of Lords Reform Bill 2012, fell victim to coalition quarrels. Among other things, the bill introduced by the Liberal Democrats in June 2012 proposed elections for upper house members based on proportional representation and would have reduced the size of the house. It was opposed by a number of Conservative MPs, however, and eventually dropped by the government.79

Reforms Needed? The 9/11 Attacks from the British Perspective Britain has considerable experience dealing with political violence, which is commonly associated with Irish separatist terrorism. More than 3,600 people were killed over the course of the thirty-year conflict between 1968 and 1998, referred to as the Troubles.80 Among the Republican paramilitary groups seeking separation from Britain, the Irish Republican Army81

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emerged as the main actor, engaging in bombing campaigns against government and military representatives on the UK mainland and continental Europe, in addition to sectarian attacks in Northern Ireland. On the loyalist side, the Ulster Volunteer Force and Ulster Defence Association focused their attacks on Catholic communities in Northern Ireland. While detailed accounts of the Troubles go beyond the scope of this book,82 a summary of British responses can provide insights as to how the experience may have influenced counterterrorism responses after 9/11. British government responses to Northern Irish paramilitary groups can be distinguished into distinct phases. The counterinsurgency focus of the early years gave way to an ‘‘internal security strategy’’ and counterterrorism campaign in the mid-1970s, emphasizing law enforcement and judicial proceedings, and was eventually followed by political negotiations and settlement starting in the mid-1980s. The initial counterinsurgency campaign was triggered by the deployment of British troops to Northern Ireland in 1969. The decision resembled a British effort to assist the Royal Ulster Constabulary against sectarian and intercommunal riots that threatened to escalate into civil war.83 In addition to policing mostly Republican communities, the British army also engaged in surveillance and intelligence collection while conducting thousands of house-to-house, vehicle, and person searches.84 Considered among the most controversial measures, the British response in Northern Ireland included internment without trial between 1971 and 1975 and the use of ‘‘in-depth interrogations.’’85 After a government review in the mid-1970s, the police took center stage once again, with assistance of the army, and a large focus was placed on the Diplock Courts.86 The courts, authorized by the Northern Ireland (Emergency Provisions) Act of 1973–98, featured single-judge trials without a jury. Also at the center of the legislative effort was the 1974–2000 Prevention of Terrorism (Temporary Provisions) legislation, which, inter alia, proscribed terrorist groups, prevented terrorist suspects from entering Britain while forcing their removal to Ireland, and created new offenses for professing support of groups. Furthermore, the act authorized, for example, stop and search powers in public places in Northern Ireland; new intelligence collection and investigative powers; and the detention of terrorist suspects for up to seven days before bringing charges against them. Similar to the German Red Army Faction, the goals, methods, and organizational structure of terrorist groups in Northern Ireland were different from Jihadi suicide terrorism. For example, IRA members significantly

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relied on popular support and sought to keep casualties low (for example, by giving bomb warnings), also in an effort to facilitate the political process. Post-9/11, the nature of the terrorist threat changed. As will be seen in the forthcoming analysis, and fittingly captured by the former National Coordinator for Counterterrorism, Peter Clarke, ‘‘that is not to say that we have forgotten the lessons of dealing with 30 years of Irish terrorism—far from it. But the change in the nature of the threat has meant that, in turn, we have had to change the way in which we do business.’’87 Clarke further notes that ‘‘suicide has been a frequent feature of attack planning and delivery—a stark contrast with the Irish determination to avoid capture. There is no evidence of looking to restrict casualties. There are no warnings given and the evidence suggests that, on the contrary, the intention frequently is to kill as many people as possible.’’88 In 2007, then Home Secretary John Reid also reflected upon differences between more traditional and new forms of terrorism: In terms of intention we are now facing a completely unconstrained enemy . . . spurred on by a perverse perception of morality to achieve an ever greater extent of civilian carnage. . . . In our history . . . we have faced enemies before. . . . But—compared to today— they were constrained by the second element of threat—capability. . . . Nowadays, science has expanded capability out of all recognition . . . Along with unconstrained intent, today’s world allows potential access to almost unlimited destructive capability.89 Similar to the German ‘‘Hamburgistan’’ effect, the ‘‘Londonistan’’ factor—eleven of the nineteen hijackers had been planning the September 11 attacks while residing in the UK—warranted a response. Only four weeks after the 9/11 attacks, the home secretary offered an outline of a new government antiterror bill in the House of Commons. The Blair cabinet justified the new antiterror proposal by arguing that existing policies were insufficient as they were ‘‘designed to counter the threat from terrorism on a different scale.’’90 Lawmakers agreed, while also noting that Britain ‘‘already had effective and well-established counter-terrorist structures . . . [and] more anti-terrorist legislation on its statute books that almost any other developed democracy.’’91 In fact, only six months before the 9/11 attacks, British counterterrorism measures were reviewed in the context of the Terrorism Act 2000. The

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act defined terrorism and terrorist groups for the first time and included new offenses like inciting terrorist acts overseas or training for terrorist purposes. Among its most controversial provisions were the wideranging stop-and-search powers. Police officers were now authorized to stop and search vehicles and persons they reasonably suspected to be terrorists for items that may be used in connection with terrorism. In addition, the act gave police wide-ranging arrest powers without a warrant, largely based on constables’ individual judgment of terrorist suspects. Moreover, the Regulation of Investigatory Powers Act 2000 (RIPA) adjusted security surveillance powers to technological advances while also further extending them. Among other things, RIPA authorized the home secretary and police to request the release of encryption keys from individuals and the installation of interception devices by Internet service providers.92 In any event, the Home Affairs Committee welcomed the review of available security powers after 9/11 and considered many of those proposed as part of a new bill justified because ‘‘the events of September 11 brought a whole new dimension to terrorism.’’93 According to the Defence Committee, ‘‘a threshold has been crossed in terms of scale and level of casualties.’’94 With sixty-seven citizens dead, the 9/11 attacks cost more British lives than any single terror attack in the past. Since 9/11, Al-Qaeda-sponsored terrorism has, thus, been viewed as a major security threat in Britain.95 In fact, Britain was the only EU member country to declare that the country faced a ‘‘public emergency threatening the life of the nation’’ in fall of 2001. Moreover, on July 7, 2005, Britain suffered an Al-Qaeda-inspired terrorist attack on its own soil, the first suicide attack to commit mass murder in the UK. Since the London 7/7 attacks, numerous other instances of foiled terror plots in Great Britain were also thought to be Al-Qaeda sponsored and/or inspired. In the political arena, Prime Minister Tony Blair was in an extraordinary strong position to see through reforms. He commanded a significant majority in the Commons and considerable support from within the Labour party. Moreover, he had proven that he was not shy to draw on and further expand unilateral prime ministerial powers. With the authority vested in him as the head of the executive branch, he had boosted the institutional resources of Whitehall to unprecedented levels and reduced cabinet functions to the bare minimum. A detailed breakdown of the decision-making process underlying British counterterrorism measures

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should offer insights on whether and how interbranch relations shaped the process and outcomes after 9/11.

Part 2: Post-9/11 Counterterrorism Responses Initial Response: The 2001 Anti-Terrorism, Crime and Security Act Only four weeks after the 9/11 attacks, Home Secretary David Blunkett offered an outline of the Anti-Terrorism, Crime and Security bill in the House of Commons.96 The bill was largely a product of the new Defence and Overseas Policy Committee for International Terrorism, created just weeks after 9/11.97 Located in the Cabinet Office, the committee was designed to facilitate interagency coordination among government departments and chaired by the prime minister. The bill was published and introduced November 13, less than a week before the second reading on November 19, 2001.98 The 122-page proposal spanned a variety of measures, which, among others, targeted terrorist funding, created terrorism offenses, streamlined immigration and asylum procedures, and introduced security measures for aviation and nuclear facilities. No less than four parts focused on expanding information collection and sharing authorities, as well as dissolving old and establishing new jurisdictions. Similar to the stop, question, and search powers used in Northern Ireland and those that had already been adopted as part of the 2000 Terrorism Act, Part 10 of the bill further broadened police powers to stop, search, identify, and detain terrorist suspects, especially at airports, and extended the jurisdiction of the Transport and Military Police. Under the new information-sharing mechanisms in Part 3, HM Customs and Excise and the Inland Revenue authorities would receive powers to disclose information for the purposes of any criminal investigations, the latter also for any intelligence-related proceedings.99 While the bill did not provide for the seizure of ‘‘tangible’’ items like provision 126 of the U.S.A. Patriot Act, the disclosure of information powers extended to all documents in terrorismrelated investigations.100 Pursuant to Part 11, all security agencies could access communications data that now had to be retained by Internet and phone service providers for a twelve-month period.101 Absent any content information, so-called ‘‘traffic data,’’ including subscriber details, itemized

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billing information, access to websites, and mobile phone location coordinates, could be obtained for national security or crime-related purposes. Among other things, Part 13 authorized the MI6 and GCHQ to operate domestically against foreign terrorist threats and their apparatuses, allowing for the interception of communication between terrorists in Great Britain and their overseas partners. In addition, Part 13 would apply secondary legislation rules (which allow the government to make changes to existing, primary legislation without parliamentary involvement) to all measures on police and criminal judicial cooperation decided under the EU’s old third pillar. In other words, third pillar EU decisions would be exempt from parliamentary review in Great Britain, which, according to critics, conflicted with the paramount convention of parliamentary sovereignty.102 Apart from the speedy nature of the decision-making process surrounding the proposed legislation, MPs were further critical of the wide-ranging scope of the bill and its ‘‘Christmas tree’’ provisions.103 However, the most controversial bill provisions included new terrorism and crime-related investigative and collection powers; the aforementioned automatic implementation of third pillar EU measures; a clause prohibiting the incitement of religious hatred or violence; and new executive powers to authorize indefinite detentions of foreign nationals. As a matter of fact, the latter was reminiscent of internment without trial measures used between 1971 and 1975 in Northern Ireland. The day Home Secretary Blunkett introduced the bill to the House of Commons, he also initiated the necessary steps to invoke Article 15 of the ECHR and declare a public emergency, the legal formality that would allow Britain to opt out from Article 5 of the convention (the right to fair trial within ‘‘reasonable time’’) and adopt the proposed detention clause.104 According to Blunkett, this step was needed to address an existing conundrum: while the EU convention ruled out indefinite detention of terror suspects, it also did not allow for extraditions if there was a chance that individuals might be subjected to torture. Suspects who could not be prosecuted due to lacking evidence were, thus, free to roam the country. The British government had also opted for derogations during the Troubles. According to former (Conservative) Home Secretary, Lord Waddington, several of the provisions included in the act had been ‘‘hanging around in the Home Office for a long time’’ and been excluded from the Terrorism Act passed in 2000.105 In fact, the incitement to religious hatred offense, so

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Waddington argued, had been on the Home Office wish list since 1985. Lending further support to his claims, the government had previously sought disclosure powers similar to those now included in the bill. Massive criticism in the Lords, however, forced the government to remove the disclosure measures from the Criminal Justice and Police Bill 2000–01.106 Criticism of the newly proposed bill was not limited just to members of the opposition but of bipartisan nature. A November 14 report by the Joint Committee on Human Rights warned against ‘‘push[ing] a Bill of this size and complexity through Parliament at such breakneck speed.’’107 Regarding new counterterrorism powers, the report noted that these were ‘‘thoroughly overhauled and extended in the Terrorism Act 2000,’’108 and that authorities of the security agencies to conduct surveillance as well as data retention policies for telecommunication and Internet service providers were ‘‘thoroughly reexamined and extended in the Regulation of Investigatory Powers Act 2000.’’109 The Home Affairs Select Committee came to a slightly different conclusion, arguing that ‘‘the events of September 11 brought a wholly new dimension to terrorism [so that] it is inevitable that they have prompted a major review of the powers available’’110 to counter the new terrorist threat. While it acknowledged the government’s efforts to work together with the committee to allow for some pre-legislative scrutiny, it further criticized that testimony had to be taken from ‘‘witnesses who were only able to make an educated guess at what the Bill might contain.’’111 The committee further noted that passing the bill through the House of Commons in ‘‘exactly two weeks with only three days of debate on the floor of the House’’ was ‘‘far from satisfactory.’’112 Moreover, it stressed the need to include sunset clauses for Part 4 provisions, saw ‘‘no reason for the [religious incitement] measure to be included,’’113 and advised against adopting the third pillar measures by means of secondary rather than primary legislation. And yet, while the government proposal was not without criticism, opposition to the bill did not translate into backbench revolts of actual consequence.114 In this time of crisis and uncertainty, MPs did not want to be accused of belonging to the ‘‘yoghurt and muesli-eating, Guardianreading fraternity . . . protect[ing] the human rights of people engaged in terrorist acts.’’115 The government pressed ahead in its quest for a speedy passage of the bill, which appeared to be settled after the November 19 second reading—all the time fully aware that the bill would fare a bumpier ride in the upper house. Sure enough, the peers soon began flexing their

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muscles to impose amendments on the most contested measures,116 knowing that they had the full-fledged support of their party colleagues in the lower chamber. For example, although Shadow Home Affairs Secretary Oliver Letwin had signaled general support for the bill, he also kept insisting on amendments to the indefinite detention and incitement to religious hatred clauses.117 Anticipating peers’ resistance regarding the detention and blasphemy measures and trying to fend off backbench criticism from Labour MPs, Blunkett offered first concessions on November 21. Inter alia, he announced that the detention powers would be subject to both a five-year sunset clause and independent review by Lord Alex Carlile, who was also responsible for the yearly assessment of the 2000 Terrorism Act.118 In addition, he proposed that the religious incitement clause be reviewed after two years.119 On November 26, the House of Commons approved the government measures, which were then sent to the House of Lords for debate. Events in the House of Lords soon illustrated that the government’s concerns had not been unfounded. The bill’s provisions on incitement of religious hatred, disclosure rules for crime-related investigations, and the lack of judicial review of indefinite detention decisions were bitterly contested. In other instances, the proposed provisions did not go far enough: for example, the peers voted to extend detention clauses to terrorist suspects planning domestic as well as international attacks.120 Over the next two weeks, the peers proceeded to veto the government bill. On December 6, seven government measures were defeated and amended.121 Two amendments focused on the detention clause, introducing judicial review of detentions and vetoing derogation from Article 5 of the ECHR. Five other votes imposed new restrictions on police authorities to access bank, tax, and communications records, limiting them to those exclusively related to terrorism and national security operations and the retention of communications data. Lawmakers faced a crime-terrorism conundrum. Lord Robert DixonSmith commented accordingly: ‘‘In promoting themselves and in funding their operations, terrorist organizations almost certainly commit all kinds of crime. But not all kinds of crime are necessarily terrorist-related.’’122 Contrary to the new terrorism authorities conferred by the U.S.A. Patriot Act, in Britain the broadened disclosure and collection powers, for the most part, did not yet exist for the investigation of ordinary crimes.

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Furthermore, the broadened disclosure rules under Part 3 directed public authorities like schools or hospitals, as well as Customs and Revenue Departments, to disclose certain kinds of otherwise confidential information to law enforcement and intelligence services. However, the peers found ‘‘something wrong in having about 81 government agencies and quangos [quasi-autonomous nongovernmental organizations] disclose almost everything to almost any law enforcement officer, who was trying to investigate almost any crime, anywhere in the world.’’123 Instead, they insisted on confining access by giving public authorities some say in the matter.124 With regard to the retention of communications data, the peers soon relented and insisted on only some cosmetic changes. If a department head believed or suspected that the relevant data related even ‘‘indirectly to any risk to national security or to a terrorist,’’ it could now be used for the purposes of prevention or detection of crime.125 The clause, therefore, left enough room for interpretation but maintained the terrorism link in an attempt to avoid ‘‘fishing expeditions on the part of authorities under the guise of pursuing criminal investigations.’’126 Blunkett accepted additional restrictions under which the data would be grouped separately, corresponding to its criminal or terrorism relevance.127 In exchange for this concession, the peers also conceded to reinstating the clause they had removed and subsequently amended, one that expanded the jurisdiction of the Military and Transport Police.128 The data retention provision would have to be renewed every two years, and both houses would have to approve it by means of affirmative resolution. The peers were willing to consider government concessions in other areas as well. While they originally sought to sunset the controversial detention clause after two instead of the five years proposed by the government, they dropped their demands after Blunkett offered reviews by the Privy Council Committee: senior MPs appointed by the home affairs secretary would review the legislation’s effectiveness after two years.129 In response to peers’ demands for judicial reviews of all detention decisions, Blunkett offered to raise the status of the Special Immigration Appeals Commission to that of a superior court of record.130 Also, the detention provisions would expire after fifteen months, unless renewed by annual resolution. However, members of the upper chamber resisted what they perceived as an attempt to sidetrack Parliament, and therefore a violation of parliamentary sovereignty.131 The bill as presented to the peers would allow the

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executive branch to fast-track EU legislation on criminal law into British law by means of secondary legislation. The Earl of Onslow noted accordingly: ‘‘the reference to the third pillar goes very wide. . . . the clause allows Ministers to make laws, agreed in secret in Brussels, which would have a very wide effect. To introduce them by the back door, through rushed legislation, is an abuse of Parliament, an abuse of privilege and an abuse of executive power.’’132 The government’s position had been on weak footing ever since Minister Blunkett admitted in a hearing before the Home Affairs Committee that the provision could be used to enact, by secondary legislation, any measure agreed under the third pillar, regardless whether such measures had relevance to the fight against terrorism.133 Facing defeat by the peers, Blunkett offered a compromise amendment that limited EU implementation powers to six months, until July 1, 2002.134 The peers also did not budge in their opposition to creating a new offense of incitement to religious hatred. Arguing that it did not relate to terrorism but instead represented a major infringement on free speech, the peers threw out the incitement clause twice, thus raising the stakes in the confrontation.135 The government’s determination to ensure passage of the bill before the Christmas break put it in the weaker position, with less time for the usual ping pong between the chambers. Short of delaying the bill as a whole, the government decided to abandon the clause on December 14.136 The same night, and one month after it had been introduced to the Commons, the Anti-Terrorism, Crime and Security Act received Royal Assent and became law. In the end, the upper chamber served as an important ‘‘check of power on the Government,’’ with the conservative peers securing six concessions and, in many ways, completing the work of the Commons backbenchers and opposition.137 Backbenchers had most vehemently objected to creating a new offense of inciting religious hatred and further argued that any executive decisions to detain terrorist suspects without trial needed to be subjected to judicial review.138 While arguably forcing more of a change with respect to the former than the latter, the government’s strategy to view the peers as a mere mouthpiece for opposition MPs did not pay off in the legislative ping pong with the Lords.139 Commenting on the government’s apparent failure to coordinate the bill’s EU clause with likely supporters in the House of Lords, the Earl of Onslow gloated: ‘‘It is an incredible achievement for the Government . . . to fail even to get the Liberal Democrats— who are Euro-creeps par excellence—to agree with them on this issue.’’140

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A Strengthened Intelligence Coordinator and a New JTAC In June 2002, Prime Minister Blair announced the creation of the UK security and intelligence coordinator who would be in charge of the national intelligence machinery. Appointed as the first coordinator, Sir David Omand would be responsible for developing and coordinating a national counterterrorism strategy across all government agencies, and also serve as the government’s chief crisis manager for civil contingencies.141 Starting in 2003, Intelligence Coordinator Omand developed the CONTEST strategy, which laid out the government’s various counterterrorism, counterradicalization, public protection, and emergency response/recovery objectives and instruments.142 The strategy was accordingly organized into the four functional pillars: pursue, prevent, protect, and prepare.143 As Accounting Officer for the Single Intelligence Account, Omand would further determine intelligence requirements and lead the intelligence budget process, tasks previously performed by the cabinet secretary. In fact, a closer analysis of the announcement shows that the intelligence coordinator position was not new and had existed since 1968. Until the 2002 arrangement, the coordinator merely advised the cabinet secretary on coordination and resource requirements of the intelligence community. Pursuant to the reform, the position would be strengthened, equipped with greater authorities and responsibilities, and effectively gain the rank of a second cabinet secretary.144 This step was designed to strengthen interagency coordination among the various members of the domestic security community. Although the Home Office is in charge of the forty-three police services in England and Wales and has statutory responsibility for the MI5, there is no single authority for counterterrorism.145 Both MI6 and GCHQ are under the authority of and accountable to the foreign secretary. MI5 and MI6 analyses flow upward to the Joint Intelligence Committee (JIC) as part of the Cabinet Office, which draws its membership from senior officials of the relevant government departments. Supported by the Intelligence Assessments Staff, the JIC is chaired by the head of the Joint Intelligence Secretariat, who, from now on, would be reporting to the new coordinator. The heads of MI5, MI6, GCHQ, and the chief of the Assessments Staff are also JIC members, so that the JIC forms the core interface between the prime minister, coordinator, and intelligence services. The JIC is responsible for providing senior officials with coordinated interdepartmental

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intelligence assessments on a range of long-term national security interests. Moreover, the JIC coordinates, directs, and reviews the work of intelligence services and determines intelligence gathering priorities.146 After November 2005,147 the UK security and intelligence coordinator became dual-hatted and also served as JIC chairman148 (until Prime Minister Gordon Brown announced in July 2007 that the responsibilities of the JIC chairman would again be separated from those of the intelligence coordinator, whose responsibilities would also be reduced and transferred to a new Office for Security and Counterterrorism (OSCT) inside the Home Office).149 Reflecting the recommendations of the Butler Report, this step was intended to strengthen the position of the JIC chairman as an independent head of intelligence assessment and set it apart from the political process and policy advisory tasks performed by the coordinator. Reminiscent of the U.S. debates surrounding the appointment of homeland security and intelligence czars, the Butler Report further recommended selecting ‘‘someone with experience of dealing with ministers in a very senior role, and who is demonstrably beyond influence, and thus probably in his last post.’’150 This person would therefore equal or preferably outrank committee members, including the heads of the security agencies. By contrast, critics were concerned that the two positions were not compatible and that the coordinative interests of the coordinator, as representative of the whole intelligence community, would interfere with the impartiality that was expected from the JIC chairman as intelligence advisor of the prime minister.151 However, a proposal to separate the two functions did not gain traction until July 2007, as mentioned above.152 Also in 2005, so-called weekly security meetings started taking place in the Cabinet Office. Chaired by the home secretary, the meetings were mandatory and designed to facilitate ‘‘institutionalized coordination, exchange of information, grouping together of . . . all of the counterterrorist elements pan-government . . . because the threat . . . is seamless.’’153 Bringing together cabinet members, counterterrorism services, and other counterterrorism experts, these meetings would continue under the Brown government as well. They were eventually formalized by Prime Minister David Cameron, who, in 2010, created a permanent National Security Council (NSC). The Home Office further announced in February 2003 that the multiagency Counter-Terrorist Analysis Centre, created soon after 9/11 as part of the MI5, would be expanded into the Joint Terrorism Analysis Centre

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(JTAC) with one hundred staff.154 Until the 2005 London attacks resulted in more reorganization, the JTAC was considered the centerpiece of ‘‘the most substantial reshaping of the intelligence community since 1946–48, when Stalin was ensconced in Moscow and when MI6 did not officially exist.’’155 An interagency venture, JTAC was housed inside MI5 and reported to the JIC through the MI5 director general. JTAC’s original eleven members included representatives from the three intelligence services, the Defence Intelligence Staff, the police, and the Foreign and Home Offices. The center was supposed to focus on short-term analysis and be responsible for issuing warnings and administering threat levels. In the meantime, the JIC staff was strengthened to ensure long-term threats warning and analysis capability. JTAC assessments would be disseminated to federal and local police authorities via the Special Branches, which served as an institutional bridge between British intelligence and law enforcement.156 Specifically, the intelligence collecting Special Branch of London’s Metropolitan Police Service (aka Scotland Yard) was the ‘‘primary point of contact with MI5’’ for many years; MI5 and Special Branch officials met on a weekly basis to coordinate their operations. In 2002, Assistant Commissioner David Veness described this unique relationship as ‘‘a golden thread by which we can move intelligence into an operation and an operation then ideally into a prosecution. . . . If we did not have that mechanism somehow we would have to invent it.’’157 Like the German domestic intelligence services, the MI5 does not have compulsory powers, but could instead rely on Special Branch agents for these executive functions. The MI5 could also task Special Branch officers and work with them together in the field.158 Without doubt, MI5’s operational relationship with law enforcement is more established and institutionalized than that of its German and U.S. counterparts.159

The 2005 Prevention of Terrorism Act On December 16, 2004, the Law Lords ruled that the Part 4 indefinite detention provisions of the 2001 Anti-terrorism Act were not consistent with the European Convention on Human Rights. The famous Belmarsh case160 ruling argued that these provisions were discriminatory as they only applied to foreign nationals and not proportionate to the threat Great Britain faced from terrorism. Law Lord Leonard Hoffmann justified the ruling

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as follows: ‘‘The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.’’161 While the verdict was not binding, it carried significant informal authority, prompting the government to announce plans for legislation that would replace indefinite detention powers with a ‘‘twin-track approach:’’ new deportation and control orders ‘‘for containing and disrupting those whom we cannot prosecute or deport.’’162 The Prevention of Terrorism bill was introduced to Parliament on February 22, 2005, and scheduled for its second reading the following day.163 As the Part 4 powers were due to lapse on March 14 (subject to affirmative resolution in both houses), the government was operating on an even tighter timetable than when passing the 2001 Anti-Terrorism Act.164 Contrary to the Part 4 provisions reserved for noncitizens, the new control orders would allow MI5 and Scotland Yard to ‘‘keep tabs’’ on, monitor, and watch over terrorism suspects (both foreign and British citizens) who, due to lacking evidence or human rights violations in their home countries, could not be prosecuted or deported. The control orders were designed to restrict their movement, contacts, and access to communication technology, thus disrupting their activities while also serving as intelligence gathering tools. Therefore, the proposed bill would apply the much broader terrorism definition of the 2000 Terrorism Act that included domestic terrorism, and not merely be directed against international terrorism.165 Of the fourteen different control orders, some, like house arrests, were more serious than others and would require derogation orders (that would exempt them from Article 5 ECHR); these required higher standards of proof of terrorism-related activities, as well as court notifications within seven days.166 The next general elections were to be held less than three months later, a circumstance that further politicized the debate. Indeed, both opposition parties voiced opposition to detaining British citizens in ‘‘their living room’’ on the order of politicians, with the Liberal Democrats arguing that intercepted communications should be available for use in court instead, so terrorist suspects could be prosecuted.167 This would require amending the RIPA, which prohibits the use of intercept material in court proceedings. In fact, a 1996 Law Lord report had already concluded that information derived from phone wiretaps should be admissible in court.168 Reflective of

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British secrecy traditions designed to conceal intelligence practices at all costs, the ban has been thought to have hampered Britain’s ability to successfully prosecute suspected terrorists. Critics further argued that Britain’s striking array of preventive detention and control order programs represents attempts to make up for the disadvantages associated with the ban.169 Long pre-charge detention periods—fourteen days at the time—were thought to help extract information from suspects or else help assemble less available evidence.170 Control orders also were supposed to serve as intelligence collection tools while terror suspects could not yet be prosecuted or else deported. Be that as it may, in a meeting with opposition leaders on February 18, Prime Minister Blair and Home Secretary Charles Clarke repeated their opposition to the evidentiary use of intercept material, citing the risks associated with revealing surveillance capabilities.171 Their concerns were in line with those of counterterrorism services, who arguably were not as concerned with prosecution rates but more interested in protecting their methods and techniques.172 During the main debate on February 28—with both committee and report stages of the bill scheduled for the same day—Home Secretary Clarke signaled his willingness to consider concessions, but then annoyed MPs because he insisted on saving them for negotiations with the Lords. In response, sixty-two Labour MPs rebelled and supported an amendment that would require judicial rather than ministerial approval for all control orders. Even though the government managed to veto the amendment by a narrow margin of fourteen votes, everything was pointing toward conflict in the Lords.173 Adding more fuel to the fire, Robin Cook, former foreign secretary and senior backbencher, suggested that same night that the Commons had ‘‘sent the House of Lords a message’’174 of what the concessions should entail. Indeed, Russell and Sciara have argued that, ‘‘2005 witnessed the biggest row between the government and the peers since the start of the twentieth century, leading to the biggest defeats in the Lords since Labour came to power, and the longest parliamentary sitting day on record.’’175 Such was the severity of the struggle that Lord Chancellor Charles Falconer felt the need to remind his fellow peers that, ‘‘as a constitution, we accept the primacy of those in the commons. Yes you can disagree with them, and yes, you can ask them to listen again, but you must ultimately accept that the Commons is the prime House in our Parliament.’’176 His Conservative shadow, Christopher Prout, Lord Kingsland, responded in style, insisting

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that ‘‘we have our constitutional duty in this House, which has been given to us by, among other institutions, another place. It would be wholly wrong for us to shirk.’’177 All in all, the government suffered nineteen defeats, six of which by a margin of over 100 votes. Continuing the work of Commons backbenchers, peers objected to control orders to be issued by politicians—in response, the government suggested an amendment that would require court approval for the most severe orders. Because time pressures left little room for debate, peers insisted on installing a sunset clause, defeating the government by a record 187 votes (including twenty-four Labour peer votes). At the end of the day, however, both sides backed down. The government agreed to some court involvement for all control orders and promised to introduce a follow-up bill. The watered down sunset provisions included annual renewal of control orders by means of affirmative resolution in both houses of Parliament.178 Except in emergency cases, where the home secretary could issue provisional orders for up to seven days (subject to retroactive court reviews), the secretary would have to apply for control orders, which would be granted on the basis of intelligence information and public hearings. Depending on the degree of restrictions, there would be two kinds of control orders. Nonderogating control orders were automatically subjected to judicial review and could be challenged in court.179 While they were limited to a maximum period of twelve months at a time, they could be renewed indefinitely. Derogating control orders (requiring derogation from Article 5 of the ECHR) expired after six months, after which the order could not automatically be renewed but would be subject to a new judicial review process. Orders could be tailored to individual cases, so that suspects might be prohibited from going to airports and railway stations, be subject to curfews, or asked to report to police stations daily. The home secretary would have to report to Parliament every three months about how control order powers were employed; Lord Carlile, the Independent Reviewer of Terrorism Legislation, was tasked with conducting annual reviews of the act. After the final thirty-two-hour conference marathon on March 10 and 11, 2005, the bill was passed just in time so the detention orders under which twelve terror suspects were being held could be converted to control orders.180 While the government ultimately did succeed, as changes imposed by the peers did not substantially alter the bill, Russell and Sciara argued that ‘‘the Lords had shown its capacity to provide a strong institutionalized opposition to the government and did not appear to have

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suffered greatly as a result. Indeed the stature of the chamber was probably enhanced.’’181 Their verdict was shared by Britain’s major media outlets on both sides of the political divide. Making a case for the peers’ newfound authority, left-of-center editorials argued that the unelected peers had stepped up to defend civil liberties and complete the work of the elected Labour MPs.182 The peers’ opposition, thus, strengthened the Parliament’s position vis-a`-vis the executive. It also affected the ‘‘dynamics of party system’’ within the chambers, establishing the third-party Liberal Democrats as an opposition force to be reckoned with.183

After the London Attacks: Reorganization and Regional Connectedness The Prevention of Terrorism Act was passed with the understanding that the subject would be revisited after the general elections scheduled for May 5. Consequently, a draft terrorism bill was published in June 2005. Shortly after, on July 7, 2005, four British suicide bombers attacked London’s metro and bus lines, killing fifty-two people. Following the attacks, the government announced—with the support of the opposition parties—that the issue of control orders would be decoupled from this new legislation and revisited in spring 2006, after Lord Carlile had completed his first independent review.184 In response to the worst terrorist attack on British soil, MI5 reorganized. To bolster local connectedness and surveillance capabilities, the Security Service set up eight regional offices in cities like Glasgow, Liverpool, Manchester, and Leeds, followed by a ninth one in Northern Ireland in 2007.185 This decision was revolutionary in the sense that it marked the first time that the MI5 would operate regional offices since its creation in 1909.186 The 300 additional MI5 agents would coordinate their work with the fifty-six local Special Branches, and various new regional counter terrorism units (discussed below).187 According to the MI5 director, having regional bases and equipment outside London also facilitated MI5’s ability to respond quickly in times of crisis.188 In response to the foiled airline plot in August 2006, Prime Minister Blair further ordered a regional network of law enforcement and intelligence units to be created. 189 He thus built on an earlier policy decision from 2003 that combined local Special Branch forces as part of eight Regional

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Intelligence Cells.190 Between 2006 and 2009, the cells would become part of the regional Counter Terrorism Intelligence Units (CTIUs), which were newly established in Wales, South West England, the East Midlands, the Eastern Region, and the Thames Valley (replacing the South East unit).191 In addition, larger Counter Terrorism Units (CTUs) were formed in the four English cities London, Manchester, Leeds, and Birmingham.192 Intended to be ‘‘self-generating’’ and carrying out bottom-up investigations, the CTUs were supposed to closely coordinate their work with the regional MI5 cells, local Special Branches, and CTIUs.193 Soon after the discovery of two failed terrorism plots in London and Glasgow in July 2007, Prime Minister Gordon Brown (who took over Blair’s reins in June) ordered the creation of additional regional CTUs and intelligence units, in an effort to further strengthen the community presence of police and intelligence services.194 The CTUs represented the regional offshoot of Scotland Yard’s new 1,500-person Counter Terrorism Command (CTC), which absorbed the Special Branch SO12 and Anti-Terrorist Branch SO13. At first sight, the merger merely appeared to consolidate the police’s evidence and intelligence gathering units.195 On closer inspection, however, the move amounted to de facto demotion and dismantling of the semiautonomous London Special Branch, originally created in 1883 to counter Fenian bombings in London. This was also symbolized by the fact that the new unit was put under the command of Peter Clarke, head of the Anti-Terrorist Branch (ATB). The merger reflected a more general trend and growing need for intelligence that could also be used as evidence in court. For that to happen, the evidence collecting ATB unit had to gain earlier access to MI5 intelligence operations. Once the ATB and MI5 started working together more directly, however, the Special Branch, having served as the connecting link and ‘‘golden thread’’ for many years became increasingly marginalized. Home Secretary Clarke justified the 2005 decision to combine intelligenceled and investigative policing by stressing the different nature of the threat as opposed to the predictability of the Irish rules of engagement. ‘‘If you take all those characteristics [of the IRA campaign] and reverse them . . . you are not too far from describing the nature of the threat we now face.’’196 This meant that the MI5 could no longer sit on intelligence and the ATB draw out arrests until strong evidence was available (and the terrorists were close to attacking), but the whole process needed to be sped up. By connecting directly, the MI5 and the ‘‘judicially oriented’’ ATB were expected to be

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able to act preventively at an earlier stage. Since the Special Branch did not have any added value to bring to the table, its fate was sealed.197

After the London Attacks: The 2006 Terrorism Act According to the Blair government, the Terrorism Act 2006 did not represent a direct response to the London attacks in July 2005. While significant portions of the bill may have been prepared before the 7/7 attacks, consultations with security agencies after the bombings, and the piecemeal assembly of the bill in the fall of 2005, indicate a more direct response than the government claimed. During the drafting phase, government officials repeatedly met and discussed the main provisions of the bill with the home affairs spokespersons of the Tories and the Liberal Democrats.198 One day before a second bombing attack on London’s transportation system failed, Clarke presented a first outline of the government proposal to the House of Commons.199 The bill broadened the investigatory powers of police and intelligence services. Among other things, the bill further expanded stop-and-search powers to cover bays and estuaries, as well as ports. The ‘‘all premises’’ warrants would allow police to search any property owned or controlled by terrorist suspects instead of only searching for previously specified items. Under the proposed regulations, the police would also be authorized to search for excluded and special procedure material (for example, personal, medical, or business records). Reminiscent of the loosened rules governing the issuance of FBI National Security Letters, Clause 30 of the bill would allow the home and foreign secretaries to designate senior officials to issue search and interception warrants in urgent cases and without express authorization.200 Clause 32 would allow investigating authorities (the director of revenue and customs prosecution, director of public prosecutions, and lord advocate) to issue broader disclosure notices, requiring individuals to provide information not only in connection with the investigation of specific offenses but any terrorist investigation. Clause 31 would extend the duration of interception warrants from three to six months. The bill further contained a range of new measures designed to facilitate the prosecution of terrorist acts, including new offenses for the planning, preparation of, and training for terrorist acts, as well as the distribution of terrorist publications. While the ‘‘indirect incitement to commit terrorist

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acts’’ offense caused concern, other provisions that were announced by Tony Blair soon after triggered an even greater outrage. The ‘‘glorification of terrorism’’ offense (targeting hate preachers), under which it would be prohibited to ‘‘glorify, exalt or celebrate’’ terrorist acts committed over the past twenty years, became one of the most controversial clauses opposed by many in the Commons and Lords. In early October, Clarke dropped parts of the glorification clause. Under the watered-down provision, it would be much harder to prove the connection between the glorification of terrorism for the purpose of inciting a terrorist attack.201 Perhaps even more contested was an amendment to existing legislation that would extend the detention period for terror suspects from fourteen to ninety days. The government justified the extended detention time by arguing that police services needed the extra time to collect evidence as searches had become more time-consuming.202 For example, police services cited encrypted evidence, massive volumes of intercepted communications, cooperation with foreign security agencies, and foreign translations. Unknown to many, the detention time codified in the Terrorism Act 2000 had already been extended once before after 9/11, from seven to fourteen days, as part of the Criminal Justice Act 2003.203 Seven days had previously been the maximum period of pre-charge detention in Northern Ireland. However, while the fourteen-day limit was a nonissue, the ninety-day limit appeared to come out of the blue, catching even Labour MPs unaware.204 Making matters worse, during the monthly Labour party meeting Tony Blair had made it clear that he was not going to have a debate about the ninety days.205 In response, various Labour MPs became determined to oppose the ninety-day limit. Despite massive protests from backbenchers, Home Secretary Clarke kept insisting on the clause, but also continued to send mixed signals. In a September letter to the opposition home affairs spokesman, Clarke even appeared to express doubts regarding the three month clause, noting that ‘‘I believe there is room for debate as to whether we should go as far as three months and I am still in discussion with the police on this point.’’206 In a heated exchange with Labour MP David Winnick, Clarke further told the Home Affairs Committee on October 11 that the three months was not a ‘‘god-given amount’’ and that he would be flexible about it.207 First introduced to the House of Commons on October 12, 2005, the second reading and main debate of the bill took place two weeks later.208 In early November, the bill was referred to committees for last amendments.

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While the government narrowly salvaged a whipped vote over the ‘‘intent’’ to encourage terrorism, it faced even greater resistance over the detention clause. This did not come as a surprise. In his meeting with the Home Affairs Committee, David Winnick had warned Clarke about backbenchers’ scruples regarding the detention clause that ‘‘quite likely simply will not pass both Houses of Parliament.’’209 Only after Clarke agreed to hold all party talks to compromise about a time period that would be closer to twenty-eight rather than ninety days did Winnick agree to drop his amendment (which limited the time suspects could be held to twenty-eight days).210 Clarke appeared to take the opposition seriously, especially after a private meeting with key backbenchers and Home Affairs Committee members, and signaled his willingness to persuade Blair of the need to compromise.211 At the report stage, however, Prime Minister Blair did not prove flexible. The government reverted to its old position, proposing an amendment to extend detention without charge to ninety days. In an effort to mollify MP critics, Clarke offered a review of the detention clause after a year, as well as weekly judicial reviews of detention cases.212 Nevertheless, the government lost the vote, with forty-nine Labour MPs rebelling. In addition, the Winnick amendment, which had been re-introduced in response to the government course reversal, was passed with fifty-one Labour votes.213 Not only were these two votes Blair’s first defeat in a whipped vote since coming to power in 1997, but they also represented the largest defeats any government had suffered in the Commons since the minority Callaghan government in 1978.214 The Winnick amendment, which limited the detention time for terrorism suspects to twenty-eight days, effectively doubled the period that suspects could be held, but was not nearly as long as the period the government had envisioned. Due to Blair’s strategic blunder, the government had to settle for less even though MPs had been willing to compromise and likely would have agreed to a period exceeding twentyeight days.215 After the detention clause was settled, the peers concentrated their opposition on the ‘‘glorifying terrorism’’ clause. This time around the Commons were again united and twice voted to reinstate the offense that had been dropped by the Lords. In addition, the Commons reinstated police powers to order Internet service providers to remove online terror material without a warrant or any other judicial controls. After vetoing the ‘‘glorification’’ term once more on February 28, the peers finally backed

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down and accepted the provision on March 22. Falling again short of strong sunset provisions, the twenty-eight day provision of the 2006 Terrorism Act would have to be renewed by means of an annual parliamentary vote. The Terrorism Act received Royal Assent on March 30, 2006, more than nine months after the June 2005 London attacks.

Reorganizing the Home Office In spring 2007, Prime Minister Blair announced the reorganization of the oldest executive department.216 The Home Office would be split up and give all responsibilities for prisons, criminal justice, and constitutional affairs to a new Ministry of Justice; the latter would be overseen by a new Justice Committee (the former Constitutional Affairs Committee) in the Commons. While the Home Office would remain in charge of police, immigration, and border control, an emphasis would now be placed on security and counterterrorism. Even though the prime minister was authorized to reorganize the executive branch unilaterally, and Blair had been advocating the split for many years, critics questioned the validity of the shake-up of the 225-year-old department, which ‘‘slipped out in a backhanded way, catching Parliament unawares,’’ without debate or consultation.217 Inside the slimmed-down department, a new Office for Security and Counterterrorism would support the home secretary in managing the cross-government counterterrorism effort. The secretary now held the lead responsibility for the counterterrorism strategy ‘‘in relation to security threats in the UK, including their overseas dimension.’’218 In other words, the home secretary would not only encroach on MI6/Foreign Office turf but also take over counterterrorism functions previously covered by the security and intelligence coordinator inside the Cabinet Office. As the head of the lead agency on counterterrorism, the home secretary would from now on also recommend funding priorities to the Cabinet Office. In an effort to form a more ‘‘unified strategic centre’’ the new department started chairing weekly meetings on counterterrorism operations. Attended by relevant government departments and intelligence agencies, including MI6 and GCHQ, the meetings also afforded the home secretary new authority over these security agencies. Finally, the government, thus far in charge of selecting Intelligence and Security

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Committee members responsible for counterterrorism oversight, announced that it would also look into ways of improving committee appointment and reporting procedures.219 At the strategic policy level, the new office would be supported by a new Ministerial Committee on National Security within the Cabinet Office. Led by the prime minister (or in his absence by the home secretary), the committee was tasked with overseeing the development of an annual national security strategy and a new single security and intelligence budget. The committee, thus, combined the Defence and Overseas Policy committee geared toward international terrorism with the counter-radicalization focus of the Domestic Affairs Committee, representing an attempt to bridge the traditional foreign-domestic policy divide and connect the dots between homegrown and overseas threats. Indeed, Blair had asked Home Secretary John Reid to produce a more seamless approach to tackle the new ‘‘seamless challenge’’ of terrorism Reid described as follows: ‘‘It is local and global. It crosses the traditional boundaries of Foreign, Defence and Domestic/Home affairs. We need to offer a similarly flexible, comprehensive and integrated response.’’220 As part of this more integrated response, Reid was also said to have considered the possibility of merging MI6 and GCHQ into the Home Office, an idea that was met by fierce interagency opposition from the foreign secretary.221 Similarly, when Blair first proposed the split as early as 2001, he had to settle for a compromise as he faced too much resistance from the home secretary and the department itself.222 This time around, opposition to the plans did not come from the department, which would gain stature in the counterterrorism realm, but the aforementioned foreign secretary, as well as the Cabinet Office (which ran the risk of losing all counterterrorism related coordination functions). The turf battle lasted for three months. When all was said and done, the two biggest stakeholders managed to cut some of their losses.223 The two foreign and technical intelligence agencies would not be folded into the new Home Office, but the size of their budget would from now on largely be determined by the home secretary. MI6 would also have to coordinate some operational functions with the Home Office. While the home secretary would become chief ministerial coordinator of counterterrorism, a function that had been exercised by the Cabinet Office intelligence coordinator until now, the Home Office’s new coordinating authority did not extend to the intelligence realm, which continued to reside with the intelligence coordinator, at least for the

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time being. As JIC chairman, the latter would also continue to have a say in all intelligence-related budget and strategy questions.224 The home secretary had not only carved out a powerful position for himself but also unburdened the two main counterterrorism agencies, MI5 and Scotland Yard, so they could exclusively focus on terrorism. While he had adopted the role of quasi-counterterrorism czar, he was still backed by a powerful department, which also explains why he was not opposed to the reforms in the first place. Insisting that the new office represented a uniquely British solution, Reid emphasized that ‘‘the re-focused Home Office is neither a U.S. Department of Homeland Security nor a European Ministry of Interior and Ministry of Justice.’’225 For some who had called for an extra cabinet post of minister for national security inside the Home Office this arrangement did not go far enough.226 Others warned that the ‘‘balkanization’’ of the Home Office would result in increased ‘‘inter-departmental wrangling’’ among the many agencies responsible for counterterrorism.227 Yet others were more concerned about the long-term effects this power-shift would have on the position of the prime minister. Former Home Secretary and Security Coordinator Blunkett warned that the split left the prime minister and the chancellor with ‘‘the only really powerful positions’’ in the cabinet.228 This also explains why Brown did not oppose a reform project initiated during the last days of the Blair reign. For the first time, a British prime minister would be in charge of a national security strategy and unified budget.

The 2008 Counter-Terrorism Act: Pre-charge Detention Battles Continue Having assumed office in June 2007, the Brown government soon announced plans to revisit the issue of longer pre-charge detention of terror suspects.229 In December, Home Secretary Jacqui Smith presented the government’s proposal:230 according to the scheme, the home secretary would be able to extend the pre-charge detention limit from twenty-eight to forty-two days in the context of specific investigations, and if supported by the chief constable and the director of public prosecutions. A judge would review the extension every seven days, and the Commons and Lords would have thirty days to approve the extension.231 In the absence of such approval, the limit would revert to thirty days. As this was considered an arrangement for only rare and

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exceptional circumstances, the twenty-eight-day limit would remain in place as well and would continue to need annual parliamentary approval. The Counter-Terrorism bill that was introduced to the Commons in January 2008, therefore, included a provision that extended pre-charge detention from twenty-eight to forty-two days.232 Prime Minister Brown had decided to give this controversial issue another try, even though it previously led to one of the biggest upsets in Blair’s tenure. Moreover, Brown had met with Home Affairs Committee members, who not only told him that they did not support the measure but that the Lords would not either—should the government manage to muscle the bill through the Commons.233 Brown still went ahead. For one thing, Brown was arguably looking to establish his own credentials on the national security front. Secondly, and like Blair before, he was also pressured by various counterterrorism services234 about the need for extended pre-charge detention time to produce credible evidence for convictions. The Glasgow airport and London car bomb attacks that occurred earlier that year represented an opportunity to revisit the issue and assert that the terrorist threat was real and needed to be taken seriously.235 Despite the controversial nature of pre-charge detention and even though various proposals were published before the bill was introduced in the Commons, the bill was not subjected to any formal pre-legislative scrutiny. For the purposes of this analysis (and apart from the pre-charge clause), the most important part of the wide-ranging bill provisions referred to new information-gathering and -sharing powers. These included the power to remove paper or electronic documents for examination during a terrorism investigation.236 The papers could be confiscated for fortyeight hours, with the possibility of a one-time extension, to determine whether they could or should be seized. The bill also contained new rules for post-charge questioning of terrorist suspects. Interestingly, the bill did not contain a provision that would allow the use of intercept evidence in court, an issue that had been debated for many years. While Brown had launched an independent review and the pursuant January report endorsed ‘‘the principle that intercept as evidence should be introduced,’’237 the prime minister decided not to pursue the issue further. He thereby heeded concerns of the intelligence community and others, including the interception of communications commissioner, who concluded that ‘‘the benefits of any change in the law [to intercept evidence] are heavily outweighed by the disadvantages.’’238

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Like Blair, Prime Minister Brown struggled to secure the necessary votes for the extended pre-charge detention limit. Critics were questioning in how far Parliament would be able to exercise oversight. Since limits would be raised in the context of ongoing investigations, it was questionable how much information could be shared with Parliament to be able to make an informed decision. Also, the Joint Committee on Human Rights drew attention to mathematical considerations. Parliamentary approval proceedings needed for extending the limit beyond twenty-eight days would likely not start at the beginning of the twenty-eight-day period. Even if both houses of parliament vetoed the order it would stay in place for thirty days, and therefore allow for pre-charge detention of forty-two days or more in many instances.239 As the bargaining was in full swing during the public committee hearings, the Brown government, represented by Home Office Minister of State Tony McNulty, indicated possible concessions. For example, the government would be willing to inform Parliament of any extended pre-charge detention decisions within seven to ten instead of thirty days.240 In addition, McNulty indicated the possibility of strengthening the judge’s position: A ‘‘hybrid investigative-type magistrate or judge for the post-28 day period,’’241 whose responsibilities would, therefore, be somewhat similar to those of French antiterrorism magistrates. In early June, Home Secretary Smith proceeded to announce various amendments to the bill. Regarding the biggest elephant in the room, the bill specified that the forty-two day limit would only be introduced in response to a ‘‘grave exceptional terrorist threat.’’242 Moreover, the home secretary would have to seek independent judicial advice and present this to Parliament (in addition to a report by the chief constable and the director of public prosecutions). MPs would have to approve the exceptional limit within seven days, rather than thirty days. Because the pre-detention regime had become rather complex by then, the Home Office included a flow chart on how the system would function once implemented.243 Despite bipartisan criticism244 and only after Brown called in additional party favors and loyalties,245 the amended bill passed the Commons in June 2008, by a small margin of nine votes (315–306).246 A total of thirty-six Labour backbenchers voted against the forty-two-day clause, joining Conservative and Liberal Democrat opposition forces. The Labour rebels further accused Brown of buying the votes of the nine Democratic Unionist MPs from Northern Ireland247 and vouched to continue the battle in the

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Lords. Even if the Lords decided to veto the detention provisions the bill could still become law, of course, as the lower house may overrule the Lords veto after one calendar year. However, forcing the adoption of such a controversial measure against a considerable majority of the legislature surely could not be in the government’s interest. Indeed, the Lords sent a strong message in October 2008, when they vetoed the forty-two-day pre-charge detention clause sought by Prime Minister Gordon Brown, and by a large margin of 191 votes (309–118).248 Apart from the concerns previously mentioned in the Commons, the peers also took particular issue with what they thought would risk ‘‘conflating the role of Parliament and the judiciary,’’ as ‘‘Parliament would be asked to make decisions that it is ‘institutionally ill-equipped to determine.’ ’’249 In other words, the Lords objected to the parliamentary vote needed to approve the forty-two-day maximum emergency powers. Once again the Lords also demonstrated their willingness to stand up to the government—reflecting the general public mood and, most important, the Commons’ (both backbench and opposition) resistance to Brown’s plans. The gamble succeeded. Even though the Lords’ vote only had delaying power, Home Secretary Jacqui Smith announced that the 2008 CounterTerrorism Act would no longer contain the controversial detention clause.250 In an effort to save face, she also announced that a so-called Counter-Terrorism (Temporary Provisions) bill had been prepared should the need for such emergency powers arise. The temporary bill would allow for judge-ordered detention and questioning of forty-two days, and sunset after sixty days. At the end of the day, Brown could not make a convincing case as to why the clause needed to be extended once again—apart from citing the increasing number and scope of plots with an international dimension. Existing pre-charge detention numbers did not support the government’s claims. Since the pre-charge detention limit had been raised to twenty-eight days in 2006, only eleven people were held for longer than fourteen days.251 Jacqui Smith herself admitted ‘‘there has not been a circumstance in which it has been necessary up to this point to go beyond 28 days,’’252 only that services had come close. Allegations of police inefficiency further undermined the case for extending pre-charge detention. So did a declaration by the Commission for Equalities and Human Rights. Concerned about the signal the legislation would send to Muslim communities that felt disproportionately targeted by the detention clause, the Commission threatened

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to subject the forty-two-day clause to judicial review.253 According to Shadow Home Secretary David Davis, the clause thereby threatened to cut off ‘‘the vital local intelligence, which is crucial to our counter-terrorism effort.’’254 Even John Reid, Smith’s predecessor at the Home Office, questioned the need for extending the twenty-eight-day limit, arguing the government had not sufficiently succeeded in justifying such an extension.255 In fact, a significant portion of parliamentary discussion and criticism was not about missing safeguards per se but about why this reform was necessary in the first place.256 Absent the pre-charge detention provisions, the Counter-Terrorism Act of 2008 received Royal Assent on November 26, 2008, almost ten months after its first reading in the Commons and after substantial parliamentary ping pong. Interestingly, the final version of the bill257 allowed for the postcharge questioning of terrorist suspects, so that they could be interrogated about the terrorism-related offense they have been charged with. For the first time, intercept evidence would be allowed in terrorism cases involving financial decisions, for example, involving asset freezing. The act also created new powers to collect and share information, for example, allowing constables to take fingerprints and DNA samples from individuals subject to control orders or allowing them to enter their homes in the event of a flight risk; constables could remove documents during property searches of terror suspects and, after further examination, for example, translating them into English, make a decision on whether the material should be seized as evidence in an investigation.

Pre-Charge Reversals: The 2011 Protection of Freedoms Act Once the new coalition government assumed office under the leadership of Prime Minister David Cameron in 2010, it soon announced an official review of the various counterterrorism powers adopted after 9/11. The new government, made up of Conservatives and Liberal Democrats, was not only eager to put its own mark on counterterrorism policies but also sought to strengthen civil liberty safeguards.258 These themes were echoed in the coalition agreement, which promised that the government would ‘‘urgently review’’ the use of control orders, in addition to other counterterrorism powers, and further ‘‘restore the rights of individuals in the face of encroaching state power.’’259 Illustrating a new approach, the government

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invited the British public to comment on its first counterterrorism draft, dubbed Protection of Freedom bill, by means of a dedicated website (available both before and while it was being debated in parliament).260 In a seemingly stunning first move, Conservative home secretary Theresa May allowed the twenty-eight-day pre-charge detention limit to lapse in January 2011.261 The clause had to be renewed annually and required a parliamentary vote, which simply did not take place. The coalition government had extended the provision for only six months when it first came to power in summer 2010, in an effort to sort out differences over appropriate pre-charge detention limits.262 However, Secretary May had already cautioned that the twenty-eight-day clause was ‘‘one that we will be looking to reduce over time.’’263 The decision not to renew the clause also was not that surprising considering the findings of the official counterterrorism review. Released in January 2011, the report recommended that the maximum time limit for pre-charge detention should be fourteen days,264 rather than the hard-fought twenty-eight days the Blair and Brown governments had been looking to extend further. Based on the review’s findings, statutory approval in form of a new law was also needed. The Cameron coalition, and the Conservative majority party in particular, was not willing to put all eggs in one basket though and sought to retain some insurances. These came in form of a draft emergency bill that could be adopted for three months, should the need for a longer pre-charge detention period of twenty-eight days arise.265 The bill was subject to prelegislative scrutiny by a special Joint Committee and also debated at the committee stage of the Protection of Freedoms bill. The Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills concluded that the draft bill was ‘‘not a satisfactory way to proceed,’’266 for reasons similar to those that were voiced by the Lords when rejecting Brown’s forty-two-day pre-charge detention bid. The extent and scope of informed parliamentary scrutiny during a public emergency were considered highly doubtful. Also, the committee was concerned that any parliamentary debate would risk prejudicing future trials. In addition, lawmakers questioned whether Parliament would be in a position to convene at all times or pass legislation within a few hours or days. Instead, the committee recommended in favor of an ‘‘order making option’’ that would allow the home secretary to raise the pre-charge detention limit from fourteen to twenty-eight days in exceptional circumstances (for the duration of three months, and in close cooperation with the attorney general, director of

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public prosecutions, and a High Court judge).267 Any such exceptional extensions would also be subject to independent review. The temporary extension bill was indicative of the divergent views of the coalition partners and the resulting compromise arrangement. The Liberal Democrats had campaigned on a platform of sweeping counterterrorism reforms and were opposed to the temporary extension bill. However, they had to concede to their majority coalition partner, who was concerned about softening security powers. In light of the Liberal Democrat stance and in an effort to wipe the slate clean, separating the permanently reduced fourteen-day pre-charge detention clause from the temporary extension orders became all the more important. The Protection of Freedoms bill, introduced in the Commons on February 11, 2011,268 thus permanently reduced the pre-charge detention of terrorist suspects from twenty-eight to a maximum of fourteen days, effectively removing section 25 of the Terrorism Act 2006. The practical reality was such that the twenty-eight-day time frame was not even being used. No suspect had been detained for more than fourteen days since 2007269 and no individual had been held for more than twenty-one days since 2006.270 The Protection of Freedoms bill addressed another contentious ‘‘issue’’ that had been highlighted as part of the official review report. It repealed the ‘‘stop and search’’ regulations of the Terrorism Act 2000. The powers were controversial for various reasons, but mostly because they did not require judicial authorization and could be utilized without reasonable suspicion in extended areas for lengthy amounts of time. The number of searches had increased significantly, especially in London,271 so much so that Lord Carlile had warned repeatedly against an overuse of these powers. They had further been targeted by a recent ECHR verdict,272 which declared the powers unlawful. In other words, they were considered random and indiscriminate. The proposed bill created a new Code of Practice. Based on the code, the police could still designate areas for stop-and-search powers but only for a limited (if renewable) time of fourteen days. These authorizations would have to be justified: a senior officer would have to ‘‘reasonably expect that an act of terrorism will take place’’ and to believe stop and search powers are necessary to prevent the act. The counterterrorism provisions mentioned above were debated but not significantly amended during the second reading stage and in public committee.273 At the report stage, however, the government introduced various changes to the pre-charge detention regime, mainly in response to the

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recommendations of the joint committee report. Home Affairs official James Brokenshire moved the new clause 13, which made specific reference to temporary extension order powers of the secretary of state. These would apply if Parliament were dissolved, but before the Queen’s Speech had taken place, and if the secretary ‘‘considers that it is necessary by reason of urgency to make such an order.’’274 In other words, as long as Parliament was constituted, an extension of pre-charge detention limits would require a parliamentary act. In addition, the government adopted a recommendation that extended detention would have to require the approval of the director of public prosecutions and that any extension would have to be subjected to independent review. The clause that was tabled and favored by joint committee members, but ultimately rejected, would have equipped the home secretary with order-making powers in any exceptional circumstances, regardless whether Parliament was in session.275 Insisting on the legislative approach instead, the government argued that any emergency extensions should be debated and approved by parliament. The debate over whether the home secretary should be authorized to temporarily extend the limit by means of legislation or executive order continued in the Lords in December. However, the Lords were unable to force any changes to this part of the bill. Presenting the government’s perspective, Lord Henley noted that ‘‘the temptation to use such a power instead of primary legislation would be greater and this Government do not believe that it properly reflects the exceptional nature of 28-day precharge detention.’’276 The only amendment the government endorsed required the home secretary to submit a draft of any such orders to Parliament as soon as would be feasible. Other counterterrorism powers also remained untouched in the ensuing legislative ping pong. After more than 15 months of extensive scrutiny and debate, the Protection of Freedoms Act received Royal Assent on May 1, 2012. The coalition agreement also referred to the formation of a new National Security Council, mentioned earlier.277 Chaired by Prime Minister Cameron, this council would meet on a weekly basis and be run by a national security advisor based in the Cabinet Office.278 Similar to its U.S. counterpart, the position was designed to coordinate the policies of the NSC members, including defence, foreign, and home affairs; facilitate collective decision-making; and assume responsibility for the UK’s single intelligence budget as Principal Accounting Officer. In addition, the ISC emphasized that this arrangement allowed ministers to be in more regular

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contact with the heads of the security agencies.279 Similar to the U.S. arrangement, the council membership would be flexible, and the ultimate power of the advisor very much depended on the relationship with the prime minister. The national security advisor would take over any remaining responsibilities the Cabinet Office Security and Intelligence Coordinator had held up until this point. Reminiscent of the National Security Committee under former Prime Minister Brown with similar membership, the new NSC suggested a departure from the very informal ‘‘sofa government’’ approach under Blair. In effect, Cameron ended up implementing the recommendation of the Home Affairs Committee which had proposed the very creation of just such a ‘‘formalized, standing body’’ in 2010.280 However, Cameron’s version also was not placed on a statutory footing. Critics therefore questioned how far the council could serve as a ‘‘valuable constitutional check on Prime Ministerial power,’’281 especially after it became known that Cameron did not utilize the NSC to formulate his decision on, for example, when UK troops would withdraw from Afghanistan.282

Reforming Control Orders: The 2011 TPIMs Act Coalition reforms continued. After all, the coalition agreement promised that the government would ‘‘urgently review’’ the use of control orders.283 Furthermore, the 2011 counterterrorism review also demanded ‘‘the end of control orders and their replacement with a less intrusive and more focused regime.’’284 During thirteen years of Labour rule, and especially during the later stages of the Labour government, ever expanding security powers appeared to outweigh concerns for civil liberties.285 In addition to precharge detention limits, the new coalition government had also been critical of control orders.286 While the Liberal Democrats had promised to abolish control orders in their election manifesto, a smaller number of libertarianleaning Conservatives were equally critical of too much government interference.287 However, Liberal Democrat MPs and peers still felt the need to send a public letter to Cameron in fall 2010, reminding him of the need to scrap the control order regime—fully aware that counterterrorism services had already launched full-scale campaign against such a move.288 In the meantime, Lord Carlile, a former Independent Reviewer of Terrorism Legislation and prominent Liberal Democrat peer, weighed in on the debate,

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albeit in the name of national security—a stance that was supported by four former home secretaries. Arguing that control orders needed to be reformed but could not be abolished entirely, Carlile’s position signaled that the Liberal Democrats would likely have to compromise on the issue.289 In any event, control orders did not appear to be working well.290 Ever since the control order regime was introduced in 2005, and in a rush, there was recurrent news of absconds. Six individuals absconded in 2007 alone, among them two brothers of a man convicted of the 2005 fertilizer bomb plot.291 The most prominent absconder was arguably Zeeshan Siddiqui, who disappeared in 2006 and allegedly attended a training camp with two of the July 7 bombers. In 2010, the Centre for Social Cohesion presented statistics that at least 16 percent of all forty-five individuals who were subjected to control orders since 2005 had absconded.292 Critics questioned the legality, feasibility, and necessity of the control order regime. Various control order holders sued the government on the basis of the Human Rights Act, and the High Court had sided with them on multiple occasions.293 All in all, the High Court scrapped three control orders, and the government was forced to revoke five in response to other High Court rulings.294 However, no individual subjected to control orders had ever been charged with a terrorism-related offense.295 In addition to the multiple civil liberty concerns discussed above (control order holders were subject to secret proceedings and not informed about the nature of the allegations against them), the orders were potentially open-ended, even if both houses of Parliament took a perfunctory vote every year. When considering control order reforms, however, the Cameron coalition faced the same dilemma the Blair and Brown governments had previously dealt with: how to provide maximum security for the population and prevent terrorist attacks while ensuring civil liberties for those terror suspects that could not be deported or convicted.296 Critics continued to argue that these control orders would not be needed in the first place if intercept evidence were allowed in court rooms.297 High-level officials, including Lord Carlile and the head of the Metropolitan Police Counter Terrorism Command, Stuart Osborne, disagreed.298 Despite the fact that both coalition parties agreed on the need of reforms, the scope of the reforms objectives varied significantly, depending on the Conservative or Liberal Democrat perspective, and the coalition came under significant strain.299 Once again, the resulting compromise, hammered out by Prime Minister Cameron and Deputy Nick Clegg (whose

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negotiations were later joined by Home Secretary Theresa May),300 represented the priorities of both coalition partners but arguably favored Conservative national security concerns. Under the Terrorism Prevention and Investigation Measures (TPIMs) bill,301 the control order regime would be abolished. The proposed TPIMs regime would no longer include some of the most severe restrictions of the control orders, like relocations and curfews. However, TPIMs could still involve travel and passport restrictions, electronic tagging or ‘‘overnight residence measures.’’ Breaching a TPIMs notice would constitute a criminal offence. In contrast to the control orders, none of the measures would require derogating from the European Convention on Human Rights. All existing control orders would be reviewed within twenty-eight days and converted into TPIMs.302 The government would have to meet a higher standard of proof before TPIMs could be authorized (the home secretary would have to have reasonable belief rather than reasonable suspicion of terrorist involvement) and would choose from an established list of measures specified as Part 1 of the bill.303 The Home Office would have to seek judicial approval before imposing the measures, except in emergencies. In addition, the home secretary would regularly consult with the relevant police unit on the status of the investigation, as TPIMs were only supposed to serve as a temporary solution with the ultimate goals of either bringing charges or revoking the order.304 TPIMs would be limited for two years, after which the person would be free to go—unless he or she were still/ again engaged in terrorism-related activity. In an effort to ensure parliamentary oversight, the secretary would have to report to Parliament every three months, and the TPIMs would be subjected to annual independent review by the terrorism legislation reviewer. At the center of the legislative and public debate surrounding TPIMs was the question of whether individuals should be allowed to return to their communities.305 Based on the bill proposal, the home secretary could no longer use TPIMs to relocate or confine them to certain, more remote areas and thereby prevent them from congregating in London.306 According to Home Office officials, other measures (overnight, area, association, finance, or communication restrictions) might instead be used to restrain individuals from going certain places; the courts would have a say in determining the overnight residence measure locality.307 However, relocation proponents cited the head of the Counter Terrorism Command, who called relocation powers ‘‘probably the most effective’’ measures of the control

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orders regime,308 in addition to the fact that nine of twelve existing control orders included relocations.309 During the Lord’s second reading stage, Lord Carlile further warned that ‘‘it would be negligent to remove relocation from the main provisions,’’ as ‘‘the protection of the public will be diminished.’’310 Also contentious was the fact that those subject to TPIMs would be allowed to use cell phone and Internet communications.311 Conversely, members of the Liberal Democrat faction questioned how the new overnight residence requirements differed from the sixteen-hour control order curfews (among the most stringent control order restrictions imposed on terrorist suspects), calling the overall regime a mere ‘‘rebranding exercise.’’312 The government soon explained that the newly won civil liberties under the TPIM regime would come at a price: ‘‘Significantly increased resources’’ would be needed for the stepped-up surveillance of suspects, ‘‘to help with investigation and prosecution.’’313 Also, should the TPIMs expire after two years and there were not sufficient grounds for imposing new measures, suspects would ‘‘of course, be managed by the police and the security intelligence agencies through other arrangements.’’314 The new regime would, therefore, place a higher burden on law enforcement and MI5, which were tasked with monitoring terrorist suspects’ communications and movements. Counterterrorism services also voiced serious concerns about the ambitious timeline,315 echoed by various opposition MPs, with Commissioner Osborne arguing that it would ‘‘take more than a year, in terms of getting people trained and to get the right equipment.’’316 Despite all this, only few amendments were adopted at the second reading and committee stage,317 and none of them changed the essence of the proposed regime. While the Joint Committee on Human Rights provided legislative scrutiny in form of two reports,318 the government rejected most of the recommendations contained therein,319 effectively arguing that preventing terrorist attacks and collecting covert intelligence took precedence over prosecutions. The government did choose to adopt a five-year renewal clause, which was still far from the annual renewal clause the committee had called for, a bid that was echoed at the committee stage320 but subsequently rejected by the government. Citing Opposition Labour MP Paul Goggins, Brokenshire commented that, ‘‘given the constant arguing and bickering on this issue year after year when we should be seeking consensus in the face of the terrible threats that terrorists bring, there is some merit in Parliament’s reaching a settled view.’’321 From the coalition government’s

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perspective, granting a five-year renewal amounted to a concession and also helped address Liberal Democrat sentiments. Paradoxically, Brokenshire argued that the five-year review would, in fact, amount to greater parliamentary scrutiny than the previous annual renewals of control orders, which were merely ‘‘pushed through with little opportunity for debate.’’322 An amendment to reintroduce the relocation measure as part of the TPIMs regime was defeated on September 5—however, this was not surprising as the government had already introduced a second enhanced bill. At the report stage, the coalition government proceeded to introduce amendments that included provisions related to a second, enhanced TPIM regime. Once again, the Cameron coalition government opted to prepare a temporary bill: the act featured the most controversial measures, such as forced relocations and curfews, and could be passed should an emergency arise. Following the urgent recommendation of the Joint Committee on Human Rights323 and further recognizing that such a move would be controversial, especially with Liberal Democrat backbenchers, the coalition government subjected the Draft Enhanced Terrorism Prevention and Investigation Measures Bill324 to extensive pre-legislative scrutiny. However, once again, most recommendations from the Joint Committee on the Draft Bill were not taken up by the government. Once again, and similar to the emergency pre-charge detention bill, the coalition government insisted on preparing a separate bill, to be debated and approved by Parliament, in order to demonstrate the exceptional nature of these emergency measures that would only be temporary.325 While the counterterrorism review report foreshadowed such a move all along,326 critics pointed to the intense lobbying efforts of the security establishment.327 Yet another school of thought argued that numerous Tory rebels would likely have voted in favor of the September 5 amendment designed to reintroduce ‘‘internal relocation orders’’ to the permanent bill and that the government’s decision to introduce the enhanced bill merely reflected a desire to preempt such a defeat.328 Critics were outraged that the government was once again considering ‘‘internal exiles,’’sixteen-hour curfews, and electronic communication bans, if only in exceptional circumstances.329 The decision was especially hard to swallow by Liberal Democrat backbenchers, who reminded everybody that ‘‘this drastic new power would be subject to Parliamentary debate and approval first and if the Liberal Democrats were not convinced the extreme circumstances necessitated the reintroduction of such a draconian power,

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we would vote against it.’’330 In response, the government kept emphasizing the differences between control orders and the enhanced TPIMs, arguing that the latter would also be subjected to more parliamentary scrutiny and debate, in addition to the even higher evidential hurdle the enhanced bill was equipped with.331 At the report stage, and mirroring the temporary pre-charge extension arrangement, the government adopted a provision that would allow the secretary unilaterally to authorize enhanced TPIMs for a temporary period and to be approved by Parliament.332 According to Lord Carlile, this ‘‘clumsy proposal’’ represented the ‘‘worst form of legislative disorder.’’333 Opposition MPs echoed concerns similar to those they had voiced in the context of the pre-charge detention bill debate. They did not think Parliament would have the necessary information to make that call, under extremely rushed circumstances, and would also risk prejudicing criminal proceedings. According to lawmakers, the secretary should be equipped with order-making powers.334 Amendments to that effect were eventually withdrawn, however. The bill also was not significantly changed in the Lords, even though the peers kept pushing for an annual renewal clause that, according to Lord Pannick, would help impose ‘‘an important discipline on Government.’’335 However, the peers managed to extend the transitional period in an effort to grant counterterrorism services additional time to prepare for the increased surveillance of TPIM holders.336 This was in response to Scotland Yard, which had taken the public route and sent an open letter to the Home Office, repeating its earlier assessment ‘‘that it would take at least a year to recruit and train additional surveillance teams.’’337 The Terrorism Prevention and Investigations Measures Act received Royal Assent on December 14, 2011. Unlike the 2005 Prevention of Terrorism Act, it was not rushed through Parliament in two weeks but took more than six months to pass. While the coalition government kept insisting that the TPIMs regime did not merely amount to a ‘‘rebadged model’’ but that the reforms represented ‘‘significant changes’’338 from the control orders, critics referred to the TPIMs as cosmetic change and more of a symbolic effort ‘‘to make control orders look weaker.’’339 Others viewed them a success and an important signal for civil liberties.340 According to yet others, the ‘‘control orders lite’’ did not constitute an improvement over the previous control orders, as they did not exert enough control.341 While these arguments were somewhat weakened by the fact that enhanced TPIMs

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would allow for just these more stringent measures (but on a temporary basis), they were fueled by the news that one of the individuals placed under a TPIM notice absconded in January 2013.342 Furthermore of note, and completing a reform process that first started in 2007,343 the 2013 Justice and Security Act created a statutory mandate for the Intelligence and Security Committee. As a statutory committee of Parliament, the ISC could ‘‘require information rather than request it.’’344 Summarizing the reasons for the reform that was based on various ISC proposals,345 Justice Secretary Kenneth Clarke explained that the ‘‘nature of the Committee’s work has changed dramatically. In the past eighteen years, particularly since 9/11, the public profile, budgets and operational demands on the agencies have all significantly increased, but there has been no change in the statutory arrangements for oversight.’’346 Pursuant to the act, the ISC would resemble much of the set up and work of traditional parliamentary committees. For the first time, the ISC would answer not only to the prime minister but to Parliament as well. The act codified greater oversight powers, also with regard to operational intelligence activities of the government, information inquiries, and official investigations, and not just limited to the MI6, GCHQ, and MI5 but to the wider intelligence community (including the Cabinet Office, Ministry of Defence, and Home Office). ISC resources would be boosted, and the committee moved outside the Cabinet Secretariat. ISC members would no longer be selected by the prime minister, but Parliament would play a larger role in the process; all nine ISC members would be drawn from the House of Commons and Lords.347

Part 3: Summary Analysis and Conclusion How Did Government Structures Influence Counterterrorism Decision-Making? Speed of Response—How quickly did Great Britain respond to the 9/11 attacks and/or others? How long did decision-making processes take?

Prime Minister Blair’s strong standing within his party and the Commons warranted swift legislative decision-making after 9/11. The 2001 AntiTerrorism Act was introduced and passed in a record four weeks. Even after 2001, British government structures promoted rapid decision-making, provided the prime minister was in good standing with his party—the fundamental condition for swift and ‘‘decisive’’ action in Westminster-style

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parliamentary systems. After the Law Lords ruled the indefinite detention of foreign nationals illegal, lawmakers scrambled to introduce and pass the 2005 Prevention of Terrorism Act in about two weeks. However, things did not go nearly as smoothly when a weakened Blair set out to push through a third major counterterrorism legislation later that year. In fact, the government suffered a severe upset trying to extend pre-charge detention times. The defeat was the more remarkable as the bill was considered a response to the July 2005 terror attack in London. In the end, the 2006 Terrorism Act took more than eight months to pass, thus consuming more than half of the twelve-month parliamentary cycle. However, Prime Minister Blair could still rely on his unilateral decree powers to launch institutional reforms and reorganize swiftly in response to the 2005 attacks and the 2006 airliner plot. He exercised these to expand MI5’s regional presence and fold the Special Branch into the Counter Terrorism Command, as well as initiate the split of the Home Office in 2006. The 2008 Counterterrorism Act, which was in part justified as a belated response to the 2007 Glasgow airport attacks, took even longer, more than ten months, to pass all parliamentary hurdles—sans the longer pre-charge detention limits sought by Prime Minister Brown. While the sluggish response and struggle were illustrative of Brown’s weak standing within his own party, it also reflected an overall public mood that was increasingly fed up with ever expanding counterterrorism powers.348 Both coalition bills adopted under Prime Minister Cameron were in direct response to this prevailing atmosphere and designed to ‘‘defuse’’ some of the more controversial counterterrorism powers—the twentyeight-day pre-charge detention clause and control orders—that were considered harmful to civil liberties. Both bills were adopted in due time. Similar to the 2000 Terrorism Act, the wide-ranging Protection of Freedoms Act took a total of fifteen months, or the equivalent of one-and-a-half parliamentary sessions, to pass. The TPIM Act was adopted within six months. Compared to the legislative timeframes of previous majority governments, parliamentary decision-making processes did not appear more drawn out under the Cameron coalition government. Decision-Making Mode—Were decisions made by means of executive order, or did they require parliamentary approval?

The British prime minister had greater freedom to reorganize than any U.S. president or German chancellor. The numerous organizational reforms initiated by executive decree included the Special Branch merger,

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the regional institutionalization of MI5 units, the introduction of regional police-led Counter Terrorism Units, the Home Office split, and the new interagency coordination mechanisms provided by the JTAC, intelligence coordinator, various Cabinet Office committees, and more recently, the National Security Council/advisor. While executive agencies opposed some of these reforms, as the negotiations involving the Home Office split illustrated, a decision-making process confined to the executive branch appears preferable to the kind of legislative vetting and structural hurdles evidenced in the German and U.S. cases, representing the route of lesser resistance. In contrast to these institutional reforms, the newly granted security powers required statutory authorization. While the legislative process in Britain is commonly known and envied for its lack of structural veto points (the Lords can only delay government bills, and it is usually not in the Commons’ interest to exercise its veto powers), the case study shows the great volatility of British legislative decision-making. The Commons demonstrated its ever-latent veto powers by thwarting Blair’s pre-charge detention plans, illustrating the tight grip British majority parties have on prime ministers, especially if he or she is considered a lame duck. Suffering a similar large-scale defeat, Brown experienced the power of the Lords, as the peers voted to put an end to the forty-two-day pre-charge detention regime the government had barely managed to whip through the upper house. Following the introduction of additional life peerages in 1999, the Lords have gained importance as a potential structural hurdle—always in connection with unresolved Commons’ battles that ‘‘spill over’’ into the upper house. This means that the immense predictability and decisiveness associated with two-party system decision-making no longer holds either. Increasingly, the government needs to pay close attention not only to its own backbenchers but to opposition and third-party MPs (Liberal Democrats) in particular, who, through alliances with other opposition peers in the Lords, have acquired the critical mass needed to veto government clauses, issue time-consuming amendments, and draw concessions from the executive. At a minimum, the emancipation of the Lords has complicated traditional bargaining and whipping calculations in both houses and introduced pluralistic elements, as well as new hurdles to British legislative decision-making. While these hurdles might not be insurmountable, they can deliver significant blows to government agendas, as also evinced by the 2001 religious incitement clause that was vetoed by the Lords and consequently dropped by the government.

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Level of Public Scrutiny and Debate—Did the decision-making process allow for an open debate, public hearings, and/or post-legislative scrutiny, rather than secret and/or emergency procedures?

Similar to the other countries in this analysis, public scrutiny and legislative debate were limited in the months after the 9/11 attacks. Drafted by the Home Office, the first antiterror bill was unavailable for review by the Home Affairs and Joint Human Rights Committees as they conducted expert hearings. All in all, members of the Commons had sixteen hours to debate the bill’s 126 clauses, in addition to only eight days of debate in the Lords.349 Contrary to the other countries in this analysis, British lawmakers did not appear as concerned about the risks associated with rushing antiterror legislation at the time of crisis but did concede to a five-year sunset provision for the indefinite detention of noncitizens clause (this clause was replaced by the control order regime in 2005). In fact, this was the only bill passed after the 9/11 attacks that included an actual strong sunset clause, in the sense that it required renewal by primary legislation rather than affirmative resolution procedure. The weaker sunset provisions diminished parliamentary oversight and post-legislative scrutiny of counterterrorism implementation. However, various 2001 provisions and parts of the contentious 2005 and 2006 acts were contingent on annual renewal by means of parliamentary vote. In addition, they were subjected to scrutiny by the Independent Reviewer of Terrorism Legislation. Created in the 1970s, the position increased in clout and influence after 9/11 and was afforded statutory footing under, for example, the 2005 Prevention of Terrorism Act. While the TPIM regime, a product of coalition negotiations between the civil liberties-focused Liberal Democrats and the more security-minded Conservatives, is also overseen by the Independent Reviewer and subject to affirmative resolution procedure after five years, in contrast, the 2011 Protections of Freedom bill was not equipped with any such provision and is, therefore, permanent. Coalition reforms not only prominently tackled pre-charge detention limits and control orders but also adjusted stop and search powers. The coalition government also oversaw the creation of a more full-fledged parliamentary intelligence committee, which strengthened oversight powers and produced a statutory footing for increased legislative involvement and balancing of executive branch counterterrorism activities. Legislative debates intensified after the 2004 Law Lords ruling precipitated a bill that introduced control orders for terror suspects. The bill

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eventually passed after a thirty-hour parliamentary marathon. While the length of the final conference debate was certainly unprecedented, the bill went through all parliamentary stages in two weeks. Once again, the decisive debates were confined to the executive branch. Members of the Home Affairs and Joint Human Rights Committees did not have time to hold any hearings, much less the opportunity to scrutinize the bill in time to inform the debate in the Commons.350 This time around, lawmakers appeared more concerned about the rushed process and—absent any strong sunset clauses—extracted a government pledge to introduce future legislation that would warrant a more thorough debate about the merits and risks of control orders. However, Parliament’s inability to compel executive action becomes particularly obvious in this case. After the 2005 act was adopted, the home secretary was content to renew control order provisions by means of the mostly perfunctory affirmative resolutions, rather than honor the promise to move forward a new bill that would have to undergo parliamentary scrutiny, debate, and authorization in due time. In terms of public scrutiny and debate, the 2006 terrorism legislation remained the one exception to the rule under the Blair government. Portions of the bill were made available to the opposition leaders in September and even discussed by the home secretary during a Home Affairs Committee hearing. Apparently, these consultations did not find their way into the government bill, which was subsequently shot down in the Commons. The government was forced to concede defeat on the issue of pre-charge detention times. The Brown government also published various proposals of the 2008 Counterterrorism bill, which were discussed in the Home Affairs Committee, but ultimately did not yield on the question of forty-two days—despite warnings from Labour backbenchers and committee recommendations. After ten months of legislative scrutiny and debate, the Brown government cut its losses and pre-charge detention limits were dropped from the bill. For the first time ever, the Cameron coalition government invited comments from the British public when compiling the 2011 Protection of Freedoms bill. Over the record time frame of fifteen months, the complex bill was subjected to parliamentary scrutiny and lengthy debate, as was the TPIMs bill, which was debated at roughly the same time and repeatedly scrutinized by the Joint Human Rights Committee. Both permanent acts came with a second set of ‘‘temporary extension’’ and ‘‘enhanced measures’’ bills, and, due to their controversial nature, were subjected to

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additional pre-legislative scrutiny. The two-pronged approach illustrated an attempt to clearly separate the ‘‘ordinary’’ pre-charge detention and TPIM provisions from the more extreme, but temporary, emergency measures. 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 German response detailed in the previous chapter, the overall scope of British legislative and institutional counterterrorism reforms is noteworthy. Some find it surprising ‘‘that there should have been so strong a reaction in the United Kingdom. After all, the attacks were not perpetrated against UK targets as such . . . the United Kingdom already had newly formulated laws against international terrorism as well as a formidable security apparatus honed by Irish campaigns.’’351 Nonetheless, and as discussed earlier, the 9/11 attacks (followed by the Madrid and London attacks soon after) triggered adjustments and approaches deemed necessary to counter a threat, which, according to Tony Blair, was ‘‘not like anything we have faced before.’’352 Speaking of prior Northern Ireland campaigns though, a few parallels may be pointed out.353 For example, post-9/11 indefinite detention measures (or even control orders) were reminiscent of the 1970s practice of internment without trial354 —in both instances, terrorist suspects were detained (or their various liberties ‘‘controlled’’) but neither charged nor tried (however, post 9/11 indefinite detention orders were solely geared toward foreign nationals). Some may argue they also invoked images of U.S. indefinite detention in, for example, Guantanamo.355 Therefore, both during the Troubles and after the September 11 attacks and in contrast to the French or German approach post 9/11, the British government opted to declare public emergencies that allowed the UK to derogate from parts of the EU Convention on Human Rights. Similarly, pre-charge detention powers were available in Northern Ireland (but limited to seven days). Post 9/11, new counterterrorism measures further broadened data collection and disclosure powers of police, intelligence, and judicial authorities and strengthened preventive policing. A variety of intelligence and law enforcement, as well as foreign and domestic intelligence capacities, were more tightly integrated. For example, since 2001, MI6 has been allowed to operate within the UK and conduct electronic surveillance on foreign terror suspects. At the strategic policy level, efforts were made to create a national security budget and strategy, which included both foreign and domestic

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intelligence capacities. The operational reforms went beyond most German and U.S. measures in the sense that they lacked several of the legislative or judicial checks the two countries sought to maintain. Tough sunset clauses were discussed and considered but usually fell victim to bargaining. Parliament’s post-legislative involvement has been largely limited to routine votes and review reports on the quantitative nature of indefinite detention, precharge detention, control orders, or TPIM authorizations. The newly empowered Intelligence and Security Committee may be able to change some of these oversight dynamics in due time. Parliamentary and judicial checks are thus more limited and symptomatic of the ‘‘single-track’’ decision-making process within the British executive branch that shapes institutional decisions and much of the legislative bargaining. The Home Office does not face a Justice Ministry like the German Interior Ministry does. Nor did Prime Ministers Blair or Brown have to accommodate coalition partner concerns between 2001 and 2010. And even though Prime Minister Cameron has had to accommodate some of the civil liberty concerns of his junior coalition partner, these have not translated into significant concessions. Coalition compromises over precharge detention and control orders reflect the security concerns of the majority party and have been addressed by means of provisional emergency legislation. Since judicial (be they structural or bureaucratic) stakeholders are largely absent, there is less vested interest in maintaining a strict wall between law enforcement and intelligence services—be it due to concerns about turf, power centralization, or civil liberties. Unlike the American NCTC, the British JTAC was established without parliamentary involvement. Unlike the German GTAZ, also established without parliamentary involvement, law enforcement and intelligence analysis capacities were more closely integrated within the JTAC. Similarly, the investigative AntiTerrorist Branch, now part of the Counter Terrorism Command, and the MI5 have grown closer due to the marginalization of the intelligence-led Special Branch, a development that was mirrored outside London where newly formed CTUs and CTIUs joined forces with the MI5. These institutional changes represented attempts to facilitate the collection of intelligence that may also be used as evidence for TPIMs or terrorism trials. In any event, police and intelligence operations are more closely coordinated than ever before, both in and outside London. In a way, this is suggestive of developments in France in the 1990s, when the Judiciary Police was

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sidelined by the investigating magistrates who sought to directly connect with one of the domestic intelligence services (DST) instead. The absence of judicial stakeholders may have also affected the nature of the various aforementioned emergency measures (indefinite detention, control orders, and increasing pre-charge detention periods). By contrast, more recent reform efforts under the Cameron coalition were designed to separate the more exceptional measures from conventional ones. As a result, however, legislative and judiciary roles may also become more conflated, as was argued in the context of emergency pre-charge detention limits and enhanced TPIMs. Both times, the executive branch insisted on preparing emergency legislation that would also have to be approved by Parliament (should the need arise)—from an executive branch perspective, sharing emergency decision-making responsibilities with Parliament in times of crisis can help spread accountability burdens. For the same reason, a strengthened statutory Intelligence Committee may not only facilitate legislative oversight but also absolve the executive branch from responsibility. As it also lacked the strong ‘‘structural’’ clout of the German La¨nder and U.S. Congress, the British legislative branch was too weak and overwhelmed to take on the judicial or sunset ‘‘deficiencies’’ of government bills. With the exception of the Commons rebellion in 2005 (which came at a time when Blair’s standing within the party was low and he had announced plans to step down before the end of his term), government backbenchers and opposition members mostly wielded influence with help of the Lords, whose ‘‘structural’’ cover restrained various executive initiatives and served as an extension of the political battle in the Commons. The biggest such ‘‘bicameral’’ victory occurred in 2008, when the executive branch decided to abandon its precharge detention clause in response to the Lords’ veto. However, the Lords, having to pick their battles in the legislative ping pong with the Commons/government, usually focused on only a few key concerns at any given time. In 2001, for example, the Lords sought to protect Parliament’s position against EU encroachment, which threatened to tilt the balance of power further toward the executive branch. Interestingly, this issue appeared to take priority over concerns about the limited judicial review of indefinite detention orders—or perhaps it was the more winnable battle. While the Lords managed to prevent executive branch power gains in the particular case of the EU clause, the British Parliament lacks the kind of review, reauthorization, and oversight powers the U.S. Congress and German Bundestag managed to secure.

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Absent the structurally induced competition inherent in the U.S. or French presidential systems in which inter-/intrabranch rivals vie for influence and power through institutional reforms, Prime Minister Blair did not seek large-scale changes to counterterrorism coordination until after the 2005 London attacks. The attacks, in addition to a series of terror plots that were discovered and foiled afterward, prompted significant reorganization, albeit very different from that which took place in the United States. As evinced by the new Counter Terrorism Command and the Home Office split in particular, British reorganization efforts did not aim to centralize coordination but instead focused on combining and streamlining similar and complementary counterterrorism functions (and, by implication, separating them from more unrelated ones). Absent any ‘‘congressional’’ or ‘‘La¨nder’’ rivals, the prime minister instead directed his focus to strengthening his position vis-a`-vis that of the most powerful cabinet member. By splitting the most powerful executive department, the Home Office, in half, the prime minister managed to catapult himself into an even more powerful position within the executive branch. The move added a new dimension to counterterrorism decisionmaking, as the newly independent Ministry of Justice may stake claims over counterterrorism-related issues and emerge as the Home Office’s interagency rival in the future. Finally, as a unitary state Great Britain focused on increasing the local and regional connectedness of its security agencies. For the first time, the MI5 expanded into towns outside of London. The newly created CTUs and CTIUs have become a prominent element in this regional outreach that was further expanded under Prime Minister Brown. In contrast to Germany and, to a lesser extent, the United States, Great Britain thus added a network element to its inherently ‘‘centric’’ security architecture, while the former added more ‘‘centric’’ elements (for example, in the form of databases and fusion centers) to their federal security architecture.

Chapter 5

Case Study IV: France

Part 1: French Government Structures and Decision-Making Since the Fifth Republic was established in 1958, the semipresidential democracy underwent significant changes. Various reforms strengthened the presidential constitutional position and reduced the potential for separation of powers conditions in the executive branch. For example, the president has been elected by popular vote since 1962. Two constitutional amendments passed in 2000 diminished the likelihood of cohabitation periods. Presidents have carved out additional informal prerogatives that were not chiseled in stone. In fact, the disparity between ‘‘the conventions of the living constitution’’ and ‘‘the written text of the constitution’’1 becomes particular obvious in the French case. These developments warrant an overview of interbranch (prime minister vis-a`-vis Parliament) and intraexecutive (president vis-a`-vis prime minister) dynamics in order to better assess their impact on counterterrorism outcomes.

A ‘‘Republican Monarchy’’: Presidential Power `a la France The supreme position accorded to the president in the French Fifth Republic appears nothing short of remarkable. French presidents lack the interbranch checks of U.S. presidents and are also not beholden to their party like British prime ministers. In contrast to the U.S. framers who were seeking to restrain the executive with separation of powers structures, French constitutional architects yearned for stability and actionable government.

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Therefore, they were mostly concerned with designing structural mechanisms for a strong president that would hover over a prime minister who could not be brought down easily by the legislative branch. After all, it represented the fifth attempt to sort out the right balance between executive and legislative branches. In fact, it seemed that, ‘‘no country, certainly, has a richer experience in this field.’’2 During the twelve years the Fourth Republic lasted, it was run by twenty-five different governments.3 The ‘‘government by assembly’’ eventually fell victim to the kind of factionalism Alexander Hamilton had warned about.4 Written in 1958, the constitution of the Fifth Republic was designed to put an end to the notorious instability and immobilisme5 of previous systems. Having advocated the need for a strong executive for many years, Charles de Gaulle became its principal architect.6 The French government system is unique in the sense that it combines parliamentary (governmental responsibility to Parliament) as well as presidential (separation of powers) sources of legitimacy and accountability through its dual executive structure.7 The original set up represented a compromise between de Gaulle and the political leadership of the Fourth Republic. The president and head of state would be elected by an electoral college for a period of seven years, whereas the prime minister and head of government would be drawn from and answerable to the majority party in Parliament for a period of five years. At first glance, the constitutional powers of the president appear vast. The president appoints the prime minister (Article 8) and also has a say in the selection of the cabinet members who are appointed by the latter. While the president lacks the formal power to dismiss the prime minister, presidents may ‘‘induce’’ his or her resignation (assuming the prime minister belongs to the same political camp) and have repeatedly done so.8 The president may dissolve the National Assembly after consulting the prime minister and presidents of the assemblies (Article 12).9 Presidents may also bypass rebellious lawmakers or prime ministers by calling a public referendum on any government bills (Article 11). Most important, the president may assume emergency powers in the event of a national crisis (Article 16).10 Article 19 lists the circumstances under which the president may act without a prime ministerial countersignature. A close reading of these powers indicates, however, that these do not affect day-to-day government routines. Elgie has referred to them as ‘‘on-off powers . . . that can only be exercised at discrete intervals.’’11 Similarly, Suleiman has stressed that these

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powers are the exception rather than the rule and ‘‘would have to be the result of a serious rift in executive-legislative relations . . . [or] grave political crisis.’’12 Rather, the daily government operations are directed by the prime minister (Article 21) who, at least in theory,13 is to ‘‘determine and direct the policy of the nation’’ (Article 20) and is also responsible for national defense.14 In practice (and under conditions of unified government), however, the prime minister administers under close supervision by the president, who oversees all policy-making. Nicolas Sarkozy reminds us that ‘‘not a single word of a government’s declaration of general policy is put forward without submitting it first to the president of the Republic.’’15 Furthermore, presidential policy-making power is symbolically demonstrated by the president’s chairing of the Council of Ministers (cabinet) meetings (Article 9). While the Council of Ministers functions as the formal decision-making body, decisions are made elsewhere and voted on ex post facto by the cabinet. Much as in the German and British systems, ‘‘the room where, every Wednesday morning, the Council of Ministers meets is one of the privileged places where the ‘come´die du pouvoir’[comedy of power] takes place.’’16 Meanwhile, the president relies on personal advisors, conseils restreints (inner cabinets) and interministerial committees at the Elyse´e as primary decision-making venues. Similarly, prime ministers rely on interministerial committees at the Matignon. In addition, prime ministers may call conseils de cabinet without the president, in order to avoid presidential meddling and present a unified front in the Council of Ministers (also attended by the president).17 At the same time, according to Sarkozy, ‘‘not a single important cabinet meeting takes place in the prime minister’s office without an adviser from the Elyse´e being present.’’18 The pecking order was first established by President Charles de Gaulle, who expected his prime ministers to serve him loyally. In the midst of the Algerian crisis, he commented accordingly: ‘‘What is a Prime Minister, if not the directeur de cabinet of the President of the Republic?’’19 Bearing in mind that a literal reading of the constitution would make him a great deal more than that, the French case best illustrates the discrepancies between constitutional text and practice. In fact, Bell comments that, ‘‘in a legal contest to head the executive between the president in the Elyse´e and the prime minister in the Matignon, the Premier would win.’’20 Interestingly, President Jacques Chirac’s constitutional interpretation resulted in a different conclusion. When faced with cohabitation conditions in 1997, Chirac

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explained that he ‘‘intended to let the new head of government fully enjoy his own powers under the strict framework of . . . [the] constitution, which clearly conferred an irrefutable preeminence on the president.’’21 According to Giovanni Sartori, in this two-headed semipresidential regime, ‘‘the first head is by custom (the conventions of the ‘living constitution’) the president, but by law (the written text of the constitution) the prime minister.’’22 More recently, Prime Minister Franc¸ois Fillon struggled to carve out an ‘‘existence alongside’’ an omnipotent President Sarkozy.23 De Gaulle left a lasting imprint in other areas as well. Most notably, foreign and defense affairs have been considered an exclusive presidential domaine re´serve´ 24 since de Gaulle’s days, facilitated by the fact that the president not only is commander-in-chief (Article 15) but is also tasked with negotiating and ratifying international treaties (Article 52). This prerogative became absolute when the president assumed the nuclear command per decree in 1964.25 While the prime minister and cabinet would play the most visible role in domestic affairs l’intendance (economic, social, and financial questions), de Gaulle and his various successors reserved the right to deal with all foreign, defense, and security questions themselves. After sacking his assertive minister for overseas development for leaning too far into the policy-making realm, President Franc¸ois Mitterrand in 1983 reminded the French people that ‘‘it is I who determine France’s foreign policy—not my ministers.’’26 That Mitterrand would also ‘‘have his opinion about the composition of the government’’27 in all matters foreign and defense policy when governing under conditions of cohabitation he emphasized in his first meeting with Prime Minister Jacques Chirac. While presidents have always played a prominent role in the selection of foreign and defense ministers, they have also taken an interest in related ministry appointments. In 2008, for example, President Sarkozy rejected the minister of foreign affairs’ selection for chief of staff, stressing these appointments could not be made without Elyse´e approval.28 De Gaulle’s skill to set precedents and carve out additional constitutional rights also became obvious when he bypassed lawmakers in 1962 by forcing a public referendum (technically reserved for government bills) on the first constitutional amendment (which, in theory, needed to be sanctioned by both houses of parliament) that would allow the president to get elected by popular vote.29 De Gaulle was concerned that his successor would be a weak compromise candidate if selected by the (electoral) college of notables and thus again become beholden to a disjointed parliamentary

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assembly. He assumed that presidential dominance could be secured for all time if presidential authority stemmed from a public mandate. Sarkozy agrees with de Gaulle’s assessment, noting that ‘‘executive power lies in the hands of the president of the Republic because of the legitimacy that direct universal suffrage gives him.’’30 Subsequent government stability has also been attributed to changes in party structure that resulted in more cohesive parliamentary majorities.31 If nothing else, so Stanley Hoffmann concluded, the ‘‘radical transformation in the balance of political organs . . . was designed to blow up the road back to the Fourth Republic, which the milder obstacles of 1958 had not sufficiently barred.’’32 Describing the conditions of the ‘‘republican monarchy’’ under de Gaulle,33 National Assembly Deputy (member of Parliament) Franc¸ois Mitterrand moaned in 1964, ‘‘There are Ministers in France. It is even rumored that there is still a prime minister. But there is no longer a government. Only the President of the Republic orders and decides.’’34 But the conditions would not always be this favorable to the president. Writing in 1964, Hoffmann questioned whether the right of dissolution would suffice to deter a National Assembly led by a weak coalition or one that would try to impose its own prime minister on the president.35 Similarly, fearing complications from conditions of cohabitation, Suleiman wrote in 1980: ‘‘A Prime Minister belonging to a majority party who faces a President belonging to a minority will probably demand all the powers that he is entitled to in the Constitution.’’36

Structural Restraints on Presidential Power: Cohabitation Indeed, French presidents have been severely restrained in their ability to influence the policy-making process under conditions of cohabitation. A nonissue until 1986, cohabitation became the dominant theme for the next sixteen years. The first two periods were limited to two years each. President Franc¸ois Mitterrand honored the voters’ decision and dissolved the National Assembly only after he was reelected two years later. When in 1993 voters once again catapulted opposition parties to power in the National Assembly, Mitterrand had only two years left until the end of this second term, so cohabitation ended with Jacques Chirac’s election. Chirac’s ill-fated decision to dissolve the assembly only two years into his presidency

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marked the beginning of the third and longest period of divided government in France. The Chirac-Jospin cohabitation also experienced its most contentious period.37 According to Elgie, this is not surprising, as cohabitation ‘‘marks the revenge of the prime ministership.’’38 During times of divided power, prime ministers are determined to claim their constitutional prerogative in policy-making. Some have ventured farther: Prime Minister Lionel Jospin thus dared taking a stab at the ‘‘reserved domain’’ and European politics in particular—even though President Chirac emphasized, as part of his first televised address, that the president would have the ‘‘ ‘last word’ on ‘everything that touched on Frances’s place in the world’ and on ‘European Union law.’ ’’39 This made for awkward moments and ‘‘competitive summitry,’’ when, for example, both president and prime minister attended the 2000 Nice EU summit. An Italian journalist recounts the humorous aspects of the presidential-prime ministerial rivalry at the 2001 French-Spanish summit, ‘‘when the square’s pro-Chirac clique applauded the president and ignored the prime minister, [and] Jospin went to warm himself up among the area’s left-wing mayors.’’40 Interestingly, when serving as prime minister and subjected to power sharing with President Mitterrand, Chirac also pushed to take part in international summits—Mitterrand reluctantly allowed him to partake, but only after Chirac agreed to postpone his arrival and any meetings so as not to interfere with the presidential itinerary.41 Observers generally agree that prime ministers do not fare very successfully in these more unfamiliar foreign waters, ironically, perhaps because ‘‘they have no desire to humble the institution they aspire to occupy.’’42 In matters of defense and national security, therefore, the president’s position remains relatively untouched. Among other things, Mitterrand insisted on maintaining the moratorium on nuclear weapons testing against the opposition of his prime minister.43 Be´zat and Roger describe how Jacques Chirac and Lionel Jospin ‘‘negotiated, sometimes inch by inch, the assignment of the key positions of the government and public sector.’’44 Despite these difficulties, Elgie notes that both sides have developed conflict resolution mechanisms that prevent the system from coming to a complete standstill.45 It may not be the most productive system. Especially in areas where their powers overlap, gridlock becomes more common and ‘‘stifle[s] policy innovation.’’46 During these times, the French semipresidential system resembles the pulling and tugging between the U.S. branches the most, as illustrated by Elgie: ‘‘Cohabitation has established a system

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characterized by both conflict and compromise, the two main actors try to maximize their own influence over the political process, but they are also obliged to cooperate with each other, partly because the Constitution forces them to and partly because co-operation has worked to the mutual advantage of both.’’47 While the prime minister may claim full credit for successful policies, the president may deflect blame and criticism of those that do not work out, and vice versa. Serving as prime minister under President Mitterrand, Chirac explained that he ‘‘did not doubt that our common interest would be to seek out, for as long as possible, the paths of appeasement and conciliation—even if cohabitation itself would be nothing but a permanent struggle for power.’’48 Speaking from a presidential perspective several years later, however, Chirac commented on ‘‘the feeling of frustration I had sometimes experienced at not having greater influence on the management of the country,’’ because Prime Minister Jospin ruled the roost during cohabitation.49 For the same reason, Chirac goes so far as to call the period of power sharing with President Mitterrand ‘‘effective’’ governing, because the ‘‘means at my disposal for governing were far superior to those granted me earlier [before cohabitation].’’50 During times of cohabitation, the president’s position clearly suffers the most. During these periods, presidents are largely reduced to their veto power, trying to delay and prevent policy from being made.51 Referring to his tenure as prime minister under Mitterrand, Chirac noted that, ‘‘if he [Mitterrand] was unable to prevent us from governing, the president was determined to do all he could to make things difficult for us.’’52 Chirac appears to have taken a page out of Mitterrand’s book: when serving as president later, he repeatedly stalled the legislative process by refusing to schedule bills for a vote in the Council of Ministers, rejecting additional parliamentary sessions, or vetoing constitutional reforms. Beyond these measures, presidents do not have much power to obstruct the legislative decision-making process. At any rate, prime ministers can also circumvent some of these tactics by exercising their right to issue decrees outside the legislative realm, which do not require the countersignature of the president.53 A constitutional amendment adopted by public referendum in September 2000 put an end to cohabitation, at least for the time being. It reduced presidential terms from seven to five years, so they would coincide with the mandate of the National Assembly deputies. More important, the electoral

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schedule was inverted, and general elections would from then on be coordinated with and follow presidential elections closely in time. The 2002 elections brought Chirac’s party back in power, and, absent any early assembly dissolutions, deaths, or resignations, conditions of cohabitation are expected to be less likely in the future.54 Clift has noted that ‘‘one should be careful not to overstate presidential predominance.’’55 While structural constraints on the president appear most rigid in times of cohabitation, even without conditions of cohabitation, the relationship between president and prime minister is not devoid of conflict. This is, in part, ‘‘related to the structural characteristics of a twin executive.’’56 Both heads are looking to establish their influence and authority, and only in rare instances is the prime minister willing to subordinate himself completely to the president. Both may also hail from different coalition parties. There is no easy solution to any of this, as prolonged conflicts with the head of government or a decision to dismiss a prime minister carry the risk of causing instability,57 as does the dissolution of the National Assembly.58 President Chirac did not consider Nicolas Sarkozy for the position of prime minister during his five-year reign between 2002 and 2007 precisely because Sarkozy had openly voiced his presidential ambitions. According to Chirac, ‘‘any rivalry between them [the president and prime minister] could only be harmful to the smooth running of our institutions and therefore contrary to the country’s interests. Such a risk had become inevitable with Sarkozy from the moment he had openly declared his strategy to win presidential power, which could not be the primary motivation of a prime minister.’’59 Even de Gaulle, who envisioned himself and future presidents as the ‘‘arbiter above political contingencies,’’60 was not completely immune to political processes and restraints. While he disliked parties intensely, he grudgingly acknowledged their importance. Any president relies on parties for his own election, as well majorities in the National Assembly, and, therefore, ‘‘cannot consider himself free of party politics as soon as he has entered the Elyse´e Palace.’’61 Political power balances within the National Assembly can influence the choice of prime minister. In fact, the smaller the majority in the National Assembly, the more attention the president needs to pay to parties. In 1979, President Vale´ry Giscard d’Estaing spent ‘‘a lot of time thinking about how to keep the parties in the UDF [Union pour la De´mocratie Franc¸aise, Union for French Democracy] together, how

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to drive a wedge between the socialists and communists, and how to drive a wedge between those in the RPR [Rassemblement pour la Re´publique, Rally for the Republic] who support him and those who support his enemy, Jacques Chirac.’’62 Maurice Duverger sums up: ‘‘the French republican monarch might be seen as a Protean King, changing shape and power according to the nature of parliamentary forces.’’63

Governing Realities: The Prime Minister Rules the Roost French prime ministers—to the great envy of their British and German counterparts—also rely on an impressive arsenal of constitutional and procedural instruments that help them channel and control parliamentary forces, including legislative votes and debates. As is the case in every parliamentary system, the French prime minister (and leader of the majority party) is drawn from and responsible to the Parliament. While he or she can be forced to resign if an absolute majority of the National Assembly successfully invokes a vote of no-confidence (Article 49), this happened only once, in 1962. However, the vote was of no consequence, as President de Gaulle responded by dissolving the National Assembly and simply reappointed Georges Pompidou after the Gaullists won the parliamentary elections. Apart from these two conditions, the list of prime ministerial powers vis-a`-vis the legislature is extensive (Articles 34–50) and greatly reduces the latter’s ability to shape government policy.64 Conversely, the areas in which the French Parliament can legislate are limited to the list contained in Article 34. Furthermore, the government controls the parliamentary agenda, so that, during the short nine-month parliamentary cycle, government bills take precedence over private member bills (Article 48).65 Alternatively, the government may seek to suspend legislative debates and votes or bypass Parliament entirely. Article 49–3 provides that the government may link the passage of a bill to a confidence vote. Absent a censure vote that requires an absolute majority the bill passes without further discussion or vote.66 Under Article 44, the government may force a vote on its own version of the bill with only those amendments it considers adequate. Subject to presidential approval, the government may sidestep Parliament by submitting a bill to a public referendum (Article 11). Both prime minister and president may also bypass Parliament to issue executive decrees (provided

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they do not touch on those issue areas listed in Article 34 requiring statutory approval). Further indicative of the constitutional architects’ attempt at ‘‘rationalized parliamentarianism’’ is the small number of standing committees that limit the oversight Parliament can provide. A thirty-four-member cabinet is thus held accountable by a meager eight standing committees (limited to six before the 2008 constitutional reform). In fact, and unlike any other country in Western Europe, France’s intelligence services were not subject to formal committee oversight at the time of the 9/11 attacks.67 However, two independent regulatory bodies exercise administrative supervision. The Commission on Information Technology and Liberties (Commission Nationale de l’Informatique et des Liberte´s, CNIL) watches over government databases and reports to the Parliament and president. Five of the commission’s seventeen members, who are drawn from Parliament, the supreme courts, and the Economic, Social, and Environmental Council, are appointed by the French president and the presidents of the National Assembly and the Senate. The much smaller National Commission for the Control of Security Wiretaps (Commission Nationale du Controˆle des Interceptions de Se´curite´, CNCIS), whose chairman and two other members are appointed by the French president and the presidents of the upper and lower houses of Parliament, respectively, oversees administrative wiretaps sought by security services and ‘‘judicial’’ wiretaps issued by the juge d’instruction (investigating magistrate).68 However, ‘‘unauthorized’’ wiretaps (e´coutes sauvages) also exist, remain outside the CNCIS arrangement, and are therefore not subjected to oversight.69 Unsurprisingly, French opposition parties have little if any means of shaping bills during the actual legislative process. In an attempt to increase government accountability, Giscard d’Estaing introduced Question Time to the National Assembly. Since 1971, parliamentary opposition parties have been able to challenge legislation in the Constitutional Council a priori, before the laws could be promulgated by the president. More recently, Nicolas Sarkozy’s campaign manifesto resulted in the perhaps most significant constitutional changes since the beginning of the Fifth Republic. Specifically designed to strengthen the legislative branch vis-a`-vis the president and prime minister, the Constitutional Act on the Modernization of the Institutions of the Fifth Republic was adopted in July 2008.70 Among many other things, the act introduced a new two-term limit for the president, limited the president’s emergency powers, and allowed Parliament to

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oppose presidential nominations and call for referendums. Moreover, the act allowed for constitutional review a posteriori, after laws have been promulgated and implemented. Contrary to the German and British systems, the separation of powers in France is upheld in the sense that government appointments at the national level are ‘‘incompatible with the exercise of any parliamentary mandate’’ (Article 23). So when casting a vote for a member of Parliament, the French public also votes for a potential substitute who can serve through the remainder of the term (should he or she be appointed prime minister or member of the cabinet). The rule effectively strengthens the prime minister who does not have to keep an eye on demoted exministers and disgruntled backbenchers who become increasingly rebellious toward the end of their term, as is the case in Great Britain. Illustrating a particular French phenomenon, it is, however, common for members of Parliament to hold a second local (typically mayoral) office.71 This dual-hattedness provides an opportunity to expand government influence at the local levels and thereby increase electoral odds at the national level. Conversely, local politics also influence national politics through the Senate. The Senate’s 348 members are selected indirectly by an electoral college of locally elected officials (mostly mayors) and have consistently brought forth a conservative, right-of-center membership. While the Senate takes part in the legislative decision-making process, like the British Lords, it has no real veto but only delaying powers, and the National Assembly, thus, the final say. While, in theory, Parliament is formally tasked with authorizing all declarations of war and laws regarding the national defense (Article 34), lawmakers, in practice, have no say in presidential decisions that authorize military force and deploy troops. Similar to the British Commons, lawmakers have been demanding consultation powers but lack the will to use any existing bargaining chips. Responsible for the ‘‘all-important budget for defence and the armies . . . a determined government can over time deprive the Elyse´e of effective oversight of the ‘reserved domain,’ ’’ which remains a parliamentary power that has yet to be realized.72 However, the 2008 Constitutional Reform Act did introduce procedural changes, at least in theory. Pursuant to the act, the government has the responsibility to inform Parliament of any foreign deployments within three days of sending armed forces into combat. Military actions that take longer than four months have to be approved by Parliament.

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Be that as it may, Parliament’s noninvolvement in national security affairs became particularly noticeable at the time of the 9/11 attacks.73 A Le Monde editorial dryly commented that the French Parliament was among the few Western democracies where the government did not consider ‘‘it necessary to quickly involve the national representatives in the debate provoked by the terrorist acts of September 11. . . . All those who call for the rehabilitation of the Parliament lost a good opportunity to show the firmness of their convictions.’’74

Reforms Needed? The 9/11 Attacks from the French Perspective Even before the 9/11 attacks, France was of course by no means a stranger to terrorism; to the contrary, the French Republic was frequently targeted by both domestic and international terrorist groups after the end of the Second World War. More specifically, the French experience with ‘‘trois cercles de terrorisme’’75 has included ethnonational/separatist and left-wing ideological (for example, Breton, Basque, Corsican groups, and Action Directe), anticolonial (for example, the Armed Islamic Group, GIA, and the Salafist Group for Preaching and Combat, GSPC), and transnational Jihadi terrorism (Al Qaeda). In line with previous chapters, a succinct review of past counterterrorism experiences will be useful for the structural analysis of responses after 9/11.76 The rue Marbeuf attack on April 22, 1982 (a car bomb explosion attributed to Carlos the Jackal, a Venezuelan national with Palestinian terrorist group ties), was widely viewed as a wake-up call for French officials. Terrorism, especially political violence related to France’s colonial and contemporary engagements in North Africa and the Middle East, ‘‘became a priority for national security.’’77 Various organizational reforms undertaken between 1982 and 1986 were designed to centralize counterterrorism coordination and information sharing, as counterterrorism authorities were dispersed across (among others) the Ministries of the Interior and Defense, which house the five main security and intelligence agencies. Even though the French government is highly centralized, the number of intelligence services is noticeably greater than in Great Britain. This fragmentation is, inter alia, a result of the unique structural disposition of the executive branch. Due to the possibility of cohabitation, presidents maintain a vested

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interest in preventing the concentration of security powers at one agency under prime ministerial control. A part of the Directorate-General of the National Police (Direction Ge´ne´rale de la Police Nationale, DGPN) until 2008, the Directorate of Territorial Surveillance (Direction de la Surveillance du Territoire, DST) is overseen by the interior minister, as is the second domestic intelligence service, the Central Directorate of General Intelligence (Direction Centrale des Renseignements Ge´ne´raux, DCRG). Whereas the DCRG and its extensive network of regional outposts traditionally focused on homegrown terrorism and surveillance of French citizen suspects, the DST had a more international focus and representation, having traditionally engaged in counterintelligence and targeted foreign intelligence and terrorist activities on French soil. Of further note is the General Intelligence unit of the Police Prefecture in Paris (Renseignements Ge´ne´raux de la Pre´fecture de Police, RGPP) which plays an important counterterrorism role in the capital.78 Three other intelligence services are overseen by the minister of defense. The Directorate-General of External Security (Direction Ge´ne´rale de la Se´curite´ Exte´rieure, DGSE) collects and deals with foreign intelligence only; the Directorate of the Protection and Security of Defense (Direction de la Protection et de la Se´curite´ de la De´fense, DPSD) is responsible for the safety of military personnel and facilities; and the Directorate of Military Intelligence (Direction du Renseignement Militaire, DRM) is in charge of collecting intelligence for military reconnaissance. Apart from these agencies, all branches of the National Gendarmerie (Gendarmerie Nationale), as well as Customs and Border Police Services, built up their own intelligence capacities.79 In theory, the intelligence services were to be coordinated by the Interministerial Committee of Intelligence (Comite´ Interministe´riel du Renseignement, CIR), chaired by the prime minister and overseen by the Secretariat General of National Defense (Secre´tariat Ge´ne´ral de la De´fense Nationale, SGDN). However, the CIR remained mostly inactive until after the end of the Cold War. As part of the reforms in the 1980s, two new coordinating mechanisms established interagency platforms for counterterrorism: the Interministerial Committee of the Fight Against Terrorism (Comite´ Interministe´riel de Lutte Anti-Terroriste, CILAT) at the high policy and the Anti-Terrorism Coordination Unit (Unite´ de Coordination de la Lutte Anti-Terroriste, UCLAT) at operational levels. The permanent UCLAT,80 generally overseen by a police representative at the rank of commissaire divisionaire but led by

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the director general of the National Police during times of crises,81 was designed to strengthen cooperation between law enforcement and intelligence. Serving as an all-source fusion center for terrorist-related information, it was responsible for threat analysis and also served as a sort of secretariat for CILAT, which convened only twice every year. Ironically, even though the UCLAT must be considered a vanguard institution for the U.S. NCTC, British JTAC, and German GTAZ ventures created after 9/11, the UCLAT was originally built after the U.S. National Security Council. Like the NSC, it was designed to bring together the interagency community and coordinate the counterterrorism interagency process. The Act of September 9, 1986, is generally considered the cornerstone of French counterterrorism legislation, launched in response to a surge in attacks by Middle Eastern terrorists that year. The act defined terrorist acts for the first time as any intentional ‘‘offense connected with a one-man or collective undertaking, aiming to seriously disturb the public order through intimidation or terror.’’82 Most important, the act centralized all antiterrorism efforts of the prosecutors and investigating judges at the High Court (Cour d’Appel) in Paris. Furthermore, the prosecutors and investigating magistrates of the court’s fourteenth antiterrorist section were granted authority to investigate terrorism-related matters on a nationwide scale, as well as terrorism directed against French citizens anywhere else.83 The investigating magistrates had extraordinary investigative powers— combining both judge and prosecutorial functions in one position—which allow them to authorize subpoenas, obtain search and wiretap warrants, or interrogate and detain terror suspects anywhere from four days to four or more (in exceptional cases) years.84 Despite this impressive array of powers, they still lacked the manpower and logistics to utilize them to the fullest. Throughout the 1980s and 90s, their traditional executive partner, the Central Directorate of the Judicial Police (Direction Centrale de la Police Judiciaire, DCPJ) had increasingly been tied up fighting separatist terrorism. Determined to contain the Jihadi threat, especially after a series of terrorist attacks in the mid-1990s appeared to have brought the Algerian civil war to France’s doorstep, the magistrates shifted gears and instead struck an alliance with the DST, a unique arrangement among Western democracies to this day.85 The arrangement was beneficial to both sides. The magistrates appreciated the manpower and experience DST brought to the table, having been tasked with protecting the territory of France from external threats. DST agents could assume considerable investigative powers and, as a result,

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turn into a sort of judicial police force when tasked by the magistrates.86 To differentiate the magistrate-assisting agents from regular intelligence collecting agents, the DST created the Judicial Investigation Unit (Unite´ Enqueˆte Judiciaire) in 1998.87 Even though the sixth division of the Judicial Police was promoted to the National Anti-Terrorism Division (Division Nationale Anti-Terroriste, DNAT) in 1998, this endorsement could not undo the fact that the DNAT had been effectively marginalized by the DST in all matters regarding Islamic terrorism. Counterterrorism instruments and services continued to evolve throughout the 1990s, mainly because ‘‘France’s support of the Algerian government’s policy toward Islamists made French nationals in Algeria— and France itself—into jihad targets.’’88 Only five years before the 9/11 attacks, the GIA attacked the train transport system in Paris and staged a series of other attacks throughout 1995, following an ill-conceived attempt to crash a hijacked plane into the Eiffel Tower in 1994. In response, the Act of July 22, 1996, for the first time specified a number of terrorist charges (such as kidnapping, hijacking, robbery, extortion, and such) provided they could be ‘‘linked to an individual or collective effort whose goal is to seriously disturb public order through intimidation or terror.’’89 The ‘‘conspiracy for the purpose of committing terrorist offences’’ clause also allowed for a harsher application of terrorist charges that could be made in connection with all these crimes, increasing penalties and the time to investigate and assemble evidence of terrorist connections.90 Most important, the crime-terrorism linkage allowed for the preventive investigation and prosecution of crimes as terrorist acts, provided they were at least remotely thought to be connected to any terrorist activity. At the time of the 9/11 attacks, French counterterrorism authorities thus already had a variety of coordinative, investigative, and prosecutorial tools at their disposal and were even specialized in countering Jihadi terrorism in particular. Apart from their wide-ranging and sophisticated arsenal, it seemed unlikely that the French government, operating under conditions of cohabitation, would adopt any significant reforms less than nine months before the next national elections. At the same time, the attacks also provided a welcome opportunity for both President Chirac (Conservative) and Prime Minister Jospin (Socialist) to demonstrate leadership and score points with the electorate. Despite all this, it should be noted that ‘‘the effects of the 11 September attacks were . . . profound in France.’’91 When addressing the National

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Assembly in October 2001, Interior Minister Daniel Vaillant reminded deputies that ‘‘Our legislative arsenal could not remain unchanged after this tragedy. We now speak in terms of before and after September 11. . . . The scale of the attack and the way they were carried out has made us aware that no one is safe from such terrorist acts.’’92 Foley explains how French officials, due to their prior experience and especially after the Jihadimotivated attacks in 1995 and 1996, ‘‘perceived the Islamist terrorist threat to France as high for several years before 2001’’93 and, after the 9/11 attacks,’’ continued to see the threat to their country as high.’’94 The 2006 white paper on domestic security against terrorism reflected many of these sentiments—acknowledging that ‘‘France has been the target of numerous attacks’’ after the end of World War II, but that today’s threat was different due to Al-Qaeda’s immense logistic capacities and both global and lethal ambitions,95 so ‘‘that the threat to our country has never been so great.’’96 Similarly, the 2013 white paper on defense and national security noted that, more than a decade after the September 11 attacks and despite counterterrorism progress made worldwide, ‘‘the level of threat remains extremely high.’’97 While five French citizens were killed in the World Trade Center attacks, France (similar to Germany) until 2012 was spared from Jihadi attacks on French soil after 9/11, even if French interests and citizens were threatened. In 2002, several French citizens were killed in suicide attacks on the Tunisian island of Djerba and in the Bali nightclub bombings. An attack on the French supertanker Limburg off the coast of Yemen caused an oil spill of 90,000 barrels into the Gulf of Aden. According to Rohan Gunaratna, this was far from surprising, considering that ‘‘Al-Qaeda had (historically) perceived France to be its principal enemy, largely because of how it props up the anti-Islamic governments of North Africa, notably in Algeria, Tunisia and Morocco.’’98 Calling France its major target, the Algerian GSPC became officially aligned with Al Qaeda in 2006.99 In the video announcement of the merger, Ayman Al-Zawahiri, Al Qaeda’s then second in command, condemned France’s continued involvement in Afghanistan and Lebanon, as well as the headscarf ban that has been in effect since 2005.100 Various plots that were foiled on the domestic stage were thought to be AlQaeda supported or inspired. In fact, the 2006 white paper found that, since 2001, ‘‘no fewer than nine communique´s have called for France to be punished.’’101 Various cells have been dismantled and plots foiled since then, including an Al Qaeda-sponsored attack against an Air France flight

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between Paris and Miami in December 2001.102 In 2012, France suffered a first Al Qaeda-inspired attack on French soil, when seven citizens were killed in the Toulouse and Montauban shootings.

Part 2: Post-9/11 Counterterrorism Responses Initial Responses: The 2001 Everyday Security Act The initial legislative response in France represented a semidirect response to the 9/11 attacks. Announcing new counterterrorism measures on October 3, 2001, Prime Minister Jospin introduced these in the form of thirteen amendments to a pending bill, the Everyday Security Act (Loi sur la se´curite´ quotidienne, LSQ), two weeks later. The LSQ had been in the works since March 2001. The data retention and encryption provisions included in the amendments also had been discussed for some time, as part of the Information Society bill proposed in May 2000.103 After only two weeks of deliberation, a remarkably short legislative time period even for French lawmakers, the National Assembly approved the counterterrorism package on October 31. Thus, France was the first country after the United States to introduce legislative reforms. The Senate had approved the measures on October 17, after a single debate that took place the previous day. Criticism against the hasty legislative procedures was mostly limited to interest groups outside Parliament. Only the Communist Party rejected several amendments and abstained from most others. In the National Assembly, there was equally widespread support for the bill.104 The parties approved the bill almost unanimously, with the rightwing opposition supporting the bill ‘‘without reservation.’’105 In a key concession to the Jospin government, the opposition parties agreed not to submit the legislation to Constitutional Council review. In exchange and due to the ‘‘exceptional circumstances precipitating unusual procedures’’106 that included adding amendments to a pending bill already submitted to the Joint (Conference) Committee, all its added clauses would have to be reauthorized or else lapse by December 31, 2003. In response to Communist demands, Interior Minister Vaillant also offered to have a first evaluation submitted to Parliament by the end of 2002. Under the bill’s provisions, telecommunication providers would be obliged to store ‘‘technical data involving a communication’’ (phone, email,

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and Internet connection activity) for one year and disclose them to the judiciary (Article 29, Part 4).107 The bill explicitly ruled out contents and only referred to transactional data that could be used to identify users. Justice Minister Marylise Lebranchu compared this data to ‘‘traces’’ left ‘‘in the virtual world, like . . . fingerprints or clues in the real world.’’108 Unlike indices in the real world, however, online data could vanish more easily and thereby leave illegal activities without material evidence. Reminding deputies of the usefulness of transaction data, Senator Pierre He´risson pointed out that telecommunication providers already provided transaction data for up to 500 requisition orders annually (but which could only be stored for a maximum of three months).109 The data retention provisions would be followed up by a de´cret d’application (implementing order) to determine data categories and retention lengths. However, critics were still concerned about what exactly constituted ‘‘special’’ categories of technical data and how these would subsequently be interpreted by the Interior Ministry.110 According to the bill, judicial authorities could ask for decryption of data collected during the course of investigations and require encryption firms and persons to disclose their encryption keys. They could also rely on special secret methods reserved for national security matters to decrypt emails, which would involve additional administrative authorization procedures. Other provisions would allow preventive searches of people, baggage, freight, airmail, airplanes, and vehicles at airports and harbors as well as other public places, albeit with magistrate authorization. One of the more controversial clauses extended police powers to conduct bag and body searches to private security companies.111 Highly controversial also was the clause that would allow the Judicial Police not only to conduct ID controls but to also stop and search moving, stationary, or parked vehicles (in public) for the first time. Until now, cars were considered ‘‘private places’’ and, with the exception of the Customs Police, out of bounds to any preventive law enforcement measures. Strictly limited to support investigations and the prosecution of certain acts of terrorism, as well as weapon or drug trafficking offenses, these car searches could now be conducted without warrants and did not require probable cause. Authorized by means of written judicial requisition orders (involving magistrate approval), the searches were, however, limited to certain times and locations. Short of a judicial warrant, the requisition orders involved significant administrative hurdles and paperwork. In addition, so Interior Minister Vaillant explained, the

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searches would be made in the presence of the drivers who would also be able to request written reports.112 The bill further expanded police powers to search private residences during the course of preliminary terrorism investigations (as well as in the context of weapon and drug trafficking investigations) and without the homeowner’s assent, although only after special (freedom and detention) judges had granted their approval. Justice Minister Lebranchu further explained that these judges were also more rigorously controlled than the investigating antiterrorism magistrates, as the former could only authorize searches on a case-by-case and probable cause basis.113 When applying for a warrant, prosecutors would have to explain in writing the nature of the crime committed, why there were indications that evidence might be found, and at what address. Even if the searches brought to light something not contained in the warrant, and therefore completely unrelated to a terrorism investigation, the evidence could now be kept.114 Critics claimed that the counterterrorism provisions included in the amendments resembled key demands of the main police trade union. Others noted that the terrorism-related amendments to an existing draft bill on ‘‘everyday security’’ resulted in the further blurring of ‘‘domestic security, juvenile delinquency and terrorism.’’115 Government officials defended the bill, arguing that the public safety of citizens went hand in hand with identifying and targeting links between crime and terrorism. Accordingly, the objective was not only limited to targeting terrorist offenses per se but also the supporting economies and activities, such as money laundering, weapon smuggling, and drug trafficking.116 In the same manner, the bill targeted terrorist finances and made financial support of terrorist acts or groups a crime. Bank accounts of suspected terrorists could be monitored, and tax authorities would be obligated to disclose records to prosecuting authorities. Last, Interior Minister Vaillant argued that security services needed to gain investigative capacities in response to ‘‘terrorists who have recourse to all the range of the possibilities offered by new communication technologies.’’117 The Everyday Security Act was officially proclaimed on November 15, 2001.118 New Security Czar and Council, Beholden to the President On October 31, 2001, President Chirac appointed a new representative for security and terrorism to his Elyse´e cabinet.119 Philippe Massoni would

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serve as a ‘‘security czar’’ and a special advisor to the president.120 Intended to consolidate counterterrorism oversight and coordination in one person, the decision challenged the authority of Prime Minister Jospin who, inter alia, was responsible for the UCLAT interface and domestic security or public safety in general. Not surprisingly, Chirac did not involve either Prime Minister Jospin or Interior Minister Vaillant in his decision. Despite (or precisely because of) the president’s dominant role in the domaine re´serve´—traditionally involving national security issues with a foreign dimension reflecting his commander-in-chief, chief diplomat, and head of state functions—Chirac’s announcement was controversial because the constitution vests domestic security and public safety responsibilities in the hands of the prime minister. Jospin surely tried to make his presence felt after 9/11, but the domestic leadership role was soon claimed by President Chirac.121 An episode surrounding the Vigipirate plan (an emergency plan drawn up in 1978, based on which military troops could be deployed to assist police forces especially with regard to stop and search powers) is symptomatic of these dynamics. Even though the plan fell under the authority of the prime minister and his interior minister, the former only narrowly forestalled Chirac’s attempt to announce the plan at an Elyse´e Select Council meeting.122 These tensions disappeared after the May 2002 elections brought to power a prime minister and parliamentary majority party again beholden to the president (the conservative Union pour un Mouvement Populaire (Union for a Popular Movement, UMP). Now under unified government conditions, Chirac had the freedom he needed to institutionalize his leadership role in the domestic security realm.123 In May 2002, Massoni was officially appointed general secretary of the newly formed Domestic Security Council (Conseil de Se´curite´ Inte´rieur, CSI). The council was designed as a coordination and interagency mechanism for all ministries involved in fighting crime and terrorism. Apart from the prime minister, the CSI included the ministers of interior, justice, defense, economy and finance, budget, and foreign affairs. Most important, and similar to the Elyse´e czar post, the council documented presidential leadership claims in the domestic security realm. As specified per presidential decree,124 the council would be led by the president, rather than the prime minister, so as to allow ‘‘the head of state to be the center of the national security effort.’’125 In fact, the council was not a new creation but a new version of an existing (though inactive) domestic security interagency forum also called

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CSI. Created in 1997, it convened all ministers for the strategic evaluation of national security threats under the chairmanship of the prime minister.126 The aforementioned CILAT and UCLAT arrangements were part of this CSI set up and responsible for coordinating counterterrorist policies at strategic and operational levels. While the prime minister had convened the CILAT right after the 9/11 attacks, the overarching CSI had remained inactive. More important, the CSI had thus far been chaired by the prime minister rather than the president, who seized the opportunity provided by the 9/11 attacks to further expand his domestic security reign. The power shift did not go unnoticed. Calling the move unconstitutional, former Interior Minister Daniel Vaillant was highly critical of a CSI that ‘‘would by law be placed under the authority of the president, which . . . is a real change in its nature, even in the system of government . . . because police officers . . . must remain republican, civilian officers under the authority of the government . . . and controlled by parliament—I’d say that we are moving beyond Article 20 of the Constitution, which does not make domestic security the preserve of the president, as national defence is.’’127 The president prevailed. At the time of the 2007 national elections, the CSI was still chaired by Massoni and meeting regularly at the Elyse´e. Beyond the CSI’s broad strategic objective to ‘‘boost and coordinate the fight against criminality and terrorism,’’ the council also assumed some operational oversight. In particular, it was designed to ‘‘bringing police and (paramilitary) gendarmes closer together under a single functional authority.’’128 At the time, the National Police was mostly responsible for the large urban areas, whereas the National Gendarmerie was in charge of the small towns and rural areas with populations of fewer than 10,000. Starting in 2002, while technically a branch of the armed forces under the Defense Ministry, the gendarmerie was increasingly tasked with domestic security responsibilities under the control of the Interior Minister.129 The aforementioned CSI Council would provide strategic guidance to the newly formed twenty-eight Regional Intervention Units (Groupements d’Intervention Re´gionaux, GIRs), consisting of members from both police and gendarmerie forces, as well as customs and tax officers. These were designed to strengthen the regional presence of and coordination between gendarmerie and police, whose manpower would also be significantly boosted. Responsible for bringing down organized crime networks, particularly in the suburbs, the units would also be useful for disrupting any existing crimeterrorism connections. While delivering his general policy statement before

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the National Assembly on July 3, 2002, Prime Minister Jean-Pierre Raffarin announced that this police reorganization would be part of a new security bill scheduled to be introduced to Parliament within days. Raffarin also reminded the deputies of the restored political order within the republic, with the president once again in complete control of the executive branch: ‘‘It is . . . with you that we shall take France along the path indicated by the head of state.’’130

The 2002 LOPSI Guidance Act . . . On July 10, 2002, the new administration under Prime Minister Raffarin presented the Domestic Security Guidance and Planning Act (Loi d’orientation et de programmation pour la se´curite´ inte´rieure, LOPSI) to the Council of Ministers. The bill spelled out the administration’s plan for improving public safety and security.131 While it made reference to specific measures already in the works or else authorized per executive decree, LOPSI laid out various additional security reforms and measures the Raffarin government intended to pursue. The bill specified the ‘‘new institutional architecture of domestic security’’ as well as the functions of the newly created Domestic Security Council. It also focused on the new local GIR intervention units.132 Shared databases were to improve gendarmerie and police information sharing and coordination mechanisms further. As part of the reshuffling process, control over the paramilitary gendarmerie forces would shift to the Interior Ministry. As ‘‘proximity policing’’ would take center stage in this new GIR policegendarmerie partnership, the bill contained several new security provisions that would reduce a ‘‘certain number of procedural restraints’’ that so far impeded the proximity between services,133 ‘‘in order to be able to react as soon as possible and nationwide to an increasingly violent and increasingly organized delinquency.’’134 Most important, the bill referred to a provision that would allow selected officers of the Judicial Police to make remote online searches of data held by private and public institutions (like financial institutions, telecommunication providers, and government services). During the course of these investigations (subject to magistrate approval), Judicial Police officers would no longer have to file requisition orders and seek individual written permission but be authorized to gain direct access to private and public

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computer databases. These remote searches, via Internet or computer, could be conducted for all ‘‘information that is considered necessary to establish the truth,’’135 to reduce the amount of time it took to gain access to the data. Moreover, LOPSI supported the introduction of video cameras in ‘‘sensitive neighborhoods,’’ as Interior Minister Nicolas Sarkozy kept reassuring deputies that decent and honest people had nothing to fear from this kind of monitoring.136 UMP Deputies repeatedly referred to the successful use of video surveillance in the thwarting of attacks in Great Britain.137 While the measures were directed against criminals, they would also facilitate police investigations of terrorist activities. Starting in the mid1990s, investigating magistrates and police relied on the terrorist conspiracy clause of the criminal procedure code to investigate criminal activities such as document forgery and arms smuggling in the context of possible terrorism links.138 Pursuant to this legal tradition, Annex II of the LOPSI bill referred to both terrorism and organized crime as transnational threats that required more effective searches, exploitation of information, information sharing, and cooperation between services.139 The members of Parliament did not appear overly concerned with the nature or extent of the security measures contained in the bill. With the help of the urgence de´clare´e procedure, which allows for the convening of a Joint Committee (commission mixte paritaire, with seven deputies and seven senators) after a single reading of a bill, the act was passed within two weeks. After it was first discussed in the National Assembly on July 16, the bill was adopted the next day, with few amendments. The Senate followed suit promptly. Members of the upper house debated the bill on July 30 and approved it without modifications the next day, just in time for summer recess. The lack of scrutiny and debate the lawmakers displayed throughout the short legislative process can be explained by the fact that parts of the bill were supposed to serve as a mere framework for future security measures. An alternative explanation holds that LOPSI was intended not just as a roadmap but to create a quasi-statutory basis for some of these new measures. Sixty opposition deputies took the LOPSI provisions seriously enough to submit it for review to the Constitutional Council.140 While the court did not support the claims of the deputies (who were opposed to the management provisions in Article 3), the final ruling also addressed another matter: it stressed that LOPSI’s domestic security guidelines under Annex I

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lacked practical and legal authority and would have to be followed by another act of law. LOPSI was officially published on August 29, 2002.141

. . . Followed by the 2003 Domestic Security Act A draft version of the bill that was to follow up LOPSI was leaked to Le Monde in late September. With 79 articles, it went far beyond the measures that had been laid out as part of the LOPSI framework.142 After the newspaper discussed the scope of the measures that would ‘‘drastically and deeply change criminal procedures and grant police officers unprecedented room to maneuver’’ in great detail, the version of the bill that was eventually submitted to the Council of State had shrunk to 44 Articles.143 Apparently, the Raffarin government had adopted a two-pronged strategy and was planning on proposing the second half of the list as part of a second law. On October 23, 2002, Interior Minister Nicolas Sarkozy presented the slimmed-down version of the Domestic Security Act (Loi sur la se´curite´ inte´rieure, LSI) to the Council of Ministers and introduced it to the Senate. While the LSI would further strengthen law enforcement security powers, these were far less controversial than some other provisions of the bill. Stipulations intended to designate prostitution, squatting, and begging as criminal offenses caused significant public outrage and legislative delays. Surprisingly, the bill did not include all the items featured in the LOPSI framework. For example, the installation of video cameras in ‘‘sensitive’’ areas and neighborhoods, while central to the LOPSI legislation, was not included in the LSI. Instead, it contained LSQ provisions not due to sunset until more than a year later. Article 31 of LSI would make permanent almost all counterterrorism provisions contained in the 2001 LSQ Act, some with slight changes, and impose new sunset clauses on three of them. The house search powers, as well as airport and port controls would have to be renewed by December 2005, following two evaluation reports to be submitted to Parliament by the end of 2003 and 2005, respectively. LSQgranted car searches that so far had been limited to terrorist, arms, and drug trafficking crimes would now also include theft and stolen good offenses. In an effort to preempt some of the anticipated opposition to the controversial car search provision that was about to be made permanent, the magistrateissued requisitions required for the searches would have to be renewed

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every twenty-four hours. The LSI further strengthened the role and emergency powers of the regional prefects (representatives of the central government who acted under the orders of the Minister of the Interior) who, among other things, would now be authorized to issue requisition orders used for searches of, for example, cars, online files, databases, or computer networks. As the car search provision illustrates, the act was consistent with French legal tradition to purposefully target ordinary crimes and delinquency in an effort to identify or disrupt potential terrorism-crime nexuses. As initially laid out under LOPSI, the LSI bill further strengthened the disclosure powers of the Judicial Police that, during the course of judicial investigations, would give that agency immediate online access to most personal data and files contained in public or private sector computer databases, if such data was deemed ‘‘useful to establish the truth.’’144 As part of the same Article 18, the Judicial Police could order telecommunication providers to retain usage information for up to one year. This time around, and in contrast to the previous LSQ provisions, the act referred to the ‘‘contents of information consulted by the users.’’ The Judicial Police no longer had to retrieve data through the issuance of individual requisition orders, but some level of administrative oversight would be maintained, as officers would have to be tasked by prosecutors who in turn had to have judicial approval. As intended by the LOPSI framework, Articles 21 and 24 of the LSI bill strengthened information-sharing mechanisms between members of the Judicial Police and gendarmerie; they could now access and share personal files collected and stored in police databases. In addition, majority coalition lawmakers were particularly concerned with the perceived powerlessness of law enforcement in cyberspace and their inability to preserve evidence of online crimes. According to Rapporteur Christian Estrosi, ‘‘today, if [the police] wants to conduct a search, it can only target one user in a system of cybercriminality. If this one is in network with twenty-four others, twenty-five searches (and warrants) will be needed.’’145 Consequently, the LSI bill introduced ‘‘roving’’ warrants for computer networks. A single warrant issued for any one house search would suffice to search data from any computers or information systems that are linked to and can be accessed through the computers covered by the warrant. Interestingly enough, neither of these online search powers were included in the original government bill as submitted to the Senate, but were added by National Assembly deputies on the suggestions of police chiefs.

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Critics were concerned that the bill authorship represented a paradigm change and power shift that clearly favored executive branch law enforcement over judicial powers.146 According to Le Monde, ‘‘the extension of police powers to criminal procedures signifies the triumph of interior ministry policies, which were taken from proposals made by the Union of National Police Superintendents and High-Level Civil Servants (SCHFPN).’’147 In other words, even though the bill affected French criminal law, it had been authored by Sarkozy’s Interior Ministry rather than Dominique Perben’s Justice Ministry, whom the Magistrates’ Syndicate (Judges’ Trade Union) referred to as a mere ‘‘Secretary of State to the Interior Minister.’’148 Former Interior Minister Jean-Pierre Cheve`nement argued that the paradigm change was triggered by the counterterrorism measures adopted in the immediate aftermath of the 9/11 attacks: ‘‘Naturally, no one in the government of Jospin . . . [ever] asked me to change the criminal law. This is completely new—normally it is the Justice Minister who does this. I must admit, however, that Monsieur Vaillant [Cheve`nement’s successor] decided on measures that went in this direction.’’149 Sarkozy agreed that the LSI merely continued in the tradition of the LSQ act, further insisting that ‘‘it is normal for the Interior Minister, as part of the police procedure, to deal with the penal process.’’150 In contrast to the LSQ or LOPSI, the LSI bill was subjected to more stringent legislative scrutiny, despite the fact that it was also declared urgent. The bill featured more than 450 amendments, almost half of which were adopted.151 Senate debates took place during four consecutive days in November. Amid public protests against the new criminal offense provisions of the bill, the National Assembly debates scheduled for mid-January took four days instead of two.152 When the National Assembly adopted the bill on January 28, 2003, it was supported only by the majority parties, with the Socialist and Communist Parties voting against the measure. After the remaining differences were resolved by the Joint Committee, the National Assembly and Senate passed the act in a final vote on February 12 and 13, 2003, respectively. Not surprisingly, both houses of Parliament called on the Constitutional Council. Among other things, lawmakers questioned some of the security powers discussed above, including the new requisition powers given to the prefects, car searches by judiciary police officers, and joint data files held by police and gendarmerie. While the court specified various provisions it considered too vague, it upheld the act,153 which was officially promulgated on March 18, 2003.154

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After the Madrid Attacks: Coordination and Regional Connectedness After the Madrid attacks in March 2004, the Raffarin government declared the fight against terrorism a national project,155 stressing that ‘‘No country can now feel safe. The Madrid attacks showed that Europe is directly targeted. This justifies a large-scale, better coordinated, and in-depth response. This depends both on a strengthening of international cooperation . . . and on increasingly strong links among the police and intelligence services.’’156 As a first step, Interior Minister Dominique de Villepin convened the interministerial CILAT for the first time since September 2001, insisting that ‘‘the antiterrorist struggle is indeed a priority. Everybody must make a commitment to it, avoiding the impediments created by compartmentalization. The other ministries must make their contribution. [CILAT] will make it possible to mobilize all operational services and to monitor the implementation of the guidelines defined by the president and the prime minister within the context of the Domestic Security Council.’’157 To strengthen coordination between domestic security services, de Villepin announced the creation of a Conseil du Renseignement Inte´rieur (Domestic Intelligence Council, CRI). The CRI would convene monthly and include officials from, among others, the DST, DCRG, DNAT, and gendarmerie, as well as the Service of International Technical Police Cooperation (Service de Coope´ration Technique Internationale de Police, SCTIP).158 Noting the potential for overlap, critics called attention to its resemblance with UCLAT.159 De Villepin refuted these comparisons, arguing that the CRI would be developing the strategic guidelines for UCLAT, which, by contrast, was a permanent forum responsible for information sharing and threat assessment at the operational level. The CRI would also be tasked with developing a strictly domestic perspective and, therefore, excluded the DGSE and military intelligence services. The loose council arrangement and introduction of yet another coordinating mechanism was telling for other reasons as well. Security officials had been stressing the need to increase cooperation among, or even merge, the two domestic intelligence services, DST and DCRG, since the 1990s, when a plan drawn up by Prefect Jacques Fournet was withdrawn at the last minute due to ‘‘political snags.’’160 Merger optimists were quick to point out that the pooling of resources and expertise would help reduce redundant missions and functions and represent a win-win situation for both

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services. The DCRG’s impressive regional representation included more than twenty outposts; the DST could point to its established relationship with the investigating magistrates that set it apart from all other services.161 While the complementary features of the two services were generally recognized or at least assumed, merger pessimists warned against ‘‘brutally forc[ing] these two services together . . . [as] the sharing of resources would be a major step,’’ further emphasizing that ‘‘one must understand the benefits of retaining different competences and cultures.’’162 After Prime Minister Jospin made the merger part of his election platform in 2002 (but then lost), Nicolas Sarkozy (who preceded and succeeded de Villepin as Interior Minister during President Chirac’s last term) emerged as its most vocal advocate. The merger could take one of several forms. Under the most conservative reform scenario, the resources of DST and DCRG would be pooled by creating a common intelligence training center, while keeping the agencies separate. Representing a more integrated model, DCRG, DST, and SCTIP would be housed together in a single location and thereby develop more synergies. Under the most revolutionary model, a new Directorate-General of Domestic Security would be created, serving as a counterpart to the existing Directorate-General of External Security.163 However, having suffered through five years of cohabitation, President Chirac remained vehemently opposed to such a merger. From Chirac’s perspective, the merger could jeopardize his grip on intelligence services while placing consolidated power in the hands of the interior minister and, by extension, the prime minister. For the same reason, the creation of an institutionalized intelligence coordinator like the U.S. director of national intelligence remained out of the question, as it could potentially draw power away from the president, especially under conditions of cohabitation. In France, ‘‘intelligence is power, and the Elyse´e chief will not share power, even if this means creating a parallel intelligence structure under his own control.’’164 Because intelligence services are overseen by the prime minister and his interior minister, presidents traditionally placed their own loyal people at high positions within the services, so they could serve as the eyes and ears of the Elyse´e—of particular importance during times of cohabitation.165 French domestic intelligence services, the DCRG in particular, have had political agendas in the past, particularly in elections years.166 Two years earlier, President Chirac accused Prime Minister Jospin and the heads of the DGSE and DST of spying on him.167 Even if these allegations were issued in the midst of Chirac’s reelection campaign and after four years of

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cohabitation, it is important to note that intelligence appointments do not ever go without power struggles between president and prime minister. The appointment of the new DCRG director in January 2004 thus gave additional clues about a possible merger but also about who would be in command of security reforms, at least until the 2007 elections. Having vetoed all DCRG replacements since 2001, a ruling in favor of Chirac’s candidate meant the president had reasserted himself vis-a`-vis Interior Minister Sarkozy and Prime Minister de Villepin. It also meant the merger of DST and DCRG would have to be postponed.168 Shortly thereafter, Sarkozy left the Interior Ministry to become minister of finance. In September 2004, it was further announced that, for the first time, members of the domestic intelligence services, DST and DCRG, and the foreign intelligence service, DGSE, would be detailed to a permanent center. The center would be located at DGSE headquarters so that the services could take advantage of the DGSE’s extensive technical capacities. As opposed to UCLAT’s more administrative information sharing and threat analysis functions, the focus of the new center would be to ensure operational cooperation between the services.169 However, the new joint venture was also considered a response to UCLAT’s perceived shortcomings. Among other things, UCLAT members have criticized the lack of information sharing among the participating agencies.170 Finally, French officials may have also sought to replicate, but without a doubt ended up going beyond, the close working relationship of British domestic and foreign intelligence services.171 Citing the British example of well-established MI5 and MI6 cooperation, senior French intelligence officials commented on the need to strengthen foreign and domestic intelligence cooperation in France.172 On the plus side, however, officials could point to ‘‘having . . . traditional grassroots intelligence on the part of the RG, a structure that Britain lacks.’’173 It bears mentioning that Britain moved quickly to change this perceived shortcoming after the London attacks, sending MI5 units into the regions and creating local counterterrorism units. Building on this grassroots presence, new permanent taskforces for combating radical Islam were set up in all France’s twenty-two regions. Under prefect authority and coordinated by the DCRG, the centers also included members of the DST, Customs, and other services; they were responsible for monitoring prayer rooms, mosques, and hate preachers but also businesses.174 While the DCRG and local police had been working

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together since the mid-1990s, the plan to institutionalize their cooperation into regional units did not emerge until early 2001. At the time, however, it was rejected as an ambitious attempt by the head of the DST, Prefect Jean-Jacques Pascal, to expand DST powers.175 Interestingly, due to DCRG’s extensive experience with local intelligence operations, the new arrangement would now be placed under DCRG leadership. The 2006 white paper on domestic security and the threat of terrorism completed the government-wide review of French counterterrorism measures. De Villepin laid out the government’s strategic counterterrorism plan at a November 2005 conference at the Interior Ministry.176 According to the prime minister, intelligence was the ‘‘the prime key [that] lies at the heart’’ of France’s ‘‘adaptive’’ counterterrorism approach. It was complemented by the ‘‘strengthened coordination among the different services,’’ the regional connectedness of security services (through new permanent taskforces), and, on top of it all, the unique synergies between the intelligence service DST and the investigating magistrates.177

After the London Attacks: The 2006 Combating Terrorism Act The French response to the July 2005 London attacks was almost immediate and viewed by some as the ‘‘first legislative implementation of the general principles lying in the White Book.’’178 British video surveillance tools used to identify the suicide bombers in the aftermath of the London attacks served as an ideal opportunity to strengthen the case for additional surveillance cameras in France. Compared to the four million cameras in Great Britain, France counted only 61,000 cameras in public places; their recordings were rarely stored. According to Interior Minister Sarkozy, it was instrumental to ‘‘learn the lessons of the London attacks.’’ He went on to explain: ‘‘There needs to be video surveillance in the subway, at airports, and at railroad stations. We will also allow places of worship and major stores to expand it on their premises. Prefects will be able to install it at sensitive locations.’’179 Moreover, the measures were designed to adapt investigative and surveillance tools to technological advances. Security services were to be equipped with new powers to conduct database and computer network searches and online access to Internet service provider files and stored communications.180 Following a Domestic Security Council

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meeting on July 26, the government announced that a new counterterrorism law, for the fight against terrorism with various security and border control provisions (Loi relative a` la lutte contre le terrorisme et portant dispositions diverses relatives a` la se´curite´ et aux controˆles frontaliers), was in the works.181 After Prime Minister de Villepin outlined the sixteen-article draft bill to the members of Parliament in early September,182 it was adopted by the Council of Ministers in October. New camera installations would not just be limited to Paris but extended to the whole country and images stored for one month. Regional prefects could require any private or public institutions (including department stores, banks, public transportation, airports, nuclear power plants, and industrial facilities, among others) to install cameras to help prevent terrorist acts. In emergencies and provided the surveillance took less than four months, the prefects would not have to seek authorization from a special court needed for all other camera installations. Only designated police and gendarmerie personnel would have access to the images. Another provision involving video surveillance allowed the photographing of cars, their license plates and occupants. Those pictures could be stored for eight days or longer (so that there would be sufficient time to compare information with those of stolen, wanted, or conspicuous cars) and be accessed by the gendarmerie, police, and customs services. Security services would gain new disclosure powers in other areas as well. Under Article 7, designated police, customs, and gendarmerie agents would gain access to databases with travel-related information, including passenger lists, reservations, visas, and passports. Under Article 9, select members of the National Police and gendarmerie would have easier access and authority to cross-reference database files held at the Interior Ministry, including information from driver’s licenses, passports, ID cards, and immigration records. Calling the past procedure a ‘‘heavy, time consuming and unreliable administrative process,’’ DCRG director Pascal Mailhos explained how, in order to check this kind of data, the DCRG used to have to first get written authorization and then walk over to the respective police services or city halls.183 Pursuant to Article 5, cybercafes or any other wireless Internet access providers (like hotels and restaurants) would from now on be considered communication service providers and, therefore, be obligated to store their connection data and make it accessible to security services. Pursuant to Article 6, members of the police and gendarmerie would be authorized to request access to any traffic data (phone or online) in

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order to localize users and identify connection times, subscriptions, and numbers. According to Sarkozy, contents were to be excluded. However, and most controversially, these information gathering activities would not be subjected to independent judicial control but be overseen by a designated official inside the Interior Ministry (who would be nominated by the CNCIS, on the suggestion of the interior minister). The details of how the requests would be traced and how long the data would be stored were to be determined later by decree and in cooperation with the two oversight commissions, CNCIS and CNIL. With the help of travel agents and air and transportation companies, authorities would start monitoring and collecting passenger records of travelers to and from non-EU countries (especially those with terrorist training camps, such as Pakistan, Afghanistan, and Syria). The bill further extended ID checks on trains to all of France (not just the border region). Critics questioned the preventive use of the surveillance cameras as well as the timing of the measure, noting it had been on the government wish list for several years. Deputy Ge´rard Le´onard warned that massive video surveillance was ‘‘by no means a panacea . . . its generalized character does not make it a preventive instrument of particular effectiveness, while raising serious questions about the respect for individual freedoms.’’184 Magistrates’ Syndicate spokesman Laurence Mollaret expressed concerns that the bill could take away significant judicial checks on the police and intelligence services: ‘‘It shows one more time that the judicial authority is in a way put aside as much as possible, and that’s of course a threat to democratic life.’’185 In response, Sarkozy offered additional security guarantees: ‘‘We will distinctly define the purposes of the [electronic] files and the people entitled to reach it. Traceable access will be ensured . . . which means that sanctions could be applied in case of any inappropriate use.’’186 Citing a CNIL decision from October 10, opposition Socialists did not think that this pledge went far enough, arguing that the video surveillance provisions, as well as those granting access to files and communications, lacked precision on how the data would be used and how the public would be informed of camera installations.187 Even worse, deputies pointed out that the government had not yet enacted the so-called implementing decrees needed to specify the retention of communication data (originally authorized by the 2001 LSQ Act) and automatic car screening (as approved by the 2003 LSI Act) provisions.188

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Others wondered about the need to grant further investigative and data collection powers, especially since previous counterterrorism legislation was passed not long ago.189 The urgency of the measures also appeared questionable since the video surveillance stipulations were deliberately exempted from the 2003 LSI Act.190 Yet other Socialist and Communist deputies criticized the growing ‘‘amalgamation’’ and blurring of immigrationrelated measures (ID checks on trains, filing of passenger data, and stripping of citizenship status), ordinary delinquency, and terrorism.191 The government compromised by meeting the demands of the CNIL Commission, which insisted that certain provisions sunset after three years. The most controversial provisions were, thus, equipped with a ‘‘rendezvous’’ clause, subject to reevaluation and reauthorization after three years. According to Socialist critics, these checks would not amount to much, as most of the 2001 LSQ provisions were made permanent long before they were scheduled to be evaluated.192 Apart from the ID checks on international trains, sunset clauses would apply to those provisions that expanded access to Interior Ministry databases and electronic traffic data without judicial oversight. The National Assembly began debating the bill on November 23, 2005, amid rioting in the Parisian suburbs which escalated into a national crisis and the issuance of a twelve-day emergency decree, subsequently extended to three months by means of emergency legislation.193 Even though the ‘‘state of emergency’’ was not thought to be connected to Islamic terrorism,194 as duly noted by DST chief Pierre Florian, it still affected the legislative proceedings, as deputies were eager to pass the bill fast.195 Fully aware of the political opportunity provided by the events, the government took advantage of the situation. While Prime Minister de Villepin warned that ‘‘never has the terrorist threat been so high,’’196 Interior Minister Sarkozy’s comments to the National Assembly were even less ambiguous: ‘‘I tell you with gravity: The ingredients of the threat exist and the scenarios of violent action on our soil are perfectly real.’’197 The remarks did not miss the mark among lawmakers. Making use of these more ‘‘permissive’’ sentiments in the National Assembly, majority deputies proceeded to further expand security measures contained in the bill.198 An amendment proposed by UMP Deputy Thierry Mariani extended the pre-charge detention period from four to six days.199 Cynics argued that this clause would likely not result in much change, however, because the investigating magistrates (provided they stated intent to prosecute) relied on much broader powers to

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detain people for months or sometimes years before setting a trial date. To alleviate some of the concerns expressed by Socialist deputies in particular, the detention extension was to be granted (1) in two intervals after the first four days, (2) by a freedom and detention judge rather than an investigating magistrate, and (3) only ‘‘if there is a serious risk of imminent terrorist activity in France or abroad’’ or if the necessities of international cooperation require it.200 In defense of the measure, government officials cited Britain’s more stringent pre-charge detention provisions—ironically, British officials had previously cited France’s more extensive pre-charge authorities to justify their own.201 Both chambers decided to use the urgence de´clare´e procedure to push forward the passage of the bill. This limited the readings to one in each house before both convened in the Joint Committee. The bill passed the National Assembly on November 29 with an overwhelming majority of 373–27, a result that led Sarkozy to praise the ‘‘spirit of unity’’ between the government majority and opposition parties.202 The Socialists abstained from the vote, with only the Greens and the Communists opposing the counterterrorism package. In the Joint Committee negotiations, National Assembly deputies decided to hold on to some of the provisions added by the Senate. These included adding customs violations to the list of offenses license plates would be screened for. Certain designated agents of the intelligence services under the Ministry of Defense (most important, the foreign intelligence service DGSE) would also gain access to administrative files held at the Interior Ministry.203 Moreover, deputies resubmitted the controversial provision that allowed various law enforcement services to resort to administrative requisitions of telecommunication traffic data (Article 6) that was previously removed in the Senate. Moreover, the clause would allow police and gendarmerie agents to access such data not only to prevent but also to repress terrorist acts. Criticism abounded, in particular with regard to the latter formulation, foreshadowing a debate that would soon resonate in the Constitutional Council. Deputy Andre´ Chassaigne summarized the problem: ‘‘You propose to extend the capacities of the administrative police force, which from now on will have the same prerogatives as the Judicial Police [criminal police].’’204 The Socialists had already vetoed the bill in the Senate and further announced that they would refer it to the Constitutional Council.205 Among other things, they were concerned that the decision to replace the magistrate responsible for overseeing traffic data storage with an Interior Ministry prote´ge´ resulted in too large a power shift from the

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judicial to the executive branch. Less than two months after it was first introduced, both chambers adopted the counterterrorism bill on December 22, 2005. As expected, senators called on the Constitutional Council to review the act. They focused their complaint on Article 6, criticizing, among other things, that it was unconstitutional for administrative, ‘‘regular’’ police forces to gain repressive powers; these had been exclusively reserved to the Judicial Police until now and were subject to stringent judicial oversight. Not only would these regular police services be granted access to telecommunication traffic data, but the data would be administered by the Ministry of Interior, outside the existing judicial framework. Further opposed to the ‘‘generalized system of monitoring’’ cars and their occupants, the senators singled out various other provisions they considered unconnected to terrorism and in violation of the original purpose of the bill. The Constitutional Council supported the senators’ case regarding parts of Article 6. Precisely because the police services are placed under the authority of the executive branch, the court argued that ‘‘they cannot therefore have any other purpose than to ensure public order and prevent the commission of offences.’’ By adding punishment to their repertoire, ‘‘Parliament has infringed the principle of the separation of powers.’’206 The government had thus fared a minor setback in furthering its unique counterterrorism approach, whose ‘‘originality and strength lie in the fact that the barrier between prevention and punishment is not airtight.’’207 After the Court announced its decision on January 19, the act was promulgated on January 23, 2006.208 Pursuant to the act, a new technical platform for the interception of traffic data started operations in May 2007, granting security services immediate, ‘‘one click’’ access to telecommunication service providers. Members of the DCRG, DST, and Judicial Police could request this information (like subscriber identities, call lists, and location of caller) from the technical center located at Levallois Perret. In October, the platform was further extended to include Internet service providers. Run by the UCLAT, the platform is overseen by the General Inspector of the National Police, but not subject to judicial oversight. 209 Reorganization: A New Directorate of Domestic Intelligence Once again, talk about a new Directorate of Domestic Intelligence increased in 2005 when Sarkozy suggested that the DST, the DCRG, and

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the Anti-Terrorism Subdirectorate (Sous-Direction Anti-Terroriste, or SDAT, known as DNAT (Division Nationale Anti-Terroriste, National Anti-Terrorism Division) until 2006) of the Judiciary Police relocate to a single location in Lavallois Perret.210 The joint move was to take place in November 2007, after the national elections. It remained unclear how far the pooling of resources would go. The DST and DCRG were determined to preserve their respective organizational cultures and focus ‘‘transnational counter-terrorism, counterintelligence, economic security, [and] the state’s interests at the DST,’’ while leaving ‘‘autonomists, social conflicts, societal phenomena, foreign communities at risk, racing and gambling and . . . urban violence for the RG.’’211 With less than two years left in his last term, President Chirac was a lame duck at this point. Presidential prote´ge´es, like DCRG director Mailhos, were openly voicing support for the idea of creating a single domestic intelligence directorate, warning that ‘‘the existing structures are not in a position to anticipate in an optimal manner the threats that our country is facing.’’212 Another central question planners were facing was whether the directorate should become an independent entity or be placed under police administration. DST officials, in alliance with Investigating Magistrate Jean-Louis Bruguie`re and others, were strongly opposed to the independent option. Fearing that DST intelligence agents would lose their special judicial connection and executive capacities, they argued that ‘‘the link between intelligence and judicial investigations forms the basis of the French preventive system, which has avoided every Islamic attack since 1996.’’213 As part of his presidential campaign in 2006, Sarkozy further announced that he wanted to break the ‘‘traditional borderline between domestic security and external security’’ he considered ‘‘largely obsolete.’’214 He suggested creating a National Security Council, very much based on the U.S. model, which would coordinate and decide all issues of national security. Representing a truly transnational approach, it would be responsible for all homeland security, public safety, and international and defense issues. Not surprisingly, the council was to be chaired by the president himself. Members on both sides of the political divide supported the plan— however, the Ministry of Defense was concerned about becoming marginalized and favored a slightly different focus.215 Therefore, soon after he was elected in 2007, Sarkozy proceeded to stand up the new Defense and National Security Council (Conseil de De´fense et de Se´curite´ Nationale, or CDSN), whose functions were further specified in the 2008 white paper

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on defense and national security.216 The council was created by means of presidential decree on December 24, 2009217 and replaced the existing Councils for Domestic Security (CSI, created in 2002) and Defense. As part of the same decree, Sarkozy created a second committee, the National Intelligence Council (Conseil National du Renseignement, CNR), to serve as a ‘‘specialized formation’’ of the CDSN and continue the work of the Interministerial Intelligence Committee CIR. Sarkozy would also serve as the head of the new CNR. As the CIR was run by the prime minister until now, this move continued the presidential expansion into intelligence coordination and governance, as the ‘‘marginalization of the prime minister . . . [was] made official.’’218 Critics warned against the ‘‘concentration of power in the hands of the head of state . . . [which] multiplies the violations of the principle of political accountability,’’ as the arrangement lacked any parliamentary scrutiny and went against the principles and traditions of the republic.219At the same time, it must also be noted that the heads of intelligence have had a tradition of reporting to the president of the republic, even if they belong to the Interior Ministry. Others questioned the nature of the relationship between the existing UCLAT, responsible to the Interior Ministry and, therefore, the prime minister, and the new presidential council.220 Yet others voiced concerns about how future cohabitation could have detrimental effects on this arrangement—as UCLAT and CNR would be overseen by a prime minister and a president belonging to different parties. However, the latter scenario appears highly unlikely after the 2000 constitutional reform aligned presidential and parliamentary terms and elections.221 The CNR was tasked with developing intelligence strategies and priorities and allocating resources, as well as overseeing the legal framework of intelligence operations. In practice, the position of the intelligence coordinator had already existed since July 2008, when President Sarkozy nominated Bernard Bajolet to serve him in that function.222 He was tasked with coordinating the activities of the services that made up the French intelligence community, including those of the Interior, Defense, Finance, and Budget Ministries. Coordination tasks included chairing meetings, to be attended by cabinet members, security services, and the prime minister; establishing intelligence analysis and collection priorities; and overseeing intelligence production, implementation, and sharing. Most important, as a presidential advisor, he was to serve as the primary and designated point of contact between the intelligence services and the president. Interestingly,

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the intelligence coordinator was supported by only a small staff, ‘‘to avoid the formation of a new layer of [U.S.] ODNI-like bureaucracy.’’223 Others have commented on the ‘‘induced presidentialization’’ of the arrangement as the coordinator has often been bypassed because the intelligence chiefs have been eager to maintain their direct relationship with the president of the republic.224 For the first time, French intelligence agencies would also become subject to parliamentary oversight. A bill designed to set up an intelligence committee, which had been shelved since March 2006, was at last adopted in September 2007.225 The committee had been in the works since 1999, when a bill was introduced on the basis of a widely circulated report by Deputy Arthur Paecht but never actually reviewed by the legislature.226 Another report from 2002, this time compiled with the help of the major security services, echoed Paecht’s recommendations.227 However, the milestone reform could not be accomplished under President Chirac, who, after five years of divided government, remained acutely sensitive to any initiatives that contested presidential prerogatives. Under President Sarkozy, however, the proposal gained increasing support from both politicians and security services, who viewed it as a helpful mechanism for correcting negative public perceptions of intelligence activities. More recently, the need for such a committee was also discussed as part of the 2006 counterterrorism legislation.228 Because of the sensitive political nature of the undertaking, however, lawmakers decided to decouple it from the bill and pledged to make the creation of the committee the central item of stand-alone legislation the following spring. Pursuant to the 2007 act, the new intelligence committee was tasked with overseeing intelligence agencies under the Ministries of Defense, Finance, Budget, and the Interior, including their general activities, budget, and organization, and conducting hearings with intelligence officials. The committee included four deputies and senators each, and chairmanship would rotate annually. Efforts by Rapporteur Alain Marsaud to extend the committee’s oversight powers to private intelligence companies proved too ambitious. After the May 2007 elections, the DCRG and DST merger also took more concrete shape. In a letter to the police union Synergie Officiers, President Sarkozy reemphasized that he was in favor of ‘‘establishing a unified directorate of domestic intelligence in France to better combat terrorism.’’229 The head of the DCRG, Joe¨l Bouchite´, was quick to point out that it would ‘‘not be a DST reinforced by RG or an RG reinforced

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by technologies, but a new place for domestic intelligence.’’230 While it was initially unclear if this new directorate would be focused on intelligence exclusively (in which case all DST agents with investigative powers would have to be assigned to the SDAT) or continue to conduct counterterrorism investigations (in close cooperation with the investigating magistrates), it appeared unlikely that the government planners would sacrifice the unique DST-judicial alliance deemed so successful. At the same time, SDAT officials insisted, ‘‘We must ensure the complete autonomy of the judicial side, and not place it under the same authority as intelligence. We use material evidence and procedures, whereas in intelligence it sometimes happens—and that is normal—that work is pursued on the basis of assumptions or circumstantial reports.’’231 In the meantime, Sarkozy kept emphasizing the need to give ‘‘priority to preventing terrorist attacks’’ because ‘‘in the face of an unidentified adversary, whose networks are fragmented, the cohesion of our intelligence services must be perfect.’’232 Details emerging in spring 2008 indicated that the DST would keep its ‘‘law enforcement’’ capacities as part of the new directorate as it remained part of the National Police.233 The directorate would rest on four pillars, including (1) counterterrorism, (2) counterespionage, (3) economic intelligence/protection of national assets, and (4) emerging threats/surveillance of extremist groups. The creation of the Central Directorate of Domestic Intelligence (Direction Centrale du Renseignement Inte´rieur, or DCRI) was officially announced on July 1, 2008.

The 2010 LOPPSI II Act Shortly after the German government managed to introduce new remote spyware powers as part of the 2008 BKA Act, the French government proceeded to expand their own arsenal, having also studied the German arrangement.234 While the BKA Act was stalled for years due to controversy related to spyware provisions, French spyware powers were established in a more rapid fashion. Interior Minister Michele Alliot-Marie introduced these provisions as part of another security bill on May 27, 2009. The Guidance and Planning for the Effectiveness of Domestic Security Act (Loi d’orientation et de programmation pour la performance de la se´curite´ inte´rieure) was referred to as LOPPSI II. Similar to the 2002 LOPSI, the bill aimed to strengthen domestic security policy in a variety of different areas

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over the course of the next four years. Among its key ‘‘operational priority objectives for the years 2009–2013’’ were ‘‘terrorist threats that undermine the founding principles of the Republic, the integrity of the national territory and the best interests of the country.’’235 Interestingly, Articles 17 and 18 called for tripling surveillance cameras in France, from about 20,000 to 60,000, by 2011. The camera presence was supposed to be expanded on highways and other public places and monitored by CNIL. For the purpose of this analysis, however, Article 23 of the original draft is of particular importance. Article 23 was designed to complement existing organized crime law, which thus far only permitted the remote recording of images and sounds. The bill would allow computer data to be ‘‘captured’’ remotely in real time, while data were being entered and without the ‘‘knowledge of the person,’’ once authorized by an investigating judge.236 The focus on organized crime, of course, built on the long-standing assumption of an existing crime-terrorism nexus. According to the bill that Interior Minister Alliot-Marie submitted to the National Assembly on May 27, 2009, ‘‘the use of this method of investigation will be reserved for the fight against the most serious crime, including terrorism.’’237 Representatives of certain professions, for example, members of Parliament and lawyers, would be exempt from spyware surveillance. The Law Commission finalized the details of the draft soon after, in July 2009. After the National Assembly adopted the text at the first reading on February 17, 2010, the Senate discussed LOPPSI II in September 2010. According to Senate critics, the spyware provisions lacked safeguards and might, therefore, invite misuse; the measure was considered intrusive and in violation of personal liberties.238 Various amendments sought to limit spyware operations from four to one month.239 Other senators warned about lacking privacy protections, demanding changes that would ensure that unrelated data be deleted from case files or not be stored in the first place.240 Yet others were pushing for additional safeguards to protect members of Parliament, judges, and magistrates, and the separation of powers principle.241 All amendments were rejected. The process could not have been more different from the decisionmaking hurdles and debates surrounding German BKA spyware. While some or all provisions of Article 23 were rejected by French opposition lawmakers, the debate was swift and criticism muted compared to the German case. French spyware provisions were part of a larger bill; while the overall bill took more than eighteen months to pass and triggered

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numerous controversial debates, the new spyware powers were not affected by any of them. The provisions were quickly approved by the National Assembly and not amended afterward. Pursuant to the final version, police would have to obtain judicial approval before installing spyware on computers, in cases involving ‘‘acts by organized gangs (murder, torture and barbaric acts, kidnapping and unlawful detention, etc.)’’ or those characterized ‘‘by the specific gravity of the offenses (terrorism, pandering, drug trafficking, etc.).’’242 The programs could be installed, either physically or remotely, at any given time. They could be used anywhere (for example, in private residences, vehicles, and public places like Internet cafes) for a period of four months (renewable once) and without the consent or knowledge of the computer owners.243 Police were authorized to observe and record data in real time. Specifically, the software was designed to record, save, and transmit keystrokes as they appeared on a screen from the computer on which the spyware is installed. However, law enforcement powers did not extend to files on hard drives, unopened emails, or an ‘‘entire file while it was only partially viewed by the person concerned.’’244 Computers ‘‘located on the business premises of lawyers, media companies . . . , doctors, notaries, attorneys or bailiffs . . . members of parliament and judges’’ would be excluded from this arrangement.245 On March 11, 2011, the Constitutional Council declared thirteen LOPPSI II articles unconstitutional. The changes were considered minor and also did not affect the new spyware provisions.246 Three days after the verdict, LOPPSI II was officially proclaimed.

The 2012 Security Act In March 2012, France suffered a Jihadi terrorist attack at home, the first in sixteen years. Three soldiers, three children, and one teacher died in the eight-day shooting spree led by Mohammed Merah. The significance of the attack was further illustrated by the fact that, for five days and for the first time since its color-coded scheme was used in 2003, France raised the Vigipirate security alert system to the highest ‘‘scarlet’’ level.247 As President Sarkozy, the Fillon government, and the security services faced increasing criticism in the aftermath of the terrorist attack, the Socialist presidential contender, Franc¸ois Hollande, called for a review of counterterrorism laws. Also, he emphasized the need for better coordination

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between the DCRI and DGSE, after having launched his own intelligence reform assessment.248 Soon after the attack, it became known that Merah had traveled extensively in the Middle East and Central Asia, and also frequented terrorist camps.249 Therefore, it did not come as a big surprise that Sarkozy’s counterterrorism bill, proposed to the Council of Ministers on April 4, 2012, focused on terrorist training camp visits. In addition, President Sarkozy also sought to tackle online radicalization,250 a move rejected by Hollande and opposition parties. Sarkozy rushed to introduce the bill before the national elections and the end of the parliamentary session. Knowing Parliament would likely not have time to pass the bill before the end of the session in June,251 Sarkozy was arguably still looking to demonstrate responsiveness. The proposed legislation made it a criminal offense to visit either military or ideological terrorist training camps.252 Thus far, French law only allowed for the prosecution of terrorist activity on French soil. More contentious, however, was a bill provision that prohibited terrorism incitement on the Internet. In other words, the creation or consultation of terrorismglorifying websites would constitute punishable offenses, and security services would be allowed to shut down Internet servers (subject to court orders). According to Justice Minister Michel Mercier, the logistic hurdles were minor: website traffic could easily be tracked by sifting through connection logs of French terrorist websites. Hard drives and Internet pages could be searched and monitored during physical searches or by means of remote cookie installations (as outlined by LOPPSI II). ‘‘Professional’’ website consultations conducted by, for example, journalists, academics, or others with legitimate reason, would be excluded from the law. And yet, the website provisions were especially controversial—leaving critics to wonder how radical websites and website consultations were defined and whether this represented the beginning of a slippery slope to a kind of Big Brother Internet surveillance.253 At the end of the day, however, the bill was not adopted into law, as President Sarkozy lost the presidential elections and left office. In September 2012, Interior Minister Manuel Valls announced that the new government, under leadership of President Franc¸ois Hollande, had been working on their own version of a counterterrorism bill.254 Similar to Sarkozy’s bill, it would make it a punishable offense for French citizens255 to visit terrorist camps and commit terrorist acts abroad and created new

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authorities to arrest and prosecute people upon their return. Therefore, the bill on security and the fight against terrorism (Loi relative a` la se´curite´ et a` la lutte contre le terrorisme) introduced to the Council of Ministers256 and the Senate in early October 2012 closely resembled Sarkozy’s approach.257 However, it did not go as far as Sarkozy’s version, as it did not seek to expand surveillance of terrorist websites and also did not charge those who owned or frequented these websites with inciting or glorifying terrorism. Interestingly, some reports noted that Valls’s original proposal underwent changes in late September and that the web consultation provisions were removed as a result of these changes.258 Instead, the bill merely focused on renewing a clause contained in the 2006 counterterrorism package, which authorized the monitoring of telecommunication transaction data. Due to sunset on December 31, the provision had already been reauthorized once in 2008 as part of a separate bill; both houses of Parliament passed the legislation within only four weeks.259 The government was now looking to extend the sunset clause for another three years, until 2015. In the context of this analysis, two of the 2006 provisions (related to administrative requisitions of telecommunication traffic data and access to Interior Ministry database files) that were up for renewal are of interest. After Interior Minister Valls introduced the bill in the Senate on October 3,260 the Law Committee reviewed the bill, followed by a Senate debate on October 16 and 17, 2012. All amendments targeting the 2006 provisions were rejected.261 Inter alia, they called for a shorter, two-year extension as well as the need to evaluate the provisions before extending them. Since the provisions, ‘‘considered exceptional and experimental in 2006’’262 had last been evaluated in 2008 and were ‘‘originally intended as a temporary measure,’’ a CNIL opinion appeared in order as well.263 Valls responded that the CNIL had indeed been consulted on both counts and offered to make the CNIL assessment public.264 In addition, he clarified that the government would not be seeking another extension in 2015 but was instead looking to create a permanent statutory basis. The 2006 provisions were also not changed by the National Assembly and, therefore, extended by another three years, until December 2015. Once again, illustrating streamlined parliamentary decision-making in France, the bill passed both houses in less than ten weeks, after only one debate in each chamber. In fact, the government decided to subject the bill to the proce´dure acce´le´re´e. Each house, once again, required only a single reading before the bill was submitted to the Joint Committee. Interior Minister

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Valls justified the procedure citing the high terrorist threat that was increasingly ‘‘growing from within.’’265 The conservative opposition agreed, since, from their perspective, the bill represented a mere reinstatement of Sarkozy’s April bill. On December 12, 2012, the French government adopted the new counterterrorism legislation.266 In July 2013, Le Monde reported that DGSE had been collecting and storing Internet, email, and phone communications data of French residents.267 While the program was criticized as it appeared to be ‘‘beyond any proper supervision,’’268 the DGSE director and the national intelligence coordinator rejected the allegations, arguing that data were subject to CNCIS oversight. Critics pointed to the perfunctory nature of the CNCIS arrangement: similar to the U.S. FISA Court, it was created to facilitate government surveillance, not restrain it. The revelations were all the more controversial since the parliamentary Intelligence Committee, created in 2007, still lacked the powers needed to exercise genuine oversight.269 Tasked with assessing ‘‘the context in which intelligence activities are conducted and how they are coordinated and controlled,’’a government fact-finding mission convened in July 2012270 concluded that ‘‘the delay by France in this field [parliamentary oversight] seems inexcusable and harmful. . . . While it is one of the oldest democratic nations, our country is the last to have no established regulatory framework adapted . . . . The French services act without any legal basis and without any hierarchical and domestic control.’’271 Only ten days later, the interior minister announced that the DCRI would be reformed and renamed Directorate-General of Domestic Security (Direction Ge´ne´rale de la Se´curite´ Inte´rieure, DGSI), illustrating a new emphasis on domestic security rather than domestic intelligence.272 In the context of the ‘‘big brother’’ allegations, the timing of the announcement might not have been coincidental. However, the Hollande camp had been looking into restructuring the DCRI even before the Merah attack. Official investigations launched in the aftermath of the shooting spree shed additional light on coordination and information-sharing dilemmas inside the DCRI, created in the aforementioned 2008 merger of the foreign threatoriented DST and the domestic threat-oriented RG. So-called coordinating cells, introduced in fall 2012, were supposed to strengthen information sharing between the Subdirectorate General Information (Sous-Direction de l’Information Ge´ne´rale, SDIG, which absorbed the former RG) and DCRI (former DST) personnel; however, SDIG officials soon complained

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that information exchange resembled a one-way street.273 Elsewhere, critics agreed that the former RG had been dismantled, marginalized, and relegated to an auxiliary force of the DCRI.274 According to Interior Minister Valls, the transformation of the DCRI (into the newly branded DGSI) would occur in stages and be finalized in 2014. While explaining Hollande’s ‘‘choices,’’ Valls also stressed that the general structure of the DCRI would not change and that the RG would not be ‘‘recreated.’’275 The new DGSI would be strengthened, however, by human and technical resources and put under the direct authority of the interior minister—instead of the National Police. These comparatively minor reforms were designed to address the still existing fault lines between the former RG and DST services and boost the comparatively small pool of specialists focused on radical Islam. Per Hollande’s decision, the new organization, like the rest of the intelligence community, would continue to be subject to parliamentary control, to ensure ‘‘the balance between security and civil liberties.’’276 The president further emphasized future plans to strengthen ‘‘parliamentary oversight of intelligence services . . . through the expansion of its prerogatives.’’277

Part 3: Analysis and Conclusion How Did Government Structures Influence Counterterrorism Decision-Making? Speed of Response—How quickly did France respond to the 9/11 attacks and/or others? How long did decision-making processes take?

The Jospin, Raffarin, and de Villepin governments not only quickly responded in the aftermath of the 9/11 attacks but also initiated legislative and institutional reforms directly in response to the bombings in Madrid and London. Likewise, only three months after assuming office, the government of Jean-Marc Ayrault introduced legislation in response to the March 2012 Merah killings (which President Sarkozy’s earlier bill also sought to address). In part, the speedy responses were facilitated by the weak position of the Parliament vis-a`-vis the executive branch, as the French government faced noticeably little and, compared to the other three countries in this analysis, least resistance during usually short legislative decision-making

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processes that were typically subject to ‘‘urgency’’ or ‘‘accelerated’’ procedures. In mid-November 2001, France was thus the first to adopt new counterterrorism measures after the United States. Furthermore, the dyarchic structure of the executive branch both enabled and prompted the president to create the position of a security czar who would only answer to him and not the prime minister. Even under conditions of ‘‘unified’’ government, however, the structurally induced tension between the prime minister and president facilitated quick decision-making throughout the following years, as both would take competitive turns decreeing new institutional measures or else join forces to launch legislative initiatives that further expanded executive security powers. While the 2002 LOPSI Act mostly resembled a policy declaration that required additional statutory footing, the bill took a total of three weeks to pass all legislative hurdles. The 2003 and 2006 acts were passed within four and two months respectively—the latter in response to the London attacks and several months before the British Parliament passed its 2006 Terrorism Act (derailed by pre-charge detention struggles), also in the aftermath of the attacks. The 2012 act was one of the first items on the legislative agenda of the newly elected government. In direct response to the Merah attack and replicating the speedy nature of earlier decision-making, the legislative process lasted about two months. Decision-Making Mode—Were decisions made by means of executive order, or did they require parliamentary approval?

The French president had extraordinary authority to announce new coordinating positions and councils, as evinced by the Domestic Security and Defense and National Security Councils set up in 2002 and 2008 respectively. He also determined the nature and timing of far-reaching institutional reforms like the Intelligence Directorate merger. Even the prime minister has significant powers to implement institutional reforms by means of executive decree, as illustrated by the creation of the Domestic Intelligence Council in 2004 and the various intervention and surveillance taskforces dispersed into local neighborhoods. The legislative route served as an almost equally opportune venue, however, precisely because it represented a route of low or least resistance. As lawmakers were about to leave for summer recess, they did not put up a strong stance against the LOPSI Act. Lower house deputies and upper house senators largely went along with government proposals in the context

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of the 2003 LSI and 2006 counterterrorism acts, whose counterterrorismrelated clauses left the legislative process virtually unscathed. In both cases, and more so than in any of the other three countries in this book, National Assembly deputies (and/or senators) even proceeded to reinforce the government bills with additional security provisions. Numerous opposition lawmakers abstained, deferred their opposition to the Constitutional Council, or even voted in favor of the new measures. For example, the main opposition party UMP supported the 2012 counterterrorism legislation, arguing it resembled many of the same policies that had been part of the Villepin/Sarkozy bill introduced in April. Legislative ‘‘special arrangements’’ represented the rule rather than the exception. In the case of the 2001 LSQ Act, the government was allowed to take a ‘‘short-cut’’ by adding security provisions to a bill that had already advanced to the joint committee stage. With one exception, all acts were fast-tracked via urgency/emergency procedures. In fact, the 2011 LOPPSI II was the only legislative bill subjected to more lengthy ‘‘standard’’ parliamentary procedures. Constitutional Council rulings served as the final decision-making hurdle for the government and influenced legislative action in 2002, 2003, 2006, and 2011. In fact, the judicial venue was the best and often only opportunity for opposition lawmakers to influence legislation. Level of Public Scrutiny and Debate—Did the decision-making process allow for an open debate, public hearings, and/or post-legislative scrutiny, rather than secret and/or emergency procedures?

Similar to the other countries in this analysis, public scrutiny and legislative debate were limited in the months after the 9/11 attacks, as the 2001 LSQ Act was adopted in a record four weeks. However, debates continued to be cut short due to urgence declarations in the making of the 2002 LOPSI, 2003 LSI, and 2006 and 2012 counterterrorism acts. The lack of debate did not weigh as heavily in the case of the LOPSI Act (which effectively served as a trial run for large parts of the 2003 LSI Act introduced soon after), as in the case of the 2006 package, generally considered the most significant French counterterrorism legislation since 1996. In fact, the 2006 bill was passed in a record eight weeks, as much of the legislative debate was curtailed in response to the Paris riots. Debates were again cut short and kept to one in each house, as the Ayrault government opted for accelerated procedures when passing the 2012 act.

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Acknowledging the risks associated with rushing legislation at the time of crisis, the government conceded to various sunset clauses in the 2001, 2006, and 2012 acts, which, at least in theory, ensured the possibility of parliamentary involvement and review at a later time. In practice, the sunset clauses were perfunctory at best, as the LSQ sunset provisions were made permanent ahead of time and, unlike German or U.S. sunset provisions, not subject to separate debate and reevaluation. Similarly, the 2006 sunset provisions were extended without reassessment and very little debate in 2008 and 2012. As noted above, the two largest counterterrorism bills, the 2003 LSI and the 2006 act, among others, were also scrutinized by the Constitutional Council. In contrast to the retroactive judicial scrutiny in the United States and Germany, the court option thus allowed opposition lawmakers to correct or clarify selected bill provisions before the laws were promulgated, if only outside the legislative venue. In terms of post-legislative scrutiny, the new Intelligence Committee lacked the powers and clout needed to exercise oversight of executive activities in the intelligence realm. Similar to the British Intelligence Committee, it remains to be seen how much of an impact it can actually have, especially considering the overall weak status the French Parliament holds (vis-a`-vis the executive branch) in all matters security decision-making. 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?

Consistent with prior analyses of German and British responses, a few general observations are in order. Once again, the overall scope of French reforms after 9/11 is of note, especially when considering France’s extensive counterterrorism experience, which culminated in two major counterterrorism reforms in the 1980s and 1990s. In fact, French investigating magistrates and other security services had even specialized in countering Jihadi terrorism in particular. Regardless, French presidents and prime ministers have consistently sought to adapt, update, and expand the existing counterterrorism arsenal since 9/11. The UCLAT information-sharing and threat assessment center from the 1980s, widely considered a blueprint for British, U.S., and German joint counterterrorism analysis centers created after 9/11, further evolved. While it was put in charge of a new platform interface that allowed instant access to telecommunication and Internet data, serving as a quasi-one-stop-shop

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for security services, its original functions were likely marginalized by other reforms, for example, the creation of the CNR in 2008. In fact, the DGSE Center set up in 2004 was specifically created to address some of UCLAT’s perceived deficiencies and improve information sharing by means of joint operational planning. New counterterrorism measures broadened data collection and disclosure powers of security services, in particular those of the ‘‘regular’’ police forces. Preventive policing powers were strengthened. Many of the 2001 LSQ or 2006 counterterrorism provisions or the 2011 spyware clause of the LOPPSI II were consistent with France’s unique approach to purposefully target ordinary criminals, delinquents, or immigrants, and any of their activities, in an effort to identify or disrupt potential terrorism-crime linkages. The terrorism conspiracy clause, a key feature of the 1996 antiterrorism legislation, provides the legal foundation for investigating crimes in connection to terrorism. The same principle also inspired the deployment of local GIR intervention units tasked with combatting organized crime in the suburbs. The nature of the policy reforms helps shed light on the decisionmaking process within the French government, which, similar to the British case, appears far more streamlined than in the German or U.S. cases. Even though the process is not confined to a ‘‘single’’ track dominated by the Home Office as in Britain, the French Justice Ministry resembles less of a hurdle than its German counterpart. Instead, the justice minister appeared largely to follow the lead of the Interior Ministry or else tolerate encroachments on judicial turf, as the criminal law provisions contained in the 2001 LSQ, 2003 LSI, and 2006 Counterterrorism Acts illustrated. Repeatedly, the Interior Ministry, representing the interests of the law enforcement and intelligence community, appeared in charge of the criminal code, rather than the Justice Ministry. While this trend seems to have preceded 9/11, it still illustrates a power shift that favors executive over judiciary powers. Similar to the reforms pursued in the other three countries, judicial checks on law enforcement powers continued to fade. For example, pursuant to the 2001 reforms, the Judicial Police could stop and search any moving, stationary, or parked vehicles in public, without a warrant or probable cause. These investigative powers were not only limited to certain acts of terrorism but also available in the context of weapon or drug trafficking offenses, again illustrating underlying assumptions regarding existing crime-terrorism ties. After the 2006 act, police and gendarmerie could

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request access to any phone or online traffic data; once again, these requests are not subject to judicial control or Justice Ministry supervision but overseen by the security-minded Interior Ministry. Furthermore, had it been up to lawmakers, French police forces would have gained repressive authorities absent any judicial oversight. The Constitutional Council voted to put a halt to some of these executive advances contained in the 2006 act, referring to them as an infringement on the separation of powers principle. The overall trend is consistent with French counterterrorism tradition where the ‘‘barrier between prevention and punishment is not airtight’’278 (but unique when considering the other case studies). The tradition goes hand in hand with another exceptional French feature, the blurring of intelligence, executive, and judicial functions— epitomized most prominently by the DST functioning as a sort of police force in support of investigating judge investigations. The greater acceptance and practice of blurred jurisdictions were also illustrated by a higher degree of operational integration between the various intelligence and law enforcement services. Similarly, the new local intervention units included agencies from both law enforcement and intelligence communities, whereas in Great Britain intelligence and law enforcement cooperate out of separate MI5 and CTU cells. Representing an effort to emulate British practices designed to bridge foreign and domestic intelligence divides, the new DGSE Center also went beyond British information sharing when including joint operational planning. The Defense and National Security Council illustrates yet another effort to close foreign and domestic divides, this time at the strategic level. Interestingly, President Sarkozy felt the need to make reference to ‘‘defense’’ as part of the title, likely a result of bureaucratic forces at work. More than anything, however, governmental structures—specifically the dual executive structure that pits the president against the prime minister—shaped institutional outcomes in France. The 9/11 attacks presented an opportunity for the president to assume the leadership role in the domestic security realm, traditionally considered prime ministerial turf. The creation of numerous new coordinative mechanisms, including the 2001 Elyse´e security czar, the 2002 Domestic Security Council (replaced by the Defense and National Security Council and the specialized National Intelligence Council in 2009), and the 2004 Domestic Intelligence Council (which became obsolete due to the DCRI merger), reflects this struggle over domestic counterterrorism coordination, as well as presidential expansionism. Largely

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created by and for the president, the mechanisms were intended to strengthen the presidential hand and domestic reach. These efforts culminated in Sarkozy’s decision to create the CDSN and CNR, both headed by the president. By implication, these changes resulted in even less parliamentary involvement because the president is exempt from parliamentary oversight—which, at least in theory, the prime minister and cabinet members and ministries are still subject to. Short of running the security agencies and ministries himself, President Sarkozy also oversaw and determined the details of the DCRG/DST merger (followed by Hollande’s more recent modifications) designed to streamline and consolidate domestic intelligence functions. In contrast to Great Britain and the United States, France did not have to suffer a terrorist attack to reorganize and implement the most significant intelligence reshuffle since the beginning of the Fifth Republic (and considered the most important counterterrorism reorganization since the 1986 reforms empowered the investigating magistrates). The move consolidated domestic intelligence coordination within a single new department, much like the creation of the Department of Homeland Security centralized homeland security coordination in the United States. In stark contrast to DHS, however, the French merger involved only three agencies in a similar line of work. The very make-up of the new directorate, specifically the three agencies singled out for the merger, is once again indicative of the central characteristic of French counterterrorism practices: the blurring of executive (SDAT and DST), intelligence (DST and DCRG), and judicial functions (DST in support of investigating antiterrorism judges), which do not exist to the same extent in any of the other three countries. A unitary state like Great Britain, France also focused on increasing the local connectedness and ‘‘swarming’’ abilities of its security services—even though it bears mentioning that the DCRG already had an established tradition with strong local ties in more than twenty different locations. The RG, thus, also became responsible for new permanent taskforces designed to counter radical Islam in local and regional settings. In addition, police and gendarmerie formed the GIR intervention units. Finally, Paris decided to decentralize counterterrorism competences and delegate powers to the regions/departments by strengthening the investigative and preventive authorities of the prefects.

Chapter 6

Comparative Analysis of Structural Effects on Counterterrorism Decision-Making

The previous chapters examined how government structures shaped counterterrorism decision-making processes and policy outcomes in the United States, Germany, Great Britain, and France. A comparative analysis of all four cases will show whether and how variations in government structure, the independent variable, produce variations in counterterrorism outcomes, the dependent variable. If the responses are all the same, government structures can be ruled out as an independent driver of reforms. Likewise, if two parliamentary and two presidential systems produce very similar results, then government structures, or perhaps structural comparisons based on the mere parliamentary-presidential distinction, likely do not have much independent explanatory power. Rather, it may be necessary to go beyond the parliamentary-presidential categorization and focus on the specific type of parliamentary or presidential system. The following comparative analysis consists of three parts. First, counterterrorism outcomes are compared. As in the individual case studies, decision-making processes and outcomes are measured and evaluated with the help of four indicators: (1) speed of response, (2) decision-making mode, (3) public scrutiny and debate, and (4) nature and scope of the reforms themselves. Second, alternative explanations are discussed and weighed against the explanatory power of structural explanations. Third, the ‘‘structural’’ arguments of Waltz, Huntington, and others are revisited and their arguments evaluated against the findings in this book.

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How Do Counterterrorism Responses Differ? 1. Speed: How quickly did governments respond to the attacks? A comparison of initial responses shows that all four countries responded swiftly in the six months after 9/11. All passed counterterrorism legislation before the end of 2001. Although the differences in terms of speed are almost negligible, the United States and France, both of which passed their respective Patriot and LSQ Acts by the end of October, were slightly quicker than Great Britain and Germany, who adopted new legislation in December. In addition, the French and U.S. presidents almost immediately created new national coordinator posts designed to strengthen domestic security/ homeland security interagency coordination at the highest policy level, while the British prime minister opted for a new Cabinet Office committee. Even after the initial shock of the attacks in 2001, the U.S., French, and British governments found ways to speed up their ordinary legislative decision-making processes, usually under extraordinary ‘‘pressing’’ circumstances. In 2005, the British government adopted a law on new control orders in less than four weeks; in 2007, the U.S. Congress passed a temporary FISA bill within days; France adopted its 2006 and 2012 counterterrorism acts within a couple of months. In fact, none of the countries responded as directly, consistently, and quickly to terrorist attacks (be that after the 9/11 attacks, the 2004 Madrid attacks, the 2005 London attacks, or the 2012 attack on French soil) as France did. In stark contrast to the other three countries, German legislative counterterrorism processes stalled after 2001. The database proposal first discussed in the aftermath of the 2004 Madrid attacks did not get adopted until the end of 2006, more than one year after the 2005 London attacks. The contents of the BKA Act were discussed for two years before the bill was introduced to the German Parliament. The issue of telecommunication data retention remains unsolved. The only exceptions were the two reauthorizations of the 2001 counterterrorism package, which were passed within six months in 2006 and as little as two in 2011 (but which included relatively few new provisions). In summation, the speed of the response differed in all four countries. Across the board, French decision-making processes and responses both inside and outside the legislative arena were quickest, followed by U.S. and British responses. On average, the response time was longest in the German case.

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2. Decision-Making Mode: Were the reforms implemented by executive orders, or did they require legislative approval? With the exception of secret programs, for example, NSA wiretaps in the United States and German online spyware, reforms involving the broadening of security powers usually entailed legislative action in all four countries. However, British prime ministers and French presidents/prime ministers have unique unilateral powers that allowed them to announce and implement far-reaching institutional reforms per executive decree. Their scope clearly differed from the unilateral powers available to executive branch officials in the German system, where executive decrees were used very sparingly and only to set up the loosely structured GTAZ arrangement. They also differ from the unilateral flexibility available to the U.S. president. While President Bush unilaterally created new ‘‘lightweight’’ institutions like the Office of Homeland Security/Homeland Security Council, the Terrorist Threat Integration Center, or the Terrorist Screening Center, these executive initiatives sooner or later compelled legislative action. Once the secret NSA program, authorized by executive order, was leaked to the public, it was put on statutory footing. As U.S. and German decision-makers lacked the sweeping unilateral powers exhibited by their British and French allies, the 9/11 and Federalism Commissions served as alternative decision-making vehicles to push forward reforms. In similar fashion, the German government relied on an EU directive for the implementation of controversial reforms involving data retention. In sum, decision-making modes varied. A large number of British and French institutional measures were implemented by executive order, which were not as easily or only temporarily available in the German and U.S. case. As the number of potential structural hurdles and veto points increased with the involvement of the legislative branch, both governments relied on additional alternative or even secret methods to catalyze and implement reforms. 3. Extent of Public Scrutiny or Debate: Did the decision-making process allow for an open debate? What is the extent of post-legislative scrutiny? By implication, since organizational reforms were decreed rather than legislated, the overall extent of public scrutiny and legislative debate was more

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limited in France and Great Britain. While the degree of scrutiny increased when new security powers were proposed and civil liberties affected, French legislative debates were usually cut short. Not so in Great Britain. Even though British control orders were passed in a record four weeks, the final debate marathon lasted some thirty hours, a period that under ‘‘normal’’ legislative circumstances would translate into several days of full-time debate. In 2005, British lawmakers openly defied Prime Minister Blair after a heated debate over pre-charge detention provisions. In 2008, the upper house followed suit, rejecting Prime Minister Brown’s pre-charge detention proposal. Public scrutiny and debate further increased under the coalition government of Prime Minister Cameron. In the United States, the White House deliberately avoided discussion and kept oversight of its NSA surveillance program to a bare minimum (‘‘the Gang of Eight’’) until it was leaked to the public in late 2005. In another case, U.S. lawmakers terminated their debate early to adopt the temporary FISA compromise. Apart from these two exceptions, scrutiny in terms of hearings and legislative debate was most drawn out in the United States It was also more protracted in Germany where the chancellor could not rely on automatic La¨nder/Bundesrat support for executive/Bundestag bills. Like the coalition negotiations over legislative proposals, which could take from several months to several years, much of the vetting exercised by the La¨nder took place during the pre-legislative stages and thus mostly behind closed doors. Similar to the secret NSA program in the United States, albeit on a much smaller scale, German Interior Ministry officials initially avoided scrutiny of its spyware program. The extent of post-legislative scrutiny also greatly varied in all four countries. Most strikingly, and in contrast to counterterrorism acts passed in the other three countries, British counterterrorism legislation did not contain genuine sunset clauses.1 This is all the more significant because counterterrorism measures adopted in the immediate aftermath of the 9/11 attacks were rushed through Parliament and passed with a minimum of debate in all four countries. Instead, the British government relied on annual assessments of its most controversial measures (for example, indefinite detention, control orders, or pre-charge detention) conducted by specially designated independent reviewers. In addition, both houses of Parliament took annual votes to extend the provisions. While criticized as perfunctory and routine, these two practices have resulted in some level of scrutiny and, in fact, at a level that has not achieved in the French context.

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Even though France included sunset clauses as part of its 2001, 2006, and 2012 counterterrorism legislation, French sunset provisions have not been subjected to much or any scrutiny or debate (unlike the Patriot and FISA Reform Acts in the United States and the 2001 counterterrorism package in Germany). The U.S. case further illustrated a unique case of ‘‘retroactive scrutiny.’’ By converting executive orders into laws, lawmakers exercised after-the-fact scrutiny and continue to do so as part of oversight hearings and appropriation processes. In Germany, the Bundestag’s Parliamentary Control Committee and G10-Commission acquired additional oversight powers to review all individual data inquiries made by the intelligence services. In France, the CNIL and CNCIS Commissions were tasked with overseeing various new database and surveillance provisions. While the United States and Germany already had comparatively substantial oversight mechanisms in place, all four states strengthened legislative oversight of homeland security, counterterrorism, or intelligence agencies and measures. Most notably, France and Britain created new statutory mandates for their (previously nonexistent or weak) parliamentary intelligence committees. In sum, scrutiny and debate were most intensive in the United States and Germany and least rigorous in Great Britain and France.

4. Extent and Nature of Reforms: How did institutional and policy responses differ? In order to ‘‘connect’’ better with their regions, collect intelligence ‘‘on the ground,’’ and strengthen vertical information-sharing mechanisms, Great Britain and France focused on increasing and decentralizing the regional representation of their security forces. Specifically, France created new intervention forces and institutionalized regional surveillance teams that included members from both police and intelligence services; it further ‘‘federalized’’ security relations by delegating certain surveillance and other authorities to the regional prefects. Great Britain also expanded the regional representation of its domestic intelligence service MI5. In contrast to the more integrated French approach, the MI5 units also coordinated their work with but remained separate from the newly created, regional Counter Terrorism Units. These units were also more ‘‘federalized’’ in the sense that they were authorized to carry out ‘‘bottom-up’’ investigations. In the

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United States, the FBI increased its state presence by expanding the number of Joint Terrorism Task Forces in each state. Similarly, the German federal government sought to expand the BKA’s jurisdiction, so it was authorized to lead certain counterterrorism operations in the La¨nder. In contrast to both Great Britain and France, Germany and the United States achieved federal-state connectivity through the installation of new ‘‘nodes,’’ including joint databases and fusion centers. While, in Germany, the new information-sharing hubs were located at the federal level, in the United States, they mostly emerged at the state level. Other measures were designed to increase the coordination of and information sharing among federal agencies and departments involved in counterterrorism. Institutional reforms ranged from more ‘‘lightweight’’ coordinating mechanisms to more ‘‘heavyweight,’’ full-blown reorganization. Various lightweight czar positions and councils emerged in the United States and France, and to a lesser extent in Great Britain. Like the United States, Great Britain and France reorganized. The creation of the new Counter Terrorism Command effectively dismantled the highly visible London Special Branch, which, until 2005, had constituted the central link between police and MI5 forces. In 2007, Prime Minister Blair further announced the breakup of the Home Office and creation of a separate Justice Ministry. Reorganization efforts had the opposite effect in the United States, where twenty-two homeland security-related agencies were consolidated into the new Department of Homeland Security. Like the DHS, the new Office of the Director of National Intelligence was designed to centralize coordination, in this case that of the sixteen members of the intelligence community. French reforms focused on strengthening interagency coordinating mechanisms for executive branch departments and the numerous security agencies involved in counterterrorism. In 2007, President Sarkozy further ordered the two main domestic intelligence agencies consolidated into a new directorate; the DCRI was established in 2008. In the German case, reorganization plans never left the drawing board. To the contrary, the creation of the joint antiterror database represented a netcentric solution that ensured that the security architecture could be left intact. Last but not least, all countries introduced new net-centric analysis and information-sharing arrangements designed to bridge the law enforcement and intelligence divide and cut across other traditional jurisdictions. The level of operational and/or administrative interaction and/or fusion

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significantly varied from country to country. In Germany, informationsharing arrangements were most informal and loose. The nonoperational character of the GTAZ was enforced by the fact that the center had no director and was housed on ‘‘neutral’’ grounds, with intelligence and law enforcement agents occupying separate buildings. Tightly integrated into the new office of the DNI, the U.S. NCTC joint venture was more formalized, as detailees share the same location and conduct analyses under the same director. By contrast, the British JTAC was housed at the domestic intelligence service MI5. France, having created its UCLAT platform many years earlier, set up a new permanent center inside its foreign intelligence service, the DGSE. Going beyond information-sharing arrangements in the other three countries, the center was tasked with coordinating foreign and domestic intelligence operations. All four countries further broadened the disclosure authorities of their law enforcement and domestic intelligence services, albeit with different scopes and degrees of judicial and/or parliamentary oversight. For example, Germany does not have ‘‘tangible items’’ or ‘‘roving wiretap’’ warrants like the United States, ‘‘roving computer’’ warrants like France, or ‘‘allpremises’’ warrants like Great Britain. French and British security powers are generally subject to less judicial and parliamentary restraints than those in the United States and Germany. Summing up, counterterrorism measures designed to strengthen vertical or horizontal coordination/information sharing/collection and analysis capacities differed in all four countries. They differed in terms of their focus and scope, the nature of the institutional arrangement, and how far law enforcement and intelligence services (foreign and/or domestic) were permitted to interact or else operate without judicial restraints.

Alternative Explanations and Analysis The previous synopsis of counterterrorism approaches illustrates that, while the reform objectives were often similar, the outcomes varied significantly. What accounts for the differences in countries’ approaches to strengthening preventive powers, information sharing, and coordination of counterterrorism services? I argue that government structures played a decisive role in shaping the different outcomes. As government structures change, restraints change, which shapes not only the nature of the decision-making

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process but also influences the choice of institutional designs and security policies. However, the case studies also show that government structures do not operate in a vacuum. Other factors may have influenced decision-making processes in the four countries and facilitated certain outcomes. Listed below are six alternative explanations. However, not all of them necessarily apply to all four indicators: (1) speed of response, (2) decision-making mode, (3) public scrutiny and debate, and (4) the nature and scope of the reforms—used to measure the dependent variable, namely, counterterrorism processes and outcomes. 1. Bureaucracies: The first and most prominent alternative explanation holds that decision-making processes and outcomes were the product of tugging and pulling between different bureaucracies eager to defend their turf, or of organizational cultures and procedures. Interagency battles were fought either at the policy level (departments and ministries) or at the operational level (security agencies). Most prominently, Amy Zegart has used the bureaucratic lens to explain the various failed attempts of U.S. intelligence reform. Pursuant to Zegart’s analysis, the TTIC and TSC joint ventures were created only so the president could avoid more full-fledged intelligence reforms and, by implication, the Defense Department, which stood the most to lose from any such reform.2 According to Zegart, organizational changes and improvements are prevented by (1) the very nature of organizations, which are resistant to change; (2) self-interested decisionmakers and stakeholders like presidents, lawmakers, and bureaucrats; and (3) the fragmented nature of the American federal government, as manifested by the disjointed congressional oversight system.3 Frank Foley has further argued that British and French counterterrorism reforms are best explained by their contrasting formal and informal organizational routines.4 This focus is all the more necessary, because, according to Foley, ‘‘there are no major sources of variation in the institutional rules and practices of the British and French Parliaments that one could expect would make a difference for counterterrorist policy.’’5 2. Multilateral Obligations: According to the second explanation, reforms have been driven by UN (for example, UN Resolution 1373) and EU directives, which affected the speed, scrutiny, and nature of the responses. This argument has particular relevance for the three European Union member

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states considered in this book, which are obligated to transpose EU directives into national law. 3. Threat Perceptions: Pursuant to the third explanation, those countries suffering a direct attack on their own soil—for example, the United States and Great Britain (and to a lesser degree, France in 2012)—had additional incentive for quick and decisive action. In a similar vein, Peter Katzenstein has argued that different perceptions of identity, of self and other, not only triggered different threat perceptions in the United States and Germany but also contributed to the respective interpretations of 9/11 as war and crime.6 Similarly, Haubrich has argued that as the United States closest ally Great Britain was inclined to adopt more far-reaching security powers than France and Germany.7 4. Political Cultures: Closely related to the preceding point, a fourth explanation argues that the nature of counterterrorism responses is a result of the prevailing political cultures in each country, some of which are more permissive of certain actions and reforms than others. In line with the previous argument, Peter Katzenstein concluded that the difference in counterterrorism responses in the United States and Germany reflects past institutionalized practices and different institutionalized norms, which may be defined as patterns of acceptable behavior. In a similar vein, Foley argued that differences in British and French counterterrorism responses can be explained by the differing ‘‘inter-institutional conventions’’ that govern how executive and judicial branches cooperate. In his analysis, the ‘‘separating’’ versus ‘‘integrating’’ conventions derive from the respective common and civil law tradition in the two countries.8 5. Political Conditions: A fifth alternative explanation posits that the nature and frequency of reforms, as well as their speedy implementation, were the result of more conducive political environments and/or forceful leadership. Just as German coalition governments under conservative CDU-leadership may have pursued reforms more aggressively than the left-of-center SPDled coalition between 2001 and 2005, Great Britain’s extensive list of reforms may have been the result of the ‘‘Tony Blair’’ factor. Similarly, unified government conditions in the United States may have facilitated counterterrorism reforms.

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6. Policy Inheritances: According to a sixth explanation, countries’ responses differed because of the policies and institutions they already had in place. Because France created its UCLAT information-sharing platform in the 1980s, its post-9/11 reform efforts were focused elsewhere. Because of wideranging legal and organizational reforms in the 1980s and ‘90s, France did not have to reform as much. Similarly, and in contrast to the United States and France, Germany and Great Britain already had national intelligence coordinators at the time of the 9/11 attacks. A related explanation holds that Germany, Britain, and France already had extensive domestic counterterrorism experience, which influenced the nature and scope of their responses (for example, preventing certain measures because of lessons learned from prior mistakes). Below I discuss and weigh the importance of government structures in relation to alternative explanations used to evaluate counterterrorism reforms.

1. Speed of Response As the country under direct attack in 2001, the United States passed its U.S.A. Patriot Act in record time. France quickly followed suit, however, and Great Britain and Germany also passed counterterrorism legislation before the end of 2001. Apart from the unprecedented scope of the attacks, countries had at least one other powerful incentive to respond in a quick and decisive fashion: UN resolution 1373 obliged all member states to submit their list of established and new antiterror measures by December 2001 (alternative explanation 2). Beyond these legislative actions, the French and U.S. presidents were also the first to announce new Elyse´e security and homeland security advisor posts tasked with strengthening interagency coordination at the highest policy level, with the British creating a new cabinet committee instead. While this outcome can be explained by the fact that the British and German governments already had their own intelligence coordinators (alternative explanation 6), calls to strengthen these positions intensified after the 9/11 attacks. While these and subsequent proposals to transform the position into that of a national security advisor were left unheeded in the German case, the British prime minister eventually decided to replace the existing national intelligence coordinator post with a higher-powered

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position in the summer of 2002. By that time, the French president/government had introduced a new Council of Domestic Security, regional intervention forces, and LOPSI. On the other side of the Atlantic, the White House had drawn up a plan for a whole new Department of Homeland Security. As the previous reform sequence illustrates, the speed and scope of U.S. and French initial reactions set them apart from those in Great Britain (less so) and Germany (more so). To be sure, the United States had just suffered a major terrorist attack on its own soil (alternative explanation 3), although France did not. Alternatively, government structures hold an important key to explaining differences in reaction time. Amid a national crisis, both presidents gained additional unilateral powers that allowed their political systems to overcome the delays typically associated with separation of powers (in the U.S. case) and cohabitation (in the French case), as well as strike out along new paths to boost their respective positions (in both U.S. and French cases). Even though national security was generally considered part of President Chirac’s domaine re´serve´, domestic security was still a prime ministerial prerogative at the time of the 9/11 attacks. More important, in 2001 the French president was still restrained by conditions of cohabitation, which meant that the decision to install a security czar who reported to him rather than the prime minister was particularly controversial. In fact, both leaders of the dual-executive structure were eager to produce quick results. The prime minister’s quick legislative initiative was facilitated by the fact that counterterrorism clauses were attached to an existing bill that had already advanced to the conference stage, further illustrating the strong position the government holds vis-a`-vis the legislative branch. But the impact of government structures on countries’ abilities to initiate reforms quickly becomes even more obvious when analyzing countries’ responses over longer time frames, in reaction to other terrorist attacks or national emergencies and under different political conditions and leadership (alternative explanation 5). As we move beyond 2001, UN resolution 1373 (alternative explanation 2) loses its explanatory power as an external motor of change, as do the unifying effects of the 9/11 attacks. In fact, an analysis of counterterrorism responses over the next twelve years suggests that France—more so than any other country in this analysis—responded directly and swiftly not only to the 9/11 attacks (by means of executive orders and legislation) but also to the Madrid (via multiple executive orders) and London attacks (through legislation), and finally, to a terrorist

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attack on its own soil (by legislation). How can we best explain the French performance? Operating under condition of cohabitation until May 2002, President Chirac was eager to demonstrate decisive responsiveness in addition and counter to those initiatives launched by his rival, Prime Minister Jospin. After the spring 2002 elections catapulted Chirac’s party back into power, the president’s predominant position was restored (if not unquestioned). As a result of these political changes, the French executive branch thus became the strongest (vis-a`-vis its legislative branch) and most versatile player when compared to U.S., German, and British executive branches. While French Presidents Chirac, Sarkozy, and Hollande unilaterally announced and controlled all organizational changes, mostly designed to catapult themselves into the leading position in domestic security issues, the extraordinarily weak French Parliament mostly went along with government bill provisions designed to expand security powers. This resulted in a steady stream of counterterrorism initiatives over the next twelve years. While this analysis does not judge or measure counterterrorism outcomes by which state gets the most reforms the fastest, response sequences can still tell us something about the ability to respond quickly, especially when other countries introduce very similar or even the same measures later on. In the French case the steady stream of reforms is remarkable. It further challenges the popular view that French counterterrorism practices would not be subjected to change after 9/11, due to the sizable number of reforms already launched in the 1980s and 1990s (alternative explanation 6).9 It also undermines the common view that French threat perceptions after 9/11 surely must have differed from American ones (alternative explanation 3). To the contrary, Foley reminds us that ‘‘French officials continued to see the threat to their country as high.’’10 Executive orders served as the main vehicle for speedy decision-making in France. While these unilateral decrees were available, to varying degrees, to all executive leaders, they were the most common and far-reaching in France and Great Britain. In contrast to Germany, the French, U.S., and British governments also demonstrated their ability to launch speedy legislative responses, even after 2001. While these bills were not directly prompted by terror attacks, they were justified by other ‘‘pressing’’ circumstances with national security relevance. Such was the case when (1) the British government adopted new control orders within weeks to replace its detention rules that were about to expire, (2) the U.S. Congress passed a

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temporary FISA bill within days (as DNI Mike McConnell warned about how a dangerously backlogged FISA system threatened U.S. national security), and (3) French lawmakers adopted the 2006 Combating Terrorism Act a few weeks after a state of emergency had been declared. However, with the exception of France, these episodes regarding speedy legislative decision-making remain the exception rather than the rule. Prime Minister Blair’s efforts to pass counterterrorism legislation in the aftermath of the 2005 London attacks were almost derailed and delayed by many months, as Labour Party support for Blair (the number one requirement for making the fusion of power system work) had begun to vanish. Ironically, despite the few formal restraints imposed on the British prime minister, the majority party is endowed with a much tighter grip on him/ her than the German parties could ever have on their chancellor (who enjoys institutional cover through the constructive no-confidence vote but is tied down in many other ways). The lengthy standoffs between the two U.S. government branches over the DHS bill (less than a year after the 9/11 attacks), the 2004 intelligence reform, and the renewal of the Patriot Act in 2005 and 2010 (the latter both under unified government conditions) illustrate that it is not easy to speed up the decision-making process within certain structural confines, even if the political conditions seem optimal (alternative explanation 5). In this context, German decision-making—looking particularly sluggish throughout the twelve-year time period analyzed herein—comes to mind. Germany’s swift response in the aftermath of the 2001 attacks remains the exception to the rule. Even though the plan for a joint antiterror database was drawn up in response to the 2004 Madrid attacks, it took more than two years and an administration change to adopt the bill into law. In part, the delays were caused by political conditions, as the left-of-center coalition government under Schro¨der grew increasingly weaker and lacked the political will to implement controversial reforms (alternative explanation 5). While the overall counterterrorism output increased under the CDU-led Merkel government, the new administration also benefited from a variety of projects started under the former Schro¨der government. However, exhibiting a pace similar to that of the former Schro¨der government, it took more than one year to draft and pass the database bill—even though the Merkel government had made the reform a central priority. Similarly, it took the CDU-led BMI under Interior Minister Scha¨uble more than two

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years even to introduce the BKA bill to Parliament and another four months to pass it. This reform gridlock ‘‘redux’’ suggests that German government structures are indeed responsible for impeding quick policy and institutional changes. Critics may still point to a difference in German threat perceptions (alternative explanation 3).11 However, even if German counterterrorism reforms after 9/11 appear more sluggish and lesser in numbers and scope when compared to the other three countries, it is important to note that the German counterterrorism output after 9/11 has been unprecedented, not only in quantity but also in terms of qualitative changes, even and/or especially when compared to government responses to RAF and international terrorism in the 1970s and ’80s (alternative explanation 6). This sentiment is reflected in the annual domestic intelligence reports, which have consistently viewed Jihadist terrorism as a grave and even growing threat to German security since 9/11. Lending further support to the ‘‘structural’’ argument, the German federal government was particularly slow to respond whenever its reform proposals threatened La¨nder turf (or depended on La¨nder approval in the Bundesrat). The La¨nder were, thus, opposed to any reforms intended to strengthen BKA powers or centralize the overall security architecture. Even though the GTAZ counterterrorism center was set up by executive decree in response to the Madrid attacks, its creation nine months after the attacks resembled more of an opportunity to avoid legislation rather than swift decision-making. These same structural hurdles had an effect on the overall counterterrorism reform output in Germany, which was typically delayed and therefore ‘‘smaller’’ compared to that in the other three countries. Again, while this does not say anything about the quality of the German response in and of itself, it is telling that Germany repeatedly implemented responses similar to those of the other countries, but with a delay of one or more years. Germany was also the most affected by (and dependent on the 2006) EU directive regarding the mandatory retention of telecommunication data, as both the French and British governments had addressed the issue as part of their 2001 counterterrorism legislation several years before the directive was issued.12 The data retention logjam was, thus, exacerbated by the junior coalition partner, the Free Democratic Party, whose platform embodied the very political culture that puts a high price on data privacy and is opposed to government surveillance (alternative explanations 4 and 5). For similar reasons, British Liberal Democrats, junior member of the

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Cameron coalition since 2010, were eager to impose new restraints on executive security powers. Conclusion

In the months following the 9/11 attacks, all four countries were capable of quick responses. A more nuanced analysis illustrates that decisionmaking was fastest in the two presidential systems, the United States and France, closely followed by the two parliamentary systems, Great Britain and Germany. Soon after, all systems reverted to their more ‘‘traditional’’ patterns, meaning it was easier for the British prime minister, and even more for the French president (or in some instances, the French prime minister), to implement institutional reforms swiftly using executive orders. However, whereas the French president, motivated by the intrabranch rivalry, frequently relied on these after the 9/11 attacks, it was not until after the 2005 London attacks that the British prime minister stepped up institutional reforms per executive order. With regard to legislative responses, and in contrast to the more docile French lawmakers, the British prime minister was also subject to more volatile party backbench support. France’s particular structural disposition, an inherent intra-executive rivalry paired with a strong government vis-a`-vis weak lawmakers, thus resulted in the quickest and most ‘‘responsive’’ output. Between 2001 and 2003, U.S. President Bush also initiated and implemented various quick and ‘‘lightweight’’ institutional responses per executive order (OHS/HSC, TTIC, and TSC). Due to the inherent interbranch rivalry in the U.S. separation of powers system, however, he was soon compelled by Congress to engage in the more drawn-out and ‘‘heavyweight’’ legislative reorganization efforts of the DHS and DNI. While U.S. responses after 9/11 were not consistently quick and directly related to the Madrid and London attacks like in the French case, the inherent interbranch competition resulted in relatively consistent counterterrorism outputs over the years. The German government faced similar separation of powers effects due to the strong La¨nder position. Ultimately confined to parliamentary government structures, the Bundestag and Bundesrat were not locked in direct competition and did not share similar interests, however, so that German decision-making was anything but swift.

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2. Decision-Making Mode As indicated above, the speed of responses is directly tied to countries’ prevailing decision-making mode. Executive orders offer the speediest response vehicles and were used for all institutional reforms in Great Britain and France, the two systems that concentrate power in the hands of the president and prime minister. While the U.S. president also initiated reforms by virtue of executive orders, considered the most expeditious vehicle for creating a Homeland Security Office and Council in the days after 9/11, Congress soon pressed for statutory boundaries on these measures. While the choice of decision-making venue was therefore determined by government structures, it is not the parliamentary or presidential nature of the system that matters the most but the overall dominance of the executive branch within any given government system, which can be either parliamentary or presidential. Most important, the choice of decision-making venue also affected the nature of the institutional outcome. For example, in an effort to avoid inconvenient congressional veto/oversight and La¨nder/Bundesrat veto powers and to rely on executive orders instead, U.S. and German executives chose particularly loose organizational designs for their TTIC, TSC, and GTAZ joint ventures or decided to keep the NSA wiretap and BfV spyware programs secret. Alternatively, the 9/11 and Federalism Commissions served as vehicles to drive reforms in the United States and Germany, the two government systems with the two strongest legislative branches. They offered additional political cover for controversial initiatives, such as the BKA reform (as a result of which the La¨nder were to lose power) or the installation of the DNI (which involved the possible demotion of the CIA and the Department of Defense). For the same reason, the German government has relied on EU directives—thus far unsuccessfully—to implement controversial rules regarding telecommunication data retention. Alternative decision-making routes in Germany and the United States represented not just opportunities for avoiding structural hurdles but also for limiting the extent of interagency meddling (alternative explanation 1). The decision-making process underlying the creation of the DHS and DNI not only shows the possible (in the case of the DHS) and actual impact of interagency meddling (in the case of the DNI), but also that bureaucratic influences can be controlled by the executive leadership—if the president

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Table 1: Counterterrorism Reforms in the United States, Germany, Great Britain, and France, 2001–2013 (those in bold print were implemented by executive order) United States

Germany

Great Britain

France

2001: OHS/HSC* 2001: Patriot Act 2001: NSA Program* 2001–11: FBI JTTFs 2002: Homeland Security Act 2003: TTIC,* TSC 2003–9: Fusion Centers 2004: Intelligence Reform Act 2005: FBI NSB* 2006: Patriot Act reauthorized 2007: Protect America Act 2008: FISA Reform 2010/11: Patriot Act reauthorized 2012: FISA Reform reauthorized

2001: CT Packages 2004: GTAZ 2006: Federalism Reform 2006: Database Act 2006: TBEG Act 2008: EU Data Retention Act 2008: BKA Act 2011: TBEG reauthorized

2001: Cabinet Committee 2001: AT Act 2002: Intel. czar 2003: JTAC 2005: MI5 Regional 2005: CTC 2005: Prevention of Terrorism Act 2006: Terrorism Act 2006: Home Office Split 2006–9: Regional CTU/CTIUs 2008: CT Act 2010: NSC/advisor 2011: Protection of Freedoms Act 2011: TPIMs Act

2001: LSQ Act 2001: Elyse´e czar 2002: CSI 2002: Regional GIRs* 2002: LOPSI Act 2003: LSI Act 2004: CRI 2004: DGSE Ctr. 2004: Regional Counterrad. Centers 2006: Combating Terrorism Act 2008: DST/RG Merger 2009: CDSN and CNR 2010: LOPPSI II Act 2012: Security Act

* Subsequent statutory mandate.

chooses to do so. Interagency conflicts within the executive branch, as well as the proxy wars carried out by the respective congressional committees, can be kept at bay if the White House (and congressional leadership) exercises the necessary political will. In the case of DHS, interagency resistance was disarmed by the White House, which further struck an alliance with the House leadership. In the case of the DNI, it came to a full blow as the president and House leadership repeatedly refused to take control of the process, thereby defeating plans to install an all powerful DNI. In Germany, the Justice Ministry emerged as the most powerful interagency opponent of the Interior Ministry (alternative explanation 1). It had a say in formulating the contents of the 2001 security package, the 2008 BKA Act, and, to a lesser extent, the 2006 database proposal. However, similar to the U.S. case, while bureaucratic players like the Justice Ministry can influence the

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outcome, they can also be, and repeatedly were, overruled by the structural players, that is, the La¨nder in the Bundesrat. Is it possible to link the extent or ferocity of interagency struggles to particular government structures? While it would not only be naı¨ve but also incorrect to assume that any government system could be free of turf considerations among its decision-making players, fragmented government systems appear more conducive to these fights than those systems designed to concentrate executive power. Hence, once again, a mere distinction between parliamentary and presidential systems will not suffice. Rather, interagency struggles appear to be facilitated by shared power arrangements and further encouraged by the particular restrictive or permissive political cultures that govern processes and cooperation among structural players and institutions. For example, German and U.S. power-sharing arrangements within executive (coalition partners) and legislative branches (government/Bundestag versus La¨nder/Bundesrat) as well as among branches (White House versus Congress) represent additional ‘‘cleaving’’ opportunities for bureaucratic stakeholders, who further serve as a check on one another. Similarly, the unique power-sharing arrangement within the French executive branch has given rise to a vibrant interagency landscape at the operational security level. As this constitutes the only domain in which the president can assert his powers in times of cohabitation or else protect himself from prime ministerial backstabbing, the existence of numerous security agencies serves presidential interests. This illustrates the need to take structural foundations into account. Foley, by contrast, merely focuses on the operational realm when arguing that interagency battles are a lot more common among French security agencies (compared to their British counterparts) because, so his argument goes, the former suffer from overlapping mandates and operate under informal organizational routines (alternative explanation 1).13 Interagency struggles surely also occur in Great Britain, and not only in France, and start at the strategic decision-making level, as the respective turf battles between ministries and agencies involving the Home Office reorganization and RG/DST mergers illustrate. However, interagency players appear more conditioned to fall in line with decisions made and/or backed by the party (in the British case) or the president (in the French case). Most notably, French and British interagency struggles also did not reach into the legislative arena the way they did in the United States and

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Germany. The British parliamentary sovereignty notion, which holds that Parliament cannot be reined in by any constitutional or judicial restraints, has so far prevented the emergence of a true judicial stakeholder. The Justice Ministry did not even exist as a stand-alone interagency player until 2007 (and the Law Lords moved out of the House of Lords and into a separate Supreme Court only in 2009). In France, where the separation of powers doctrine is indeed more pronounced than in Great Britain (as also evinced by the existence of a Constitutional Court with judicial review powers and a Justice Ministry that dates back to the beginnings of the French Republic), absolute primacy is given to executive power. The Justice Ministry followed or else complemented the lead of the Interior Ministry when formulating counterterrorism legislation, rather than functioning as a counterweight. Justice also did not object as the Interior Ministry repeatedly encroached on ‘‘judicial turf’’ while drafting antiterrorism bills, even though the Ministry of Justice is traditionally in charge of authoring counterterrorism legislation that affects criminal law.14 Conclusion

Executive orders facilitated decision-making and institutional reforms in France and Great Britain but were less available to or utilized by U.S. and German decision-makers. Rather, their choice of decision-making venues and resulting institutional designs and policies resembled attempts to avoid ‘‘structural’’ hurdles, as well as anticipated interagency battles. There are significant similarities between German and U.S. decision-making hurdles and vehicles on the one hand and British and French practices on the other hand, suggesting that a mere focus on parliamentary and presidential features does not hold sufficient explanatory power when comparing decision-making modes in the counterterrorism realm. It does hold some, though, as will be discussed later on. In the end, U.S. interbranch decision-makers have greater incentives to overcome these hurdles than their German counterparts, due to their common interest in producing tangible results. While it appears to be no coincidence that these interagency fights are most visible and drawn out in the two government systems with the most power-sharing arrangements, their impact also should not be exaggerated. In the German case, turf considerations of the Justice Ministry were repeatedly trumped by the powerful Bundesrat, which often had the last word due to its ‘‘structural’’ leverage in the domestic security realm. In the U.S. case, White House and congressional leaders repeatedly channeled interagency currents into preferred outcomes.

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3. Public Scrutiny and Debate In the immediate aftermath of the 9/11 attacks, as well as in a few other ‘‘emergency’’ cases described above, executive counterterrorism proposals in all four countries were exempt from traditional scrutiny and/or debate procedures. With the exception of Great Britain (which generally opted for affirmative resolutions instead), all countries added sunset clauses so that the reforms would have to be scrutinized and reauthorized at a later point. As a result of the unilateral tools at the disposal of the British prime minister and the French president, their many organizational measures were merely announced and not subjected to public scrutiny. Overall, the level of public scrutiny and debate in each of the four countries corresponded to its prevalent decision-making mode, so that presidential and parliamentary features by themselves do not offer much explanatory power. Compared to the typically long parliamentary debates in Britain, however, French legislative processes were not only strikingly short (due to the adoption of urgency and accelerated emergency procedures), but the government also faced noticeably little resistance from the opposition parties, which either abstained or voted in favor of reforms. The overall weak position of the Parliament vis-a`-vis the executive branch in the two systems is also illustrated by the lack of post-legislative scrutiny, only semiexistent in the British case (in form of independent reviews and affirmative resolution procedures) and merely perfunctory in the French case (where sunset clauses were repeatedly authorized without substantial scrutiny or debate). More recently, creation of separate emergency bills for more enhanced TPIMs and pre-charge detention periods has resulted in more scrutiny and debate in the British context. Like French and British MPs, German Bundestag majority lawmakers were beholden to the decisions of their government. However, the Bundesrat was not, giving rise to a more competitive process between more compatible decision-makers. Not surprisingly, and similar to the British and French cases, neither the Bundestag majority MPs (in personal union with the governing coalition) nor the Bundesrat (concerned with strengthening and protecting La¨nder executive powers) had a stake in installing lasting parliamentary oversight powers. Instead, illustrating the aforementioned political conventions governing decision-making processes (alternative explanation 4) and designed to restrain executive power in the German case, the junior coalition parties (and thus members of the executive government) insisted on imposing sunset clauses and oversight powers on

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security measures, to be exercised by the Bundestag. Not only was the Bundestag tasked with reauthorizing the 2001 counterterrorism package (similarly to the Patriot Act sunset clauses that had to be reauthorized repeatedly), as well as the 2005 database and parts of the 2008 BKA Acts, but its Parliamentary Control Committee and G10-Commission have been mandated to review all terrorism-related data inquiries by intelligence services. Arguably, these veto and oversight powers may have contributed to the government’s decision to evade parliamentary scrutiny and authorization of a secret, albeit seemingly small-scale, spyware program. In the United States, which features the strongest legislature of all four countries, legislative debates were repeatedly cut short as a consequence of procedural changes. In these instances, the extensive scrutiny inherent in the U.S. system due to the separation of powers and many access points in Congress was subdued and decision-making more streamlined. For example, the congressional leadership designated committees with sole decisionmaking power (when creating the DHS and DNI) or curtailed debate time in view of pressing deadlines (in the case of the temporary FISA reform). However, in the end, the process could only be streamlined so much. On two occasions, as the two branches were pitted against one another about the creation of DHS and the DNI powers, resolutions were only reached after elections had taken place. Perhaps in light of these hurdles and similar to the German case, the White House deliberately avoided scrutiny of its secret NSA surveillance program. While the president decreed the program per executive order a few months after 9/11, it was not terminated until 2007, more than a year after news about the program had leaked to the public. Since then, however, the program has been put on a statutory footing. A number of other executive orders were thereby converted into laws ‘‘retroactively,’’ illustrating Congress’s unique ability to coerce the executive branch into accepting legislative oversight in addition to sunset clauses. As a result, lawmakers secured important decision-making powers over the appropriation and implementation of counterterrorism policies and institutions. While imposing restraints on the executive branch, however, lawmakers only minimally altered the ‘‘contents’’ of the reforms initiated by the executive and mostly went along with White House preferences. Finally, laws also need to be able to withstand German Constitutional Court and, to a lesser extent, U.S. Supreme Court and French Constitutional Council scrutiny, a consideration that has served as another factor

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and hurdle in decision-making processes involving, for example, surveillance or data collection powers. Conclusion

In the immediate aftermath of the 9/11 attacks, as well as other selected cases of ‘‘national security relevance,’’ executive proposals were not carefully scrutinized and/or debated in any of the four countries. However, with the exception of Great Britain (which opted for more perfunctory affirmative resolutions instead), countries attempted to reduce the risks associated with rushing legislation during times of crisis by installing sunset clauses. Over time, levels of short-term (coalition/legislative debates and hearings) and long-term (sunset clauses and/or legislative oversight) scrutiny reverted back to their old patterns, corresponding to the decision-making mode of choice. Put differently, legislative scrutiny is proportional to the ability of the legislative branch to impose restraints on the executive branch, which was greatest in the United States and Germany and weakest in Great Britain and France. This also means that, similar to structural restraints on decision-making modes, a mere distinction on the basis of parliamentary and presidential government features does not suffice for determining structural impacts on scrutiny and debate. The level of scrutiny depends on, increases, or decreases according to countries’ respective restrictive or permissive political cultures (alternative explanation 4). As illustrated in the German case, junior coalition partners pushed to furnish the Bundestag with oversight and authorization powers, corresponding to a restrictive political culture that is also reflected in the government structure. In light of the extensive vetting powers wielded by their respective legislative branches, it is perhaps no coincidence that both German and U.S. governments tried avoiding legislative scrutiny and involvement by authorizing secret programs. 4. Extent and Nature of Reforms (regarding counterterrorism coordination, information sharing, and intelligence analysis, collection, and dissemination): Horizontal Coordination

That the choice and design of new institutional arrangements within the executive branch is significantly influenced by presidential and

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parliamentary government structures is most evident when comparing German and U.S. efforts to centralize counterterrorism capabilities and coordination. These initiatives resulted in drastically different outcomes—despite the fact that both executive branches faced similar decision-making hurdles (as discussed above). Even though the Bush administration opposed centralization and ‘‘heavyweight’’ reorganization efforts, the White House, having been pushed into the legislative corner by lawmakers, tried to regain the initiative by designing the DHS blueprint that was subsequently passed by Congress. As both branches depend on each other for producing results and are locked into continual competition over constituent votes, neither branch can afford to become complacent and let the other branch gain the advantage, especially not in questions involving the security of the American public. From the perspective of the German La¨nder, the centralization favored by the federal BMI was unacceptable and amounted to a zero-sum solution. Absent any shared interest between the two, the La¨nder did not flinch, determined to oppose any such plans. After years of stalled negotiations, a technology-based solution in the form of a central database became the only viable solution. While linking federal security agencies and also the La¨nder, it left the overall security architecture intact. In this particular case, the La¨nder’s ‘‘structural’’ footprint could not have been any more obvious, also since the Justice Ministry was largely opposed to the database (alternative explanation 1). Conversely, even if the Justice Ministry had tolerated the preventive BKA clause that was eventually left out of the 2001 counterterrorism package, it arguably would not have passed La¨nder hurdles. Admittedly, illustrating that political conditions also matter, the database bill only became a priority after the leftof-center Schro¨der administration, considered a lame duck by 2005, had been replaced by a more right-of-center CDU/SPD coalition (alternative explanation 5). However, illustrating important parallels to the previous reform gridlock under Schro¨der and showing that political explanations are insufficient, coalition reform efforts were soon delayed in the case of the database and paralyzed by a similar stalemate over the expansion of BKA investigative and surveillance powers. The CDU/FDP coalition, in place from 2009 to 2013, could not even agree on an alternative solution of how best to implement the data retention directive of the EU (after the highest court ruled the data retention law unconstitutional). Promoted as net-centric joint ventures with flat organizational designs, the German GTAZ and U.S. TTIC arrangements served a dual purpose in

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the sense that their loose designs meant that legislative involvement and restraints could be avoided—something that neither British nor French decision-makers had to be concerned about and that Amy Zegart’s focus on organizational interests in the United States does not account for (alternative explanation 1).15 In any event, the strategy worked only in the German case. As discussed before, the political conditions for expanding and centralizing national security powers and institutions were less than optimal under Gerhard Schro¨der’s left-of-center coalition that also included the Green Party (alternative explanation 5). Equally important, Germany’s political culture is particularly averse to power concentration and the possible blurring of law enforcement and intelligence powers (alternative explanation 4). Not surprisingly, the Justice Ministry (as the Interior Ministry’s primary interagency opponent) employed these reservations to build its case against their tighter integration (alternative explanation 1). The informal nature of the GTAZ solution without statutory basis meant that the Justice Ministry could be left out of the decision-making process. In the end, the nature of the GTAZ design was arguably not just the result of structural concerns about legislative/La¨nder involvement but also influenced by other factors, including likely interagency (Justice Ministry) resistance and unfavorable political conditions and culture. In the United States, Congress soon pressed for statutory boundaries on TTIC, as it previously had in the case of the Homeland Security Office inside the White House. Lawmakers’ involvement resulted in more hierarchical outcomes, as evinced by the Department of Homeland Security and the new Office of the Director of National Intelligence. As discussed before, DOD opposition to the latter reform influenced the more limited scope of the intelligence act significantly (alternative explanation 1), so that lines of budget authority did not change into DNI hands but remained with the Secretary of Defense. As also argued previously, however, DOD stalling tactics in the negotiations over the Intelligence Reform Act were likely equally in line with the White House position, one that was opposed to change and congressional prescriptions in the national security realm. In the case of the intelligence reform, the White House thus remained largely absent from the scene. This absence was more noticeable because, in the earlier case of the Homeland Security Act, the White House had demonstrated its immense resourcefulness in controlling interagency/bureaucratic opposition among cabinet members and lawmakers. This is not to deny the existence of powerful bureaucratic interests that defeated earlier reorganization proposals. In fact, the secretive

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tactics employed by the White House in preparing its DHS proposal were precisely launched to avoid the kind of interagency resistance homeland security advisor Tom Ridge experienced when proposing creation of a border agency in fall 2001. Alternatively, cultural restraints offer an explanation for institutional outcomes in the United States (alternative explanation 4). The concentration of budget and operational powers in the hands of a new DNI coordinator tasked with overseeing and directing the actions of all intelligence agencies would have been out of sync with American political culture. Consistent with this very political culture averse to power concentration, lawmakers proceeded to weaken the DNI’s ‘‘in-house’’ authorities over the NCTC. As a result, the NCTC director reports to the National Security Council rather than the DNI with regard to all operational matters. Exhibiting similar sentiments, senior White House officials opposed the merger of the CIA or FBI into the new DHS. Apart from the United States, both Great Britain and France reorganized their intelligence and counterterrorism capacities. Reorganization efforts in these countries differed in focus and scope. For one thing, neither France nor Britain institutionalized their new czar posts as the U.S. did—an outcome that is, in large part, due to Congress’s involvement and efforts to impose statutory restraints on the executive branch. The new Office of the Director of National Intelligence forms an additional bureaucratic layer that sits atop the sixteen member intelligence community it is supposed to coordinate. Moreover, while U.S. reforms centralized interagency coordination by consolidating many different agencies into one mega-Department of Homeland Security, various British governments instead focused on reducing functional overlap among very similar agencies and/or regrouping them according to their specific functions. U.S. decision-makers consolidated twenty-two agencies in the new DHS, while the British prime minister decided to split the Home Office and separate counterterrorism and judicial functions traditionally pooled inside the largest British ministry. Furthermore, while merging its Anti-Terrorist and Special Branches into the new Counter Terrorism Command, Britain effectively streamlined police cooperation with MI5. A decision that resulted in the dismantling of the Special Branch meant that MI5 and the Anti-Terrorist Branch could work more directly together. A very similar plan had also been advocated by homeland security czar Tom Ridge in the fall of 2001 (who suggested merging only border-security agencies) but been terminated after it ran

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Table 2: Nature and Scope of Horizontal Institutional Reforms Institutional reform

United States

Coordination

1) Homeland Security czar 2) OHS and HSC 3) Director and Office of National Intelligence

Merger/ consolidation

Department of Homeland Security

Germany

Great Britain

France

1) Cabinet Committee 2) Intelligence czar 3) National Security Council and Advisor

1) Elyse´e czar 2) Domestic Sec. Council, CSI 3) Domestic Intel. Council, CRI 4) Defense and National Security Council, CDSN 5) National Intel. Council, CNR Domestic Intelligence Directorate

Merger/ streamlining

Counter Terrorism Command

Split/ decentralization

Home Office

Net-centric technological consolidation

Terrorist Screening Joint AT Center Database

Net-centric joint ventures

TTIC-NCTC

GTAZ

JTAC

DGSE Center

into fierce interagency resistance by other cabinet members in the Homeland Security Council. A question that arises in this context is whether the impressive list of reforms in Great Britain must be attributed to the leadership of Prime Minister Tony Blair (alternative explanation 5), government structures, or other factors. A strong argument can be made that Great Britain had to suffer an attack on its own soil before the Home Office reorganization could be successfully tackled (alternative explanation 3). However, this was not for a lack of perceived threats. Foley makes a convincing case that, contrary to the years before the 9/11 attacks, ‘‘British decision-makers now viewed Islamist terrorism as a significant threat to the UK,’’16 so much so that

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Britain declared a ‘‘public emergency threatening the life of the nation,’’ so it could derogate parts of the EU Convention on Human Rights and, therefore, detain foreign terrorist suspects indefinitely (until 2005). In any event, the 2005 attacks and news about the 2006 airline plot created the context for organizational reforms that, at this point, almost certainly had nothing to do with Blair’s leadership (alternative explanation 5). The reforms were launched at the end of Blair’s career, after his retirement had been sealed, and therefore coincided with his lowest standing within the Labour Party. Blair’s earlier efforts to break up of the Home Office in 2001, at the height of his prime ministership, did not succeed, inter alia, because the home secretary resisted the changes. In addition, reforms continued under Prime Minister Brown, who lacked party support similar to that Tony Blair enjoyed during most of his tenure, even if the former also underestimated backbench opposition to pre-charge detention limits and, therefore, failed to garner support for the controversial provisions in the Lords (alternative explanation 5). Reforms also continued under the Cameron government, despite the fact that the coalition appeared to be ‘‘headed for a . . . car crash’’17 in the early stages of the negotiation process over the 2011 TPIMs Act. Overall, these developments lend support to the proposition that British government structures have been conducive to a steady stream of legislative acts and organizational reforms, even if the latter did not start until after the 2005 attacks. In the French case, the revolutionary merger of the DCRG and DST and creation of the parliamentary Intelligence Committee more than five years after the 9/11 attacks appear to indicate that changed political conditions (in the form of newly elected President Sarkozy) can indeed make a difference (alternative explanation 5). Plans for the merger existed since the 1990s but repeatedly fell victim to ‘‘political snags’’ and bureaucratic opposition. However, it is also no coincidence that the creation of a single domestic intelligence directorate, which had been on the reform agenda for more than a decade, was implemented under Sarkozy, the first French president least likely to experience conditions of cohabitation (due to two constitutional amendments adopted in 2000). The prime ministerialpresidential rivalry that dominated intraexecutive relations during the 1997–2002 cohabitation not only blocked these controversial reforms but did so for several years afterward, until the end of Chirac’s second term. Even though conditions of cohabitation ended in 2002, President Chirac’s experience kept him from implementing measures that might have in

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any way strengthened the position of the prime minister or Parliament throughout the remainder of his term. Instead, like the presidents before him (in particular, Franc¸ois Mitterrand who suffered through two cohabitation periods in the 1980s and ’90s), Chirac had a particular interest in maintaining a sizeable number of French intelligence agencies, as these could serve as helpful pawns against the prime minister. While security agencies are under prime ministerial control nominally, they are also loyal to the Elyse´e. True to the ‘‘divide et impera’’ concept, they serve as important checks on each other. These power gambles are symptomatic of the unique separation-of-power structures within the executive branch. At first glance, the existence of these many agencies also appears to explain why various new interagency coordinating mechanisms were created after the 9/11 attacks. A close look at the new councils and the new czar position illustrates, however, that they were designed to fortify the position of the president in the domestic security realm. By contrast, while coordinating mechanisms were also introduced as part of reforms passed in the 1980s, all these were under prime ministerial leadership. More important, Presidents Chirac and Sarkozy, eager to expand the domaine re´serve´ to the domestic security arena after 9/11, decided to ignore and replace these existing mechanisms with new ones under presidential leadership. That they succeeded in doing so illustrates the immense informal powers at the disposal of French presidents that overshadow those of any other government leader in this analysis. In this context, it is also not surprising that President Sarkozy in January 2009—albeit unsuccessfully—suggested curtailing the powers of the investigating magistrates. This move was designed to bring the French justice system closer to habeas corpus legal standards to protect against arbitrary state actions but would also affect, and undermine, the close relationship between the magistrates and the DST.18 Translated into ‘‘structural’’ terms, this change would effectively seal executive control over the judicial branch and courts. While investigating magistrates are ‘‘above’’ the law in many ways, they also serve as an important counterweight and instrument for holding Parisian politicians accountable. Foley notes how members of the executive branch, and Sarkozy in particular, did not want to share the intelligence service DST with the judicial branch, especially since DST agents also received orders from the magistrates.19 Diminishing their role to that of ordinary prosecutors would take away not only their powers but also their independence, making them beholden to the very government

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Table 3: Nature of Vertical Reforms Vertical reform

United States

Germany

X

X

New information hubs/nodes Strengthened federal powers at state level New federal/national representation at state/regional level

Great Britain

France

X

X

X

X

that appoints the prosecutors. A proposal designed to clear up blurred executive-judicial divides would, thus, have continued executive branch power expansion and encroachment on judicial facilities a` la France. Vertical Coordination

Without question, the focus and nature of the ‘‘vertical’’ reforms undertaken in all four countries were determined by whether the regions were on an equal footing with or subordinated to the national governments. In the two federal states with numerous independent local and state security forces, Germany and the United States, new connective information hubs emerged within the states and across regions (fusion centers) as well as at the federal level (GTAZ and NCTC). Because federal powers to act within the La¨nder are tightly circumscribed in Germany, the new information hub GTAZ had to be located at the federal level. In addition, the German La¨nder also created their own fusion centers designed to facilitate joint law enforcement and intelligence analysis, albeit without federal government involvement. In the United States, by contrast, there appeared to be a reverse bias against state involvement at the federal level. While federal law enforcement agencies participate in all state-run fusion centers, NCTC analysis did not include any state input during the first five years of its existence, and state representation still continues to be minimal. Contrary to the German BKA, which fought to expand its jurisdiction into the La¨nder, the American FBI has permanent institutional representation in all fifty states, which was further strengthened by the creation of additional Joint Terrorism Task Forces. Both Great Britain and France, two unitary countries that historically centralized security authorities at the national level,20 not only spread but

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also institutionalized their security agencies throughout their subnational regions (British MI5, CTUs and CTIUs; French GIRs and permanent counterradicalization taskforces). Regional counterterrorism reforms in France—pre-2008 merger—thus helped boost the status of the domestic intelligence service DCRG, which (at least temporarily) seemed to emerge with a renewed purpose and mandate distinct from that of the influential DST (which benefited from its long-established relationship with the powerful investigating magistrates). In addition, France transferred selective authorities to the regional prefects so they were allowed to authorize preventive surveillance measures. Information Sharing, Analysis, and Collection

Can government structures explain why (1) countries maintained a more or less permeable wall between intelligence and law enforcement services or (2) some countries imposed more and others less judicial restraints on executive powers? The answer is: only indirectly, when considering what government structures are designed to accomplish. As government structures are also a reflection of the underlying political cultures in each country, they are designed either to restrain or facilitate executive power. By implication (and similar to the previous analysis of interagency dynamics), German and U.S. systems are more likely to produce powerful stakeholders opposed to the integration of intelligence and law enforcement powers and insistent on judicial oversight, whereas British and French systems are more likely to facilitate the broadening and blurring of intelligence and police as well as executive and judicial powers. For example, all four countries introduced new net-centric analysis and information-sharing ventures designed to increase information sharing and joint analysis among law enforcement and intelligence services. The degree of operational versus administrative interaction and integration within these new ventures varied significantly, though. Depicting the two most permissive and restrictive systems (in terms of political cultures and their structural manifestation), respectively, the blurring of law enforcement and intelligence powers was greatest in France and least in Germany. The German GTAZ information-sharing arrangement is the most informal and loose. The nonoperational character of the GTAZ is reinforced by the fact that the center has no director and is housed on neutral grounds, with intelligence and law enforcement detailees even occupying separate buildings. Due to Congress’s involvement, the U.S. NCTC joint venture is more

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formalized and hierarchical. NCTC detailees share the same location and are a central component of the Office of the Director of National Intelligence. And yet, despite this higher level of institutionalization compared to the German GTAZ, joint analysis remains only partly realized, as access to databases is not shared by all. By contrast, no legislation was needed for the British JTAC, which is housed by the domestic intelligence service MI5. The French arrangement went beyond those in Germany, the United States, and Great Britain, as the new DGSE Center was tasked with coordinating foreign and domestic intelligence operations, in addition to conducting joint analysis. In the German case, the Justice Ministry emerged as the ‘‘guardian’’ of judicial oversight, watching over a clear division of intelligence and law enforcement powers. However, as evinced in the recent attempts to broaden surveillance powers, the Justice Ministry, even when it does support certain antiterror measures, may still be overruled by the Constitutional Court—yet another mechanism designed to restrain executive powers and manifestation of German political culture. There is a similar insistence on judicial reviews and the separation of intelligence and law enforcement in the U.S. system.21 Here it is Congress, and to a lesser degree the courts, that has taken on the responsibility of restraining executive ambitions by insisting on judicial reviews of executive security powers. While the Patriot Act was designed to encourage information sharing across police and intelligence divides and the judicial branch has yielded some powers to the executive branch (for example, through the broadened use of National Security Letters), other judicial safeguards were upheld or reinstalled, as illustrated by the recent reinstitution of FISA court-issued warrants. Similar to the German case, court rulings have repeatedly served as additional checks on executive powers in the United States. The effects of only rudimentary judicial checks and conventions are illustrated in the British case. The notion of parliamentary sovereignty leaves no room for significant judicial stakeholders or checks equivalent to the German Justice Ministry or La¨nder, U.S. Congress, or German Constitutional Court. British lawmakers were looking to include a number of judicial restraints as part of various counterterrorism bills, but these fell victim to the weak bargaining position of the Lords vis-a`-vis the government, which did not feel compelled to include many checks in the first place. Perhaps this circumstance helps explain the nature of several, comparatively hard-hitting, British responses, which included indefinite detention of foreign terror suspects,

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enhanced pre-charge detention limits, and control orders (restrictions on traveling, communications, association, movement, residence, and so forth). Even though these measures were unique to the British response (though not entirely new to the British counterterrorism arsenal, alternative explanation 6), an argument can be made that similar powers were already available to French investigating judges. Be that as it may, the lack of judicial stakeholders might also explain the comparatively close relationship between British intelligence and law enforcement, as well as foreign and domestic intelligence. As a result, absent many significant judicial checks, the distinction between executive security powers granted for crime as opposed to terrorism investigations became more significant, among other things, as it resembled one of few available means to guard against excessive use of more wide-ranging counterterrorism powers. In stark contrast to British practices and those of Germany and the United States, criminal and counterterrorism investigative powers were often used interchangeably in France. In the French case, judicial stakeholders and checks did exist but often took a back seat to the dominant executive. Until 2008, the Constitutional Council could only review laws that were in the making, and its review powers did not extend to executive decrees, the instrument of choice for implementing institutional reforms.22 Even though the Interior Ministry encroached on Justice Ministry turf repeatedly (for example, by initiating criminal procedure changes as part of at least two counterterrorism bills), this did not give reason for much concern on the judiciary side. Once the blurring of jurisdictions became an explicit part of counterterrorism legislation, the Constitutional Council intervened, arguing that the 2006 counterterrorism legislation violated the separation of powers principle. In general, however, the acceptance of overlapping judiciary and executive functions and powers is high in France and certainly appears to be much higher than in the United States, Germany, and Great Britain. Most prominently, this is also illustrated by the role of the investigating magistrates. The judges not only embody a unique hybrid of executive and judicial powers but also entertain a close working relationship with the DST. In contrast to the domestic intelligence services in Great Britain or Germany, the DST may assume executive functions when working with the investigating magistrates. Against the backdrop of the omnipotent magistrates, who are not subjected to any kind of oversight, and the meshing of criminal and counterterrorism investigative powers, it is questionable how far the judicial restraints that do exist on paper apply in practice.

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The stark differences between French and German practices in this area further suggest that the civil law tradition shared by both countries does not tell us much about why they would translate into such different approaches. Similarly, a comparison of British and U.S. practices illustrates the many differences between the two common law systems. Conclusion

Government structures significantly influenced the focus, nature, and scope of institutional reforms designed to strengthen counterterrorism coordination, information sharing, and joint analysis capacities. In this context, the presidential-parliamentary distinction does matter and produced differences in counterterrorism outputs. Relying on their own structural basis, U.S. and French presidents opted for establishing new coordinating mechanisms, councils, and positions that strengthened presidential powers and enhanced executive flexibility vis-a`-vis Congress (in the U.S. case) and the prime minister/government (in the French case). While these became permanent solutions in France, the coordinating mechanisms were mostly temporary solutions in the U.S. case.23 Because of the inherent competition among the branches in the U.S. separation of powers system, the White House was eventually drawn into the legislative process and compelled to accept legislative action and congressional oversight. By contrast, while the German government/Bundestag and the La¨nder/Bundesrat may also represent equal players supported by independent structural bases, the La¨nder do not share an interest in producing tangible results but are intent on maintaining a status quo. While not restrained by any structural hurdles, the British prime minister is also not motivated by any structural ‘‘competitors’’ and thus, apart from strengthening an existing intelligence coordinator post and creating a new Cabinet Office committee, did not launch reorganization or regional initiatives until after the 2005 London attacks. As British executive power is not rooted in structures but derives from the majority party in the Commons, the prime minister did not seek to strengthen his position vis-a`-vis any structural players. Rather, he focused on boosting his already powerful standing within the executive branch, by splitting the most powerful executive department, the Home Office, in half. And even though the Cameron government agreed to a more formalized National Security Council and statutory intelligence committee, both institutions very much depend on

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the prime minister’s willingness to utilize them and/or allow them to reach their full statutory potential. Furthermore, each state’s particular unitary or federal organization had a significant influence on vertical reform outcomes and whether national governments decided to connect with their regions by means of taskforces and/or information hubs. Germany and the United States added more ‘‘centric’’ elements (in the form of databases and fusion centers) to their federal security architecture, whereas Great Britain and France proceeded to complement their inherently ‘‘centric’’ security architecture with network elements. Beyond these direct effects, government structures also operate more indirectly and in tandem with underlying permissive or restrictive political cultures, designed to restrain or facilitate executive powers. Therefore, when it comes to the broadening of security powers and the greater integration of law enforcement and intelligence powers, the parliamentarypresidential distinction does not have much explanatory power by itself. Rather, it is the combination of nonexistent structural veto points, in addition to fewer judicial stakeholders, that resulted in fewer judicial restraints on security measures and more tightly integrated law enforcement and intelligence capacities.

5. Summary The comparative analysis of cases shows that government structures matter. Variations in government structures produce variations in outcomes. However, the previous analysis suggests that a mere distinction between presidential and parliamentary structures does not suffice when comparing decision-making hurdles encountered by the executive. There are important similarities between those government structures designed to restrain power as opposed to those that facilitate and concentrate executive power. These characteristics determine the level of legislative involvement in decision-making and oversight, which were greatest in the United States and Germany and lowest in Great Britain and France. The ability of the U.S. presidential system to overcome decision-making hurdles and/or move quickly is greater than that of the German parliamentary system, but not noticeably greater than that of the British-style parliamentary system, which does not feature any of the same decision-making restraints in the first

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place. In addition, due to the ongoing competition among structural players, presidential systems appear to provide a greater incentive for producing continual output. However, despite the similarities in U.S. presidential and German parliamentary systems on the one hand and British parliamentary and French presidential decision-making on the other, there are important similarities between pairs of presidential systems as opposed to pairs of parliamentary systems when it comes to institutional reforms. In fact, institutional reform outcomes appear most indicative of the parliamentary or presidential disposition of the four government systems. This is because institutions play an important role in the structural rivalries inherent in presidential systems and allow executive decision-makers to gain power vis-a`-vis an intra- or interbranch competitor. Therefore, to a significant extent, the focus, nature, and scope of institutional outcomes depend on whether structural decisionmakers are in direct competition with each other—which they are in the French and U.S. presidential but not in the German and British parliamentary systems. U.S. and French presidents sought to establish new coordinating mechanisms that would strengthen presidential powers and enhance executive flexibility vis-a`-vis Congress (in the U.S. case) and the prime minister (in the French case). The coordinating mechanisms represented mostly temporary solutions in the U.S. case, as the White House was eventually drawn into the legislative process and compelled to accept statutory mandates imposed by Congress. By contrast, parliamentary systems do not rely on structural rivalry but fusion to produce policy outcomes (in the German case, the La¨nder do not share an interest in producing tangible results but want to maintain a status quo), so that their reforms were directed elsewhere. The existence of structural ‘‘power-sharing’’ characteristics—irrespective of parliamentary/presidential distinctions—is also important for determining the direction, nature, and scope of institutional outcomes. Symptomatic of the various ‘‘power-sharing’’ arrangements in the U.S. (interbranch), German (interbranch/federalism), and French (intrabranch) systems are the greater numbers of security agencies in these three countries. As no one government level, branch, or executive head has a monopoly on security powers, these are broken up and fragmented. Consequently, there is a tendency to focus on coordinating and centralizing their activities, and, by implication, these very efforts undermine traditional power balances. However, how far countries will go to strengthen or centralize the coordination of security agencies

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depends on the particular parliamentary versus presidential disposition of their systems. It resulted in a technology-based approach in the German case, the consolidation of a few ‘‘like-minded’’ intelligence agencies in the French case, while congressional stakes facilitated ‘‘heavyweight’’ centralization solutions in the U.S. case. By contrast, Great Britain, as the only country in this analysis that lacks structural power-sharing arrangements (and, as a result, also features a more ‘‘coherent’’ security community with a smaller number of security agencies), decided to decentralize and streamline its counterterrorism institutions as evinced by the Home Office and Counter Terrorism Command reforms. The previous analysis suggests that structures serve as an independent variable in the instances of institutional reforms discussed above. However, in cases involving noninstitutional policy reforms, they have greater explanatory power in tandem with other explanations, particularly those involving political cultures as they relate to and underlie governmental structures. This is especially evident when it comes to information-sharing arrangements across law enforcement-intelligence divides as well as judicial restraints on executive powers. These appear to be more sweeping and less restrictive in Great Britain and France, the two countries featuring government systems designed to concentrate executive powers. The restraints on German/U.S. decision-making and the more permissive nature of French/ British decision-making (in terms of the number of judicial stakeholders and veto points) are, thus, further perpetuated and reflected in countries’ approaches to information sharing and collaboration across intelligence and law enforcement divides and judicial oversight of these measures. As government structures correspond to the more permissive (reflecting a concentration of powers tradition) or restrictive (reflecting a separation of powers tradition) political cultures in each country, these influence how government branches, and the many or few executive agencies and decision-makers (for example, coalition partners) within them, cooperate or try to check each other’s powers. As illustrated by the U.S. and German cases, interagency/bureaucratic struggles appear more prevalent and tolerated within systems designed to restrain executive power, featuring many stakeholders, access, and veto points.

Literature Revisited: Flaws of the Structural School The previous analysis of government structures warrants a critical evaluation of the assertions and findings of the structural school. First, Samuel

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Huntington needs to be revisited.24 Huntington viewed the bargaining and competition inherent in the U.S. system as very positive and perhaps its most valuable asset. Huntington thought the U.S. system would avoid major blunders and produce reasonable solutions because the multiple veto points would filter out bad ideas. However, after 9/11, these filters were not always guaranteed. The NSA surveillance program is one of several examples in which the regular decision-making process and scrutiny were avoided and civil liberties disregarded. By contrast, while the U.S.A. Patriot Act was passed under emergency conditions, virtually without any debate or bargaining, lawmakers in this case made a deliberate choice to follow the executive lead. Furthermore, they also ensured that a more thorough debate could take place at a later date, since the sunset clauses had to be renewed after five years. There were other instances in which the typical bargaining process seemed ‘‘out of order,’’ however, leading to questionable and controversial results. The DHS blueprint, which resulted in the most farreaching government reorganization since the creation of the NSC in 1947, was put together by a small group of White House advisors and practically left untouched by the sponsoring committee that saw the bill through the entire legislative process. A Democrat-led Congress passed the 2007 Protect America Act within days, effectively accepting all the recommendations by the Republican White House/DNI McConnell. Even though the act represented only a temporary solution, it set the tone and served as a foundation for the subsequent permanent FISA reform. Second, this analysis supports the findings of Warner Schilling and Roger Hilsman, who viewed the U.S. system in more negative terms and, among other things, suggested that the U.S. process results in piecemeal changes and watered-down policies.25 A strong argument can be made that this is true with regard to the 2004 Intelligence Reform Act. Even though there was bipartisan support for the Senate version of the bill in the House, the House Speaker refused to call a vote. In an emotionally charged atmosphere, the Senate scrambled to make a deal with the House in order to produce at least some results and satisfy constituents. Not only did the final version of the bill leave the lines of budget authority untouched, but, due to blurred and weakened authorities, the DNI is in competition with the very intelligence agencies he is supposed to coordinate. While a ‘‘Faustian bargain’’ like this was prevented in the case of the Homeland Security Act, that bill was kept outside standard decision-making processes and subjected to special procedures instead.

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This particular finding lends support to Stephen Krasner’s criticism of Graham Allison’s bureaucratic model.26 Among other things, Krasner argued that bureaucracies are only as powerful as the president allows them to be. Apart from the fact that the explanatory power of bureaucratic interpretations is lacking in the U.S. context, the previous analysis also illustrates that the model does not appear useful for explaining processes and outcomes in other countries (or only those meeting decision-making criteria similar to those exhibited by the U.S. system), as Krasner and Peter Katzenstein have also cautioned. Third, and most important, Kenneth Waltz’s findings need to be revisited and corrected. Waltz argued that the British prime minister moves more slowly and is less innovative than the U.S. president. According to Waltz, the prime minister is handicapped vis-a`-vis the president because he has to carefully drag the party along with him. How do British and U.S. decision-making processes and responses compare and measure up to Waltz’s claims? A comparison of these two countries is in order—not just to test Waltz’s findings but for other reasons as well: due to their common law traditions and shared Anglo-Saxon history and culture, there is a natural inclination in the United States to compare notes with the ‘‘British cousins.’’

The British-U.S. Comparison A summary of Waltz’s hypotheses is useful for structuring the comparison of counterterrorism outcomes in the two countries. According to Waltz, the U.S. president could respond much faster, had more freedom to strike out along new paths, and had a powerful incentive to move fast lest Congress get out in front. Regarding the speed of initial U.S. and British responses to the 9/11 attacks, the differences were negligible, and the slightly faster response in the U.S. was likely due to the fact that the U.S. suffered an attack on American soil. What weighs more heavily in favor of Waltz’s argument is the fact that the British prime minister suffered a legislative defeat only months after the London attacks, precisely because he failed to bring along the party with him. However, Blair was only defeated after it was clear he was a lame duck and near the end of his tenure. Most important, the legislation passed, even though Waltz argued that tiptoeing around party pressures would prevent introduction of most legislative bills

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in the first place. Similarly, Prime Minister Brown, never a party favorite, introduced and passed his Counterterrorism Act—minus the pre-charge detention extension. Legislative reforms have continued under the Cameron coalition government. Waltz also does not take under consideration the much greater freedom the prime minister has in decreeing institutional reforms and coordinator posts, which serves as an alternative tool for speedy and prolific decision-making. By extension, the frequent use of executive orders and the executive freedom that comes with it further undermines Waltz’s core argument that the prime minister will shy away from innovative or controversial legislative measures because he can be solely held accountable for it. In Waltz’s view, the accountability problem was also the reason for limited legislative productivity in Great Britain. The list of legislative measures in Table 4 (nonbold letters) shown below illustrates no shortage of legislation produced in Great Britain—even before the new coalition government came to power, eager to leave its mark on counterterrorism policies. Similarly, both executive leaders struck out along new paths, by creating a new Homeland Security Department in the U.S. and by splitting the existing one in Great Britain. Along these same lines, it might even be argued that the creation of the British Counter Terrorism Command was more pathbreaking than the intelligence reform in the United States, where the established lines of authority did not change hands. In sum, the analysis of British counterterrorism responses shows that the British prime minister is in a much stronger position than Waltz suggested. The list of adopted counterterrorism measures in Great Britain certainly does not pale against the United States, neither in terms of speed, quantity, nor ‘‘path-breaking’’ quality. Conversely, Waltz was right to argue that the U.S. system is far more capable and productive than commonly thought. When assessing the costs of counterterrorism law in Britain and the United States and how it has changed the relationships among the branches of government, Laura Donohue fears that the increases in executive power could result in ‘‘a shift in the basic structure of both states.’’27 My findings illustrate, however, that, in the domestic counterterrorism arena, Congress has managed to push back time and again and secure powers that can and have been used to control executive branch institutions and programs. Similarly, the British Commons and Lords, followed by a new coalition government, have taken turns in curbing executive pre-charge detention authorities and control order powers.

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Table 4: U.S. and British Counterterrorism Measures, 2001–2013 (those in bold print were implemented by executive order) United States

Great Britain

2001: OHS/HSC/czar 2001: U.S.A. Patriot Act 2001: NSA Program 2001–11: FBI JTTFs 2002: Homeland Security Act 2003: TTIC and TSC 2003–09: Fusion Centers 2004: Intelligence Reform Act 2005: FBI National Security Branch 2006: Patriot Act Reauthorization 2007: Protect America Act 2008: FISA Reform Act 2010/2011: Patriot Act Reauthorization 2012: FISA Reform Act Reauthorization

2001: Cabinet Office Committee 2001: Anti-Terrorism Act 2002: Intelligence czar 2003: JTAC 2005: MI5 regional 2005: Counter Terrorism Command 2005: Prevention of Terrorism Act 2006: Terrorism Act 2006: Home Office split 2006–9: Regional CTUs and CTIUs 2008: Counter-Terrorism Act 2010: National Security Council/ advisor 2011: Protection of Freedoms Act 2011: TPIMs Act

According to Kent Roach, U.S. and British responses after 9/11 illustrate a focus on executive power and extralegalism in the case of the U.S. and legislative reforms in the case of Britain.28 However, with the exception of the U.S. NSA surveillance program, these themes represent a misnomer in the context of domestic counterterrorism reforms (pertaining to intelligence collection/analysis, information sharing, and coordination), as even Roach repeatedly points to the ‘‘relative mildness of the legislative and domestic American response to terrorism’’ due to ‘‘the legal and political restrictions on what can be done in the United States and with respect to American citizens.’’29 Apparently, the extent of congressional involvement and oversight fluctuates depending on which counterterrorism facets are being analyzed. Similarly, Roach’s focus on legislative responses in Britain does not account for the many institutional reforms (also only mentioned in passing when discussing U.S. reforms after 9/11) prime ministers have ordered by means of executive decree. The German-U.S. Comparison In fact, a good argument can be made that the German case, illustrating a system that features more time-consuming decision-making processes and

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a structurally induced reluctance to innovate, fits Waltz’s description much better. Compared to the other countries, Germany has been slower in initiating and implementing measures, including retention of telecommunication traffic data and the joint counterterrorism center and database, or else been reluctant to embrace more far-reaching reorganization proposals. Contrary to Waltz’s analysis, these differences in output cannot be attributed solely to differences between presidential and parliamentary systems (or, alternatively, Weaver and Rockman’s top tier of analysis). Instead, the differences are better explained by paying a close look at the particular kind of parliamentary system featured in the German case, one replete with veto points rather than fused power. In effect, Germany’s structural hurdles (the separation of powers effect produced by a Bundesrat with structural leverage, the Constitutional Court as an additional check on executive power, and federal organization) and intraexecutive restraints (for example, coalitions) make German decision-making features most similar to the U.S. system. This does not come as a surprise, considering that the founders of both systems were strongly motivated to constrain what government can do. This political culture and concerns about power concentration are reflected not only in the constitutional set up and security architecture but also in the conventions that govern the two systems and how executive agencies and branches within the systems cooperate or not. While under these shared-power conditions, however, the German system cannot overcome its structural hurdles the way the United States can, as it is missing the ‘‘competitive productivity’’ inherent in the U.S. system. The chancellor does not have his or her own ‘‘structural’’ base, and, even though he or she can rely on a parliamentary majority, the chancellor needs to drag along the junior coalition partner, who functions as a check on the majority party. For the same reason, George Tsebelis’s veto-player analysis has only limited applicability for the analysis of counterterrorism outcomes.30 Pursuant to Tsebelis’s theory, the German coalitional parliamentary and U.S. presidential systems feature a similar number of institutional and partisan veto points, making the two systems less capable of producing policy change. While this analysis does note the similarities in German and U.S. decision-making hurdles, it documents important differences in counterterrorism outcomes due to German parliamentary and U.S. presidential government structures. Waltz captured the winning formula of the U.S. system by arguing that, as both U.S. branches need to show results to their constituents, the

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Table 5: U.S. and German Counterterrorism Measures, 2001–2013 (those in bold print were implemented by executive order) United States

Germany

2001: OHS/HSC/czar 2001: U.S.A. Patriot Act 2001: NSA Program 2001–11: FBI JTTFs 2002: Homeland Security Act 2003: TTIC and TSC 2003–09: Fusion Centers 2004: Intelligence Reform Act 2005: FBI National Security Branch 2006: Patriot Act Reauthorization 2007: Protect America Act 2008: FISA Reform Act 2010/2011: Patriot Act Reauthorization 2012: FISA Reform Act Reauthorization

2001: Counterterrorism packages 2004: GTAZ 2006: Federalism reform 2006: Joint Database Act 2006: TBEG Act 2008: EU Data Retention Act 2008: BKA Act 2011: TBEG Act Reauthorization

president has an interest in moving quickly, so that Congress does not gain credit for the initiative. This happened in the case of the DHS legislation, where the White House was looking to regain the initiative from lawmakers. Other executive initiatives were subsequently reined in by lawmakers interested in gaining oversight powers and political credit. Congressional activities—the need to check the executive branch, increase Congress’s own influence, and produce tangible results—resulted in the creation of new (and also more hierarchical) bureaucracies, as illustrated by the Department of Homeland Security and the Office of the Director of National Intelligence. It also, among other things, resulted in a more formal NCTC arrangement as opposed to the much looser German GTAZ design. This inherent ‘‘competition’’ among U.S. executive and legislative branches, while divisive, also represents the key to bridging the separation of powers, as both sides need each other to produce concrete results—an incentive the German system lacks. The Bundestag and Bundesrat do not share a common interest in legislative productivity, as the La¨nder can authorize and implement their own security measures. In the meantime, the states are determined to resist federal encroachment on La¨nder turf as much as possible. In other words, La¨nder executives are not judged by their performance as Bundesrat representatives but by their ability to protect La¨nder prerogatives. Interbranch competition

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over intelligence reform meant the 9/11 Commission became a driver of institutional reorganization in the United States, whereas, in Germany, the Federalism Commission became deadlocked and had to be reassembled several years later. While elections repeatedly served as a catalyst for change in the U.S case, they stalled reform efforts and the creation of a central antiterror database in the German case. Negotiations over counterterrorism bills often took not only months but years. The gridlock over the database bill under the left-of-center Schro¨der government was not an exception but again repeated under the Merkel government. Various plans to strengthen federal coordination of police and intelligence ran into La¨nder opposition, as a result of which more informal and technological information-sharing solutions were adopted that left everything else intact. In the end, German government structures represent a parliamentary system in which the leading party relies on its parliamentary majority but faces additional hurdles in the form of coalition partners (within the executive branch) and the Bundesrat (as part of the legislative branch), neither of which French or British parliamentary governments have to overcome.

The British-French Comparison British and French decision-making processes also reveal important similarities. Both systems not only exhibit less fear of government action but, to the contrary, were created to facilitate decisive action. To this effect, institutional reforms were decreed by means of executive orders, and the legislative branch was much less involved and often unable to impose checks on the executive branch. French and British legislative branches gained new statutory oversight powers, at least in theory, but it remains to be seen how these powers will be utilized in practice. However, British prime ministerial powers are no match for the powerful French president. The French head of state can only be restrained by conditions of cohabitation, but even then he continues to tower over the government and influence questions regarding the ‘‘reserved domain.’’ After 9/11, French presidents continuously worked on establishing their dominance in the domestic security realm with the help of various new councils and coordinating mechanisms. These efforts culminated in the creation of a Defense and National Security Council under President Sarkozy, which effectively eliminates differences between the domestic and foreign domaine re´serve´.

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Table 6: British and French Counterterrorism Measures, 2001–2013 (those in bold print were implemented by executive order) Great Britain

France

2001: Cabinet Office Committee 2001: Anti-Terrorism Act 2002: Intelligence czar 2003: JTAC 2005: MI5 Regional 2005: Counter Terrorism Command 2005: Prevention of Terrorism Act 2006: Terrorism Act 2006: Home Office split 2006–9: Regional CTUs and CTIUs 2008: Counter-Terrorism Act 2010: National Security Council/ advisor 2011: Protection of Freedoms Act 2011: TPIMs Act

2001: LSQ Act 2001: Elyse´e czar 2002: CSI 2002: Regional GIRs 2002: LOPSI Act 2003: LSI Act 2004: CRI 2004: DGSE Center 2004: Regional Counterradical. Centers 2006: Combating Terrorism Act 2008: DST/RG Merger 2009: CDSN and CNR Councils 2010: LOPPSI II Act 2012: Security Act

The prolific list of French responses that was crowned by the merger of the RG and DST—a reorganization various governments had wanted to tackle for decades—has been discussed as part of this and previous chapters. In this context, Foley’s claims regarding French and British parliamentary decision-making processes stand to be corrected. According to Foley, both systems rely on practices too similar to produce different legislative outcomes.31 While a dominant French president reinforces an already strong prime minister vis-a`-vis a weak legislative branch (under conditions of unified government), the British prime minister is more at the mercy of his legislative backbenchers, who are less predictable and more rebellious than French lawmakers. In the national security realm, the French system, thus, represents a superstrong parliamentary system, even stronger than the British Westminster system. Ironically, even though the British prime minister’s powers are plentiful and at times even appear to rival those of a French president, he or she is also the most vulnerable in the sense of being ‘‘protected’’ neither by an overarching presidential shadow (like the French prime minister), nor by his or her own ‘‘structural’’ basis (like the French and U.S. presidents), or a constructive no-confidence vote (like the German chancellor). British prime ministers can make up for some of this dependence on party support as they retain significant freedom to decree and

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implement counterterrorism measures (although controversial institutional reforms cannot be implemented without party support). As Great Britain is not only the only system (usually—the current coalition government represents an exception to the rule) free of power-sharing arrangements but also the least fragmented in terms of security agencies, prime ministers did not seek to establish new coordinating mechanisms the way the United States and France did or Germany would like (in order to control La¨nder intelligence and law enforcement activities). Apart from reinforcing the intelligence czar at the cabinet level and introducing a National Security Council (the latter in an effort to restrain the prime minister and ensure joint decision-making), other institutional reforms were designed either to ‘‘decentralize’’ functions or ‘‘streamline’’ counterterrorism authorities. Similarly hierarchical and unitary, but still affected by its dyarchic structure, the French reforms aimed to centralize domestic intelligence coordination while catapulting the president in charge of domestic security.

The U.S.-French Comparison Similar to the analysis of institutional reforms, which demonstrated how outcomes differed according to the parliamentary or presidential disposition of the system, the presidential-parliamentary distinction is also helpful for determining possible power shifts within the four countries. As the underlying concept of the U.S. system, scrutinized from near and far, the balance of power between executive and legislative branches appears to be particularly relevant for debates involving U.S. counterterrorism responses. While the question of how far domestic power constellations have changed and reforms have favored the executive branch after 9/11 is an important question for all liberal democracies (as illustrated by Donohue’s analysis of the United States and Britain), it is also of particular interest for France. Both French and U.S. presidents have their own ‘‘structural’’ base and more flexibility to respond quickly in times of crisis. Indeed, both tried to hold onto this momentum and gain additional executive powers even after the 9/11 crisis had subsided. While the French president became increasingly powerful after the end of cohabitation and continuously used any opportunity to expand his executive reign over the prime minister (by for example,

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Table 7: Counterterrorism Reforms in Presidential Systems, 2001–13 (those in bold print implemented by executive order) United States

France

2001: OHS/HSC/czar 2001: U.S.A. Patriot Act 2001: NSA Program 2001–11: FBI JTTFs 2002: Homeland Security Act 2003: TTIC and TSC 2003–09: Fusion Centers 2004: Intelligence Reform Act 2005: FBI National Security Branch 2006: Patriot Act Reauthorization 2007: Protect America Act 2008: FISA Reform Act 2010/2011: Patriot Act Reauthorization 2012: FISA Reform Act Reauthorization

2001: LSQ Act 2001: Elyse´e czar 2002: CSI 2002: Regional GIRs* 2002: LOPSI Act 2003: LSI Act 2004: CRI 2004: DGSE Center* 2004: Regional Counterradical. Centers* 2006: Combating Terrorism Act 2008: DST/RG Merger 2009: CDSN and CNR Councils 2010: LOPPSI II Act 2012: Safety Act

* Authorized by prime/interior minister.

presiding over no less than three councils), the U.S. president soon started feeling Congress’s reins closing in. And even if U.S. lawmakers may not have exercised their balancing powers to the fullest extent, they managed to compel legislative action and impose enforceable boundaries on each and every executive initiative. While the U.S. system does provide for significant executive freedom and power gains, these represent mostly temporary victories that have been and can be checked if needed—contrary to Donohue’s findings.32 The balance of power within the French executive branch, by contrast, has shifted permanently. Both the French and U.S. presidential systems also produce continual rather than sporadic output— due to the intraexecutive competition and presidential dominance in the French case and because both U.S. branches have an interest in claiming credit for reforms—as neither branch can afford to become complacent.

The British-German Comparison A closer look at countries’ responses suggests that the balance of power debate does not affect Great Britain as much, as prime ministerial powers

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Table 8: Counterterrorism Reforms in Parliamentary Systems, 2001–2013 (those in bold print were implemented by executive order) Germany

Great Britain

2001: Counterterrorism packages 2004: GTAZ 2006: Federalism reform 2006: Joint Database Act 2006: TBEG Act 2008: EU Data Retention Act 2008: BKA Act 2011: TBEG Act reauthorization

2001: Cabinet Office Committee 2001: Anti-Terrorism Act 2002: Intelligence czar 2003: JTAC 2005: MI5 regional 2005: Counter Terrorism Command 2005: Prevention of Terrorism Act 2006: Terrorism Act 2006: Home Office split 2006–9: Regional CTUs and CTIUs 2008: Counter-Terrorism Act 2010: National Security Council/ advisor 2011: Protection of Freedoms Act 2011: TPIMs Act

fluctuate according to party support, and least of all Germany. There were no significant power shifts in the two parliamentary systems, as both leaders are beholden to their parties, coalition partners, and backbenchers, which also resulted in more sporadic outputs during the time frame of analysis. As the executive-parliamentary branches of government are not only inextricably linked but also equipped with clear marching orders (the government can only stay in power as long as it is supported by its parliamentary majority) and thus draw support from the same power base, they were also less focused on expanding their respective powers. While power shifts may not be apparent at the high-policy/strategic level, they were still noticeable at the operational/tactical level, just like in France and the United States—where executive powers have taken a toll on judicial oversight. Apart from this, however, the British prime minister is in a far more powerful position vis-a`vis his fellow cabinet and legislative branch than the German chancellor (provided he/she has the necessary party support), as evinced by the large number of decreed initiatives. In contrast to the chancellor’s position, tied down by numerous constitutional and conventional restraints, the prime ministerial position within the executive branch was likely also strengthened in the long run by the split of the most powerful executive department, the Home Office.

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The lack of similarities between German and British parliamentary systems, decision-making processes, and outcomes (both have arguably more in common with their respective U.S. and French counterparts than each other) also lends support to R. Kent Weaver’s and Bert Rockman’s analysis, which demonstrated important parallels between the U.S. separation of powers and parliamentary coalition governments. While this analysis further supports their argument that it is necessary to go beyond the parliamentary-presidential categorization and focus on the specific type of parliamentary or presidential system, the former specification still holds important lessons for institutional outcomes. Furthermore, Weaver and Rockman concluded that structural effects, and the governing capabilities they generate, are highly contingent on other ‘‘favorable’’ or ‘‘inopportune’’ conditions. While a good argument can be made that the immediate response to the 9/11 attacks occurred under such favorable conditions, this analysis also suggests that structural effects may not be as contingent as argued by Weaver and Rockman.33 Regardless of the favorable or inopportune conditions present, decision-making processes and outcomes reflect and are the product of specific structural frameworks and the (restrictive or permissive) political cultures these represent. In conclusion, the comparison of structural constraints on counterterrorism decision-making processes and outcomes in the United States, Germany, Great Britain, and France helps determine (1) that government structures matter and influence decision-making and outcomes, (2) which structures (what type of parliamentary or presidential system) matter most for decision-making processes, (3) which structures (federal/unitary organization and presidential/parliamentary structures) matter most for outcomes, as well as vertical and horizontal institutional reforms, (4) the interplay of structures and interagency/bureaucratic processes, and (5) the interplay of structures and political cultures.

Summary of Findings and Conclusion

After 9/11, counterterrorism responses on both sides of the Atlantic were influenced by the structural framework—the way power is allocated among the various branches and levels of government—and the resulting process within which reforms are decided. As government structures change, restraints change, shaping not only the nature of the decision-making process and interagency dynamics within it but also affecting the choice of U.S., German, British, and French institutional designs and security policies, as well as reform objectives in the first place. This has important implications for the bureaucratic school of foreign policy/national security decision-making. The bureaucratic focus is deficient and also does not represent an improvement over the findings of first wave scholars Samuel Huntington, Richard Neustadt, Warner Schilling, and Roger Hilsman, which preceded Graham Allison’s bureaucratic and organizational models. Counterterrorism outcomes are not merely a result of predetermined bureaucratic preferences or organizational cultures and procedures. Government structures set the stage for bureaucratic dynamics and determine to what extent they may or may not unfold. Government systems that are more tightly organized and centralized, like those of France and Great Britain, lack the numerous power-sharing arrangements that facilitate interagency cleaving in the United States and Germany. British parliamentary sovereignty and French executive dominance principles diminish the clout or even emergence of, for example, judicial stakeholders in the first place. Similar to the effects of a wide angle lens whose focal length is substantially shorter than that of a normal lens, resulting in perspective distortion due to the short distance at which the picture is taken, bureaucratic and organizational perspectives miss out on the policy groundwork laid at structural levels. They ignore the importance of structural underpinnings that point the way ahead for policy-making. Examples abound. A

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bureaucratic-centric focus cannot explain the prolific list of French counterterrorism coordinating mechanisms, as these are a direct consequence of intra-executive power plays between prime minister and president. It cannot explain the decision to create a French domestic intelligence directorate seven years after 9/11—the first counterterrorism reorganization in over twenty years—or the continuing stream of counterterrorism laws under three different presidents/governments. The bureaucratic perspective fails to account for the emergence of the Lords as an important counterweight to executive counterterrorism dominance in Great Britain. A bureaucratic interpretation of the British Home Office split fails to discern its implications for the prime ministerial position within the executive branch. A bureaucratic perspective highlighting maneuverings between the German Justice and Interior Ministries fails to pick up on the integral importance of the La¨nder as structural decision-makers and keepers of the federal security architecture. To depict the creation of the Terrorist Threat Integration Center as an attempt to avoid the powerful U.S. Department of Defense bureaucracy ignores and misrepresents White House efforts to retain executive flexibility vis-a`-vis lawmakers in national security matters. Most important, it overlooks the powerful presidential potential for controlling interagency meddling in the United States, as well as the tremendous potential Congress has in imposing constraints on the executive branch. The 2008 FISA Amendments Act, the most recent legislative reform undertaken, is consistent with legislative branch efforts to put a stop to unilateral executive advances in the counterterrorism realm and increase oversight over security agencies. And while the scope of NSA data collection that came to light in the context of the PRISM revelations in summer 2013 is surely debatable, the measures were not only authorized by the FISA Court and based on the U.S.A. Patriot Act but also overseen by various congressional committees. By contrast, the political perspective of the first wave of foreign policy decision-making scholars does not only acknowledge but even stresses presidential or congressional influences and effects on decision-making processes.1 These findings and trends also hold significance for the structural school of foreign policy/national security decision-making. Government structures matter—but which ones matter the most? Is it the basic presidentialparliamentary distinction or, more specifically, a particular type of parliamentary or presidential system? These questions are directly tied to the

284 Findings and Conclusion

question of when government structures serve as independent and when as intervening variables. Basic parliamentary-presidential distinctions yield three concrete findings, all of which suggest the direct, independent effects of government structures. First, in presidential systems, representatives of the executive and legislative branches have incentives to produce a continual stream of reforms (irrespective of threat perceptions resulting from having suffered a direct attack), as presidents are locked into a continuous competition with lawmakers (or prime ministers, in the French system) to produce tangible results or catapult themselves into leading positions. By implication, presidential systems can overcome decision-making hurdles more easily (compared to the German case) or continuously (compared to Great Britain, which tackled institutional reorganization only after suffering an attack on its own soil) than parliamentary systems. However, this ‘‘creative tension’’ does not automatically lead to creative results. It is far from clear in how far institutional reforms flushed out as part of this stream constitute more effective solutions to the coordination and information sharing problems countries face. While this kind of normative analysis goes beyond the scope of this book, the results appear questionable in the cases of, for example, the U.S. Department of Homeland Security and Office of the Director of National Intelligence. While the creation of the former illustrated decisive policy-making, the latter served as an example of watered-down bargaining—reflecting the flexibility inherent in the U.S. system, as well as the major and minor roles the president assumed in either case. Second, because presidents rely on their own structural base, they have extensive opportunities to marshal and expand their unilateral powers during times of crisis, more so than any parliamentary leader ever could. As the power and position of prime ministers is more dependent on party than interbranch maneuvering, the balance of power question that frequently dominates American debates is largely a moot one when it comes to parliamentary systems. In the two types of presidential systems analyzed herein, both presidents succeed in expanding their power and reach, but the French balance-of-power shifted more significantly and permanently. Contrary to common alarmist outlooks, the U.S. Congress has repeatedly moved to rein in executive branch initiatives through statutory mandates and could shorten the leash if need be. The elasticity inherent in presidential systems also allowed lawmakers to fade into the background after 9/11 and follow the presidential lead, illustrating that separation of powers systems are

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indeed capable of acting with the speed and resolve typically associated with parliamentary systems and needed to face extraordinary emergencies and threats. Third, and directly related to the previous points, presidential choices designed to strengthen their powers and position vis-a`-vis the legislative branch or the prime minister influence the direction, nature, and scope of the institutional reforms countries adopt. While doing so, U.S. presidents (more so than their French counterparts) may be counterbalanced by their structural rivals, a step that further affects the nature and significantly changes the scope of institutional outcomes as illustrated by the Department of Homeland Security (where the ‘‘lightweight’’ OHS coordination model gave way to the ‘‘heavyweight’’ centralization model of DHS). Likewise, institutional choices in parliamentary systems are determined by the positioning and/or existence of structural stakeholders, leading to the confirmation of the federal security architecture in Germany and the Home Office split in Great Britain (in the absence of any structural players). Apart from these three findings, the explanatory or predictive utility of the basic parliamentary-presidential categorization is unsatisfactory— precisely because it cannot explain the many similarities (regarding decision-making hurdles and reform priorities) between the U.S. presidential and German parliamentary systems, on the one hand, and the British parliamentary and French presidential systems, on the other hand. Existing theories on structural decision-making restraints also illustrate these shortcomings. Kenneth Waltz cannot account for the British counterterrorism performance and prolific list of reforms. Conversely, George Tsebelis’s veto player analysis—which does away with parliamentary and presidential distinctions and instead counts the number of veto points in a given system— cannot explain why the U.S. presidential system is more productive than the German parliamentary system, as both systems are replete with veto points. It also does not allow for more tailored analysis. While France is a highly centralized and unitary state with few veto points, its intrabranch power-sharing structures have affected the choice of institutional reforms in ways the veto player analysis cannot explain. This book shows that the basic parliamentary-presidential categorization yields additional explanatory power in combination with the question of what government structures—be they parliamentary or presidential—are designed to accomplish. It is here that government structures function as an intervening variable, in tandem with political cultures. There are important

286 Findings and Conclusion

similarities between those governments designed to restrain power as opposed to those that facilitate executive power. They determine the level of legislative involvement in decision-making and oversight, greatest in the United States and Germany and lowest in Great Britain and France, the level of additional structural hurdles in the form of federalism and judicial review, as well as the level of interagency resistance—all of which, in turn, affect the direction, nature, and scope of counterterrorism reforms. As government structures correspond to the political cultures in each country, which are either more or less allowing of executive power depending on their fusion or separation of powers tradition, these influence how government branches, and decision-makers and executive security agencies within them, cooperate or try to check each other’s powers. Interagency/ bureaucratic struggles are more prevalent and tolerated within systems with restrictive conventions and power-sharing arrangements, like Germany and the United States, featuring many stakeholders and veto points. Similarly and directly related to the previous point, they have more powerful judicial stakeholders watching over jurisdictions and other long-established divides designed to ensure separation of powers and executive oversight. Political cultures represent the fundamental glue between government structures designed to facilitate or restrain executive power, their resulting inclusive or exclusive decision-making dynamics, fragmented or unified security architectures, and permissive or restrictive executive security powers. Kenneth Waltz pointed to the need of viewing government structures and processes as a manifestation of countries’ distinct political cultures— reciting Edmund Burke’s famous quote: ‘‘A constitution is, or ought to be, a vestment fitted to a body’’—but then failed to apply this very insight in his comparison of British and U.S. decision-making.2 It is no coincidence that France has traditionally looked to Great Britain, and Great Britain to France, for counterterrorism reforms and practices. Because of its common law tradition, history, and language, the United States also looks to Great Britain but would be better advised to expand its view to a detailed analysis of German counterterrorism practices. The similarities between German and U.S. decision-making hurdles and reform priorities are neither coincidental nor surprising. Wittkopf and McCormick wisely noted that, ‘‘minimally, [political culture finds] expression in the kinds of . . . political institutions American policy-makers have sought to export to others throughout much of its history.’’3 Exported to Germany after the end of World War II and fitted to the German ‘‘body,’’ the U.S. diffusion of power

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system took the form of a parliamentary coalition government paired with interlocking federalism in Germany. The current German republic may thus be considered a parliamentary version of the U.S. power-sharing system, in which the ‘‘diffusion of power is . . . the structural starting point from which actors and analysts must begin.’’4

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Notes

Introduction 1. Prominent members of the structural school include Roger Hilsman, To Move a Nation: The Politics of Foreign Policy in the Administration of John F. Kennedy (Garden City, N.Y.: Doubleday, 1967); Warner Schilling, Paul Hammond, and Glenn Snyder, Strategy, Politics, and Defense Budgets (New York: Columbia University Press, 1962); Samuel Huntington, The Common Defense: Strategic Programs in National Politics (New York: Columbia University Press, 1961); and Kenneth Waltz, Foreign Policy and Democratic Politics: The American and British Experience (Boston: Little, Brown, 1967). 2. For major contributions, see Graham T. Allison, Essence of Decision: Explaining the Cuban Missile Crisis (New York: HarperCollins, 1971); Morton H. Halperin, Bureaucratic Politics and Foreign Policy (Washington, D.C.: Brookings Institution, 1974); Irving Janis, Victims of Groupthink: A Psychological Study of Foreign Policy Decisions and Fiascoes (Boston: Houghton Mifflin, 1972); John D. Steinbruner, The Cybernetic Theory of Decision: New Dimensions of Political Analysis (Princeton, N.J.: Princeton University Press, 1974); Robert Jervis, Perception and Misperception in International Politics (Princeton, N.J.: Princeton University Press, 1976). 3. See, for example, John Arquilla, ‘‘It Takes a Network,’’ Los Angeles Times, August 25, 2002; Jo¨rg Ziercke, ‘‘Wissenschaft und Praxis im Kampf gegen den Terrorismus,’’ in Netzwerke des Terrors—Netzwerke gegen den Terror: BKA Herbsttagung 2004 (Ko¨ln: BKA, 2005), 15–29. 4. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Cynthia Brantley Johnson (New York: Pocket Books, 2004), 354. 5. Walter Bagehot, The English Constitution, ed. Russell Barrington (Ithaca, N.Y.: Cornell University Press, 1995), 220. 6. Alexis de Tocqueville, Democracy in America, trans. Gerald E. Bevan (New York: Penguin, 2003), 267. 7. ‘‘Conference Issue: Presidential and Parliamentary Democracies: Which Works Best?’’ Political Science Quarterly 109, 3 (Summer 1994); James L. Sundquist, Constitutional Reform and Effective Government (Washington, D.C.: Brookings, 1992); R. Kent Weaver, ‘‘Are Parliamentary Systems Better?’’ Brookings Review 3, 4 (Summer 1985): 16–25; Lloyd Cutler, ‘‘To Form a Government,’’ Foreign Affairs 59, 1 (Fall 1980): 126–43; James MacGregor Burns, The Deadlock of Democracy: Four-Party Politics in America (Englewood Cliffs, N.J.: Prentice-Hall,

290 Notes to Pages 3–6 1963); R. Kent Weaver and Bert A. Rockman, eds., Do Institutions Matter? Government Capabilities in the United States and Abroad (Washington, D.C.: Brookings Institution, 1993), 7, 11. 8. Michael Mastanduno, ‘‘The United States Political System and International Leadership: A ‘Decidedly Inferior’ Form of Government?’’ in American Foreign Policy: Theoretical Essays, ed. John Ikenberry, 5th ed. (New York: Pearson/Longman, 2005), 279–299. 9. On this point, see also Weaver and Rockman, Do Institutions Matter? 8. 10. Ibid., 3; Woodrow Wilson, Congressional Government (New Brunswick, N.J.: Transaction, 2002), 52; Dennis Kavanagh, ‘‘An American Science of British Politics,’’ Political Studies 22, 3 (September 1974): 251–70. 11. Senate Naval Affairs Committee, Unification of the War and Navy Departments and Postwar Organization for National Security, Report to Hon. James Forrestal, secretary of the navy, 79th Cong., 1st sess. (October 22, 1945), 50, hereafter referred to as Eberstadt Report; Paul Y. Hammond, ‘‘The National Security Council as a Device for Interdepartmental Coordination: An Interpretation and Appraisal,’’ American Political Science Review 54, 4 (December 1960): 899–910; Mark Stoller, Allies and Adversaries (Chapel Hill: University of North Carolina Press, 2000), 103–5; Karl F. Inderfurth and Loch K. Johnson, Fateful Decisions: Inside the National Security Council (New York: Oxford University Press, 2004), 1–6. 12. Eberstadt Report, 50; Hammond, ‘‘National Security Council,’’ 900. 13. Christopher Hitchens, ‘‘Question Time,’’ Slate, May 19, 2008; James L. Sundquist, ‘‘Parliamentary Government and Ours,’’ New Republic, October 26, 1974, 10–12. 14. Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction, Implementing the National Strategy: Fourth Annual Report to the President and the Congress of the Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction (Arlington, Va.: Rand 2002), 41–44. 15. Findings may also differ depending on the particular facet of the policy issue analyzed. In contrast to this book’s more tailored focus (and contrary findings), Kent Roach looked at the gamut of U.S. counterterrorism responses after 9/11 and concluded that Congress was very little involved in counterterrorism decision-making. See Roach, The 9/11 Effect: Comparative Counter-terrorism (New York: Cambridge University Press, 2011), 165–66. 16. One of Weaver’s and Rockman’s main findings is that government capabilities are issue-specific, in Weaver and Rockman, Do Institutions Matter? 447. 17. Ibid., 40. 18. Peter Gourevitch, ‘‘International Trade, Domestic Coalitions and Liberty: Comparative Responses to Crisis of 1873–1896,’’ Journal of Interdisciplinary History 8, 2 (1977): 281– 313, 281. 19. This definition of counterterrorism capacities is by no means exhaustive. All countries have chosen multipronged approaches and intensified counterterrorism efforts in, for example, the diplomatic, political, and judicial realms. 20. See, for example, Gary Schmitt, ed., Safety, Liberty and Islamist Terrorism (Washington, D.C.: AEI Press, 2010); Robert Art and Louise Richardson, eds., Democracy and Counterterrorism (Washington, D.C.: U.S. Institute of Peace Press, 2007); Yonah Alexander, ed., Counterterrorism Strategies: Successes and Failures of Six Countries (Dulles, Va.: Potomac Books, 2006); Karin von Hippel, ed., Europe Confronts Terrorism (New York: Palgrave Macmillan, 2005); Paul Gallis, European Counterterrorist Efforts: Political Will and Diverse

Notes to Pages 6–10 291 Responses (New York: Nova Science, 2004); Marianne Van Leeuwen, ed., Confronting Terrorism: European Experiences, Threat Perceptions and Policies (The Hague: Kluwer Law, 2003). 21. Robert S. Mueller, ‘‘The Changing Landscape of Terror,’’ Inside the FBI, podcast script, February 27, 2009, http://www.fbi.gov/news/podcasts. 22. See, for example, ‘‘U.S. Ambassador to Berlin Says Europeans Are Soft on Terror,’’ DW-World.de, September 11, 2006; Richard Falkenrath, ‘‘Europe’s Dangerous Complacency,’’ Financial Times, July 7, 2004; ‘‘U.S. Fears Europe-Based Terrorism,’’ BBC News, January 15, 2008. 23. France’s experience with Jihadi terrorism significantly predates the 9/11 attacks. 24. Great Britain’s experience is commonly associated with separatist terrorism, Germany’s with left-wing ideological terrorism, and France’s with Islamic colonial, left-wing, as well as ethnoseparatist terrorism. 25. Sartori calls this the difference between the conventions of the living constitution and the written text of the constitution; see Giovanni Sartori, Comparative Constitutional Engineering: An Inquiry into Structures, Incentives, and Outcomes (New York: New York University Press, 1997), 123.

Chapter 1. The Conceptual Debate: Setting the Stage for Structural Analysis 1. Graham T. Allison, Essence of Decision: Explaining the Cuban Missile Crisis (New York: HarperCollins, 1971). 2. Morton H. Halperin, Bureaucratic Politics and Foreign Policy (Washington, D.C.: Brookings Institution, 1974). 3. Irving Janis, Victims of Groupthink: A Psychological Study of Foreign Policy Decisions and Fiascoes (Boston: Houghton Mifflin, 1972). 4. John D. Steinbruner, The Cybernetic Theory of Decision: New Dimensions of Political Analysis (Princeton, N.J.: Princeton University Press, 1974). 5. Robert Jervis, Perception and Misperception in International Politics (Princeton, N.J.: Princeton University Press, 1976). 6. Amy Zegart, Spying Blind: The CIA, the FBI, and the Origins of 9/11 (Princeton, N.J.: Princeton University Press, 2007), 179. 7. Ibid., 12. 8. Ibid., 196. 9. Frank Foley, Countering Terrorism in Britain and France: Institutions, Norms and the Shadow of the Past (Cambridge: Cambridge University Press, 2013), chap. 2. 10. Ibid., 75–76. 11. Stephen Krasner, ‘‘Are Bureaucracies Important?’’ in American Foreign Policy: Theoretical Essays, ed. G. John Ikenberry (Glenview, Ill.: Scott, Foresman, 1989), 419–33, at 425. 12. Peter Cowhey and Mathew D. McCubbins, Structure and Policy in Japan and the United States (New York: Cambridge University Press, 1995). Cowhey and McCubbins include nonstructural variables but argue that politicians’ responses are shaped to a great extent by the nature of the political structures surrounding them. 13. R. Kent Weaver and Bert A. Rockman, ‘‘When and How Do Institutions Matter,’’ in Do Institutions Matter? Government Capabilities in the United States and Abroad, ed. R. Kent Weaver and Bert A. Rockman, (Washington, D.C.: Brookings Institution, 1993), 445–61, at 446–47, 451.

292 Notes to Pages 10–13 14. Kenneth Waltz, Foreign Policy and Democratic Politics: The American and British Experience (Boston: Little, Brown, 1967), 62; Eugene R. Wittkopf and James M. McCormick, eds., The Domestic Sources of American Foreign Policy, 4th ed. (Lanham, Md.: Rowman & Littlefield, 2004), 7. 15. Peter Katzenstein, ‘‘Introduction: Domestic and International Forces and Strategies of Foreign Economic Policy,’’ International Organization 31, 4 (1977): 599. International political economy literature has also analyzed structural effects on economic policy outputs. See, for example, Stephen D. Krasner, ‘‘State Power and the Structure of International Trade,’’ World Politics 28, 3 (April 1976): 317–47; Cowhey and McCubbins, Structure and Policy. 16. Robert Art, ‘‘Bureaucratic Politics and American Foreign Policy: A Critique,’’ in American Foreign Policy, ed. Ikenberry, 433–57, 434; for further criticism, see Krasner, ‘‘Are Bureaucracies Important.’’ 17. Art, ‘‘Bureaucratic Politics,’’ 434ff. Graham Allison discusses the ‘‘first-wave’’ literature in an effort to develop his bureaucratic politics paradigm, Essence of Indecision, 144–62. See also Graham T. Allison, review of Roger Hilsman, The Politics of Policy Making in Defense and Foreign Affairs: Conceptual Models and Bureaucratic Politics, Political Science Quarterly 102, 3 (Autumn 1987): 524–25. 18. Samuel Huntington, The Common Defense: Strategic Programs in National Politics (New York: Columbia University Press, 1961), 148. 19. Ibid., 168. 20. Warner R. Schilling, ‘‘The Politics of National Defense: Fiscal 1950,’’ in Warner R. Schilling, Paul Y. Hammond and Glenn H. Snyder, Strategy, Politics and Defense Budgets (New York: Columbia University Press, 1962), 5–27, at 22–23. 21. Ibid., 24. 22. Ibid., 25–27. 23. Roger Hilsman, To Move a Nation: The Politics of Foreign Policy in the Administration of John F. Kennedy (Garden City, N.Y.: Doubleday, 1967), 5. 24. Ibid., 9. 25. Ibid., 6. 26. Ibid. 27. Richard E. Neustadt, Alliance Politics (New York: Columbia University Press, 1970), 68. 28. Ibid., 62. 29. Ibid., 97. 30. Ibid., 89. 31. Waltz, Foreign Policy, 1, 17. 32. Weaver and Rockman, ‘‘Assessing the Effects of Institutions,’’ in Do Institutions Matter? ed. Weaver and Rockman, 1–41, at 7. 33. Ibid., 38. 34. While these similarities have not been examined in the context of foreign policy decision-making per se, they have been noted in the comparative politics realm. See, for example, Scott Mainwaring, ‘‘Presidentialism, Multipartism, and Democracy: The Difficult Combination,’’ Comparative Political Studies 26, 2 (1993): 198–228; George Tsebelis, Veto Players: How Political Institutions Work (Princeton, N.J.: Princeton University Press, 2002). 35. David Auerswald, Disarmed Democracies: Domestic Institutions and the Use of Force (Ann Arbor: University of Michigan Press, 2000), 44.

Notes to Pages 13–15 293 36. Kent Eaton, ‘‘Parlamentarism versus Presidentialism in the Policy Arena,’’ Comparative Politics 31, 3 (April 2000): 355–76, at 362. 37. See, for example, Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (New York: Cambridge University Press, 2011); Laura Donohue, The Cost of Counterterrorism (New York: Cambridge University Press, 2008). 38. Xiana Barros, ‘‘The External Dimension of EU Counter-Terrorism: The Challenges of the European Parliament in Front of the European Court of Justice,’’ European Security 21, 4 (December 2012): 518–36, at 518. 39. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, December 13, 2007, Official Journal of the European Union C 306 (December 2007): Chapter 5, Article 59F, 3. 40. In April 2014, the EU Court of Justice ruled that the directive violates rights to privacy and the protection of personal data and also exceeds the principle of proportionality. Court of Justice of the European Union, ‘‘The Court of Justice Declares the Data Retention Directive to Be Invalid,’’ Press Release No. 54/14, April 8, 2014, http://curia.europa.eu. 41. EU, Directive 2006/24/EC, Official Journal L 105 (April 13, 2006): 0054–0063. 42. However, as illustrated in Chapter 3, the German constitutional court struck down the data retention law in 2010. The European Court of Justice has represented an additional hurdle for EU counterterrorism legislation, as five of seven EU acts have been annulled by the European Court of Justice. See Barros, ‘‘External Dimension.’’ 43. While the British and French still had to transpose the EU directive into national law, this did not represent any problems as their national legislation already exceeded the sixmonth retention minimum of the EU directive. 44. Open Source EUP20060220085017, Vienna, Der Standard (in German), February 20, 2006, Interview with EU antiterror coordinator Gijs de Vries, ‘‘EU Antiterror Coordinator Urges More Exchange of Information to Combat Terror’’; ‘‘E.U. Counter-Terrorism Gets a Makeover,’’ Forbes.com, September 27, 2007. 45. Anthony Browne and Rory Watson, ‘‘EU Divided over Proposal for New Anti-Terror Czar,’’ The Times, March 17, 2004. 46. There is an ongoing debate about whether and how much the EU plays a role with regard to counterterrorism. See, for example, Oldrich Bures, EU Counterterrorism: A Paper Tiger? (Farnham: Ashgate, 2011), 2; Javier Argomaniz, ‘‘Post-9/11 Institutionalization of European Union Counter-Terrorism: Emergence, Accelerations and Inertia,’’ European Security 18, 2 (June 2009): 151–72; Christian Kaunert, ‘‘Europol and EU Counterterrorism: International Security Actorness in the External Dimension,’’ Studies in Conflict and Terrorism 33, 7 (June 2010): 652–71, 656. 47. According to the Lisbon Treaty, ‘‘any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned. The application of coercive measures shall be the exclusive responsibility of the competent national authorities.’’ Treaty of Lisbon, Official Journal of the European Union C 306, Chapter 5, Article 69G, 3. 48. See, for example, Browne and Watson, ‘‘EU Divided over Proposal;’’ Argomaniz, ‘‘Post-911 Institutionalization,’’ 163; Andrew Rettman, ‘‘EU Commission Keen to Set Up New Counter-Terrorism Office,’’ EU Observer, March 31, 2011; ‘‘Europol Chief Views Difficulties of Police Cooperation,’’ BBC News Monitoring Europe, July 14, 2011.

294 Notes to Pages 15–21 49. See also ‘‘Assessment of Law Enforcement Tools: No New Databases Needed at EU Level,’’ European Union News, December 10, 2012. 50. ‘‘EU’s Divisions Exposed as US Terror Threat Is Confirmed,’’ Deutsche PresseAgentur, October 7, 2010; Bjo¨rn Fa¨gersten, ‘‘Bureaucratic Resistance to International Intelligence Cooperation—The Case of Europol,’’ Intelligence and National Security 25, 4 (December 2010): 500–20, at 508, 510–11; Mathieu Deflem, ‘‘Europol and the Policing of International Terrorism: Counter-Terrorism in a Global Perspective,’’ Justice Quarterly 23, 3 (2006): 336–59; Mary Jordan, ‘‘Interpol Chief Calls U.K. Lax in Terror Fight; Failure to Share Data also Cited,’’ Washington Post, July 10, 2007; Stephen Fidler, ‘‘MI5 Chief Wary of Sharing Intelligence,’’ Financial Times, September 10, 2005; Sylvie Kauffmann and Piotr Smolar, ‘‘Le djihadiste franc¸ais est plus fruste, plus jeune, plus radicalize,’’ Le Monde, May 25, 2005. 51. See, for example, Oldrich Bures, ‘‘Informal Counterterrorism Arrangements in Europe: Beauty by Variety or Duplicity by Abundance,’’ Cooperation and Conflict 47, 4 (December 2012): 495–518; Peter Carstens, ‘‘Nicht verru¨hrt, nicht geschu¨ttelt: Die Europa¨ischen Nachrichtendienste kooperieren in geheimen Klubs,’’ FAZ.net, April 14, 2008; Monica DenBoer, Claudia Hillerbrand, and A. No¨lke, ‘‘Legitimacy Under Pressure: The European Web of Counter-Terrorism Networks,’’ Journal of Common Market Studies 46, 1 (January 2008): 101–24. 52. As mentioned previously, Great Britain’s experience is commonly associated with ethnonational terrorism, Germany’s with left-wing ideological terrorism, and France’s with Islamic colonial, left-wing, and ethnoseparatist terrorism. 53. Various interviewees; see also, for example, Bundesministerium des Innern, Nach dem 11. September: Massnahmen gegen den Terror (Berlin: BMI, 2004), Vorwort; Open Source EUP20051215029018, Paris, Ministry of Internal Affairs, in French language, December 15, 2005, ‘‘France’s Villepin Explains Focus of White Paper on Terrorism’’; House of Commons Select Committee on Defence, Second Report: Threat from Terrorism, HC Paper 348-I of 2001– 02, December 12, 2001; Cabinet Office, The United Kingdom and the Campaign Against International Terrorism: Progress Report (London: HMSO, September 2002). 54. As also noted in the previous chapter, this definition is by no means exhaustive. 55. See also Alexander George and Andrew Bennett, Case Studies and Theory Development in the Social Sciences (Cambridge, Mass.: MIT Press, 2005). 56. Steven van Evera, Guide to the Methods for Students of Political Science (Ithaca, N.Y.: Cornell University Press, 1997), 77–88.

Chapter 2. Case Study I: The United States 1. For a detailed discussion, see Louis Fisher, President and Congress: Power and Policy (New York: Free Press, 1972), 1–5. 2. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Cynthia Brantley Johnson (New York: Pocket Books, 2004), 344–52; Richard E. Neustadt, Presidential Power: The Politics of Leadership (New York: Wiley, 1969), 29–30. See also Elliot L. Richardson, ‘‘Checks and Balances in Foreign Relations,’’ American Journal of International Law 83, 4 (October 1989): 736–39. 3. Fisher, President and Congress, 52; Stephen Wayne, ‘‘Presidential Leadership in Congress: Structures and Strategies,’’ in Rivals for Power: Presidential-Congressional Relations, ed. James A. Thurber (Lanham, Md.: Rowman & Littlefield, 2006), 60.

Notes to Pages 21–22 295 4. Woodrow Wilson, Congressional Government (New Brunswick, N.J.: Transaction, 2002), 52; James MacGegor Burns, Presidential Government (Boston: Houghton Mifflin, 1966). 5. Neustadt, Presidential Power, 29–49. 6. Henkin stresses the distinction between separation of powers and checks and balances, in Louis Henkin, Foreign Affairs and the U.S. Constitution, 2nd ed. (New York: Oxford University Press, 1996), 25. See also Roger H. Davidson and Walter J. Oleszek, Congress and Its Members, 7th ed. (Washington, D.C.: CQ Press, 2000), 20–26, 304–6. 7. Wilson, Congressional Government, lxi; 232. 8. Neustadt, Presidential Power, 195; see also James A. Thurber, ‘‘An Introduction to Presidential-Congressional Rivalry,’’ in Rivals for Power, ed. Thurber, 4. 9. David R. Mayhew, Divided We Govern: Party Control, Lawmaking, and Investigations 1946–2002, 2nd ed. (New Haven, Conn.: Yale University Press, 2002), 198. See also David Brady and Craig Volden, Revolving Gridlock: Politics and Policy from Jimmy Carter to George W. Bush, 2nd ed. (Boulder, Colo.: Westview, 2006); Gary Andres and Patrick Griffin, ‘‘Successful Influence: Managing Legislative Affairs in the Twenty-first Century,’’ in Rivals for Power, ed. Thurber, 114, 121; Helen Dewar, ‘‘Congress Leaves Some Priority Bills Unfinished,’’ Washington Post, October 14, 2004. 10. Douglas Bennett, ‘‘Congress in Foreign Policy: Who Needs It?’’ Foreign Affairs 57, 1 (Fall 1978): 40–50, at 41. 11. Rebecca Hersman, Friends and Foes: How Congress and the President Really Make Foreign Policy (Washington, D.C.: Brookings Institution Press, 2000), 24; Stephen Weissman, A Culture of Deference: Congress’s Failure of Leadership in Foreign Policy (New York: Basic, 1995), 5–10. 12. Edward Corwin, The President: Office and Powers, 1787–1957, 4th rev. ed. (New York: New York University Press, 1957), 171; Arthur Schlesinger, Jr., The Imperial Presidency (Boston: Houghton Mifflin, 1973), 2. 13. Lee H. Hamilton, A Creative Tension: The Foreign Policy Roles of the President and Congress (Washington, D.C.: Woodrow Wilson Center Press, 2002), 6; Christopher Deering, ‘‘Foreign Affairs and War,’’ in The Legislative Branch, ed. Paul J. Quirk and Sarah Binder (New York: Oxford University Press, 2005), 349–81, 353. 14. Alexander Hamilton and James Madison, ‘‘The Pacificus—Helvidius Debate, 1793,’’ TeachingAmericanHistory.org. 15. Ibid. 16. Ibid.; see also Michael Nelson, ‘‘Person and Office: Presidents, the Presidency, and Foreign Policy,’’ in The Domestic Sources of American Foreign Policy: Insights and Policy, ed. Eugene Wittkopf and James McCormick, 4th ed. (Lanham: Rowman & Littlefield, 2004), 145–53, at 147; Henkin, U.S. Constitution, 39. 17. Hamilton et al., Federalist Papers, 500–509, 462. 18. Annals of Congress, House of Representatives, 6th Cong., 1st sess., March 1800: col. 613. See also Henkin, U.S. Constitution, 41ff; Louis Fisher, ‘‘President’s Game,’’ Legal Times, December 4, 2006. 19. Theodore Roosevelt, ‘‘The Stewardship Theory of the Presidency,’’ in Dynamics of American Presidency, ed. Donald Bruce Johnson and Jack Walker (New York: Wiley, 1964), 136.

296 Notes to Pages 23–25 20. William Howard Taft, Our Chief Magistrate and His Powers (New York: Columbia University Press, 1916), 139–40. 21. Gordon Silverstein, Imbalance of Power: Constitutional Interpretation and the Making of American Foreign Policy (New York: Oxford University Press, 1997), 7. 22. For a critique of Sutherland’s opinion, see also Mark Rozell, Executive Privilege: Presidential Power, Secrecy, and Accountability (Lawrence: University Press of Kansas, 2002), 44–45; Fisher, ‘‘President’s Game.’’ 23. U.S. Supreme Court, United States v. Curtiss-Wright Export Corporation, 299 U.S. 304 (1936). 24. Fisher, ‘‘President’s Game’’; Rozell, Privilege, 44–45. 25. Wilson, Congressional Government, lxi. 26. Alexis de Tocqueville, Democracy in America, trans. Gerald E. Bevan (New York: Penguin, 2003), 147. 27. Warren Christopher, ‘‘Ceasefire Between the Branches: A Compact in Foreign Affairs,’’ Foreign Affairs 60, 5 (Summer 1982): 989–1005, at 996; see also Silverstein, Imbalance of Power, 9, 65–82. 28. John Prados, Keepers of the Keys: A History of the National Security Council from Truman to Bush (New York: William Morrow, 1991), 29ff. 29. See, for example, Deering, ‘‘Foreign Affairs,’’ 350; N. W. Polsby, ‘‘Congress-Bashing for Beginners,’’ Public Interest 100 (Summer 1990): 15–23, at 15. 30. Ivo Daalder and I. M. Destler, ‘‘How National Security Advisers See Their Role,’’ in Domestic Sources of American Foreign Policy, ed. Wittkopf and McCormick, 4th ed., 171–181, at 171; Hamilton, Creative Tension, 36–37; see also Karl F. Inderfurth and Loch K. Johnson, Fateful Decisions: Inside the National Security Council (New York: Oxford University Press, 2004), xiii. 31. Hamilton et al., Federalist Papers, 8, 48. 32. Henkin, U.S. Constitution, 45; Louis Fisher, ‘‘Without Restraint: Presidential Military Initiatives from Korea to Bosnia,’’ in The Domestic Sources of American Foreign Policy: Insights and Policy, ed. Eugene Wittkopf and James McCormick, 3rd ed. (Lanham: Rowman & Littlefield, 1999), 141–55, at 141. 33. Schlesinger, Imperial Presidency, ix; Deering, ‘‘Foreign Affairs,’’ 350; Roger Davidson and Walter Oleszek, Congress and Its Members, 13th ed. (Washington, D.C.: CQ Press, 2012), 463–464. 34. Silverstein, Imbalance of Power, 14–15; Christopher, ‘‘Ceasefire,’’ 995; Deering, ‘‘Foreign Affairs,’’ 370. 35. James Sundquist, The Decline and Resurgence of Congress (Washington, D.C.: Brookings Institution Press, 1982), 155; Davison and Oleszek, Congress and Members, 7th ed., 292; Louis Fisher, The Constitution Between Friends (New York: St. Martin’s, 1978), 23ff.; James Lindsay, ‘‘From Deference to Activism and Back Again,’’ in Domestic Sources of American Foreign Policy, ed. Wittkopf and McCormick, 4th ed., 183–95, at 189. 36. Wayne, ‘‘Presidential Leadership,’’ 61. 37. Henkin, U.S. Constitution, 111. 38. Louis Fisher, The Politics of Shared Power: Congress and the Executive, 4th ed. (College Station: Texas A&M University Press, 1998), 144; John Canham-Clyne, ‘‘Business as Usual: Iran-Contra and the National Security State,’’ in Domestic Sources of American Foreign Policy, ed. Wittkopf and McCormick, 4th ed., 236–46, at 241.

Notes to Pages 25–27 297 39. Louis Fisher, ‘‘Executive Orders and Proclamations, 1933–99: Controversies with Congress and in the Courts,’’ Congressional Research Service Report for Congress, July 23, 1999, 3. 40. House Committee on Government Reform, Hearing on Toward a Logical Governing Structure: Restoring Executive Reorganization Authority, 108th Cong., 1st sess., April 3, 2003, 2, opening statement of Tom Davis. 41. Davison and Oleszek, Congress and Members, 7th ed., 320, 324; Weissman, Culture of Deference, 23. 42. Taft, Our Chief Magistrate and His Powers, 78; see also Silverstein, Imbalance of Power, 56. 43. Philip Trimble, ‘‘The President’s Foreign Affairs Power,’’ American Journal of International Law 83, 4 (October 1989): 750–57, at 751. 44. Christopher, ‘‘Ceasefire,’’ 996; John G. Tower, ‘‘Congress versus the President: The Formulation and Implementation of American Foreign Policy,’’ Foreign Affairs 60, 2 (Winter 1981/1982): 229–46; Sundquist, Decline and Resurgence, 199–415; Robert Gates, ‘‘The CIA and Foreign Policy,’’ Foreign Affairs 66, 2 (Winter 1987/88): 215–30, at 224; James Lindsay, ‘‘Congress and Foreign Policy: Avenues of Influence,’’ in The Domestic Sources of Foreign Policy, ed. Eugene Wittkopf, 2nd ed. (New York: St. Martin’s, 1994), 191–207, at 192. 45. James Lindsay and Randall Ripley, ‘‘Foreign and Defense Policy in Congress: A Research Agenda for the 1990s,’’ Legislative Studies Quarterly 17, 3 (August 1992): 417–49, at 436. See also James Lindsay, ‘‘Congress, Foreign Policy, and the New Institutionalism,’’ International Studies Quarterly 38, 2 (June 1994): 281–304, at 282. 46. James M. Lindsay and Randall B. Ripley, ‘‘How Congress Influences Foreign and Defense Policy,’’ in Congress Resurgent: Foreign and Defense Policy on Capitol Hill, ed. Randall B. Ripley and James M. Lindsay (Ann Arbor: University of Michigan Press, 1993), 17–35, at 28–32; Hersman, Friends and Foes, 44. For further discussion, see Matthew D. McCubbins and Thomas Schwartz, ‘‘Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms,’’ American Journal of Political Science 28, 1 (February 1984): 165–79. 47. Loch Johnson, America’s Secret Power: The CIA in a Democratic Society (New York: Oxford University Press, 1989), 122. 48. Gates, ‘‘CIA and Foreign Policy,’’ 225. 49. Deering, ‘‘Foreign Affairs,’’ 366. 50. Walter Oleszek, Congressional Procedures and the Policy Process. 4th ed. (Washington, D.C.: CQ Press, 1996), 19; Frank Smist, Congress Oversees the U.S. Intelligence Community, 1947–1994 (Knoxville: University of Tennessee Press, 1994), 9; 20. 51. Lindsay, ‘‘Institutionalism,’’ 300. 52. Canham-Clyne, ‘‘Iran-Contra,’’ 243. 53. United States v. Curtiss-Wright, 299 U.S. 304 (1936). 54. Hersman, Friends and Foes, 3; Fisher, President and Congress, 29, 54; Fisher, Shared Power, 50; Andres and Griffin, ‘‘Successful Influence,’’ 101–2; Lindsay, ‘‘Avenues of Influence,’’ 191ff. 55. Hersman, Friends and Foes, 5; Lindsay and Ripley, ‘‘How Congress Influences,’’ 35; Andres and Griffin, ‘‘Successful Influence,’’ 104, 120.56. Hersman, Friends and Foes, 7. See also Douglass Cater, Power in Washington (New York: Random House, 1964). 57. Hersman, Friends and Foes, 115.

298 Notes to Pages 27–28 58. Neustadt, Presidential Power, 10. 59. Fisher, ‘‘Without Restraint,’’ 153; Louis Fisher, Presidential War Power (Lawrence: University Press of Kansas, 2004); Louis Fisher, ‘‘Justifying War Against Iraq,’’ in Rivals for Power, ed. Thurber, 289–313; Weissmann, Culture of Deference, 1–3; Hamilton, Creative Tension, 7; Deering, ‘‘Foreign Affairs,’’ 368; Nelson, ‘‘Person and Office,’’ 149; Barbara Hinckley, Less Than Meets the Eye: Foreign Policy Making and the Myth of the Assertive Congress (Chicago: University of Chicago Press, 1994); Harold Hongju Koh, The National Security Constitution (New Haven, Conn.: Yale University Press, 1990). 60. Lindsay, ‘‘Deference’’; Lindsay and Ripley, ‘‘How Congress Influences’’; Fisher, Politics of Shared Power, 181–82; Jeremy Rosner, The New Tug of War: Congress, the Executive Branch, and National Security (Washington, D.C.: Carnegie Endowment for International Peace, 1995); Eugene R. Wittkopf and James M. McCormick, ‘‘Congress, the President, and the End of the Cold War: Has Anything Changed?’’ Journal of Conflict Resolution 42, 4 (August 1998): 440–66. 61. Fisher, President and Congress, 236; Sundquist, Decline and Resurgence; Fisher, The Constitution Between Friends, vi; 14; Davidson and Oleszek, Congress and Members, 7th ed., 306; Hamilton, Creative Tension, 10–11; Andrew Bennett, ‘‘Who Rules the Roost? Congressional-Executive Relations on Foreign Policy After the Cold War,’’ in Eagle Rules? Foreign Policy and American Primacy in the Twenty-First Century, ed. Robert J. Lieber (Upper Saddle River, N.J.: Prentice Hall, 2002), 47–69, at 52; Samuel Huntington, ‘‘Congressional Responses to the 20th Century,’’ in The Congress and America’s Future, ed. David Truman, 2nd ed. (Englewood Cliffs, N.J.: Prentice-Hall, 1973), 6–38, at 7. 62. See Schlesinger, Imperial Presidency; Wayne, ‘‘Presidential Leadership,’’ 59–60. 63. ‘‘John Kennedy: Mid-Term Television Conversation on the Presidency,’’ in The Power of the Presidency, ed. Robert Hirschfield (New Brunswick, N.J.: Aldine, 2005), 136–48, at 141–42. 64. Bennett, ‘‘Who Rules the Roost,’’ 56; see also Deering, ‘‘Foreign Affairs,’’ 350–51; Rosner, New Tug of War, 2–3; Davidson and Oleszek, Congress and Members, 7th ed., 399–400; Samuel Huntington, The Common Defense: Strategic Programs in National Politics (New York: Columbia University Press, 1961). 65. Eugene Rostow, ‘‘President, Prime Minister, or Constitutional Monarch?’’ McNair Papers 3 (Washington, D.C.: Institute for National Security Studies, 1989), 4ff. See also L. Gordon Crovitz and Jeremy Rabkin, eds., The Fettered Presidency: Legal Constraints on the Executive Branch (Washington, D.C.: AEI 1989); Gordon Jones, The Imperial Congress (Washington, D.C.: Heritage Foundation, 1988); Edmund Muskie, Kenneth Rush, and Kenneth Thompson, eds., The President, the Congress and Foreign Policy (Lanham, Md.: University Press of America, 1986). 66. Dana Milbank, ‘‘Cheney Refuses Records’ Release: Energy Showdown with GAO Looms,’’ Washington Post, January 28, 2002. For earlier criticism, see Dick Cheney, ‘‘Congressional Overreaching in Foreign Policy,’’ in Foreign Policy and the Constitution, ed. Robert A. Goldwin and Robert A. Licht (Washington, D.C.: AEI, 1990), 101–23. 67. Henkin, U.S. Constitution, 53; Lindsay, ‘‘Deference,’’ 184. 68. Phillip J. Cooper, By Order of the President: The Use and Abuse of Executive Direct Action (Lawrence: University Press of Kansas, 2002), 16, 21, 75, 144; Davidson and Oleszek, Congress and Members, 7th ed., 289; Fisher, President and Congress, 48; Fisher, ‘‘Executive Orders and Proclamations, 1933–99.’’

Notes to Pages 28–32 299 69. U.S. General Accounting Office, National Security: The Use of Presidential Directives to Make and Implement U.S. Policy, Report to the Chairman, Legislation and National Security Subcommittee, Committee on Government Operations, House of Representatives (Washington, D.C.: GAO, 1992), 1. 70. See also Weissman, Culture of Deference, 25. 71. Silverstein, Imbalance of Powers, 10. 72. For a detailed account of the U.S. counterterrorism experience before the 9/11 attacks, see Yonah Alexander, ‘‘The United States,’’ in Counterterrorism Strategies: Successes and Failures of Six Countries, ed. Yonah Alexander (Dulles, Va.: Potomac Books, 2006), 9–43. 73. The White House, ‘‘Address to a Joint Session of Congress and the American People,’’ September 20, 2001, http://georgewbush-whitehouse.archives.gov/. 74. Interviewee 3, Washington, D.C., May 2004. 75. Interviewee 3. 76. The U.S. Commission on National Security/21st Century, National Commission on Terrorism, and Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction. 77. Interviewee 3. 78. Interviewee 15, Washington, D.C., November 2004; Eric Pianin and Bradley Graham, ‘‘Ridge: Goal Isn’t to Create Bureaucracy,’’ Washington Post, October 4, 2001; Dana Milbank and Bradley Graham, ‘‘With Crisis, More Fluid Style at White House,’’ Washington Post, October 10, 2001. 79. Interviewee 3. 80. Interviewees 3, 15. 81. U.S. President, Executive Order no. 13228, Federal Register 66 (October 8, 2001): 51812. 82. Ibid., Section 3. 83. Ibid., Section 2. 84. Ibid., Section 5 (a). 85. Ibid., Section 3 (e). 86. U.S. President, Presidential Directive, ‘‘Organization and Operation of the Homeland Security Council,’’ October 29, 2001. 87. Interviewee 1, Washington, D.C., May 2004; Interviewees 3, 15. 88. Interviewees 3, 15, 6, Washington, D.C., May 2004. 89. ‘‘Homeland Security: The White House Plan Explained and Examined,’’ Brookings Institution Forum Transcript, September 4, 2002, 11. 90. Ivo H. Daalder and I. M. Destler, ‘‘Enhancing Homeland Security: Organizational Options,’’ Century Foundation, Homeland Security Project, April 15, 2002, 11. 91. Interviewee 4, Washington, D.C., May 2004; National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report (Baton Rouge, La.: Claitor’s, 2004), 417. 92. National Commission on Terrorist Attacks upon the United States, Law Enforcement and the Intelligence Community, tenth public hearing, Washington, D.C., April 13, 2004, statement of Attorney General John Ashcroft, http://govinfo.library.unt.edu/911/hearings/ hearing10.htm (July 22, 2013); John Ashcroft, Never Again: Securing America and Restoring Justice (New York: Center Street, 2006), 147–53; Stewart Baker, ‘‘Wall Nuts: The Wall Between Intelligence and Law Enforcement Is Killing Us,’’ Slate, December 31, 2003.

300 Notes to Pages 32–36 93. John Lancaster and Jonathan Krim, ‘‘Ashcroft Presents Anti-Terrorism Plan to Congress,’’ Washington Post, September 20, 2001; Ashcroft, Never Again, 154. 94. For example, the FBI sought roving wiretapping powers in the context of the Antiterrorism and Effective Death Penalty Act of 1996. 95. John Lancaster, ‘‘Senators Question an Anti-Terrorism Proposal,’’ Washington Post, September 26, 2001. 96. John Lancaster, ‘‘Dispute Between Senate Democrats, White House Threatens Committee Approval,’’ Washington Post, October 3, 2001. 97. John Lancaster, ‘‘Senate Passes Expansion of Electronic Surveillance,’’ Washington Post, October 12, 2001. 98. Robin Toner and Neill A. Lewis, ‘‘Bill Greatly Expanding Surveillance Power in Terrorism Fight Clears the Senate,’’ New York Times, October 12, 2001. 99. Elizabeth Palmer, ‘‘House Passes Anti-Terrorism Bill That Tracks White House’s Wishes,’’ Congressional Quarterly Weekly 59, 39 (October 13, 2001): 2399–2400; Adam Clymer and Robin Toner, ‘‘Vote Approves New Powers for Anti-Terror Investigators,’’ New York Times, October 18, 2001. 100. Robin Toner and Neil A. Lewis, ‘‘House Passes Terrorism Bill Much Like Senate’s, but with 5-Year Limit,’’ New York Times, October 13, 2001; ‘‘Stampeded in the House,’’ Washington Post, October 16, 2001. 101. ‘‘Legislative Background: Recent Action on the USA Patriot Act,’’ Congressional Digest 84, 7 (September 2005): 201. 102. Neil Lewis and Robert Pear, ‘‘Negotiators Back Scaled-Down Bill to Battle Terror,’’ New York Times, October 2, 2001. 103. See Ashcroft, Never Again, 156–57. 104. U.S. Department of Justice, Office of the Inspector General, A Review of the Federal Bureau of Investigation’s Use of National Security Letters, March 2007, xff. 105. Interviewee 8, Washington, D.C., May 2004; Stuart Taylor, Jr., ‘‘9/11: Save Some Blame for Courts That Created the Wall,’’ National Journal 36, 16 (April 17, 2004): 1161; Ashcroft, Never Again, 144, 150–51; Baker, ‘‘Wall Nuts.’’ 106. ‘‘Opposing Viewpoint: Analysis by the Center for Democracy and Technology,’’ Congressional Digest 83, 11 (November 2004): 264–65. 107. Taylor, ‘‘Save Some Blame,’’ 1161. 108. National Homeland Security Agency Act, HR 1158, 107th Cong., 1st sess., Cong. Rec.147, 38, daily ed. (March 21, 2001): H1060. 109. National Office for Combating Terrorism Act, S 1449, 107th Cong., 1st sess., Cong. Rec. 147, 124, daily ed. (September 21, 2001): S9620; Office of Homeland Security Act of 2001, HR 3026, 107th Cong., 1st sess., Cong. Rec. 147, 132, daily ed. (October 4, 2001): H6378. 110. Statement of Senator Joe Lieberman, Senate Committee on Governmental Affairs, Hearing on Legislative Options to Strengthen Homeland Defense, 107th Cong., 1st sess., October 12, 2001, 6. 111. Department of National Homeland Security Act of 2001, S 1534, 107th Cong., 1st sess., Cong. Rec.147, 136, daily ed. (October 11, 2001): S10640. 112. Senate Committee on Governmental Affairs, Hearing on Legislative Options, 2. 113. Eric Pianin and Bradley Graham, ‘‘New Homeland Defense Plans Emerge,’’ Washington Post, September 26, 2001.

Notes to Pages 36–38 301 114. Chuck McCutcheon, ‘‘Defining Homeland Security,’’ Congressional Quarterly Weekly 59, 37 (September 29, 2001): 2253. 115. Senate Committee on Governmental Affairs, Hearing on Legislation to Establish a Department of Homeland Security and a White House Office to Combat Terrorism, 107th Cong., 2nd sess., April 11, 2002, 9. 116. David Corn, ‘‘Ridge on the Ledge,’’ The Nation, November 19, 2001. 117. Senate Committee, Legislation to Establish a Department of Homeland Security, 42–44, statement of Ivo H. Daalder and I. M. Destler; Eric Pianin and Bill Miller, ‘‘For Ridge, Ambition and Realities Clash,’’ Washington Post, January 23, 2002; Joel Brinkley and Philip Shenon, ‘‘Ridge Meeting Opposition from Agencies,’’ New York Times, February 7, 2002, 16; Bill Miller, ‘‘Ridge Lacks Power to Do His Job, Says Panetta at Hearing,’’ Washington Post, April 18, 2002; ‘‘Faltering on the Home Front,’’ New York Times, May 12, 2002. 118. Interviewee 15; Alison Mitchell, ‘‘Letter to Ridge Is Latest Jab in Fight over Balance of Powers,’’ New York Times, March 5, 2002. 119. Dana Milbank, ‘‘Hill, White House Still Differ on Ridge Testimony,’’ Washington Post, March 20, 2002. 120. Dana Milbank, ‘‘Congress, White House Fight over Ridge Status,’’ Washington Post, March 21, 2002. 121. Harold Relyea, ‘‘The Law: Homeland Security: The Concept and the Presidential Coordination Office—First Assessment,’’ Presidential Studies Quarterly 32, 2 (June 2002): 397–411, at 410. 122. Harold Relyea, ‘‘Homeland Security: The Presidential Coordination Office,’’ CRS Report for Congress, updated March 30, 2004, 9. 123. Milbank, ‘‘Congress, White House Fight over Ridge Status’’; Adam Clymer, ‘‘Daschle Pushes to Query Security Chief,’’ New York Times, March 15, 2002. 124. Mitchell, ‘‘Letter to Ridge Is Latest Jab.’’ 125. Senate Committee on Appropriations, Hearing on Homeland Security and the Fiscal Year 2002 Supplemental Appropriations Bill, 107th Cong., 2nd sess., April 30, 2002; George Archibald, ‘‘Panel Ties Funding to Ridge Testimony,’’ Washington Times, March 22, 2002. 126. Senate Committee, Legislation to Establish a Department of Homeland Security, 4. 127. David Ho, ‘‘Daschle Says Subpoenaing Homeland Security Chief to Testify Is an Option,’’ Associated Press, March 18, 2002; Milbank, ‘‘Hill, White House Still Differ.’’ 128. Archibald, ‘‘Panel Ties Funding to Ridge Testimony’’; George Archibald, ‘‘White House Mollifies House Panel,’’ Washington Times, March 23, 2002. 129. Alison Mitchell, ‘‘Ridge Offers Compromise on Testimony Before Congress,’’ New York Times, March 26, 2002. 130. Elizabeth Becker, ‘‘Ridge to Brief 2 House Panels, but Rift with Senate Remains,’’ New York Times, April 4, 2002; Bill Miller, ‘‘From Bush Officials, a Hill Overture and a Snub,’’ Washington Post, April 11, 2001; Elizabeth Becker, ‘‘Bush Is Said to Consider a New Security Department,’’ New York Times, April 12, 2002. 131. Senate Committee, Legislation to Establish a Department of Homeland, 31. 132. Interviewee 12, Washington, D.C., October 2004. 133. Interviewee 2, Washington, D.C., May 2004; Interviewee 12. 134. Department of National Homeland Security and the National Office of Combating Terrorism Act, S 2452, 107th Cong., 2nd sess., Cong. Rec.148, no. 53, daily ed. (May 2, 2002): S3843.

302 Notes to Pages 38–42 135. Department of National Homeland Security and the National Office of Combating Terrorism Act, HR 4660, 107th Cong., 2nd sess., Cong. Rec.148, no. 53, daily ed. (May 2, 2002): H2100. 136. Molly Peterson, ‘‘Panel Casts Partisan Vote for Homeland Security Department,’’ GovExec.com, May 22, 2002. 137. Interviewees 2, 12. 138. Interviewee 3. 139. Interviewees 15, 3; Interviewee 5, Washington, D.C., May 2004. 140. Steven Brill, After: How America Confronted the September 12 Era (New York: Simon & Schuster, 2002), 285–87. 141. Interviewee 6. 142. Brill, After, 397. 143. Douglas Turner, ‘‘Fight Seen in Effort to Merge INS, Customs,’’ Buffalo (New York) News, March 20, 2002. 144. Ashton B. Carter, ‘‘The Architecture of Government in the Face of Terrorism,’’ International Security 26, 3 (Winter 2001/2002): 5–23, at 10. 145. Interviewee 3. 146. Brill, After, 397. 147. Interviewee 15; Brill, After, 411. 148. Dana Milbank, ‘‘Plan Was Formed in Utmost Secrecy,’’ Washington Post, June 7, 2002. 149. Brill, After, 409. 150. Ibid., 431; interviewee 3. 151. Interviewee 15; Brill, After, 411. 152. Interviewee 15. 153. Interviewee 15. 154. Interviewee 15; Brill, After, 431. 155. Interviewee 3. 156. Interviewee 15; Brill, After, 431. 157. Brill, After, 448. 158. Interviewee 15; Brill, After, 464; David E. Sanger, ‘‘In Big Shuffle, Bush Considered Putting F.B.I. in His New Department,’’ New York Times, June 9, 2002. 159. George W. Bush, The Department of Homeland Security (Washington, D.C.: White House, June 2002), https://www.dhs.gov/xlibrary/assets/book.pdf. 160. Alison Mitchell and Carl Hulse, ‘‘Congress Seeking to Put Own Stamp on Security Plan,’’ New York Times, June 12, 2002. 161. Juliet Eilperin, ‘‘Lawmakers Vow to Move Swiftly on Homeland Security Department,’’ Washington Post, June 14, 2002. 162. David Firestone and Elizabeth Bumiller, ‘‘Stalemate Ends in Bush Victory on Terror Bill,’’ New York Times, November 13, 2002; John Mintz, ‘‘Bush Signs Bill to Combine Federal Security Functions,’’ Washington Post, November 26, 2002; Interviewees 2, 12. 163. Interviewee 15. 164. Interviewees 1, 5, 15. 165. Brill, After, 494–95. 166. Lydia Adetunji, ‘‘Bush Warns of Homeland Security Turf Battles Ahead,’’ Financial Times, June 8, 2002.

Notes to Pages 42–45 303 167. Stacy Humes-Schulz, ‘‘President Musters Support for Homeland Security,’’ Financial Times, July 12, 2002. 168. Guy Gugliotta, ‘‘Unintended Tasks Face New Security Agency,’’ Washington Post, June 10, 2002. 169. Daalder is quoted in Corn, ‘‘Ridge on the Ledge’’; see also Ivo H. Daalder and I. M. Destler, ‘‘Advisors, Czars and Councils: Organizing for Homeland Security,’’ National Interest 68, 2 (Summer 2002): 66–78, at 66, 69–71. 170. Harold Relyea, ‘‘Organizing for Homeland Security,’’ Presidential Studies Quarterly 33, 3 (September 2003): 602–24, at 618; Adriel Bettelheim, ‘‘Congress Changing Tone of Homeland Security Debate,’’ Congressional Quarterly Weekly 60, 32 (August 31, 2002): 2222–25. 171. Bush, Department of Homeland Security, 17. 172. Brookings Forum, ‘‘Homeland Security,’’ 18. 173. Ibid., 12. 174. Ibid., 33. 175. Interviewee 16, Washington D.C., December 2004. 176. Alison Mitchell, ‘‘New Antiterrorism Agency Faces Competing Visions,’’ New York Times, June 14, 2002. 177. Jim VandeHei, ‘‘Lawmakers: Bush’s Plan Will Pass, with Changes,’’ Washington Post, June 8, 2002. 178. Juliet Eilperin and Bill Miller, ‘‘Turf Battles Loom over Bush Security Plan,’’ Washington Post, July 18, 2002. 179. Walter Pincus and Bill Miller, ‘‘4 Secretaries Endorse New Homeland Department,’’ Washington Post, July 12, 2002; Walter Pincus, Juliet Eilperin, and Bill Miller, ‘‘Details of Homeland Plan Assailed,’’ Washington Post, July 11, 2002. 180. Charlie Mitchell, ‘‘Homeland Job Security,’’ CongressDaily AM, June 24, 2002. 181. Brody Mullins and Charlie Mitchell, ‘‘White House Opposes Union Rights for Homeland Agency,’’ CongressDaily AM, July 16, 2002. 182. Interviewee 15; Bill Miller and Juliet Eilperin, ‘‘Panel Approves New U.S. Department,’’ Washington Post, July 20, 2002. 183. David Firestone, ‘‘Divided House Approves Homeland Security Bill, with Limited Enthusiasm,’’ New York Times, July 27, 2002. 184. Bill Miller and Juliet Eilperin, ‘‘House Approves Homeland Security Bill,’’ Washington Post, July 27, 2002. 185. Interviewee 15; David Firestone, ‘‘New Department Inches Forward in the Senate,’’ New York Times, July 25, 2002. 186. Alan Beattie, ‘‘Cautious Backing for Homeland Security Plan,’’ Financial Times, June 10, 2002. 187. Walter Pincus, ‘‘Congress to Postpone Revamping,’’ Washington Post, July 7, 2002. 188. David Firestone, ‘‘Debate to Begin on New Agency of U.S. Security,’’ New York Times, July 8, 2002. 189. Walter Pincus, ‘‘Homeland Security Issues Abound,’’ Washington Post, August 7, 2002. 190. Interviewee 8. 191. Interviewee 15; Bill Miller and Walter Pincus, ‘‘Senate Panel Shapes Homeland Department Bill,’’ Washington Post, July 25, 2002.

304 Notes to Pages 45–49 192. David Firestone, ‘‘Bill on Security Backed in Senate,’’ New York Times, July 26, 2002; Bill Miller, ‘‘Homeland Bill Remains Snagged on Labor Rights,’’ Washington Post, August 2, 2002. 193. Relyae, ‘‘Organizing for Homeland Security,’’ 621. 194. Interviewee 12; Relyea, ‘‘Organizing for Homeland Security,’’ 622–23. 195. David Firestone and Elizabeth Bumiller, ‘‘Stalemate Ends in Bush Victory on Terror Bill,’’ New York Times, November 13, 2002; ‘‘Bush Drums Up Support for Homeland Security Measures,’’ CNN Sunday Morning, August 25, 2002. 196. Interviewee 15; Helen Dewar, ‘‘Homeland Bill Gets Boost,’’ Washington Post, November 13, 2002. 197. David Firestone, ‘‘House Approves Domestic Security Bill,’’ New York Times, November 14, 2002. 198. Tom Daschle, Like No Other Time: The 107th Congress and the Two Years That Changed America Forever (New York: Crown, 2003), 215–16. 199. David Firestone, ‘‘Senate Votes, 90–9, to Set Up a Homeland Security Department Geared to Fight Terrorism,’’ New York Times, November 20, 2002. 200. Homeland Security Act of 2002, PL 107–296, section 201. 201. Ibid., section 201, (1) (A). 202. Interviewee 4; Speaker of the House, ‘‘Homeland Security-Related Intelligence Analysis and Information Sharing,’’ http://speaker.house.gov/homesec_intelligence.asp (last accessed October 20, 2005, but no longer available; copy is in possession of author). 203. ‘‘State of the Union: President’s State of the Union Message to Congress and the Nation,’’ New York Times, January 29, 2003. 204. Interviewee 4. 205. Interviewee 4. 206. Interviewee 2. 207. Interviewee 8. 208. Interviewee 8. 209. Interviewee 4. 210. Interviewee 4. 211. Senate Committee on Governmental Affairs, Hearing on Consolidating Intelligence Analysis: A Review of the President’s Proposal to Create a Terrorist Threat Integration Center, 108th Cong., 1st sess., February 26, 2003, 49, statement of Winston Wiley. 212. Ibid.; see also House Committee on the Judiciary and the Select Committee on Homeland Security, Joint Hearing on the Terrorist Threat Integration Center (TTIC) and Its Relationship with the Departments of Justice and Homeland Security, 108th Cong., 1st sess., July 22, 2003; Markle Foundation Task Force on National Security in the Information Age, Creating a Trusted Network For Homeland Security (Washington, D.C.: Markle Foundation, December 2003), appendix B. 213. Dan Eggen, ‘‘Center to Assess Terrorist Threat,’’ Washington Post, May 1, 2003. 214. House Committees, Joint Hearing on TTIC, 41. 215. Senate Committee on Governmental Affairs, Letter to Robert S. Mueller III, John O. Brennan, Thomas J. Ridge, and George J. Tenet, 108th Cong., 1st sess., October 30, 2003; Markle Foundation, Trusted Network, 18. 216. Senate Committee, Letter to Robert S. Mueller et al.

Notes to Pages 49–52 305 217. Senate Committee on Governmental Affairs, Letter to Senators Susan Collins and Carl Levin on TTIC Structure, 108th Cong., 2nd sess., April 13, 2004; Senate Committee on Homeland Security and Governmental Affairs, ‘‘Senator Collins Receives Answers on Terrorist Threat Integration Center,’’ Press Release, 108th Cong., 2nd sess., April 20, 2004. 218. Dan Eggen, ‘‘Plan for Counterterror Database Unveiled,’’ Washington Post, September 17, 2003. 219. Dan Eggen, ‘‘GAO Criticizes System for Tracking Terrorists,’’ Washington Post, April 30, 2003. 220. U.S. Department of Homeland Security, ‘‘New Terrorist Screening Center Established,’’ Press Release, September 16, 2003. 221. Chris Strohm, ‘‘Terrorist Screening Center Plagued by Deficiencies, Audit Finds,’’ GovExec.com, June 14, 2005. 222. Interviewee 8. 223. Interviewee 5. 224. General Accounting Office, Federal Efforts Are Helping to Alleviate Some Challenges Encountered by State and Local Information Fusion Centers, Report to Congressional Committees (Washington, D.C.: GAO, 2007). 225. Dan Eggen, ‘‘Lawmakers Urge More Aggressive Sept. 11 Probe,’’ Washington Post, May 22, 2002. 226. ‘‘Stampede on Intelligence,’’ Washington Post, September 2, 2004. 227. U.S. President, Executive Order 13354, Federal Register 69 (September 1, 2004): 53585. 228. Ibid., 53593. 229. Martin Kady, II, Helen Fessenden, and Joseph Anselmo, ‘‘In Eye of Overhaul Storm, Collins Seeks Oct. 1 Bill,’’ Congressional Quarterly Weekly 62, 32 (August 7, 2004): 1906–11. 230. White House, ‘‘President’s Remarks on Intelligence Reform,’’ Press Release, August 2, 2004. 231. Philip Shenon, ‘‘Bush Shows Congress Plan for Spy Czar,’’ New York Times, September 17, 2004. 232. Wayne, ‘‘Presidential Leadership,’’ 68; ‘‘Avoiding Distractions,’’ New York Times, September 27, 2004; Harold Meyerson, ‘‘How Republicans Define Security,’’ Washington Post, September 29, 2004; ‘‘No Time for Congress to Tinker,’’ New York Times, September 30, 2004; Martin Kady II and Helen Fessenden, ‘‘Conference Without Compromise Threatens Intelligence Rewrite,’’ Congressional Quarterly Weekly 62, 40 (October 16, 2004): 2455–61; Philip Shenon, ‘‘Bush Asks Leaders of Congress to Pass a 9/11 Bill Quickly,’’ New York Times, October 25, 2004. 233. Helen Fessenden et al., ‘‘House Leaders Take the Reins,’’ Congressional Quarterly Weekly 62, 38 (October 2, 2004): 2313–15. 234. Senate Committee on Armed Services, Implications for the Department of Defense and Military Operations of Proposals to Reorganize the United States Intelligence Community, 108th Cong., 2nd sess., August 17, 2004, 93, statement of Donald Rumsfeld; Martin Kady II and John Donnelly, ‘‘Pentagon Wields an Iron Hand in National Director Debate,’’ Congressional Quarterly Weekly 62, 38 (October 2, 2004): 2308–12. 235. Carl Hulse, ‘‘9/11 Commissioner Say Bill’s Added Provisions are Harmful,’’ New York Times, October 1, 2004; Thomas H. Kean and Lee H. Hamilton, Without Precedent: The Inside Story of the 9/11 Commission (New York: Knopf, 2002), 313.

306 Notes to Pages 53–55 236. Thad Hall, ‘‘Homeland Security Watch: March 2003,’’ Century Foundation, Homeland Security Project, March 6, 2003; Amy Goldstein, ‘‘Fierce Fight over Secrecy, Scope of Law,’’ Washington Post, September 8, 2003. 237. Domestic Security Enhancement Act of 2003, Confidential Draft, January 9, 2003, first published in Charles Lewis and Adam Mayle, ‘‘Justice Dept. Drafts Sweeping Expansion of Anti-Terrorism Act,’’ Center for Public Integrity, February 7, 2003. 238. ‘‘The GOP vs. President Bush,’’ New York Times, December 6, 2004; Walter Pincus, ‘‘Bush Is Asked to Break Deadlock on Intelligence Reform,’’ Washington Post, November 11, 2004; ‘‘Lawmakers Say Bush, Cheney Need to Lobby,’’ Washington Post, November 22, 2004; Siobhan Gorman, ‘‘Intelligence Reform at Death’s Door?’’ CongressDaily, November 13, 2004; Spencer Ackerman, ‘‘Small Change,’’ New Republic 231, 24 (December 13, 2004): 12–13, at 12. 239. Jonathan Allen and Martin Kady II, ‘‘In Abandoning Vote on Overhaul Bill, Hastert Stresses Keeping Caucus Happy,’’ Congressional Quarterly Weekly 62, 46 (November 27, 2004): 2773. 240. Richard Posner, Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (Lanham, Md.: Rowman & Littlefield, 2005), 56. 241. ‘‘Efforts to Pass Intelligence Reform Bill Stall in Congress, News Hour, PBS, November 24, 2004. 242. Kean and Hamilton, Without Precedent, 315. 243. Cong. Rec., 108th Cong., 2nd sess., 150, no. 125, daily ed. (2004): S10543, statement of Senator Byrd. 244. Martin Kady II et al., ‘‘Cleared Intelligence Rewrite Is Big Finish for the 108th,’’ Congressional Quarterly Weekly 62, 48 (December 11, 2004): 2937–44; Greta Wodele and John Stanton, ‘‘Compromise Clears Way for Intelligence Overhaul Vote,’’ GovExec.com, December 7, 2004. 245. Peter Baker and Walter Pincus, ‘‘Bush Signs Intelligence Reform Bill,’’ Washington Post, December 18, 2004. 246. Bob Graham, ‘‘A To-Do List for America’s New Spy Chief,’’ Financial Times, December 16, 2004; Richard A. Posner, ‘‘Important Job, Impossible Position,’’ New York Times, February 9, 2005. 247. ‘‘Bill Would Give CIA More Power Overseas,’’ Washington Post, June 7, 2005; Scott Shane, ‘‘Intelligence Chief to Retain Personnel Powers,’’ New York Times, June 10, 2005. 248. Jonathan Allen and Daphne Retter, ‘‘Many Lawmakers Loath to Agree That Reform Begins at Home,’’ Congressional Quarterly Weekly 62, 32 (August 7, 2004): 1908; Richard Posner, Uncertain Shield: The U.S. Intelligence System in the Throes of Reform (Stanford, Calif.: Stanford University Press, 2006), 200. 249. Todd Masse, ‘‘The National Counterterrorism Center: Implementation Challenges and Issues for Congress,’’ CRS Report for Congress, March 25, 2005, 16; Peter Grier and Faye Bowers, ‘‘Task Ahead: How to Be a Spy Czar,’’ Christian Science Monitor, April 13, 2005; Walter Pincus, ‘‘National Intelligence Director Proves to Be Difficult Post to Fill,’’ Washington Post, January 31, 2005; ‘‘Negroponte’s First Job Is Showing Who’s Boss,’’ Washington Post, March 1, 2005. 250. For a discussion of the overburdened DNI, see Posner, Uncertain Shield, 70–80. 251. Kean and Hamilton, Without Precedent, 286.

Notes to Pages 55–57 307 252. Intelligence Reform and Terrorism Prevention Act of 2004, PL 108–458, title VI, sections 6603 and 6952. 253. Ibid., section 6001; the lone wolf provision was featured in the Domestic Enhancement Act of 2003 and a 2003 stand-alone bill co-sponsored by Senators Charles Schumer (D-N.Y.) and Jon Kyl (R-Ariz.). Dan Rather, ‘‘Curtain Goes Up on Ashcroft’s Patriot Act II,’’ Houston Chronicle, June 15, 2003; Dan Eggen, ‘‘Measure Expands Police Powers,’’ Washington Post, December 10, 2004. For criticism, see Cong. Rec., 108th Cong., 2nd sess., 150, 139, daily ed. (December 8, 2004): S11983. 254. Dan Eggen and Walter Pincus, ‘‘Spy Chief Gets More Authority over FBI,’’ Washington Post, June 30, 2005. 255. Homeland Security Act, title XV—transition, section 1503. 256. Bush, The Department of Homeland Security, figure between pages 7 and 8. 257. 9/11 Commission Report, 421. 258. Mimi Hall, ‘‘Homeland Security Answers to Everyone,’’ USA Today, May 6, 2003. 259. Ivo H. Daalder et al., Assessing the Department of Homeland Security (Washington, D.C.: Brookings Institution, July 2002), 48–49. 260. House Select Committee on Homeland Security, Hearing on Perspectives on House Reform: Lessons from the Past, 108th Cong., 1st sess., May 19, 2003, 35, testimony of Thomas E. Mann and Norman Ornstein; Center for Strategic and International Studies and Business Executive for National Security Task Force, ‘‘Untangling the Web: Congressional Oversight and the Department of Homeland Security,’’ December 10, 2004, 2. 261. Interviewees 2, 12. 262. Richard E. Cohen, Siobhan Gorman, and Sydney J. Freedberg, Jr., ‘‘The Ultimate Turf War,’’ National Journal 35, 1 (January 4, 2003): 18. 263. David Nather and Karen Foerstel, ‘‘Committee Chairmen Express Concerns About Major Shift in Jurisdiction,’’ Congressional Quarterly Weekly 60, 24 (June 15, 2002): 1585; Greta Wodele, ‘‘House Homeland Security Panel Won’t Have Say in 9/11 Legislation,’’ Gov Exec.gov, September 28, 2004. 264. Interviewee 2. 265. Judy Holland, ‘‘Congress Protecting Its Turf on Terror Oversight,’’ Houston Chronicle, August 8, 2004. 266. Ibid. 267. 9/11 Commission Report, 421. 268. Interviewee 2; House Select Committee on Homeland Security, ‘‘Homeland Security Committee Draws Support for Permanency,’’ Press Release, 108th Cong., 2nd sess., October 7, 2004. 269. John Stanton, ‘‘Turf-Conscious Senators Resist Expansion of Governmental Affairs,’’ GovExec.com, October 8, 2004; Mike Nartker, ‘‘Senate Approves Governmental Affairs Overhaul,’’ GovExec.com, October 13, 2004. 270. Interviewee 12; see also Amelia Gruber, ‘‘Senate Plan to Reshape Governmental Affairs Panel Gets Mixed Reception,’’ GovExec.com, October 7, 2004. 271. Gruber, ‘‘Senate Plan.’’ 272. House Select Committee on Homeland Security, Recommendations of the Select Committee on Homeland Security on Changes to the Rules of the House of Representatives with Respect to Homeland Security Issues, 108th Cong., 2nd sess., September 30, 2004, section 12 (d).

308 Notes to Pages 57–60 273. Adopting House Rules for the 109th Congress, H Res. 5, 109th Cong., 1st sess., Cong. Rec. 151, 1, daily ed. (January 4, 2005): H14, section 2 (a); Greta Wodele, ‘‘House GOP Creates Permanent Homeland Security Panel,’’ GovExec.com, January 4, 2005. 274. Ambreen Ali, ‘‘Oversight Confusion Hinders Security Policy,’’ Roll Call, September 8, 2011. 275. 9/11 Commission Report, 420. 276. Kevin Whitelaw and David E. Kaplan, ‘‘Don’t Ask, Don’t Tell,’’ U.S. News, September 13, 2004; Frederick Kaiser, ‘‘Congressional Oversight of Intelligence: Current Structure and Alternatives,’’ CRS Report for Congress, February 15, 2007, 3. 277. Chris Strohm, ‘‘Intel Suffers from Weak Congressional Oversight, Senators Told,’’ CongressDaily AM, November 14, 2007. 278. Chris Strohm, ‘‘After Post-9/11 Reorganization Battle, Hill Lacks Appetite for More Changes,’’ CongressDaily AM, September 11, 2006; Jonathan Weisman, ‘‘Democrats Reject Key 9/11 Panel Suggestion,’’ Washington Post, November 30, 2006. 279. James Risen and Eric Lichtblau, ‘‘Bush Secretly Lifted Some Limits on Spying in U.S. After 9/11, Officials Say,’’ New York Times, December 15, 2005. 280. ‘‘Administration Position: Justification for Warrantless Wiretapping,’’ Congressional Digest 85, 4 (April 2006): 98, 128; Eric Lichtblau and James Risen, ‘‘Legal Rationale by Justice Dept. on Spying Effort,’’ New York Times, January 20, 2006. 281. Authorization for Use of Military Force, PL 107–40, 107th Cong., 1st sess. (September 18, 2001). 282. In re: Sealed Case, No. 02–001, 310 F.3d 717 (FISCR 2002), http://www.fas.org/irp/ agency/doj/fisa/fiscr111802.html. 283. Patrick Radden Keefe, ‘‘Can Network Theory Thwart Terrorists?’’ New York Times, March 12, 2006; Stuart Taylor, Jr., ‘‘Wiretaps: How to Fix FISA,’’ National Journal 38, 7 (February 18, 2006): 12; Demetri Sevastopulo and Paul Taylor, ‘‘Verizon Denies Giving Records to NSA,’’ Financial Times, May 17, 2006. 284. Dana Milbank, ‘‘President Asks for Expanded Patriot Act,’’ Washington Post, September 11, 2003; Dan Eggen, ‘‘2003 Draft Legislation Covered Eavesdropping,’’ Washington Post, January 28, 2006. 285. Domestic Security Enhancement Act, sections 103 and 104. 286. Peter Baker and Charles Babington, ‘‘Bush Addresses Uproar over Spying,’’ Washington Post, December 20, 2005. 287. Intelligence Authorization Act for Fiscal Year 2004, PL 108–177, title 3, section 374. 288. Sheryl Gay Stolberg, ‘‘Senators Left Out of Loop Make Their Pique Known,’’ New York Times, May 19, 2006. 289. Eric Lichtblau, ‘‘House Voted for a Permanent Patriot Act,’’ New York Times, July 22, 2005. 290. Sheryl Gay Stolberg, ‘‘House Renews Antiterror Law, But Opposition Builds in Senate,’’ New York Times, December 15, 2005. 291. Sheryl Gay Stolberg and Eric Lichtblau, ‘‘Senators Thwart Bush Bid to Renew Law on Terrorism,’’ New York Times, December 17, 2005; Charles Babington, ‘‘Congress Votes to Renew Patriot Act, with Changes,’’ Washington Post, March 8, 2006. 292. Jonathan Weisman, ‘‘Republican Rift over Wiretapping Widens,’’ Washington Post, September 6, 2006; Jonathan Weisman and Carol D. Leonnig, ‘‘No Compromise on Wiretap

Notes to Pages 60–66 309 Bill,’’ Washington Post, September 27, 2006; Elizabeth B. Bazan, ‘‘National Security Surveillance Act of 2006: S. 3886, Title II (S. 2453 as Reported out of the Senate Judiciary Committee),’’ CRS Report for Congress, updated January 18, 2007. 293. Eric Lichtblau and David Johnston, ‘‘Court to Oversee U.S. Wiretapping in Terror Cases,’’ New York Times, January 18, 2007; Mark Mazzetti, ‘‘Key Lawmakers Getting Files About Surveillance Program,’’ New York Times, February 1, 2007. 294. Walter Pincus, ‘‘Administration Seeks to Expand Surveillance Law,’’ Washington Post, April 14, 2007. 295. Walter Pincus, ‘‘Intelligence Chief Decries Constraints,’’ Washington Post, May 2, 2007; Mike McConnell, ‘‘A Law Terrorism Outran,’’ Washington Post, May 21, 2007. 296. James Risen, ‘‘Democrats Scrambling to Expand Eavesdropping,’’ New York Times, August 1, 2007. 297. Ellen Nakashima and Spencer Hsu, ‘‘Democrats Offer Compromise Plan on Surveillance,’’ Washington Post, August 2, 2007; ‘‘Toward a Better Surveillance Law,’’ Washington Post, August 8, 2007. 298. Joby Warrick and Walter Pincus, ‘‘How the Fight for Vast New Spying Powers Was Won,’’ Washington Post, August 12, 2007. 299. Carol Leonnig and Ellen Nakashima, ‘‘Ruling Limited Spying Efforts,’’ Washington Post, August 3, 2007. 300. Joby Warrick and Ellen Nakashima, ‘‘Senate Votes to Expand Warrantless Surveillance,’’ Washington Post, August 4, 2007. 301. E. J. Dionne, Jr., ‘‘Why the Democrats Caved,’’ Washington Post, August 10, 2007. 302. Mike McConnell, ‘‘A Key Gap in Fighting Terrorism,’’ Washington Post, February 15, 2008. 303. ‘‘Time for Legislating,’’ Washington Post, February 14, 2008. 304. Orrin Hatch, ‘‘Letter to the Editor: A Better FISA Bill,’’ Washington Post, March 19 2008; ‘‘Bush Remarks on FISA,’’ Washington Post, March 13, 2008. 305. For a comparison of the two bills, see Elizabeth Bazan, ‘‘The Foreign Intelligence Surveillance Act: Comparison of the Senate Amendment to H.R. 3773 and the House Amendment to the Senate Amendment to H.R. 3773,’’ CRS Report for Congress, June 12, 2008. 306. Shailagh Murray, ‘‘Obama Joins Fellow Senators in Passing New Wiretapping Measure,’’ Washington Post, July 10, 2008. 307. Jay Rockefeller, Patrick Leahy, Silvestre Reyes, and John Conyers, ‘‘Scare Tactics and Our Surveillance Bill,’’ Washington Post, February 25, 2008. 308. Paul Kane, ‘‘Obama Supports FISA, Angering Left,’’ Washington Post, June 20, 2008. 309. Rockefeller et al., ‘‘Scare Tactics and Our Surveillance Bill.’’ 310. ‘‘A Better Surveillance Law,’’ Washington Post, June 20, 2008. 311. Karen De Young, ‘‘National Security Structure Is Set,’’ Washington Post, February 27, 2009. 312. Helene Cooper, ‘‘In Security Shuffle, White House Merges Staffs,’’ New York Times, May 26, 2009. 313. Charlie Savage, ‘‘Battle Looms over the Patriot Act,’’ New York Times, September 19, 2009. 314. ‘‘Judiciary Panel Approves Patriot Act Sections,’’ New York Times, October 9, 2009. For a discussion of changes, see Senate Committee on the Judiciary, Report on the USA Patriot

310 Notes to Pages 66–79 Act Sunset Extension Act of 2011, with Minority Views, Senate, 112th Cong., 1st sess., April 5, 2011, Senate Report No. 112–13. 315. House Committee on the Judiciary, Report on the USA Patriot Amendments Act of 2009, Together with Dissenting Views, Senate, 111th Cong., 1st sess., December 16, 2009, House Report No. 111–382. 316. Senate Committee on the Judiciary, Report on the USA Patriot Act Sunset Extension Act, 13. 317. Senate Committee on the Judiciary, Hearing on National Security Letters: The Need for Greater Accountability and Oversight, 110th Cong., 2nd sess., April 23, 2008, statement of Gregory T. Nojeim. 318. Senate Committee on the Judiciary, Hearing on Misuse of Patriot Act Powers: The Inspector General’s Findings of Improper Use of the National Security letters by the FBI, 110th Cong., 1st sess., March 21, 2007, 9, statement of Glenn Fine. 319. U.S. Department of Justice, Office of the Inspector General, A Review of the FBI’s Use of National Security Letters (Washington, D.C.: DOJ, March 2008). 320. Senate Committee on the Judiciary, Report on the USA Patriot Act Sunset Extension Act, 14. 321. Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008). 322. Michael Farrell, ‘‘Obama Signs Patriot Act Extension Without Reforms,’’ Christian Science Monitor, March 1, 2010. 323. Senate Committee on the Judiciary, Report on the USA Patriot Act Sunset Extension Act, 6. 324. Senator Patrick Leahy, ‘‘DOJ to Implement Provisions of Leahy-Authored Patriot Act Reauthorization Proposal,’’ Press Release, December 9, 2010. 325. Charlie Savage, ‘‘Deal Reached on Extension of Patriot Act,’’ New York Times, May 19, 2011. 326. Gail Russell Chaddock, ‘‘Three Controversial Provisions That Congress Voted to Keep,’’ Christian Science Monitor, May 27, 2011. 327. Ellen Nakashima, ‘‘House Votes to Renew Controversial Surveillance Law,’’ Washington Post, September 12, 2012. 328. Ellen Nakashima, ‘‘Senate Panel Votes to Extend Government’s Broader Surveillance Authority,’’ Washington Post, May 22, 2012. 329. Ellen Nakashima, ‘‘Senate Approves Measure to Renew Controversial Surveillance Authority,’’ Washington Post, December 28, 2012. 330. For example, ‘‘in the 110th Congress (2007–2009) alone, DHS officials would testify at 374 hearings, before 95 different committees and subcommittees.’’ See Timothy Balunis and William Hemphill, ‘‘Congress and Homeland Security,’’ in Congress and the Politics of National Security, ed. David Auerswald and Colton Campbell (New York: Cambridge University Press, 2011), 100–120, at 108.

Chapter 3. Case Study II: Germany 1. Even though the Bundesrat is often referred to as the upper house of the legislative branch, it is technically an independent federal organ. 2. Ludger Helms, Presidents, Prime Ministers and Chancellors: Executive Leadership in Western Democracies (New York: Palgrave Macmillan, 2005), 92, 100; see also Renate Gorges,

Notes to Pages 79–81 311 So Arbeiten Regierung und Parlament: Organisation, Zusammenarbeit und Kontrolle im parlamentarischen Regierungssystem (Rheinbreitbach: Neue Darmsta¨dter Verlagsanstalt, 1992), 26–27. 3. Interviewee 28, Berlin, May 2006; Klaus von Beyme, ‘‘The Bundestag—Still the Center of Decision-Making?’’ in Institutions and Institutional Change in the Federal Republic of Germany, ed. Ludger Helms (New York: St. Martin’s, 2000), 32–47, at 35. 4. Karl Loewenstein, Political Power and the Governmental Process (Chicago: University of Chicago Press, 1965). See also Heinz Rausch, ed., Zur heutigen Problematik der Gewaltenteilung (Darmstadt: Wissenschaftliche Buchgesellschaft, 1969); Andreas von Arnauld, ‘‘Gewaltenteilung jenseits der Gewaltentrennung: Das gewaltenteilige System in der Verfassungsordnung der Bundesrepublik Deutschland,’’ Zeitschrift fu¨r Parlamentsfragen 32, 3 (2001): 678–98. 5. While the Constitutional Court has ruled the controversial practice legal, critics continue to debate the need for constitutional change to give the Bundestag the right to determine its own dissolution. ‘‘Der Pra¨sident hat erhebliches Ermessen,’’ Frankfurter Rundschau, June 4, 2005; Claus Leggewie, ‘‘Kanzler versus Parlamentsdemokratie: Pla¨doyer fu¨r ein Auflo¨sungstrecht des Bundestages,’’ Bla¨tter fu¨r Deutsche und Internationale Politik 50, 10 (2005): 1207–12, at 1207. 6. Gorges, Regierung und Parlament, 80–83. 7. Walter Bagehot, The English Constitution, ed. Russell Barrington (Ithaca, NY: Cornell University Press, 1995), 66. 8. Gert-Joachim Glaeßner, Demokratie und Politik in Deutschland (Wiesbaden: Vieweg, 1999), 28. 9. Karl Loewenstein, British Cabinet Government (New York: Oxford University Press, 1967); Gorges, Regierung und Parlament, 61–62; Glaeßner, Demokratie und Politik, 23–24. 10. John Stuart Mill, Considerations on Representative Government, ed. Currin Shields (New York: Liberal Arts Press, 1958). See also Eberhard Schuett-Wetschky, ‘‘Regierung, Parlament oder Parteien: Wer entscheidet, wer beschließt?’’ Zeitschrift fu¨r Parlamentsfragen 36, 3 (2005): 489–507; Eberhard Schuett Wetschky, ‘‘Parlamentskritik ohne Ende? Parteidissens and Repra¨sentationskonzepte, am Beispiel der Entparlamentarisierungs- und der Gewaltenteilungskritik,’’ Zeitschrift fu¨r Politikwissenschaft 15, 1 (2005): 3–33. 11. Schuett-Wetschky, ‘‘Regierung,’’ 499–500; Dolf Sternberger, ‘‘Gewaltenteilung und Parlamentarische Regierung in der Bundesrepublik Deutschland,’’ in Strukturwandel der modernen Regierung, ed. Theo Stammen (Darmstadt: Wissenschaftliche Buchgesellschaft, 1967), 186–209; Gorges, Regierung und Parlament, 63. 12. Schuett-Wetschky, ‘‘Regierung,’’ 496–97; Ludger Helms, ‘‘Introduction: Institutional Change and Adaptation in a Stable Democracy,’’ in Institutions and Institutional Change, ed. Helms, 1–31, at 15. 13. Eberhard Schuett-Wetschky, ‘‘Richtlinienkompetenz des Bundeskanzlers, demokratische Fu¨hrung und Parteiendemokratie: Teil I: Richtlinienkompetenz als Fremdko¨rper in der Parteiendemokratie,’’ Zeitschrift fu¨r Politikwissenschaft 13, 4 (2003): 1897–1931, at 1921. 14. Von Beyme, ‘‘Bundestag,’’ 42; see also Werner J. Patzelt, ‘‘Party Cohesion and Party Discipline in German Parliaments,’’ in Discipline and Cohesion in Legislatures, ed. Reuven Y. Hazan and David Olson (New York: Routledge, 2006), 102–15. 15. Bagehot, English Constitution, 159. 16. Schuett-Wetschky, ‘‘Regierung,’’ 502; Schuett-Wetschky, ‘‘Parlamentskritik,’’ 22.

312 Notes to Pages 81–84 17. Schuett-Wetschky, ‘‘Parlamentskritik,’’ 15ff; see also Winfried Steffani, Gewaltenteilung und Parteien im Wandel (Opladen: Westdeutscher Verlag, 1997). 18. Helms, Presidents, 121. 19. Gorges, Regierung und Parlament, 38. 20. Helms, ‘‘Introduction,’’ 8–9; Schuett-Wetschky, ‘‘Richtlinienkompetenz,’’ 1921–22, 1927; Schuett-Wetschky, ‘‘Regierung,’’ 493, 498–99. 21. Thomas Poguntke, ‘‘A Presidentializing Party State? The Federal Republic of Germany,’’ in The Presidentialization of Politics: A Comparative Study of Modern Democracies, ed. Thomas Poguntke and Paul Webb (Oxford: Oxford University Press, 2005), 63–88, 70; Karlheinz Niclauss, ‘‘The Federal Government: Variations of Chancellor Dominance,’’ in Institutions and Institutional Change, ed. Helms, 65–83, 74. See also Helms, Presidents, 196; 202. 22. Gorges, Regierung und Parlament, 34, 55; Helms, ‘‘Introduction,’’ 9. 23. Gorges, Regierung und Parlament, 35. 24. Schuett-Wetschky, ‘‘Regierung,’’ 499. 25. ‘‘Fraktionschefs von SPD und Gru¨nen: Teilnahme nicht an allen Sitzungen des Kabinetts,’’ Su¨ddeutsche Zeitung, March 3, 1999; Helms, Presidents, 203. See also Jens-Peter Steuck, ‘‘Die sta¨ndige Teilnahme von Fraktionsvorsitzenden an Kabinettssitzungen der Bundesregierung—ein Verstoß gegen das Gewaltenteilungsprinzip?’’ Zeitschrift fu¨r Rechtspolitik 10 (1999): 403–5. 26. See, for example, Helms, ‘‘Introduction,’’ 21; Peter Katzenstein, Policy and Politics in West Germany: The Growth of a Semi-Sovereign State (Philadelphia: Temple University Press, 1987), 22. ¨ berwindung der Tei27. See Helms, Presidents, 115. Helms quotes Wolfgang Ja¨ger, Die U lung (Stuttgart: Deutsche Verlagsanstalt, 1998), 19. 28. See Helms, Presidents, 121. 29. For a detailed discussion, see Schuett-Wetschky, ‘‘Richtlinienkompetenz.’’ 30. von Beyme, ‘‘Bundestag,’’ 33. 31. Schuett-Wetschky, ‘‘Richtlinienkompetenz,’’ 1907–1912; Katzenstein, Policy and Politics, 23. 32. Schuett-Wetschky, ‘‘Richtlinienkompetenz,’’ 1918–19. See also Niclauss, ‘‘The Federal Government,’’ 70, 77. 33. Poguntke, ‘‘Presidentializing Party State?’’ 63; Thomas Poguntke, ‘‘Pra¨sidiale Regierungschefs: Vera¨ndern sich die parlamentarischen Demokratien? in Demokratie und Partizipation, ed. Oskar Niedermayer (Wiesbaden: Westdeutscher Verlag, 2000), 356–71. 34. Poguntke, ‘‘Presidentializing Party State? ’’ 65. 35. Von Beyme, ‘‘Bundestag,’’ 39. 36. Poguntke, ‘‘Presidentializing Party State?’’ 69. 37. In November 2001, Foreign Minister Joschka Fischer only narrowly convinced his Green Party backbenchers to support a vote in favor of sending German troops to Afghanistan. 38. Katzenstein, Policy and Politics, 15. 39. Ibid., xxiii. 40. See also Gerd Langguth, ‘‘Machtteilung und Machtverschra¨nkung in Deutschland,’’ Aus Politik und Zeitgeschichte B6 (2000): 3–11. 41. Fritz W. Scharpf, ‘‘The Joint-Decision Trap: Lessons from German Federalism and European Integration,’’ Public Administration 66, 3 (Autumn 1988): 239–78.

Notes to Pages 84–87 313 42. Katzenstein, Policy and Politics, 15. 43. Helms, ‘‘Introduction,’’ 6. 44. For more details, see Norbert Pu¨tter, ‘‘Fo¨deralismus und Innere Sicherheit: Die Innenministerkonferenz zwischen exekutivischer Politik and politisierter Exekutive,’’ in Staat, Demokratie und Innere Sicherheit in Deutschland, ed. Hans-Ju¨rgen Lange (Opladen: Leske und Bundrich, 2000), 275–89. 45. See Niclauss, ‘‘Federal Government,’’ 71; Helms, Presidents, 97. 46. Roland Sturm, ‘‘The Federal System: Breaking Through the Barriers of Interlocking Federalism,’’ in Institutions and Institutional Change, ed. Helms, 105–23, at 110. 47. Poguntke, ‘‘Presidentializing Party State? ’’ 64; Helms, Presidents, 192. 48. See Langguth, ‘‘Machtteilung,’’ 4, 6; Helms, ‘‘Introduction,’’ 16, 35–36; Helms, Presidents, 200; Sturm, ‘‘Federal System,’’ 114, 119; Poguntke, ‘‘Presidentializing Party State? ’’ 66; Wilhelm Hennis, ‘‘Totenrede des Perikles fu¨r ein blu¨hendes Land,’’ FAZ, September 27, 1997; Konrad Hesse, Der Unitarische Bundesstaat (Karlsruhe: C.F. Mu¨ller, 1962), 9. 49. Langguth, ‘‘Machtteilung,’’ 5, 10; Helms, Presidents, 202. 50. Gorges, Regierung und Parlament, 78; Helms, ‘‘Introduction,’’ 17. 51. Helms, Presidents, 192–93, 210. 52. Ibid., 204, 210; Poguntke, ‘‘Presidentializing Party State?’’ 67–68. 53. ‘‘Deutsche Schla¨fer wachen auf,’’ Neue Zu¨rcher Zeitung, September 22, 2001; Georg Bo¨nisch, Michael Fro¨hlingsdorf, Wolfgang Krach, Gunther Latsch, Georg Mascolo, and Holger Stark, ‘‘Angriff auf den Staat im Staate,’’ Der Spiegel, September 24, 2001. 54. Kirstin Hein, ‘‘Die Anti-Terrorpolitik der Rot-Gru¨nen Bundesregierung,’’ in Deutsche Sicherheitspolitik: Die Regierung Schro¨der, ed. Sebastian Harnisch, Christos Katsioulis, and Marco Overhaus (Baden Baden: Nomos, 2004), 145–72, at 147. 55. Interviewee 19, Berlin, May 2006; Interviewee 22, Berlin, May 2006; see also Jo¨rg Ziercke, ‘‘Wissenschaft und Praxis im Kampf gegen den Terrorismus,’’ in Netzwerke des Terrors—Netzwerke gegen den Terror: BKA Herbsttagung 2004 (Ko¨ln: BKA, 2005), 15–29; Robert Leicht, ‘‘Nur nackter, schneller Mord,’’ Die Zeit, December 6, 2001; Markus Wehner, ‘‘Das neue Gesicht des Terrorismus,’’ FAZ, April 1, 2007. 56. See also Kurt Groenewold, ‘‘The German Federal Republic’s Response and Civil Liberties,’’ Terrorism and Political Violence 4, 4 (Winter 1992): 136–50, at 136–37. 57. On the differences between RAF terrorists and Al-Qaeda, see also comments by Manfred Klink in Tessa Szyszkowitz, ‘‘Germany,’’ in Europe Confronts Terrorism, ed. Karin von Hippel (New York: Palgrave Macmillan, 2005), 43–58, at 44–45. 58. Wolfgang Heinz, ‘‘State Responses to Terrorist Challenges and Human Rights,’’ in National Insecurity and Human Rights, ed. Alison Brysk and Gershon Shafir (Berkeley: University of California Press, 2007), 157–76, at 162. 59. For a detailed review of the German terrorism experience after World War II, see Szyszkowitz, ‘‘Germany’’; Groenewold, ‘‘The German Federal Republic’s Response’’; Ulrich Schneckener, ‘‘Germany,’’ in Counterterrorism Strategies: Successes and Failures of Six Countries, ed. Yonah Alexander (Dulles, Va.: Potomac Books, 2006), 72–98; Stefan Malthaner and Peter Waldmann, ‘‘Terrorism in Germany: Old and New Problems,’’ in Confronting Terrorism: European Experiences, Threat Perceptions and Policies, ed. Marianne Van Leeuwen (The Hague: Kluwer Law, 2003), 111–28. 60. Hans Ju¨rgen Wischnewski, ‘‘Lessons from German Counterterrorism,’’ New Perspective Quarterly 12, 3 (Summer 1995): 9–11.

314 Notes to Pages 88–91 61. See also Dorle Hellmuth, ‘‘SEK/MEK Germany: German Special Police Task Forces,’’ in Counterterrorism: From the Cold War to the War on Terror, ed. Frank Shanty (Santa Barbara, Calif.: ABC-CLIO/Praeger Security, 2012), 55–56. 62. Peter Katzenstein, West Germany’s Internal Security Policy: State and Violence in the 1970s and 1980s (Ithaca, N.Y.: Cornell University Press, 1990), 12–13. 63. Ibid., 44–45. 64. Ibid., 31–36; Schneckener, ‘‘Germany,’’ 72–98. 65. Groenewold, ‘‘The German Federal Republic’s Response,’’ 142–48. 66. Interviewee 19; Interviewee 27, Berlin, May 2006. 67. Malthaner and Waldmann, ‘‘Terrorism in Germany,’’ 124; Gert Joachim Glaeßner, ‘‘Internal Security and the New Anti-Terrorism Act,’’ German Politics 12, 1 (April 2003): 43–58, at 50. 68. Schneckener, ‘‘Germany,’’ 84. 69. Malthaner and Waldmann, ‘‘Terrorism in Germany,’’ 123; various interviewees. 70. Ibid., 124; various interviewees; Deutscher Bundestag, Plenarprotokoll 16/170, 16. Wahlperiode (June 20, 2008): 18033D. 71. See, for example, Bundesministerium des Innern, Nach dem 11. September: Maßnahmen gegen den Terror (Berlin: BMI, 2004), Vorwort; Otto Schily, ‘‘Strafverfolgung und Vorbeugung aus einer Hand,’’ FAZ, December 20, 2004; Open Source EUP20080515072004, Berlin, DDP, in German language, May 15, 2008, ‘‘Germany: Interior Minister Presents 2007 Protection of the Constitution Report’’; Interviewee 33, Berlin, May 2006; Interviewee 24, Berlin, May 2006; Interviewee 26, Berlin, May 2006; Interviewee 32, Berlin, May 2006; Interviewee 27; Bundestag, Plenarprotokoll 16/170, 18038D. 72. Open Source GMP20021011000026 (Internet) Qoqaz Website www-Text in English language, October 11, 2002, translation of Interview with Dr. Ayman Al-Zawahiri, ‘‘Qoqaz Website Publishes Interview with Jihad Leader Al-Zawahiri.’’ 73. Deutscher Bundestag, Plenarprotokoll 14/186, 14. Wahlperiode (September 12, 2001): 18293B. 74. Deutscher Bundestag, ‘‘Gesetzesentwurf der Bundesregierung: Entwurf eines Ersten ¨ nderung des Vereinsgesetzes,’’ Drucksache 14/7026, 14. Wahlperiode, October Gesetzes zur A 4, 2001; Susanne Ho¨ll, ‘‘Einig u¨ber Anti-Terror-Paket: Innenminister Schily ku¨ndigt weitere Maßnahmen an,’’ Su¨ddeutsche Zeitung, September 28, 2001, 8. 75. Georg Mascolo, Ru¨diger Scheidges, Holger Stark, and Andreas Wassermann, ‘‘Scharfes Tempo,’’ Der Spiegel, October 8, 2001. 76. Deutscher Bundestag, Innenausschuss, Protokoll Nr. 66, 14. Wahlperiode, September 19, 2001, 5; see also remarks of Cornelie Sonntag-Wolgast in Deutscher Bundestag, Innenausschuss, Protokoll Nr. 72, 14. Wahlperiode, November 7, 2001, 7. 77. See Volker Beck in Bundestag, Innenausschuss, Protokoll Nr. 66, 11. 78. Like the BfV, the BND can request information on bank accounts, their holders, financial transactions, and telecommunication data. The MAD can request telecommunication data but cannot inquire about financial activities of current and future Ministry of Defense employees. 79. Gesetz u¨ber das Bundeskriminalamt und die Zusammenarbeit des Bundes und der La¨nder in kriminalpolizeilichen Angelegenheiten vom 7. Juli 1997, Bundesgesetzblatt 1997, Teil I, section 1, article 2. Hereafter referred to as BKAG.

Notes to Pages 91–95 315 ¨ bereinstimmung zwischen Schily und der Union,’’ FAZ, October 10, 80. ‘‘Weitgehende U 2001; Glaeßner, ‘‘Internal Security,’’ 44; Interviewee 21, Berlin, May 2006; Interviewees 24, 26, 27, 28, 32, 33. 81. Dominik Cziesche, Georg Mascolo, and Holger Stark, ‘‘Das Puzzle lag auf dem Tisch,’’ Der Spiegel, February 3, 2003. 82. For a typical legislation timetable, see Gorges, Regierung und Parlament, 110–11. 83. See also Hein, ‘‘Anti-Terrorpolitik,’’ 151. 84. The CDU later drafted specific amendments to the legislative draft of the SPD/Green coalition. See Deutscher Bundestag, ‘‘Bericht des Innenausschusses,’’ Drucksache 14/7864, 14. Wahlperiode, December 13, 2001, Anlage I, 11–49. 85. UN Security Council, ‘‘Security Council Unanimously Adopts Wide-Ranging AntiTerrorism Resolution; Calls for Suppressing Financing, Improving International Cooperation,’’ Press Release SC/7158, September 28, 2001. 86. See, for example, speech of Interior Minister Otto Schily in Bundesrat, Plenarprotokoll 770 (November 30, 2001): 657. 87. ‘‘Schily: Beckstein sagt Unwahrheit,’’ FAZ, September 12, 2002. 88. Interviewees 21, 28; see also remarks of Wolfgang Wieland in Deutscher Bundestag, Plenarprotokoll 16/58, 16. Wahlperiode (October 20, 2006): 5712. 89. Stefan Krempl, ‘‘Der Neue Otto-Katalog ist da,’’ Telepolis, November 1, 2001. ¨ nderungsantrag der Fraktionen SPD und Bu¨ndnis 90/DIE 90. Deutscher Bundestag, ‘‘A ¨ NEN,’’ Drucksache 14/7386, 14. Wahlperiode, December 11, 2001; Deutscher Bundestag, GRU ‘‘Beschlussempfehlung des Innenausschusses (4. Ausschuss),’’ Drucksache 14/7830, 14. Wahlperiode, December 12, 2001. 91. Comments of Max Stadler in Deutscher Bundestag, Innenausschuss, Protokoll Nr. 67, 14. Wahlperiode, September 25, 2001, 17; Bundesrat, Plenarprotokoll 771 (December 20, 2001): 744; Sonja Buckel and John Kannankulam, ‘‘Zur Kritik der Anti-Terror-Gesetze nach dem 11. September,‘‘ Das Argument 244 44, 1 (2002): 34. 92. See Volker Beck in Deutscher Bundestag, Plenarprotokoll 14/209 (December 14, 2001): 20753. The Party of Democratic Socialism also voted against the package. 93. See remarks of Dieter Wiefelspu¨tz in Bundestag, Plenarprotokoll 14, 209, 20748. 94. For a comparison, see Bundesrat, ‘‘Empfehlungen der Ausschu¨sse,’’ Drucksache 920/ 1/01, November 26, 2001, and Bundestag, Drucksache 14/7864, Anlage I. 95. Bundesministerium des Innern, ‘‘BMI-Sicherheitspaket zur Terrorismusbeka¨mpfung: Darstellung der gesetzlichen Maßnahmen,’’ BMI Referat P1, P1–611 120/0, September 26, 2001, 26. 96. See, for example, Deutscher Bundestag, Plenarprotokoll 14/201, 14. Wahlperiode (November 15, 2001): 19670; Deutscher Bundestag, Innenausschuss, Protokoll Nr. 78, 14. Wahlperiode, November 30, 2001, 12. See also FDP Entschließungsantrag in Bundestag, Drucksache 14/7864, 51. Statements of Otto Schily in Bundestag, Plenarprotokoll 14/209, 20759, and Bundesrat, Plenarprotokoll 771, 745. 97. See Schily comments in Bundesrat, Plenarprotokoll 771, 745. Jochen Blo¨sche and Cordula Meyer, ‘‘Gold im linken Oberkiefer,’’ Der Spiegel, October 22, 2001. 98. BKAG, section 4. 99. BKAG, section 2 (1). 100. For additional scenarios, see Klaus Jansen, Fighting Terror in Germany (Washington, D.C.: American Institute for Contemporary German Studies, 2001), 9; ‘‘Bu¨rokratisch gegen

316 Notes to Pages 95–98 den Terror,’’ Su¨ddeutsche Zeitung, November 18, 2004; Christian Rath, ‘‘Jeder Dorfpolizist darf das,’’ Die Tageszeitung, February 7, 2005; Annette Ramelsberger, ‘‘Bevor die Bombe hochgeht,’’ Su¨ddeutsche Zeitung, November 11, 2005. 101. Otto Schily, ‘‘Strafverfolgung und Vorbeugung aus einer Hand,’’ FAZ, December 20, 2004; see also Heribert Prantl, ‘‘Die heilige Kuh des starken Staats,’’ Su¨ddeutsche Zeitung, March 17, 2004. 102. ‘‘Die Rasterfahndung ist nicht gestorben,’’ Su¨ddeutsche Zeitung, October 24, 2001. 103. Bernhard Falk, ‘‘Statement,’’ in Netzwerke des Terrors—Netzwerke gegen den Terror: BKA Herbsttagung 2004 (Ko¨ln: BKA, 2005), 133; Blo¨sche and Meyer, ‘‘Gold im linken Oberkiefer’’; Reinhart Mu¨ller, ‘‘Stunde der Zentralgewalt,’’ FAZ, October 12, 2001. 104. Bundesministerium des Innern, ‘‘Gesetzesentwurf der Bundesregierung: Entwurf eines Gesetzes zur Beka¨mpfung des internationalen Terrorismus (Terrorismusbeka¨mpfungsgesetz),’’ October 12, 2001. 105. Heribert Prantl, ‘‘Ein Angebot aus dem Otto Katalog,’’ Su¨ddeutsche Zeitung, October 29, 2001; Heribert Prantl, ‘‘Duell mit zwei Siegern,’’ Su¨ddeutsche Zeitung, October 29, 2001. 106. Bundesministerium des Innern, ‘‘Eckpunkte des Terrorismusbeka¨mpfungsgesetzes, Stand: 27.10.2001,’’ Pressemitteilung, October 27, 2001. 107. Bundesministerium des Innern, ‘‘Eckpunkte des Terrorismusbeka¨mpfungsgesetzes, Stand: 5.11.2001,’’ Pressemitteilung, November 5, 2001. 108. See, for example, Heribert Prantl, ‘‘Otto Schilys Steinbruch,’’ Su¨ddeutsche Zeitung, October 26, 2001; ‘‘Die Stunde der Exekutive,’’ Frankfurter Rundschau, November 14, 2001; Heribert Prantl, ‘‘Mann nannte ihn Rechtsstaat,’’ Su¨ddeutsche Zeitung, December 15, 2001; Berthold Meyer, ‘‘Im Spannungsfeld von Sicherheit und Freiheit: Staatliche Reaktionen auf den Terrorismus,’’ HSFK Standpunkte 9, 1 (2002): 1–12. 109. Stefan Krempl, ‘‘Wir brauchen keinen vierten Geheimdienst,’’ Telepolis, November 5, 2001. See also FDP Entschließungsantrag in Bundestag, Drucksache 14/7864, 51. 110. In 1983, the Constitutional Court ruled that the collection of personal data by the government is only justified in cases deemed critical for the public good. Heribert Prantl, ‘‘Die Wiedervereinigung der Sicherheitsbeho¨rden,’’ Su¨ddeutsche Zeitung, June 1, 2004. 111. Bundesamt fu¨r Verfassungsschutz, Aufgaben, Befugnisse, Grenzen (Ko¨ln: Bundesamt fu¨r Verfassungschutz, 2002), 19. 112. Interviewee 29, Berlin, May 2006. 113. Interviewee 17, Berlin, April 2006; Interviewee 36, Berlin, May 2006. 114. Hermann Borgs-Maciejewski and Frank Ebert, Das Recht der Geheimdienste: Kommentar zum Bundesverfassungsschutzgesetz (Ko¨ln: Richard Boorberg, 1986), 103; Helmut Roewer, Nachrichtendienstrecht der Bundesrepublik Deutschland (Ko¨ln: Heymanns, 1987), 135ff. 115. Bundesministerium der Justiz, ‘‘Stellungnahme zum Terrorismusbeka¨mpfungsgesetz (P1–611 120/0),’’ BMJ IV A 4—4710/3–2-47248/2001, October 17, 2001. Hereafter referred to as BMJ-letter. 116. Bundestag Innenausschuss, Protokoll Nr. 78, 12. 117. Ibid.; Prantl, ‘‘Duell mit zwei Siegern.’’ 118. Bundestag Innenausschuss, Protokoll Nr. 78, 17, 50–51. 119. Ibid., 18, 43, 79.

Notes to Pages 98–101 317 120. Philip Grassmann, ‘‘Unsichere Sicherheit,’’ Su¨ddeutsche Zeitung, October 18, 2001; Rath, ‘‘Jeder Dorfpolizist darf das.’’ 121. Heribert Prantl, ‘‘Das Ende der Privatheit,’’ Su¨ddeutsche Zeitung, July 29, 2003. 122. Gemeinsamer Runderlass des Ministeriums der Justiz, des Ministeriums des Innern und des Ministeriums der Finanzen, Gemeinsame Richtlinien der Justizminister/ -senatoren und der Innenminister/-senatoren der La¨nder u¨ber die Zusammenarbeit bei der Verfolgung der Organisierten Kriminalita¨t vom 8. Juli 1992, article 6. 123. See also Robert Leicht, ‘‘Wenn einer Tag fu¨r Tag ein Kernkraftwerk fotografiert,’’ Die Zeit, December 13, 2001; Prantl, ‘‘ Heilige Kuh.’’ 124. Bundesrat, ‘‘Antrag der La¨nder Baden Wu¨rttemberg, Bayern, Hessen: Entschließung des Bundesrates zur wirksamen Beka¨mpfung des internationalen Terrorismus und Extremismus,’’ Drucksache 807/01, October 12, 2001. 125. Ibid. See also comments of Erwin Teufel in Bundesrat, Plenarprotokoll 768 (October 19, 2001), 525–26. 126. Bundesrat, Plenarprotokoll 768, 538; Bundesrat, Plenarprotokoll 770, 654–55, remarks of Erwin Teufel. 127. Bundesrat, ‘‘Bundesrat nimmt Stellung zum Terrorismusbeka¨mpfungsgesetz,’’ Pressemitteilung, November 30, 2001. 128. Deutscher Bundestag, ‘‘Gesetzesentwurf der Bundesregierung,’’ Drucksache 14/7727, 14. Wahlperiode, December 4, 2001, 8. 129. Bundesrat, Plenarprotokoll 770, 655. See also statement of Gerhard Forster in Bundestag Innenausschuss, Protokoll Nr. 78, 24; Bundestag, Drucksache 14/7386, 3. 130. ‘‘Koalition weiter uneins u¨ber zweites Anti-Terror-Paket,’’ FAZ, December 11, 2001. 131. Interviewees 24, 27; Deutscher Bundestag, ‘‘Antrag: Gemeinsames Zentrum zur Terrorismusbeka¨mpfung schaffen,’’ Drucksache 15/3805, 15. Wahlperiode, September 28, 2004. 132. Ibid., 2. 133. Deutscher Bundestag, ‘‘Beschlussempfehlung und Bericht des Innenausschusses (4. Ausschuss),’’ Drucksache 15/5264, 15. Wahlperiode, April 13, 2005. 134. See, for example, ‘‘GIAZ hat sich bewa¨hrt,’’ Polizei Extrablatt (September 2006), 1; Niedersa¨chsischer Landtag, ‘‘Kleine Anfrage mit Antwort: GIAZ—Hilft die Vernetzung gegen Terror und Verbrechen?’’ Drucksache 15/3182, 15. Wahlperiode, July 17, 2006, Antwort 14. 135. Timm Kra¨genow, ‘‘Schily vernetzt BKA und Geheimdienst,’’ Financial Times Deutschland, December 15, 2004. 136. Interviewee 17; Interviewee 18, Berlin, April 2006; see also Bundestag Innenausschuss, Protokoll Nr. 67, 19. 137. Interviewee 17. 138. Ibid. For example, the BKA, BfV, BND, and MAD headquarters are dispersed across the Western states of Hesse, North Rhine-Westphalia, and Bavaria. 139. Interviewees 24, 36; ‘‘Islamisten-Datei und ein zentrales Lage- und Analysezentrum,’’ FAZ, July 9, 2004. 140. ‘‘Wir brauchen neue Allianzen,’’ Su¨ddeutsche Zeitung, November 2, 2005. 141. ‘‘SPD will Sicherheitsbeho¨rden des Bundes sta¨rken,’’ FAZ, September 13, 2004; ‘‘Der Traum vom deutschen FBI’’; Ralf Wiegand, ‘‘La¨nder lehnen zusa¨tzliche Kompetenzen fu¨r BKA ab,’’ Su¨ddeutsche Zeitung, November 20, 2004; ‘‘Heftiger Streit u¨ber TerrorAbwehrzentrum,’’ FAZ, December 15, 2004.

318 Notes to Pages 101–103 142. See, for example, Bayrischer Landtag, Plenarprotokoll 15/15, 15. Wahlperiode (April 23, 2004). 143. Sta¨ndige Konferenz der Innenminister und -senatoren der La¨nder, Sammlung der zur Vero¨ffentlichung freigegebenen Beschlu¨sse der 174. Sitzung der Sta¨ndigen Konferenz der Innenminister und -senatoren der La¨nder, July 8, 2004. 144. Ibid., 15; ‘‘Das Bild vom starken Otto,’’ Focus, July 12, 2004. 145. ‘‘Zentral gegen den Terror,’’ Su¨ddeutsche Zeitung, September 15, 2004. 146. ‘‘SPD will Sicherheitsbeho¨rden des Bundes sta¨rken,’’ FAZ, September 13, 2004. 147. ‘‘Streit u¨ber Verfassungsschutz,’’ FAZ, March 18, 2004; ‘‘Ru¨ttgers will Verfassungschutz bu¨ndeln,’’ FAZ, March 24, 2004; Interviewee 20, Berlin, May 2006; Interviewees 19, 21. 148. The head of the Federal Chancellery also serves as commissioner for the three federal intelligence services, meaning he is responsible for coordinating the BND, BfV, and MAD and facilitating their interactions with other agencies. 149. ‘‘Zentral gegen den Terror.’’ 150. Deutscher Bundestag, Plenarprotokoll 15/133, 15. Wahlperiode (October 22, 2004): 12173; ‘‘Eigensinn der La¨nder la¨hmt Terrorbeka¨mpfung,’’ Su¨ddeutsche Zeitung, March 18, 2004; ‘‘Innenminister beschließen Islamisten Datei,’’ Die Welt, July 9, 2004. 151. Martin Lutz, ‘‘Schily fordert Bundeshoheit fu¨r die Rasterfahndung: Innenminister ¨ nderungen des Grundgesetzes reklamiert mehr Macht fu¨r das Bundeskriminalamt—A geplant,’’ Die Welt, August 28, 2004; Philip Grassmann, ‘‘SPD verlangt sta¨rkeres BKA,’’ Su¨ddeutsche Zeitung, November 5, 2004; ‘‘La¨nder wollen keine Sta¨rkung des BKA,’’ FAZ, November 20, 2004; ‘‘Kompromißsuche bei BKA-Reform,’’ FAZ, December 2, 2004; ‘‘Schily gibt die Hoffnung noch nicht auf,’’ Die Tageszeitung, December 16, 2004; ‘‘Krach am Kamin,’’ Der Spiegel, November 22, 2004. 152. Annette Ramelsberger, ‘‘Mit der Zeit gehen,’’ Su¨ddeutsche Zeitung, December 15, 2004; Annette Ramelsberger, ‘‘Rangelei im Vorgarten,’’ Su¨ddeutsche Zeitung, December 17, 2004; Philip Grassmann, ‘‘Gru¨ne attackieren Schily,’’ Su¨ddeutsche Zeitung, September 20, 2004; Sigrid Averesch, ‘‘Schilys Pla¨ne haben keine Chance,’’ Berliner Zeitung, November 17, 2004. 153. Dominik Cziesche, Cordula Meyer, Holger Stark, and Andreas Ulrich, ‘‘Der Traum vom deutschen FBI,’’ Der Spiegel, November 8, 2004; Interviewees 26, 17. 154. See, for example, Gu¨nther Beckstein speech in Bayerischer Landtag, Plenarprotokoll 15/15; Bundesrat, Plenarprotokoll 803 (September 24, 2004): 450; Joachim Ka¨ppner, ‘‘Jeder sammelt vor sich hin,’’ Su¨ddeutsche Zeitung, March 18, 2004; Jochen Bittner and Martin Klingst, ‘‘Von Polizisten und anderen Spionen,’’ Die Zeit, September 23, 2004; ‘‘Der Keil des Terrors,’’ Die Zeit, March 18, 2004; ‘‘Netzwerk des Wirrwarrs,’’ Die Zeit, March 25, 2004. 155. Gesetz u¨ber die Zusammenarbeit des Bundes und der La¨nder in Angelegenheiten des Verfassungsschutzes und u¨ber das Bundesamt fu¨r Verfassungsschutz vom 20. Dezember 1990, Bundesgesetzblatt 1990, Teil I, section 3, articles 17–23. 156. Interviewee 23, Berlin, May 2006; Interviewees 19, 20, 26; see also Annette Ramelsberger, ‘‘Schilys große Keule,’’ Su¨ddeutsche Zeitung, June 26, 2004. 157. Bundesrat, ‘‘Gesetzesantrag des Landes Niedersachsen: Entwurf eines Gesetz zur Errichtung einer gemeinsamen Datei der deutschen Sicherheitsbeho¨rden zur Beobachtung und Beka¨mpfung des islamistischen Extremismus und Terrorismus (Anti-Terror-DateiGesetz),’’ Drucksache 657/04, September 1, 2004.

Notes to Pages 103–106 319 158. Deutscher Bundestag, Plenarprotokoll 15/184, 15. Wahlperiode (June 30, 2005): 17350. 159. Bundestag, Plenarprotokoll 15/133, 12174. 160. Deutscher Bundestag, Plenarprotokoll 15/157, 15. Wahlperiode (February 17, 2005): 14691; see also comments of BMI State Secretary Fritz Rudolf Ko¨rper in Bundesrat, Plenarprotokoll 803 (September 24, 2004): 478. 161. Deutscher Bundestag, ‘‘Gesetzesentwurf des Bundesrates: Entwurf eines Gesetzes zur Errichtung einer Gemeinsamen Datei der Deutschen Sicherheitsbeho¨rden zur Beobachtung und Beka¨mpfung des islamistischen Extremismus und Terrorismus (Anti-Terror-Datei Gesetz),’’ Drucksache 15/4413, 15. Wahlperiode, December 1, 2004, 9. 162. ‘‘Geheimdienste lehnen große Terror-Datei ab,’’ Financial Times, July 14, 2005. 163. Interviewee 17; Bundestag, Plenarprotokoll 15/157, 14696. 164. ‘‘Große Koalition gegen Schily,’’ Die Tageszeitung, February 7, 2005, 4; Ramelsberger, ‘‘Schilys große Keule.’’ 165. Silke Stokar von Neuforn in Bundestag, Plenarprotokoll 15/157, 14693; see also answer of state secretary Lutz Diwell in Deutscher Bundestag, ‘‘Schriftliche Fragen,’’ Drucksache 15/5512, 15. Wahlperiode, May 6, 2005, 6; ‘‘Geheimdienste lehnen große TerrorDatei ab.’’ 166. The cabinet was scheduled to approve the bill during its meeting on July 13, 2005, but the proposal was taken off the agenda. Interviewee 24; see remarks of Ru¨diger Veit in Deutscher Bundestag, Plenarprotokoll 15/184, 15. Wahlperiode (June 30, 2005): 17353. 167. Gemeinsam fu¨r Deutschland—Mit Mut und Menschlichkeit: Koalitionsvertrag von CDU, CSU und SPD (November 11, 2005), Chapter VIII; Jens Schneider, ‘‘Vorrang fu¨r die Terrorabwehr,’’ Su¨ddeutsche Zeitung, November 3, 2005. 168. Martin Lutz, ‘‘Za¨sur fu¨r die westliche Welt,’’ Die Welt, September 9, 2006; Interviewee 33. 169. Annette Ramelsberger, ‘‘Anti-Terror Datei kommt,’’ Su¨ddeutsche Zeitung, March 11, 2006; Annette Ramelsberger, ‘‘Speicherplatz mit Risiken,’’ Su¨ddeutsche Zeitung, August 26, 2005; Miguel Vilagran, ‘‘Kompromiß bei Islamisten-Datei?’’ Der Spiegel, August 8, 2005; ‘‘Einigung u¨ber zentrale Anti-terror-Datei,’’ Der Spiegel, July 31, 2006. 170. Interviewee 24. 171. Interviewee 24. 172. Interviewee 17. 173. ‘‘La¨nder fordern verbesserte Anti-Terror-Datei,’’ Die Welt, August 16, 2006; ‘‘Pla¨ne ¨ rger,’’ Frankfurter Rundschau, August 16, fu¨r Anti-Terror Datei sorgen in CDU-La¨ndern fu¨r A 2006. 174. See Sta¨ndige Konferenz der Innenminister und -senatoren der La¨nder, ‘‘Beschlussniederschrift der 181. Sitzung der Sta¨ndigen Konferenz der Innenminister und –Senatoren der La¨nder,’’ September 4, 2006; Heribert Prantl, ‘‘Der Pra¨ventionsstaat,’’ Su¨ddeutsche Zeitung, September 4, 2006. 175. Bundesrat, ‘‘Gesetzesentwurf der Bundesregierung: Entwurf eines Gesetzes zur Errichtung gemeinsamer Dateien von Polizeibeho¨rden und Nachrichtendiensten des Bundes und der La¨nder (Gemeinsame-Dateien-Gesetz),’’ Drucksache 672/06, September 22, 2006; Deutscher Bundestag, ‘‘Gesetzentwurf der Bundesregierung,’’ Drucksache 16/2950, 16. Wahlperiode, October 16, 2006.

320 Notes to Pages 106–111 176. Remarks of Frank Hofmann in Deutscher Bundestag, Plenarprotokoll 16/58, 16. Wahlperiode (October 20, 2006): 5710. 177. Martin Lutz, ‘‘Netzwerk gegen den Terror,’’ Die Welt, September 5, 2006. 178. Sigrid Averesch, ‘‘In der Praxis wird jeder auf alles zugreifen,’’ Berliner Zeitung, November 30, 2006. ¨ berwachungsgesellschaft,’’ FAZ, November 7, 2006, 5. 179. ‘‘Weg in U 180. Deutscher Bundestag, ‘‘Beschlussempfehlung und Bericht des Innenausschusses (4. Ausschuss),’’ Drucksache 16/3642, 16. Wahlperiode, November 29, 2006: 49–50; Deutscher Bundestag, Plenarprotokoll 16/71, 16. Wahlperiode, December 1, 2006: 7093, remarks of Gisela Piltz; ‘‘Schleppnetz fu¨r Verda¨chtige,’’ Su¨ddeutsche Zeitung, November 30, 2006; ‘‘Bundestag billigt Anti-Terror-Datei,’’ FAZ, December 2, 2006. 181. Frank Hofman in Deutscher Bundestag, Plenarprotokoll 16/58, 16. Wahlperiode (October 20, 2006): 5710. See also Gert Winkelmeyer in Bundestag, Plenarprotokoll 16/71, 7108. 182. An argument can be made that, absent the federalism reform, the database law likely would have required compulsory Bundesrat approval. See Marcus Ho¨reth, ‘‘Zur Zustimmungsbedu¨rftigkeit von Bundesgesetzen: Eine kritische Bilanz nach einem Jahr Fo¨deralismusreform I,’’ Zeitschrift fu¨r Parlamentsfragen 38, 4 (2007): 712–33, at 729. ¨ berwachungsgesellschaft’’; Bundesrat, ‘‘Empfehlungen der Ausschu¨sse,’’ 183. ‘‘Weg in U Drucksache 672/1/06, October 23, 2006; Bundesrat, ‘‘Stellungnahme des Bundesrates,’’ Drucksache 672/06 (Beschluss), November 3, 2006. 184. Interviewee 24; see also SPD Bundestagsfraktion, ‘‘AG Inneres: Terrorismusbeka¨mpfungsgesetz wird effektiver,’’ Pressemitteilung 521, July 3, 2006. 185. Bundesrat, ‘‘Gesetzesentwurf der Bundesregierung: Entwurf eines Gesetzes zur Erga¨nzung des Terrorismusbeka¨mpfungsgesetzes,’’ Drucksache 545/06, August 11, 2006. 186. Interviewees 23, 26; Bundesministerium des Innern, ‘‘Informationen zum Terrorismusbeka¨mpfungserga¨nzungsgesetz,’’ Pressemitteilung, July 11, 2006. 187. Deutscher Bundestag, ‘‘Antwort der Bundesregierung,’’ Drucksache 16/2285, 16. Wahlperiode, July 21, 2006. For the 2005 report, see Deutscher Bundestag, ‘‘Unterrichtung durch das Parlamentarische Kontrollgremium (PKGr),’’ Drucksache 15/5506, 15. Wahlperiode, May 12, 2005. 188. Deutscher Bundestag, ‘‘Unterrichtung durch das Parlamentarische Kontrollgremium (PKGr),’’ Drucksache 16/2550, 16. Wahlperiode, September 7, 2006, 3. 189. Peter Carstens, ‘‘Neue Befugnisse der Dienste; Anho¨rung zu Anti-Terror-Gesetzen,’’ FAZ, November 8, 2006. 190. See Anlage 2 in Deutscher Bundestag, ‘‘Gesetzesentwurf der Bundesregierung,’’ Drucksache 16/2921, 16. Wahlperiode, October 12, 2006. 191. Bundestag, Drucksache 16/2921, Anlage 3. 192. Bundesrat, ‘‘Gesetzesantrag der La¨nder Nordrhein Westfalen, Bayern, Berlin, Bre¨ nderung des Grundgesetzes,’’ Drucksache 178/06, March 3, men: Entwurf eines Gesetzes zur A 2006, 27–28. 193. Fo¨deralismusreform vom 28.08.2006, Bundesgesetzblatt 2006, Teil I Nr.41, 2034. 194. Interviewees 17, 18, 36. 195. Bundesverfassungsgericht, ‘‘Rasterfahndung nur bei konkreter Gefahr fu¨r hochrangige Rechtsgu¨ter zula¨ssig,’’ Pressemitteilung Nr. 40/2006, May 23, 2006.

Notes to Pages 111–114 321 196. Bundesministerium des Innern, ‘‘Konferenz: Enwicklungsperspektiven der arabisch-islamischen Welt und Folgen fu¨r die innere Sicherheit in Deutschland,’’ Berlin, May 29, 2006; ‘‘BKA-Pra¨sident kritisiert Verfassungsgericht, Ziercke: Rasterfahndung, Wohnraumu¨berwachung, Kronzeugenregelung zur Terrorbeka¨mpfung no¨tig,’’ FAZ, June 23, 2006. 197. Bundesverfassungsgericht, ‘‘Regelungen des niedersa¨chsischen Polizeigesetzes zur vorbeugenden Telefonu¨berwachung nichtig,’’ Pressemitteilung Nr. 68/2005, July 27, 2005. 198. Florian Hanauer, ‘‘Polizeigesetz erneut auf dem Pru¨fstand: Streit um Wohnraum und Telefonu¨berwachung,’’ Welt am Sonntag, April 23, 2006. 199. Bundesverfassungsgericht, ‘‘Verfassungsbeschwerden gegen akustische Wohnraumu¨berwachung (so genannter Grosser Lauschangriff) teilweise erfolgreich,’’ Pressemitteilung Nr. 22/2004, March 3, 2004. 200. Jan Korte, Programm zur Sta¨rkung der Inneren Sicherheit—Kritik und Anmerkungen, October 25, 2006. 201. Thorsten Jungholt, ‘‘Scha¨ubles Sicherheitspaket wird aufgeschnu¨rt,’’ Die Welt, April 4, 2007. 202. Peter Dausend and Martin Lutz, ‘‘Antipoden im Anti-terror Kampf,’’ Die Welt, April 19, 2007; ‘‘Neues Anti-terror Gesetz von Scha¨uble,’’ Die Welt, May 5, 2007. 203. ‘‘Seit zwei Jahren Online-Fahndung,’’ FAZ, April 26, 2007. 204. ‘‘SPD beauftragte Online-Fahndung,’’ FAZ, April 27, 2007; ‘‘Vorteil Scha¨uble,’’ FAZ, April 28, 2007; Thorsten Jungholt, ‘‘Nicht von der Verfassung verabschieden,’’ Die Welt, May 7, 2007. 205. ‘‘Spitzengespra¨ch u¨ber Terrorismusabwehr geplant,’’ FAZ, July 10, 2007; Martin Lutz, ‘‘BKA muss auf Online-Razzien weiter warten,’’ Die Welt, July 24, 2007; ‘‘Sechs Jahre nach dem 11. September: Spitzengespra¨ch u¨ber Online-Fahndung ohne Ergebnis,’’ FAZ, September 11, 2007. 206. Peter Carstens, ‘‘Schlag gegen den Terror,’’ FAZ, September 6, 2007. 207. Thorsten Jungholt, ‘‘Große Koalition offline,’’ Die Welt, October 4, 2007. 208. ‘‘SPD bewegt sich auf Scha¨uble zu,’’ FAZ, October 25, 2007. 209. Andreas Fo¨rster, ‘‘Alles nur Theater,’’ Berliner Zeitung, April 19, 2008. 210. Various La¨nder considered adopting online search powers. The Bavarian Interior Ministry spearheaded these efforts. Thorsten Jungholt, ‘‘Bayerns Innenminister will OnlineRazzia erlauben,’’ Die Welt, January 21, 2008; ‘‘Bayrische Polizei darf heimlich Computer durchsuchen,’’ Die Welt, July 4, 2008. 211. Bundestag, Plenarprotokoll 16/170, 18033. 212. Sigrid Averesch, ‘‘Das BKA-Gesetz stutzt die Macht der La¨nder,’’ Berliner Zeitung, June 5, 2008. 213. Bundesrat, ‘‘Empfehlungen der Ausschu¨sse,’’ Drucksache 404/1/08, June 23, 2008. 214. Bundesrat, ‘‘Stellungnahme des Bundesrates,’’ Drucksache 404/08 (Beschluss), July 4, 2008. 215. Deutscher Bundestag, ‘‘Gesetzesentwurf der Bundesregierung,’’ Drucksache 16/ 10121, August 13, 2008, 43. 216. Deutscher Bundestag, ‘‘Beschlussempfehlung und Bericht des Innenausschusses (4. Ausschuss),’’ Drucksache 16/10822, November 10, 2008, 16. 217. Kai Beller, ‘‘Was das BKA ku¨nftig darf,’’ Financial Times Deutschland, November 12, 2008.

322 Notes to Pages 114–119 218. ‘‘Weitere Einwa¨nde der SPD gegen das BKA-Gesetz,’’ FAZ, November 19, 2008. 219. ‘‘Widerstand im Bundesrat gegen BKA Gesetz,’’ FAZ, November 15, 2008. 220. Thorsten Jungholt, ‘‘Ru¨peleien vor dem Kamingespra¨ch,’’ Die Welt, November 21, 2008. 221. Bundesrat, ‘‘Beschluss the Bundesrates,’’ Drucksache 860/08 (Beschluss), November 28, 2008. 222. Karl Peter Bruch and Gisela von der Aue in Bundesrat, Plenarprotokoll 851, November 28, 2008, 404. 223. Ibid., 406. 224. The three abstentions involved Saxony Anhalt (CDU/SPD), Brandenburg (CDU/ SPD), and Rhineland-Palatinate (SPD). 225. See Wolfgang Bo¨hmer (Saxony Anhalt) and Andreas Krautscheid (North RhineWestphalia) in Bundesrat, Plenarprotokoll 851, at 407, 415. 226. Karl Peter Bruch (Rhineland-Palatinate) in ibid., 404; Emilia Mu¨ller (Bayern) and Lothar Hay (Schleswig Holstein) in ibid., 416; Gisela von der Aue (Berlin) in ibid., 405. 227. Susanne Ho¨ll, ‘‘BKA-Gesetz leicht entscha¨rft,’’ Su¨ddeutsche Zeitung, December 4, 2008. 228. Bundesrat, Plenarprotokoll 853, December 19, 2008, 453. 229. ‘‘Staats-Schutz tut not,’’ Welt am Sonntag, November 16, 2008. 230. Peter Carstens, ‘‘Fortentwicklung der Kontrolle,’’ FAZ, March 7, 2009. 231. EU Directive 2006/24/EC, Official Journal L 105 (April 13, 2006), 54–63. 232. Bundesministerium der Justiz, ‘‘Bundestag beschließt Umsetzung der EU-Richtlinie zur Vorratsdatenspeicherung,’’ Pressemitteilung, November 9, 2007; Peter Dausend, ‘‘Koalition will den gla¨sernden Verbrecher,’’ Die Welt, November 10, 2007. 233. Bundesverfassungsgericht, ‘‘Konkrete Ausgestaltung der Vorratsdatenspeicherung nicht verfassungsgema¨ss,’’ Pressemitteilung Nr. 11/2010, March 2, 2010. 234. Ibid. 235. Bundesministerium der Justiz, ‘‘Gesetz zur Sicherung vorhandener Verkehrsdaten und Gewa¨hrleistung von Bestandsdatenausku¨nften im Internet,’’ Diskussionsentwurf, June 7, 2011. 236. ‘‘Wir waren sehr geduldig mit Deutschland,’’ FAZ, July 3, 2012. 237. ‘‘EU-Kommission reicht Klage gegen Deutschland ein,’’ Zeit Online, May 31, 2012. 238. Court of Justice of the European Union, ‘‘The Court of Justice Declares the Data Retention Directive to be Invalid,’’ Press Release No. 54/14, April 8, 2014, http://curia .europa.eu. 239. Wachstum, Bildung, Zusammenhalt: Der Koalitionsvertrag zwischen CDU, CSU and FDP (October 26, 2009), 100. 240. Peter Carstens, ‘‘Keine Einigkeit und Recht und Freiheit,’’ FAZ, June 1, 2011. 241. Ibid. 242. Christian Rath, ‘‘Schaukampf um Antiterrorgesetze,’’ Tageszeitung, May 3, 2011. 243. See Heribert Prantl, ‘‘Ein kleiner Kompromiss bei den grossen Anti-TerrorPaketen,’’ Su¨ddeutsche Zeitung, June 30, 2011. 244. Friederike von Tiesenhausen, ‘‘Die deutschen Geheimdienste surfen mit,’’ Financial Times Deutschland, August 18, 2011. 245. Ibid.

Notes to Pages 119–130 323 246. ‘‘Anti-Terror-Gesetze bis 2015 verla¨ngert,’’ Zeit Online, August 17, 2012. 247. Interviewee 24. 248. Matthias Geis, ‘‘Den Staat lieben lernen,’’ Die Zeit, February 3, 2005. 249. Open Source-EUP20080512036013 Berlin, DDP (in German), May 15, 2008, ‘‘Germany: FDP Opposes Union Plan for ‘National Security Council’.’’ 250. Klaus Brummer, ‘‘The Bureaucratic Politics of Security Institution Reform,’’ German Politics 18, 4 (December 2009): 501–18, at 515. 251. Interviewee 18. 252. Interviewee 16, Berlin, March 2006; Interviewee 29.

Chapter 4. Case Study III: Great Britain 1. Walter Bagehot, The English Constitution, ed. Russell Barrington (Ithaca, N.Y.: Cornell University Press, 1995), 66; Christopher Foster, British Government in Crisis (Portland, Ore.: Hart, 2005), 61. 2. Leon D. Epstein, ‘‘Changing Perceptions of the British System,’’ Political Science Quarterly 109, 3 (Summer 1994): 483–512, at 487. 3. Albert Dicey, Introduction of the Study of Law of the Constitution (London: Macmillan, 1885). 4. Ludger Helms, Presidents, Prime Ministers and Chancellors (New York: Palgrave Macmillan, 2005), 177. 5. Lord Hailsham, ‘‘Elective Dictatorship,’’ The Listener, October 21, 1976, 496–500. 6. Graham Allen, The Last Prime Minister: Being Honest About the UK Presidency (Charlottesville, Va.: Imprint Academic, 2003), 24. 7. Karl Loewenstein, British Cabinet Government (New York: Oxford University Press, 1967), 120. 8. Helms, Presidents, 161. 9. Richard Kelly, Oonagh Gay, and Philip Cowley, ‘‘Parliament: The House of Commons—Turbulence Ahead?’’ in Palgrave Review of British Politics 2005, ed. Peter Riddell (New York: Palgrave Macmillan, 2006), 109–21, at 108; Kevin Sullivan and Mary Jordan, ‘‘Anti-Terror Measure Rejected in Britain,’’ Washington Post, November 10, 2005. 10. Loewenstein, Cabinet Government, 117–18. 11. Helms, Presidents, 70. 12. Richard Heffernan and Paul Webb, ‘‘The British Prime Minister: Much More Than ‘First Among Equals’,’’ in The Presidentialization of Politics, ed. Thomas Poguntke and Paul Webb (Oxford: Oxford University Press, 2007), 26–55, at 30. 13. Patrick Wintour, ‘‘Going to War: MPs May Win Right to Vote,’’ Guardian, December 27, 2005; Sue Prince, ‘‘The Law and Politics: When Power and Rights Collide,’’ in Palgrave Review of British Politics 2005, ed. Riddell, 137–50, at 145; Patrick Wintour, ‘‘Brown Steps out of Blair’s Shadow to Plot His Own Course,’’ Guardian, May 12, 2007. Some argue that Parliament’s 2003 vote on sending military troops to Iraq set a precedent for mandatory parliamentary involvement. However, prime ministers retain the final say on whether Parliament is allowed to vote on military action, see also Claire Mills, ‘‘Parliamentary Approval for Deploying the Armed Forces: An Update,’’ House of Commons Library Standard Note, SN05908, December 10, 2013. 14. Heffernan and Webb, ‘‘British Prime Minister,’’ 39; Helms, Presidents, 63, 66.

324 Notes to Pages 130–132 15. Anthony King, ‘‘Introduction,’’ in The British Prime Minister, ed. Anthony King (Durham, N.C.: Duke University Press, 1985), vii-xiv; at xiii–iv. 16. Richard Rose, ‘‘British Government: The Job at the Top,’’ in Presidents and Prime Ministers, ed. Richard Rose and Ezra Suleiman (Washington, D.C.: AEI Press, 1981), 1–49, at 5; Richard Neustadt, ‘‘White House and Whitehall,’’ in The British Prime Minister, ed. King, 155–174, at 167–71. 17. Helms, Presidents, 76; Martin Burch and Ian Holliday, The British Cabinet System (Englewood Cliffs, N.J.: Prentice Hall, 1996), 20–22; R. H. S. Crossman, ‘‘Prime Ministerial Government,’’ in The British Prime Minister, ed. King, 175–94, at 187; ‘‘Decisions Were Made by Cabinet Insists Prime Minister,’’ Birmingham Post, June 19, 2007; Burch and Holliday, Cabinet System, 42–45, 55, 69; Rose, ‘‘Job at Top,’’ 22; Richard Heffernan, ‘‘Why the Prime Minister Cannot Be a President: Comparing Institutional Imperatives in Britain and America,’’ Parliamentary Affairs 58, 1 (January 2005): 53–70, at 65; Richard Heffernan, ‘‘Prime Ministerial Predominance? Core Executive Politics in the UK,’’ British Journal of Politics and International Relations 5, 3 (August 2003): 347–72, at 359–60. 18. Crossman, ‘‘Prime Ministerial,’’ 189. 19. John Mackintosh, The British Cabinet (Ann Arbor: University of Michigan Press, 1962), 10. 20. Neustadt, ‘‘White House and Whitehall,’’ 167. 21. See also Crossman, ‘‘Prime Ministerial,’’ 189. 22. Foster, Crisis, 67. 23. Crossman, ‘‘Prime Ministerial,’’ 191–92; Burch and Holliday, Cabinet System, 193–99. 24. Crossman, ‘‘Prime Ministerial,’’ 192. 25. Burch and Holliday, Cabinet System, 90; George Jones and Toby Helm, ‘‘Terror Alert Was Kept from Full Cabinet,’’ Daily Telegraph, September 13, 2003. 26. Peter Riddell, ‘‘Blair Needs Bolster of Cabinet Support,’’ The Times, September 18, 2002. 27. Neustadt, ‘‘White House and Whitehall,’’ 171–72; Heffernan and Webb, ‘‘British Prime Minister,’’ 39–40. 28. Robin Butler, ‘‘You’ll Never Walk Alone, Mr. Blair,’’ The Times, February 22, 1999; Foster, Crisis, 163; Peter Hennessy, ‘‘The Rise of Napoleon Blair,’’ The Times, September 25, 2000; Heffernan, ‘‘Predominance,’’ 358; Anthony Seldon, Blair (London: Simon and Schuster, 2004), 668; George W. Jones, ‘‘Presidentialization in a Parliamentary System?’’ in Executive Leadership in Anglo-American Systems, ed. C. Campbell and M. Wyszomirski (Pittsburgh: University of Pittsburgh Press, 1991), 111–37. 29. Peter Hennessy, ‘‘Why Mr. Blair’s Premiership Will End in Tears,’’ Independent, May 20, 2000. 30. Helms, Presidents, 84; Heffernan and Webb, ‘‘British Prime Minister,’’ 35; Heffernan, ‘‘Predominance,’’ 362, 365; Jean Eagesham, ‘‘Blair ‘to Be Probed on Presidential Style’ Question Session,’’ Financial Times, July 13, 2002; William Rees-Mogg, ‘‘Can We Have Our Prime Minister Back Now?’’ The Times, September 1, 2003; Foster, Crisis, 164, 167–68; Allen, Last Prime Minister, 35; Jill Sherman, ‘‘No 10 Powerbase Run by Three of Blair’s Advisers,’’ The Times, January 31, 2002; ‘‘Blair Cabinet ‘Took One Decision in Eight Months’,’’ Guardian, May 29, 2007; ‘‘Decisions Were Made by Cabinet Insists Prime Minister,’’ Birmingham Post, June 19, 2007.

Notes to Pages 132–133 325 31. Foster, Crisis, 167; Andrew Parker, ‘‘Prime Minister Prepares to Complement the ‘War Cabinet’ with Ad Hoc Teams of Advisers,’’ Financial Times, October 9, 2001; Report of a Committee of Privy Councilors, Review of Intelligence on Weapons of Mass Destruction (London: HMSO, July 14, 2004), 147–48 (hereafter Butler Report). 32. Butler Report, Section 611, 148; Peter Hennessy, ‘‘A Systems Failure at the Heart of Government,’’ Independent, July 16, 2004. See also Foster, Crisis, 244–46. 33. G. W. Jones, ‘‘The Prime Minister’s Power,’’ in The British Prime Minister, ed. King, 195–220, at 214; Rose, ‘‘Top of Job,’’ 23. 34. Burch and Holliday, Cabinet System, 22. 35. Ibid., 31–32; Martin Burch and Ian Holliday, ‘‘The Prime Minister’s and Cabinet Offices: An Executive Office in All but Name,’’ Parliamentary Affairs 52, 1 (1999): 32–45; see also Heffernan, ‘‘Predominance,’’ 361; Robert Peston, ‘‘Mandelson Defends Strong Central Style of Government,’’ Financial Times, September 17, 1997. 36. Allen, Last Prime Minister, 50; Crossman, ‘‘Prime Ministerial,’’ 191; Rose, ‘‘Top of Job,’’ 31; Kenneth Berrill, ‘‘Strength at the Centre—The Case for a Prime Minister’s Department,’’ in The British Prime Minister, ed. King, 242–57. 37. Burch and Holliday, ‘‘Executive Office’’; Burch and Holliday, Cabinet System, 45. 38. Allen, Last Prime Minister; Helms, Presidents, 67–68, 184–85; Heffernan and Webb, ‘‘British Prime Minister,’’ 34–35. See also Will Hutton, ‘‘Tony Blair: All the President’s Men and Women,’’ Observer, October 24, 1999; David Hencke, ‘‘Special Advisers Tripled as No. 10 Staff Hits New High,’’ Guardian, March 2, 2000. 39. Anthony Sampson, ‘‘Hijacked by That Mob at No. 10,’’ Observer, June 8, 2003; Heffernan, ‘‘Predominance,’’ 362. 40. Peter Riddell, ‘‘Europe,’’ in The Blair Effect 2001–5, ed. Anthony Seldon and Dennis Kavanagh (Cambridge: Cambridge University Press, 2005), 362–83, at 367. 41. Michael Foley, The British Presidency (New York: St. Martin’s, 2000); Philip Norton, Parliament in British Politics (New York: Palgrave Macmillan, 2005), 39. 42. On the creeping presidentialization of the British Prime Ministership, see Neustadt, ‘‘White House and Whitehall,’’ 164; Crossman, ‘‘Prime Ministerial,’’ 189, 191. For recent contributions, see Peter Riddell, ‘‘Prime Ministers and Parliament,’’ Parliamentary Affairs 57, 4 (2004): 814–829, at 815–16; Heffernan, ‘‘Prime Minister Cannot Be President,’’ 53–70; Erwin Hargrove, ‘‘The Presidency and the Prime Ministership as Institutions: An American Perspective,’’ British Journal of Politics and International Relations 3, 1 (April 2001): 49–70. 43. Heffernan, ‘‘Prime Minister Cannot Be President,’’ 69, 54–55. 44. Ibid., 57, 62; Heffernan and Webb, ‘‘British Prime Minister,’’ 43. 45. Rupert Cornwell, ‘‘Bill Steps out of His Way to be Seen with Tony,’’ Independent, May 30, 1997. 46. Foley, British Presidency, 11, 24. 47. Heffernan, ‘‘Prime Minister Cannot Be President,’’ 69, 350; Andrew Grice, ‘‘After Campbell: Isolated Blair Will Give Back Powers to Cabinet Ministers,’’ Independent, September 1, 2003; Heffernan and Webb, ‘‘British Prime Minister,’’ 36–37. 48. Jones, ‘‘Prime Minister’s Power,’’ 208–10; Heffernan, ‘‘Prime Minister Cannot Be President,’’ 65–66; Heffernan, ‘‘Predominance,’’ 366. 49. Norton, Parliament, 1–3; Heffernan, ‘‘Prime Minister Cannot Be President,’’ 68. 50. See Helms, Presidents, 59.

326 Notes to Pages 133–136 51. Loewenstein, Cabinet Government, 158; Norton, Parliament, 44. 52. Crossman, ‘‘Prime Ministerial,’’ 177. 53. Helms, Presidents, 172; Nick Assinder, ‘‘Why Is Tony Blair Stepping Down?’’ BBC News, June 27, 2007; Margaret Thatcher, The Downing Street Years (New York: HarperCollins, 1993), 850; Foster, Crisis, 65; Heffernan, ‘‘Prime Minister Cannot Be President,’’ 64; King, ‘‘Introduction,’’ ix; Rose, ‘‘Job at Top,’’ 7, 47. 54. Epstein, ‘‘Changing Perceptions,’’ 487; Rose, ‘‘Job at Top,’’ 6. 55. Robin Butler is quoted in Peter Hennessy, The Prime Minister: The Office and Its Holders Since 1945 (New York: Palgrave, 2000), 6. 56. Allen, Last Prime Minister, 4, 63, 69; Foster, Crisis, 135; Riddell, ‘‘Prime Ministers,’’ 814, 827; Anthony King, ‘‘Modes of Executive-Legislative Relations: Great Britain, France, and West Germany,’’ Legislative Studies Quarterly 1, 1 (February 1976): 11–36, at 16; Sarah Schaefer, ‘‘Benn Leads Backbench Attack on ‘President Blair’,’’ Independent, November 10, 1999; George Jones, ‘‘Blair Agrees to Face Grilling by Select Committee Critics,’’ Daily Telegraph, April 27, 2002; David Charter, ‘‘Blair Faces Public Grilling on His Presidential Style,’’ The Times, July 13, 2002; Paul Waugh, ‘‘Influential MPs Back Criticisms of Presidential Powers Without Accountability,’’ Independent, May 14, 2003. 57. Helms, Presidents, 188, 242. 58. Allen, Last Prime Minister, 20. 59. Loewenstein, Cabinet Government, 160; Crossman, ‘‘Prime Ministerial,’’ 181. 60. Cabinet Office, ‘‘Historic Bill Establishes Fixed-Term Parliament,’’ Press Release, September 14, 2011. 61. Loewenstein, Cabinet Government, 143–44, 159; Allen, Last Prime Minister, 17–22. 62. Foster, Crisis, 8. 63. After the Single European Act of 1987 established majority voting procedures in the EU, the Council of Ministers prime ministers lost their veto powers, which also weakened the national legislatures of member states; Stuart McAnulla, British Politics: A Critical Introduction (New York: Continuum, 2006), 99–101. 64. K. D. Ewing, ‘‘The Human Rights Act and Parliamentary Democracy,’’ Modern Law Review 62, 1 (January 1999): 79–99, at 79; Matthew Flinders, ‘‘Shifting the Balance? Parliament, the Executive and the British Constitution,’’ Political Studies 50, 1 (March 2002): 23–42; David Judge, ‘‘Whatever Happened to Parliamentary Democracy in the United Kingdom?’’ Parliamentary Affairs 57, 3 (July 2004): 682–701; Norton, Parliament, 137–38, 149. 65. Interviewee 39, London, June 2013. 66. Supreme Court, ‘‘Role of the Supreme Court,’’ http://www.supremecourt.gov.uk. 67. Letters to the Editor, ‘‘Legislative Reform,’’ The Times, February 16, 2006; David Pannick, ‘‘Another Blow to Parliament?’’ The Times, February 28, 2006. 68. See Riddell, ‘‘Prime Ministers,’’ 814–15. 69. Norton, Parliament, 28. 70. Mark Phythian, ‘‘The British Experience with Intelligence Accountability,’’ Intelligence and National Security 22, 1 (February 2007): 75–98, at 96; Peter Gill, ‘‘Evaluating Intelligence Oversight Committees: The UK Intelligence and Security Committee and the ‘War on Terror,’’ Intelligence and National Security 22, 1 (February 2007): 14–37, at 29. 71. Gill, ‘‘Intelligence Oversight,’’ 21, 32–33; Burch and Holliday, British Cabinet System, 30; Yvette Cooper, ‘‘Strong National Security Needs Strong Oversight,’’ Independent, October 19, 2011.

Notes to Pages 136–139 327 72. Loewenstein, Cabinet Government, 121; Helms, Presidents, 163. 73. Norton, Parliament, 32. 74. Ibid., 33. 75. Philip Cowley, ‘‘The Commons: Mr. Blair’s Lapdog?’’ Parliamentary Affairs 54, 4 (2001): 815–28, at 819. 76. Norton, Parliament, 34; Meg Russell and Maria Sciara, ‘‘Parliament: The House of Lords—A More Representative and Assertive Chamber?’’ in Palgrave Review of British Politics 2005, ed. Riddell, 122–36, at 122. 77. Norton, Parliament, 97–98; Interviewee 37, London, March 2012. 78. Russell and Sciara, ‘‘Assertive Chamber,’’ 128. 79. Nicholas Watt, ‘‘House of Lords Reform Halted After Largest Tory Rebellion of the Parliament,’’ Guardian, July 10, 2012. 80. Clive Walker, ‘‘Policy Options and Priorities: British Perspectives,’’ in Confronting Terrorism: European Experiences, Threat Perceptions, and Policies, ed. Marianne van Leeuwen (The Hague: Kluwer Law, 2003), 11–35, at 12. 81. In 1969, the Irish Republican Army (IRA) split into the mostly nonviolent political wing, Official IRA, and the Provisional IRA, which continued to embrace violence in pursuit of political goals. 82. For a detailed review of British terrorism experiences, see Louise Richardson, ‘‘Britain and the IRA,’’ in Democracy and Counterterrorism, ed. Robert Art and Louise Richardson (Washington, D.C.: U.S. Institute of Peace Press, 2007), 63–104; David Bonner, ‘‘United Kingdom: The United Kingdom Response to Terrorism,’’ Terrorism and Political Violence 4, 4 (April 1992): 171–205; Keith Jeffery, ‘‘Security Policy in Northern Ireland: Some Reflections on the Management of Violent Conflict,’’ Terrorism and Political Violence 2, 1 (Spring 1990): 21–33; Walker, ‘‘Policy Options and Priorities.’’ 83. John Newsinger, ‘‘From Counter-Insurgency to Internal Security: Northern Ireland 1969–1992,’’ Small Wars and Insurgencies 6, 1 (Spring 1995): 88–111; Paul Wilkinson, ‘‘The Role of the Military in Combatting Terrorism in a Democratic Society,’’ Terrorism and Political Violence 8, 3 (Autumn 1996): 1–11. 84. Bonner, ‘‘United Kingdom,’’ 192; Jeffery, ‘‘Security Policy in Northern Ireland,’’ 26–27. 85. Newsinger, ‘‘From Counter-Insurgency to Internal Security,’’ 94, 96. 86. Ibid., 99. 87. Peter Clarke, ‘‘Learning from Experience—Counter Terrorism in the UK Since 9/11,’’ Colin Cramphorn Memorial Lecture at the Policy Exchange, London, April 24, 2007, 22. 88. Ibid., 20. 89. John Reid, ‘‘Facing a Common Threat with International Partnership,’’ address to Homeland Security Policy Institute at George Washington University, Washington, D.C., June 18, 2007. 90. Cabinet Office, The United Kingdom and the Campaign Against International Terrorism: Progress Report (London: HMSO, September 2002), 11. 91. House of Commons Select Committee on Home Affairs, First Report: The AntiTerrorism, Crime and Security Bill, HC Paper 351 of 2001–02, November 15, 2001, introduction.

328 Notes to Pages 140–143 92. Garton Grimwood and Christopher Barclay, ‘‘The Regulation of Investigatory Powers Bill,’’ House of Commons Library Research Paper 00/25, March 3, 2000. 93. Commons Committee on Home Affairs, First Report, introduction. 94. House of Commons Select Committee on Defence, Second Report: The Threat from Terrorism, HC Paper 348-I of 2001–02, December 12, 2001, summary and section on new terrorism, http://www.parliament.the-stationery-office.co.uk. 95. See, for example, Cabinet Office, Progress Report, 10–11; Frank Foley, Countering Terrorism in Britain and France: Institutions, Norms and the Shadow of the Past (Cambridge: Cambridge University Press, 2013), 48. 96. Home Secretary Blunkett in Hansard Parliamentary Debates, Commons, 6th ser., 372 (October 15, 2001), columns 923–25. 97. Hansard Written Answers, Lords, 5th ser., 629 (November 27, 2001), col. WA22–23. 98. Anti-Terrorism, Crime and Security Bill, Commons, Bill 49 of 2001–02, November 12, 2001; Sally Broadbridge, ‘‘The Anti-Terrorism, Crime and Security Bill: Introduction and Summary,’’ House of Commons Library Research Paper 01/101, November 19, 2001, 36–43. 99. Antony Seely, ‘‘Anti-Terrorism, Crime and Security Bill, Parts III and XI: Disclosure and Retention Information,’’ House of Commons Library Research Paper 01/98, November 19, 2001, 10. 100. Anti-Terrorism, Crime and Security Act, clause 20, interpretation of part 3. 101. Seely, ‘‘Disclosure and Retention,’’ 32–33, 36. 102. Sally Broadbridge, ‘‘The Anti-Terrorism, Crime and Security Bill: Parts I, II, VIII, IX & XIII; Property, Security and Crime,’’ House of Commons Library Research Paper 01/99, November 19, 2001, 45–46. 103. Alan Travis, ‘‘Anti-Terror Bill Damned for Catch-All Powers,’’ Guardian, November 14, 2001; Benedict Brogan, ‘‘Anti-Terror Reforms Too Intrusive, Say Ministers,’’ Daily Telegraph, November 24, 2001. 104. Patrick Wintour, ‘‘Blunkett Rejects ‘Airy Fairy’ Fears,’’ Guardian, November 12, 2001. 105. Marie Woolf and Ben Russell, ‘‘Peers Threaten to Block Emergency Anti-Terror Laws,’’ Independent, November 28, 2001. 106. Broadbridge, ‘‘ Anti-Terrorism, Crime and Security Bill,’’ 23; Seely, ‘‘Disclosure and Retention.’’ 107. Joint Committee on Human Rights, Second Report: The Anti-Terrorism, Crime and Terrorism Bill, session 2001–02, November 16, 2001, http://www.parliament.the-stationery -office.com. 108. Ibid., articles 6 and 7. 109. Ibid. 110. Select Committee on Home Affairs, First Report, article 2. 111. Ibid. 112. Ibid., article 3. 113. Ibid., articles 66 and 67. 114. Philip Cowley and Mark Stuart, ‘‘When Sheep Bark: The Parliamentary Labour Party, 2001–2003,’’ British Elections and Parties Review 14 (2004): 211–29, at 212; ‘‘Blunkett Attacked over Anti-Terror Law,’’ Independent, November 20, 2001. 115. Hansard Parliamentary Debates, Commons, 6th ser., 375 (November 19, 2001), col. 30, statement of Kevin Hughes.

Notes to Pages 144–146 329 116. Patrick Wintour, ‘‘Peers Warn of Terror Bill Cuts,’’ Guardian, November 28, 2001. 117. Ibid.; Oliver Letwin, ‘‘It Shouldn’t Be a Crime to Call the Pope the Antichrist,’’ Daily Telegraph, November 16, 2001. 118. Paul Waugh, ‘‘Backbench Rebellion Forces Blunkett to Retreat over Anti-Terror Proposals,’’ Independent, November 22, 2001; Hansard Parliamentary Debates, Lords, 5th ser., 629 (November 27, 2001), cols. 144–45. 119. Hansard Parliamentary Debates, Commons, 6th ser., 376 (December 13, 2001), col. 1108; Marie Woolf and Ben Russell, ‘‘Labour Rebellion as MPs Back New Anti-Terror Laws,’’ Independent, November 27, 2001; Patrick Wintour, ‘‘Terror Bill: Blunkett Wins Key Vote,’’ Guardian, November 27, 2001. 120. Hansard Parliamentary Debates, Lords, 5th ser., 629 (November 27, 2001), cols. 149–50; Nigel Morris, ‘‘Peers Defeat Government over Plans for Internment,’’ Independent, November 30, 2001; Melissa Kite, ‘‘Peers Rewrite Terror Bill to Include IRA,’’ The Times, November 30, 2001. 121. Melissa Kite and Greg Hurst, ‘‘Peers’ Rebellion Inflicts Defeat on Anti-Terror Bill,’’ The Times, December 7, 2001. 122. Hansard Parliamentary Debates, Lords, 5th ser., 629 (December 4, 2001), col. 707, remarks of Lord Dixon-Smith. 123. Hansard Parliamentary Debates, Commons, 6th ser., 376 (December 13, 2001), col. 1115, remarks of Oliver Letwin. 124. Anti-Terrorism Act, part 3, section 17 (5). 125. Anti-Terrorism Act, part 11, section 102 (3) (b). 126. Hansard Parliamentary Debates, Lords, 5th ser., 629 (December 6, 2001), col. 952, remarks of Baroness Buscombe. 127. Hansard Parliamentary Debates, Commons, 6th ser., 376 (December 13, 2001), col. 1111. 128. Nigel Morris, ‘‘Religious Hatred Offense Scrapped to Save Terror Bill,’’ Independent, December 14, 2001. 129. Marie Woolf, ‘‘Blunkett Refuses to Yield over Terror Bill,’’ Independent, December 3, 2001. 130. Patrick Wintour, ‘‘Lords Warn Blunkett: Drop Hatred Clause or Lose Terror Bill,’’ Guardian, December 12, 2001. 131. Ben Russell, ‘‘Peers Attack Plan to ‘Rubber-Stamp’ Laws,’’ Independent, December 4, 2001. 132. Hansard Parliamentary Debates, Lords, 5th ser., 629 (December 3, 2001), col. 585, remarks of Earl of Onslow. 133. Ibid., articles 66 and 67. 134. Rosemary Bennett, ‘‘Opposition Parties Are Hopeful of More Concessions from Blunkett,’’ Financial Times, December 11, 2001. 135. Ben Russell, ‘‘Peers Defeat Blunkett’s Scheme for Offence of Inciting Religious Hatred,’’ Independent, December 11, 2001; Andrew Parker, ‘‘Blunkett Defeated Again on AntiTerror Legislation,’’ Financial Times, December 14, 2001. 136. Lucy Ward, ‘‘Blunkett Pressure to Rein in Peers,’’ Guardian, December 15, 2001; ‘‘Full Text of David Blunkett’s Defence of the Anti-Terrorism Bill,’’ Guardian, December 14, 2001.

330 Notes to Pages 146–149 137. Shadow Home Minister Oliver Letwin, in Benedict Brogan, ‘‘Religious Hatred Law Abandoned After Bill Retreat,’’ Daily Telegraph, December 15, 2001. 138. Cowley and Stuart, ‘‘When Sheep Bark,’’ 2. 139. Woolf, ‘‘Blunkett Refuses to Yield’’; Patrick Wintour, ‘‘Blunkett Climbdown Saves Anti-Terror Bill,’’ Guardian, December 14, 2001. 140. Hansard Parliamentary Debates, Lords, 5th ser., 629 (December 3, 2001), col. 585. 141. Cabinet Office, Progress Report, 18. 142. David Omand, ‘‘The Terrorist Threat to the UK in the Post-9/11 Decade,’’ Journal of Terrorism Research 3, 1 (2012): 6–12. 143. The strategy was made public in 2006 and subsequently revised in 2009 and 2011. 144. Burch and Holliday, Cabinet System, 90–92. 145. Police services in Scotland and Northern Ireland are overseen by their respective Justice Ministries and the Secretary of State for Northern Ireland. 146. For example, the MI5 may task the MI6 and GCHQ through the JIC. However, the MI6 may not issue any tasking orders, while the GCHQ does not conduct its own analysis. See Joanna Ensum, ‘‘Domestic Security in the United Kingdom: An Overview,’’ in Protecting America’s Freedom in the Information Age (New York: Markle Foundation, October 2002), 102ff; Burch and Holliday, Cabinet System, 90–92. 147. UK Parliament Intelligence and Security Committee, Annual Report 2005–2006, Cm 6864 (June 2006), 5. 148. Burch and Holliday, Cabinet System, 90–91; Cabinet Office, National Intelligence Machinery (London: HMSO, September 2001), 16. From its creation in 1968 until 1985 and for a brief period between 2000 and 2002, the intelligence coordinator also served as JIC chairman. 149. Cabinet Office, ‘‘Security Structures in the Cabinet Office,’’ July 25, 2007, http:// webarchive.nationalarchives.gov.uk. 150. Butler Report, section 597, 144. 151. ISC, Annual Report 2005–2006, 6–7. 152. UK Parliament Intelligence and Security Committee, Annual Report 2006–2007, Cm 7299 (January 2008), 22. 153. House of Commons, Home Affairs Committee, The Home Office’s Response to Terrorist Attacks, Sixth Report of Session 2009–10, HC 117-I, February 2, 2010, 8. 154. Cabinet Office, Government Response to the Inquiry into Intelligence Assessments and Advice Prior to the Terrorist Bombings on Bali 12 October 2002 (London: HMSO, February 2003), article 11; Gill, ‘‘Intelligence Oversight,’’ 23. 155. ‘‘Cats’ Eyes in the Dark,’’ Economist, March 17, 2005, 32. 156. Peter Chalk and William Rosenau, Confronting the ‘‘Enemy Within,’’ Rand Monograph (Santa Monica: Rand, 2004), 12. 157. House of Commons Select Committee on Defence, Sixth Report: Defence and Security in the UK, HC Paper 518-I of 2001–02, July 17, 2002, article 30, http://www.parliament .the-stationery-office.co.uk. 158. Foley, Countering Terrorism, 133. 159. Gill, ‘‘Intelligence Oversight,’’ 19; Chalk and Rosenau, Enemy Within, 52–53; Jimmy Burns, ‘‘Ministers May Order Shake-up in Anti-Terror Police Network,’’ Financial Times, January 24, 2003; Her Majesty’s Inspectorate of Constabulary, A Need to Know: HMIC Thematic Report (London: Her Majesty’s Stationery Office, January 2003), 10.

Notes to Pages 149–153 331 160. Detainees were being held at the Belmarsh prison in southeast London. 161. Lizette Alvarez, ‘‘Britain’s Highest Court Overturns Anti-Terrorism Law,’’ New York Times, December 16, 2004. 162. Arabella Thorp, ‘‘The Prevention of Terrorism Bill,’’ House of Commons Library Research Paper 05/14, February 22, 2005, 11, 15. 163. Prevention of Terrorism Bill, Commons, Bill 61 of 2004–05, February 22, 2005. 164. Hansard Parliamentary Debates, Commons, 6th ser., vol. 431 (February 22, 2005), cols. 151–70; Nigel Morris, ‘‘Anger over Two-Day Terror Bill Debate,’’ Independent, February 22, 2005. 165. Thorp, ‘‘Prevention of Terrorism,’’ 24–25. 166. Prevention of Terrorism Act, part 1, section (3) (a) (o). 167. Thorp, ‘‘Prevention of Terrorism,’’ 17–18. 168. Rosemary Bennett, Jimmy Burns, and Andrew Parker, ‘‘Anti-Terror Law Review Revisits Use of Wiretaps,’’ Financial Times, October 3, 2001. 169. Human Rights Watch, ‘‘Hearts and Minds: Putting Human Rights at the Center of United Kingdom Counterterrorism Policy,’’ Human Rights Watch Report, June 21, 2007. 170. ‘‘Guilty We Think,’’ The Economist, May 31, 2008, 60. 171. ‘‘Phone-Tapping Evidence Vetoed,’’ BBC News, February 18, 2005; ‘‘Tapping and Terror,’’ Independent, February 7, 2005. 172. Interviewee 39. 173. Thorp, ‘‘Prevention of Terrorism,’’ 17. 174. Russell and Sciara, ‘‘Assertive Chamber,’’ 125. 175. Ibid., 122. 176. Hansard Parliamentary Debates, Lords, 5th ser., 675 (March 10, 2005), col. 1001. 177. Ibid., col. 1003. 178. Patrick Wintour and Alan Travis, ‘‘The Longest Day: Both Sides Claim Victory as Tories Accept Blair Deal After Marathon Battle over Terror Bill,’’ Guardian, March 12, 2005. 179. High Court judges subsequently ruled six control orders (imposed on both foreign and national citizens) incompatible with the ECHR, ‘‘Judge Quashes Anti-Terror Orders,’’ BBC News, June 28, 2006. 180. Thorp, ‘‘Prevention of Terrorism,’’ 14. 181. Russell and Sciara, ‘‘Assertive Chamber,’’ 130. 182. Ibid.; ‘‘We Need Sound Anti-Terrorist Laws, Not a Rushed Pre-Election Fix,’’ Independent, March 12, 2005. 183. Russell and Sciara, ‘‘Assertive Chamber,’’ 134. 184. Alan Travis, ‘‘Parties Back Clarke on Anti-Terror Laws,’’ Guardian, July 19, 2005. 185. Clarke, ‘‘Learning from Experience,’’ 15n12. 186. Michael Evans, ‘‘MI5—Now Working in a Town near You,’’ The Times, July 19, 2005; Richard Norton-Taylor, ‘‘MI5 to Expand Regional Offices,’’ Guardian, November 8, 2005. 187. ISC, Annual Report 2006–2007, 10; see also ISC, Annual Report 2005–2006, 14. 188. UK Parliament Intelligence and Security Committee, Annual Report 2007–2008, Cm7542 (March 2009), 17. 189. Jimmy Burns, ‘‘Anti-Terror Policing to Be Streamlined,’’ Financial Times, September 30, 2006; Sean O’Neill, ‘‘Special Branch Absorbed into Counter-Terror Unit,’’ The Times, October 3, 2006.

332 Notes to Pages 154–157 190. Home Office, Scottish Executive, Northern Ireland Office, Guidelines on Special Branch Work in the United Kingdom (March 2004), 6. 191. Her Majesty’s Government, Pursue, Prevent, Protect, Prepare: The United Kingdom’s Strategy for Countering International Terrorism (London: HMSO, March 2009), 65. 192. David Bruce, ‘‘400 Counter-Terrorists Moving into Leeds,’’ Yorkshire Evening Post, January 30, 2008. 193. ‘‘Regional Anti-Terror Unit Formed,’’ BBC News, April 2, 2007. 194. Open Source EUP20070402167005, London Sky News, in English language, April 2, 2007, ‘‘Manchester Sets Up Counter-Terrorism Unit, Other Regional Units in Pipeline’’; Cabinet Office, The National Security Strategy of the United Kingdom: Security in an Interdependent World (London: HMSO, March 2008), 27. 195. Hugh Muir, ‘‘End of the Road for Special Branch,’’ Guardian, September 9, 2005; Rosie Cowan, ‘‘Yard Merger Creates New Anti-Terror Department,’’ Guardian, October 3, 2006. 196. Sean O’Neill, ‘‘Special Branch Absorbed into Counter-Terror Unit,’’ The Times, October 3, 2006. 197. However, the local Special Branches remained in place. 198. Travis, ‘‘Parties Back Clarke’’; ‘‘Parties Discuss New Anti-Terror Measures,’’ Guardian, July 26, 2005. 199. Tom Baldwin and Philip Webster, ‘‘Blair Appeals to Muslim Backing as Parties Agree to Fast-Track Terror Laws,’’ The Times, July 19, 2005. 200. Gill, ‘‘Intelligence Oversight,’’ 19–20. 201. Philip Johnston, ‘‘Clarke Backs Down on Anti-Terror Plan,’’ Daily Telegraph, October 7, 2005. 202. Home Office, Proposals by Her Majesty’s Government for Changes to the Laws Against Terrorism, Report by the Independent Reviewer, Lord Carlile of Berriew (London: HMSO, October 2005), article 59. See also Association of Chief Police Officers, ‘‘Police Chiefs Comment on Terrorism Bill Proposals,’’ Press Release 62/05, September 15, 2005. 203. Miriam Peck, ‘‘The Terrorism Bill 2005–06,’’ House of Commons Library Research Paper 05/66, October 20, 2006, 35. 204. Interviewees 39 and 41, London, June 2013. 205. Interviewee 41. 206. Philip Johnston, ‘‘Clarke Bungle Reveals His Doubts over Terror Law,’’ Daily Telegraph, September 16, 2005. 207. House of Commons Home Affairs Committee, Minutes of Evidence, HC Paper 515-i of session 2005–06, October 11, 2005; see Clarke response to question 57, http://www .publications.parliament.uk. 208. The Terrorism Bill, Commons, Bill 55 of 2005–06, October 12, 2005; Trevor Mason, ‘‘Terror Bill Survives Mauling by Commons Critics,’’ Press Associated Limited, October 26, 2005. 209. Home Affairs Committee, Minutes of Evidence, Question 56. 210. Jane Merrick, ‘‘Clarke Backs Down on 90-Day Detention for Terror Suspects,’’ Daily Mail, November 3, 2005. 211. Interviewee 41.

Notes to Pages 157–160 333 212. Sarah Lyall, ‘‘Blair Dealt a Stunning Defeat in Parliament,’’ International Herald Tribune, November 10, 2005; Richard Whitaker, ‘‘Backbench Influence on Government Legislation? A Flexing of Parliamentary Muscles at Westminster,’’ Parliamentary Affairs 59, 2 (2006): 350–59, at 354. 213. Julian Glover and Patrick Wintour, ‘‘Terror Defeat: How the Vote Was Lost,’’ Guardian, November 10, 2005; Lyall, ‘‘Blair Dealt Stunning Defeat.’’ 214. Kelly et al., ‘‘Turbulence Ahead,’’ 105. 215. Steve Richards, ‘‘Blair Has a New Role,’’ Independent, November 11, 2005; ‘‘After the Defeat,’’ The Economist, November 12, 2005, 59–60; ‘‘Blair Bashing,’’ The Economist, November 12, 2005, 13. 216. Home Office, From Improvement to Transformation: An Action Plan to Reform the Home Office so It Meets Public Expectations and Delivers Its Core Purpose of Protecting the Public (London: HMSO, July 2006). 217. ‘‘Divide and Rule?’’ The Times, March 30, 2007. 218. Prime Minister’s Office, Written Ministerial Statement on Machinery of Government, March 29, 2007, http://www.publications.parliament.uk; Alan Travis, ‘‘Struggling Home Office Split Up to Combat Terrorism,’’ Guardian, March 29, 2007. 219. HM Government, The Governance of Britain, Cm 7170, July 2007. 220. Reid, ‘‘Facing a Common Threat.’’ Interviewee 37, Washington, D.C., June 2007. 221. Philip Johnston, ‘‘To Ministers, at Least, This Feels like Action on Terror,’’ Daily Telegraph, May 5, 2007. 222. Patrick Wintour, ‘‘Pressure to Break-Up Dysfunctional Structure That Became Too Big,’’ Guardian, May 1, 2006. 223. James Blitz, ‘‘Split Gives New Powers to Home Secretary,’’ Financial Times, March 29, 2007. 224. Soon after, Brown decided that the intelligence coordinator and JIC chairman posts would again be filled by two different people. 225. James Blitz, ‘‘Brown Strays from Treasury Role in Vision for Labour Leadership,’’ Financial Times, February 14, 2006; Michael Settle, ‘‘Brown’s Homeland Security Plan: Government Is Considering a Department to Combat Terror,’’ The Herald, February 14, 2006; Philip Johnston, ‘‘UK Streamlines Counter-Terrorism Powers in Shakeup,’’ New York Times, March 29, 2007. 226. Philip Johnston, ‘‘We Need a Minister for Security Now,’’ Daily Telegraph, December 14, 2006. 227. Jon Silverman, ‘‘Time to Break Up the Home Office?’’ BBCNews, April 27, 2006. 228. George Jones, ‘‘Reid Ready to Split the Home Office ‘Within Months’,’’ Daily Telegraph, January 22, 2007. 229. Home Office, ‘‘Prime Minister Announces New Counter-Terrorism Strategy,’’ Press Release, July 25, 2007, http://security.homeoffice.gov.uk; Home Office, Possible Measures for Inclusion in a Future Counter Terrorism Bill, July 25, 2007; Home Office, Options for PreCharge Detention in Terrorist Cases, July 25, 2007. 230. Alexander Horne, ‘‘Counterterrorism Bill,’’ House of Commons Library Research Paper 08/20, February 26, 2008, 17–21. 231. Richard Norton Taylor and Patrick Wintour, ‘‘Ministers Struggle as Plan to Increase Detention Limit to 42 Days Attracts New Round Of Criticism,’’ Guardian, December 6, 2007.

334 Notes to Pages 161–164 232. Counter-Terrorism Bill, Commons, Bill 63, January 24, 2008. 233. Interviewee 41. 234. Various interviewees; ‘‘Police Defend Longer Terror Limit,’’ BBC News, July 16, 2007. 235. Interviewee 39. 236. Counterterrorism Bill, Part 1. 237. Privy Council Review of Intercept Evidence, Report to the Prime Minister and the Home Secretary, Cm 7324 (London: HMSO, 2008). 238. ‘‘Watchdog Sides with MI5 to Reject Phone-Tap Evidence,’’ Guardian, January 29, 2008. 239. Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: 42 days, HC Paper 156 of 2007–2008, December 14, 2007, 22–23. 240. Hansard Parliamentary Debates, Commons, Public Bill Committee (April 24, 2008), 4th sitting, col. 140. 241. Ibid., col. 155; ‘‘Concession Package to Woo Rebel MPs on Terrorism Detention,’’ The Times, May 29, 2008. 242. Alexander Horne and Catherine Fairbairn, ‘‘Counter-Terrorism Bill Committee Stage Report,’’ House of Commons Library Research Paper 08/52, June 5, 2008, 24–25. 243. Ibid., 30. 244. Ibid., 25–27. 245. Interviewee 39. 246. ‘‘Brown Wins Crunch Vote on 42 Days,’’ BBCNews, June 11, 2008. 247. Patrick Wintour, Nicholas Watt, and Jenny Percival, ‘‘There Were No Deals over 42-Day Vote, Insists Brown,’’ Guardian, June 12, 2008. 248. ‘‘Peers Throw Out 42-Day Detention,’’ BBCNews, October 13, 2008. 249. House of Lords Constitution Committee, ‘‘Constitution Committee Criticizes Proposed Involvement of Parliament in the Detention of Terrorism Suspects,’’ Press Notice, August 5, 2008; House of Lords Select Committee on the Constitution, Counter-Terrorism Bill: The Role of Ministers, Parliament and the Judiciary, HL Paper 167 of 2007–8, August 5, 2008. 250. Nicholas Watt, ‘‘Brown Abandons 42-Day Detention After Lords Defeat,’’ Guardian, October 13, 2008. 251. Eight of the eleven people were charged and three released. Alexander Horne and Gavin Berman, ‘‘Pre-Charge Detention in Terrorism Cases,’’ House of Commons Library Standard Note SN/HA/5634, March 15, 2012, 15, 65. 252. House of Commons Home Affairs Committee, Minutes of Evidence, uncorrected transcript of oral evidence to be published as HC 1020-iii, 2007–08, October 22, 2007, available at http://www.publications.parliament.uk, Smith’s response to question 177. 253. ‘‘Smith Begins Fight for 42-Day Pre-Charge Detention,’’ Politics.co.uk, January 24, 2008. 254. Hansard Parliamentary Debates, Commons, 7th ser., 474 (April 1, 2008), col. 669; Lord Gresford and Lord Ahmed, in Hansard Parliamentary Debates, Lords, 7th ser., vol. 703 (July 8, 2008), col. 642, 692. 255. Philip Webster and Francis Gibb, ‘‘I’ll Deport 4,000 Foreign Criminals by End of Year, Brown Promises,’’ The Times, July 25. 2007.

Notes to Pages 164–168 335 256. ‘‘Smith Plans 42-day Terror Limit,’’ BBCNews, December 6, 2007; Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights (Eight Report): CounterTerrorism Bill, HC Paper 199 of 2007–08, February 7, 2008. 257. Counter-Terrorism Act 2008, Chapter 28, November 26, 2008. 258. Interviewees 39, 40, 41. 259. HM Government, The Coalition: Our Programme for Government (May 20, 2010), 24, 11. 260. Protection of Freedoms Bill Public Reading Stage Report, Report by the Home Office for the Public Bill Committee, session 2010–2011, March 25, 2011. 261. ‘‘Theresa May Allows 28-Day Limit on Detaining Terror Suspects Without Charge to Lapse,’’ Guardian, January 19, 2011. 262. Richard Norton-Taylor, ‘‘May Averts Fight over 28-Day Detention with Call for Renewal,’’ Guardian, June 25, 2010. 263. Home Office, ‘‘Written Ministerial Statement on Pre-Charge Detention,’’ June 24, 2010. 264. HM Government, Review of Counter-Terrorism and Security Powers: Review Findings and Recommendations, Cm 8004, January 2011, 14. 265. Home Office, Draft Detention of Terrorist Suspects (Temporary Extension) Bills, Cm 8018, February 2011. Since the 2006 Terrorism Act (with the 28-day pre-charge detention rule) was still in effect, the bill included two draft versions. 266. House of Lords, Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills, Draft Detention of Terrorist Suspects (Temporary Extensions) Bills Report, House of Lords Paper 161 of session 2010–12, 5. 267. Ibid., 6. 268. Protection of Freedoms Bill, Commons, Bill 146 of 2010–11, February 11, 2011. 269. HM Government, Review of Counter-Terrorism Powers, Cm 8004, 7. 270. Lord Macdonald of River Glaven, Review of Counter-Terrorism and Security Powers, Cm 8003, January 2011, 4. 271. For statistics, see Sally Almandras, ‘‘Protection of Freedoms Bill,’’ House of Commons Library Research Paper 11/20, February 23, 2011, 33–35. 272. ‘‘Stop and Search Powers Ruled Illegal by European Court,’’ BBCNews, January 12, 2010. 273. Hansard Parliamentary Debates, Commons, Public Bill Committee Debate (May 3, 2011), col 491–522. 274. Hansard Parliamentary Debates, Commons, 3rd Reading (October 11, 2011), col. 260. 275. Ibid., col. 271. 276. Hansard Parliamentary Debate, Lords, Grand Committee (December 15, 2011), col. 388. 277. HM Government, The Coalition, 24. 278. UK Parliament Intelligence and Security Committee, Annual Report 2010–2011, Cm 8114 (July 2011), 36. 279. Ibid., 37. 280. Commons, Home Affairs Committee, Response to Terrorist Attacks, 8. 281. George Bagham and Sarang Shah, ‘‘The National Security Council and the Prime Minister,’’ Wilberforce Society, March 2012, 2.

336 Notes to Pages 168–170 282. Ibid., 7. 283. HM Government, The Coalition, 24. 284. HM Government, Review of Counter-Terrorism Powers, 6. 285. Interviewee 39. 286. Nick Clegg, ‘‘This Is a Fork in the Road,’’ Guardian, February 21, 2007. 287. Interviewee 40. 288. Alan Travis, ‘‘Cameron Must Scrap Terror Law Control Orders, Warn Lib Dems,’’ Guardian, October 30, 2010. 289. Jill Sherman, ‘‘Howard Backs Control Orders as Lib Dems Pledge No Compromise on Fighting Terror,’’ The Times, January 4, 2011. 290. Interviewee 40. 291. Fred Attewill, ‘‘Reid Promises Tough Measures After Trio Vanish,’’ Guardian, May 24, 2007. 292. Patrick Sawer, ‘‘One in Six Terror Suspects Flee Control Orders,’’ Telegraph, May 22, 2010. 293. David Anderson, Control Orders in 2011: Final Report of the Independent Reviewer on the Prevention of Terrorism Act 2005 (March 2012), 52–53. 294. Ibid., 41. Another fifteen control orders had been revoked or not been renewed per Home Office decision because they did no longer meet the necessity test. 295. David Winnick in Hansard, Commons, 2nd Reading (June 7, 2011), col. 83. 296. By December 2010, all remaining control orders applied to British nationals. Alexander Horne, ‘‘Terrorism Prevention and Investigation Measures Bill,’’ House of Commons Library Research Paper 11/46, May 31, 2011, 5. 297. Patrick Mercer and Dominic Raab, in Hansard Parliamentary Debates, Commons, 2nd Reading (June 7, 2011), cols. 99, 112. See also report by Joint Committee on Human Rights, Legislative Scrutiny: Terrorism Prevention and Investigation Measures Bill, Cm 8167, sess. 2010–12, July 11, 2011. 298. Joint Select Committee on the Draft Enhanced Terrorism Prevention and Investigation Measures Bill, Oral Evidence, HC Paper 495-ii, sess. 2012–13, October 17, 2012, 7, 15–16. 299. Alan Travis, ‘‘May Reprimands Own Terror Review Supervisor as No 10 Fears ‘Car Crash’,’’ Guardian, November 1, 2011. 300. Patrick Wintour, ‘‘Control Orders Deal Will See End to House Arrest,’’ Guardian, January 10, 2011; Tim Shipman, ‘‘PM Defies Libdems on Terror Suspects,’’ Daily Mail, January 5, 2011. 301. Terrorism Prevention and Investigation Bill, bill 193 of 2011–12, May 23, 2011. 302. As specified by James Brokenshire, in Hansard, Commons, Public Bill Committee (July 5, 2011), col. 267–71. 303. The list includes restrictions on overnight residence, travel, areas/places, movement direction, financial services, property transfers, electronic communication devices, association, and work or studies. It mandated reporting, photograph, and monitoring measures. 304. Lord Macdonald; see Joint Committee on Human Rights, Counter-Terrorism Review: Oral Evidence, sess. 2010–11, February 8, 2011, Q2. 305. Interviewees 39, 40, 41; see also Hazel Blears, in Hansard, Commons, Public Bill Committee (June 28, 2011), column 146–47; Nicholas Cecil, ‘‘Don’t Lift Terror Suspects Ban from London, Mayor Warns Ministers,’’ Evening Standard, June 9, 2011.

Notes to Pages 170–172 337 306. Home Office, ‘‘Guidance: Terrorism Prevention and Investigations Measures Bill,’’ May 23, 2011. 307. Hansard, Commons, Public Bill Committee (June 28, 2011), cols. 166 and 171. 308. Ibid., col. 147. 309. Hansard, Commons, Report Stage (September 5, 2011), col. 114; Anderson, Control Orders, 5. 310. Hansard, Lords, 2nd Reading (October 5, 2011), col. 1176. 311. Hansard, Commons, 2nd Reading (June 7, 2011), cols. 79–98. 312. Alan Travis, ‘‘May Announces End to Virtual House Arrest in New-Look Control Orders,’’ Guardian, January 27, 2011; James Slack, ‘‘Curfews Banned in Terror Crackdown to Be Replaced,’’ Daily Mail, January 27, 2011. 313. Hansard, Commons, 2nd Reading (June 7, 2011), cols. 73–74; Hansard, Commons, Public Bill Committee (June 28, 2011), col. 148; Richard Ford, Roland Watson, and Sean O’Neill, ‘‘£80m to Step Up Surveillance After End of Anti-Terror Control Orders,’’ The Times, January 27, 2011. 314. Hansard, Commons, Public Bill Committee (June 28, 2011), col. 204. 315. Duncan Gardham, ‘‘MI5 Surveillance Is Lacking, Minister Admits,’’ Daily Telegraph, March 10, 2011. 316. Hansard, Commons, Public Bill Committee Debate (June 21, 2011), col. 9. 317. See, for instance, the two amendments to clause 21, Hansard, Commons, Public Bill Committee (June 30, 2011), cols. 253–56. 318. Joint Committee on Human Rights, Legislative Scrutiny: Terrorism Prevention and Investigation Measures Bill, 16th Report, July 11, 2011. Many of the demands were again included as part of the second report; see Joint Committee on Human Rights, Legislative Scrutiny: Terrorism Prevention and Investigation Measures Bill (Second Report), October 19, 2011, HL Paper 204, sess. 2010–12, 3–4. 319. HM Government, The Government Reply to the Sixteenth Report from the Joint Committee on Human Rights, HL Paper 180/HC 1432 of session 2010–12, September 2011. 320. Hansard, Commons, Public Bill Committee (July 5, 2011), cols. 282–88. 321. Ibid., col. 282. MP Paul Goggins made the comment in the House of Commons during the second reading on June 7, 2011, cols. 84–85; interviewee 40. 322. Hansard, Commons, Report Stage (September 5, 2011), col. 54. 323. Joint Committee on Human Rights, Counter-Terrorism Review, February 8, 2011, questions 51–56. 324. Home Office, Draft Enhanced Terrorism Prevention and Investigation Measures Bill, Cm 8166, September 1, 2011. 325. Hansard, Commons, Report Stage (September 5, 2011), col. 90; HM Government, The Government Response to the Report from the Joint Committee on the Draft Enhanced Terrorism Prevention and Investigation Measures Bill, HL Paper 70/HC Paper 495 of Session 2012–13, January 2013. 326. HM Government, Review of Counter-Terrorism and Security Powers, 43. 327. Interviewees 39, 41. 328. Vikram Dodd, ‘‘Ministers Under Fire over Internal Exile Plan for Terror Suspects,’’ Guardian, September 2, 2011. 329. Pete Wishart’s comment, in Hansard, Commons, Report Stage (Sept. 5, 2011), col. 91.

338 Notes to Pages 173–179 330. Sean O’Neill, ‘‘Anger as Internal Exile Plans for Terror Suspects Are Reinstated by Home Office,’’ The Times, September 1, 2011. 331. Draft ETPIM Bill, Section 2 (1). 332. Hansard, Commons, Report Stage (September 5, 2011), cols. 87–88, 90. 333. Hansard, Lords, 2nd Reading (October 5, 2011), cols. 1176–77. 334. Hansard, Commons, Report Stage (September 5, 2011), col. 94. 335. ‘‘ ‘Home Office Should Have to Justify Coalition’s New Terror Suspect Controls Every Year,’ Say Labour,’’ MailOnline, November 1, 2011. 336. Hansard, Lords, 3rd Reading (November 23, 2011), cols. 1059–60; Hansard, Commons, Ping Pong (November 29, 2011), col. 858; Joe Murphy, ‘‘Ministers in U-Turn over Abolition of Control Orders,’’ Evening Standard, November 22, 2011. 337. Nicholas Cecil, ‘‘Met Reveals Its Fears of Keeping Track with Terror Suspects,’’ Evening Standard, December 5, 2011. 338. Anderson, Control Orders, 10. 339. Interviewees 39, 40. 340. Vikram Dodd, ‘‘Exile Plan for Terror Suspects Is a Bungled Measure, Say Civil Liberties Groups,’’ Guardian, September 1, 2011; Interviewee 41. 341. Interviewees 39, 40. 342. Shiv Malik, ‘‘Terror Suspect’s Disappearance Sparks Criticism of Control-Order Regime,’’ Guardian, January 1, 2013. 343. HM Government, Governance of Britain; ISC, Annual Report 2007–2008, 4–6. 344. UK Parliament Intelligence and Security Committee, Annual Report 2012–2013, HC547 (July 2013), 42. 345. ISC, Annual Report 2010–2011, 82. 346. Hansard, Commons, 7th ser., 555 (December 18, 2012), col. 727, statement of Kenneth Clarke. 347. Malcolm Rifkind, ‘‘We Are Making Intelligence Accountable,’’ Guardian, March 3, 2013; Joanna Dawson, ‘‘Intelligence and Security Committee,’’ House of Commons Library Standard Note SN/HA/2178, October 29, 2013. 348. Various interviewees. 349. Joint Committee on Human Rights, Fifth Report: Anti-Terrorism, Crime and Security Bill, HL Paper 51, HC Paper 420 of 2001–02, December 3, 2001, article 2. 350. Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights, Draft Prevention of Prevention of Terrorism Act 2005 (Continuance in Force of Sections 1–9): Twelfth Report of Session 2005–06, HL Paper 122, HC 915, 3–9. 351. Walker, ‘‘Policy Options and Priorities,’’ 15. 352. Tony Blair, ‘‘Shackled in the War on Terror,’’ Sunday Times, May 27, 2007. 353. For similarities between pre- and post-9/11 counterterrorism responses, see Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (New York: Cambridge Press, 2011), chap. 5. 354. Charles Kennedy, ‘‘A Battle Between Liberty and Authoritarianism,’’ Guardian, November 7, 2005. 355. On this comparison, see also Dirk Haubrich, ‘‘The Social Contract and the Three Types of Terrorism: Democratic Society in the United Kingdom After 9/11 and 7/7,’’ in The Consequences of Counterterrorism, ed. Martha Crenshaw (New York: Russell Sage, 2010), 179– 212, at 189.

Notes to Pages 183–185 339

Chapter 5. Case Study IV: France 1. Giovanni Sartori, Comparative Constitutional Engineering: An Inquiry into Structures, Incentives, and Outcomes (New York: New York University Press, 1997), 123. 2. Max Beloff, ‘‘The Separation of Powers in the Constitution of the Fifth Republic,’’ Parliamentary Affairs 12, 1 (Winter 1958–59): 37–46, at 44. 3. Ezra N. Suleiman, ‘‘Presidential Government in France,’’ in Presidents and Prime Ministers, ed. Richard Rose and Ezra Suleiman (Washington, D.C.: AEI Press, 1981), 94–138, at 96. 4. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Cynthia Brantley Johnson (New York: Pocket Books, 2004), 60–69. 5. See Ben Clift, ‘‘Dyarchic Presidentialization in a Presidentialized Polity: The French Fifth Republic,’’ in The Presidentialization of Politics: A Comparative Study of Modern Democracies, ed. Thomas Poguntke and Paul Webb (Oxford: Oxford University Press, 2005), 221–46, at 221. 6. Charles de Gaulle, ‘‘The Bayeux Manifesto,’’ in Parliamentary Versus Presidential Government, ed. Arend Lijphart (New York: Oxford University Press, 2004), 139–41; Michel Debre´, ‘‘The Constitution of 1958, Its Raison d’Etre and How It Evolved,’’ in The Impact of the Fifth Republic on France, ed. William G. Andrews and Stanley Hoffmann (Albany: State University of New York Press, 1981), 1–14; see also Stanley Hoffmann, ‘‘Succession and Stability in France,’’ Journal of International Affairs 18, 1 (1964): 86–103. 7. See Alain Guyomarch and Howard Machin, ‘‘Political Developments in Their Historical Institutional Context,’’ in Developments in French Politics 2, ed. Alain Guyomarch et al. (London: Palgrave, 2001), 1–22, at 12. 8. Suleiman, ‘‘Presidential Government,’’ 108; David S. Bell, Presidential Power in Fifth Republic France (New York: Berg, 2000), 18–19. 9. De Gaulle dissolved the National Assembly in 1962 and 1968 amid a national crisis. Mitterrand used the mechanism in 1981 and 1988 to regain parliamentary majorities, whereas the French electorate punished Chirac’s decision to dissolve Parliament early in 1997 and forced the president to enter five years of cohabitation. 10. Until the riots in the Parisian suburbs in 2005, these powers were invoked only once before in response to the 1961 generals’ putsch in Algeria. 11. Robert Elgie, ‘‘Cohabitation: Divided Government French Style,’’ in Divided Government in Comparative Perspective, ed. Robert Elgie (Oxford: Oxford University Press, 2001), 106–26, at 108. 12. Suleiman, ‘‘Presidential Government,’’ 104. See also Bell, Presidential Power, 28. 13. For a detailed analysis of the constitutional role of the prime minister, see Philippe Ardant, Le premier ministre en France (Paris: Montchrestien, 1992). 14. For a ‘‘prime ministerial’’ reading of the constitution, see also Debre´, ‘‘Constitution,’’ 10–11. 15. Nicolas Sarkozy, Te´moignage (Paris: XO Editions, 2006), 157. 16. Franc¸oise Giroud, La come´die du pouvoir (Paris: Fayard, 1977), 25, as quoted in Suleiman, ‘‘Presidential Government,’’ 113. 17. Suleiman, ‘‘Presidential Government,’’ 114; Bell, Presidential Power, 20; Howard Machin, ‘‘Political Leadership,’’ in Developments in French Politics 2, ed. Guyomarch et al., 68–91, at 82, 78–80.

340 Notes to Pages 185–189 18. Sarkozy, Te´moignage, 157. 19. Philippe Alexandre, Le duel de Gaulle-Pompidou (Paris: Grasset, 1970), 103, as quoted in Suleiman, ‘‘Presidential Government,’’ 111. 20. Bell, Presidential Power, 10–11. 21. Jacques Chirac (with Jean-Luc Barre), My Life in Politics, trans. Catherine Spencer (New York: Palgrave Macmillan, 2012), 205. 22. Sartori, Constitutional Engineering, 123. 23. Alain Auffray and Antoine Guiral, ‘‘A quoi sert Fillon? Le premier ministre cherche a` exister au coˆte´ d’un pre´sident hyperactif,’’ Libe´ration, June 28, 2007. 24. Jacques Chaban-Delmas first used the term at the Gaullist Party conference in 1959, according to Bell, Presidential Power, 23. 25. Ibid., 25. 26. Le Monde, January 20, 1983, 3, as quoted in Jolyon Howorth, ‘‘Foreign and Security Policy in the Post-Cold War World,’’ in Developments in French Politics 2, ed. Guyomarch et al., 156–217, at 157. See also ‘‘It’s Chirac, Stupid, ’’ Economist, June 2, 2005. 27. Chirac, My Life in Politics, 92. 28. See Open Source EUP20070523177003, Paris, Le canard enchaıˆne´ (in French) May 23, 2007, ‘‘Elyse´e Will Keep Tight Control on Ministers.’’ 29. Guyomarch and Machin, ‘‘Political Developments,’’ 13; Clift, ‘‘Dyarchic,’’ 223. 30. Sarkozy, Te´moignage, 157. 31. Suleiman, ‘‘Presidential Government,’’ 97–98; Clift, ‘‘Dyarchic,’’ 222. 32. Hoffmann, ‘‘Succession and Stability in France,’’ 91. Hoffmann considered the referendum so important that he distinguished between the Fifth Republic before 1962 and the Republic ‘‘five and a half’’ after 1962. 33. The term was coined by Maurice Duverger in 1974. See Maurice Duverger, La monarchie re´publicaine (Paris: Robert Laffont, 1994). 34. Franc¸ois Mitterrand, Le coup d’e´tat permanent (Paris: Plon, 1964), 98. 35. Hoffmann, ‘‘Succession and Stability in France,’’ 91–92. 36. Suleiman, ‘‘Presidential Government,’’ 136. 37. See also Chirac, My Life in Politics, 207. 38. Elgie, ‘‘Cohabitation,’’ 120. 39. Chirac, My Life in Politics, 208. 40. Open Source, EUP20011019000058, Turino La Stampa (in Italian), October 19, 2001, Cesare Martinetti, ‘‘Chirac Deals Low Blow to Growth of Europe’’; Clift, ‘‘Dyarchic,’’ 240. 41. Chirac, My Life in Politics, 100. 42. Bell, Presidential Power, 85. 43. Elgie, ‘‘Cohabitation,’’ 120. 44. Jean-Michel Be´zat and Patrick Roger, ‘‘Aux quatre coins de l’e´tat, les hommes de pre´sident,’’ Le Monde, September 8, 2004; Machin, ‘‘Leadership,’’ 81. 45. Elgie, ‘‘Cohabitation,’’ 106. See also Raphae¨lle Bacque´ and Ariane Chemin, ‘‘Malgre´ leurs rivalite´s, M. Chirac et M. Jospin ge`rent la crise internationale,’’ Le Monde, October 20, 2001. 46. Elgie, ‘‘Cohabitation,’’ 121–22. 47. Ibid., 118 48. Chirac, My Life in Politics, 93.

Notes to Pages 189–193 341 49. Ibid., 255. 50. Ibid., 96–98. 51. Robert Elgie, ‘‘The Political Executive,’’ in Developments in French Politics 3, ed. Alistair Cole, Patrick Le Gale`s, and Jonah Levy (London: Palgrave Macmillan, 2005), 70–87, at 76–77. 52. Chirac, My Life in Politics, 95. 53. On delaying tactics, see Elgie, ‘‘Cohabitation,’’ 119. 54. Ibid., 114. 55. Clift, ‘‘Dyarchic,’’ 223; Elgie, ‘‘Cohabitation,’’ 111. 56. Suleiman, ‘‘Presidential Government,’’ 118. See also Elgie, ‘‘Executive,’’ 77. 57. Suleiman, ‘‘Presidential Government,’’ 116. 58. Ibid., 119. 59. Chirac, My Life in Politics, 311. 60. Charles de Gaulle, ‘‘Bayeux Manifesto,’’ 141. 61. Suleiman, ‘‘Presidential Government,’’ 98. 62. Ibid., 99. 63. Duverger, La Monarchie, 188. 64. Andrew Knapp, ‘‘Prometheus (Re-)Bound? The Fifth Republic and Checks on Executive Power,’’ in Developments in French Politics 3, ed. Cole et al.,88–104, at 94. 65. Knapp, ‘‘Prometheus,’’ 90. 66. Open Source EUP20040723000336, Paris, LCI Te´le´vision (in French), July 23, 2004, ‘‘French Government Passes Bill with No Vote; Seeks Motion of Confidence’’; see also Nick Hewlett, Democracy in Modern France (London: Continuum, 2003), 102. The 2008 constitutional reform restricted use of the censure vote to funding or social security bills, and one additional bill per parliamentary session. 67. For a discussion of intelligence oversight, see Alain Faupin, ‘‘Reform of the French Intelligence Services After the End of the Cold War,’’ paper presented at conference of the Geneva Centre for the Democratic Control of Armed Forces, Geneva, October 3–5, 2002; Jean-Paul Brodeur and Nicolas Dupeyron, ‘‘Democracy and Secrecy: The French Intelligence Community,’’ in Democracy, Law and Security, ed. Jean-Paul Brodeur, Peter Gill, and Dennis Toellburg (Aldershot: Ashgate, 2003), 9–29, at 22. 68. See W. Jason Fisher, ‘‘Militant Islamicist Terrorism in Europe: Are France and the United Kingdom Legally Prepared for the Challenge?’’ Washington University Global Studies Law Review 6, 2 (2007): 255–80, at 269. See also Conseil constitutionnel, De´cision 2005–532 DC du 19 Janvier 2006, Journal Officiel 20 (January 24, 2006): 1138. 69. Douglas Porch, ‘‘Cultural Legacies of French Intelligence,’’ in Reforming Intelligence: Obstacles to Democratic Control and Effectiveness, ed. Thomas Bruneau and Steven Boraz (Austin: University of Texas Press, 2007), 121–48, at 140–41. 70. Loi constitutionnelle no. 2008–724 du 23 juillet 2008 de modernisation des institutions de la Ve re´publique, Journal Officiel 171 (July 24, 2008): 11890–95. 71. The ‘‘cumul’’ of mandates, though controversial and pushed back under President Chirac, again increased under Sarkozy. See Elaine Siolino, ‘‘French Cabinet Position Not Enough? Then Try Mayor,’’ New York Times, January 13, 2008; Raphae¨lle Bacque´, ‘‘Cumul des mandats: pourquoi les e´lus re´sistent’’ Le Monde, September 1, 2009. 72. Bell, Presidential Power, 25.

342 Notes to Pages 194–198 73. Open Source EUP20010918000535, Paris, LCI Te´le´vision, September 18, 2001, ‘‘French Premier Says Parliament Must be Consulted Before Military Engagement’’; Open Source EUP20011009000390, Paris, France-2 Te´le´vision, October 9, 2001, ‘‘French Premier Rules Out Parliamentary Vote on Joining U.S.-Led Attacks.’’ 74. ‘‘Le Parlement Oublie´,’’ Le Monde, September 28, 2001. See also Robert Bret in Se´nat, Compte rendu integral, XIe`me le´gislature, session ordinaire de 2001–2002 (October 17, 2001), 42. 75. Shaun Gregory, ‘‘France and the War on Terrorism,’’ Terrorism and Political Violence 15, 1 (March 2003): 124–47, at 124. See also Kevin O’Brien, ‘‘France,’’ in Europe Confronts Terrorism, ed. Karin von Hippel (New York: Palgrave Macmillan, 2005), 19–42, at 20; Interviewee 44, Paris, July 2006. 76. For a detailed review of French terrorism experiences in the 1980s and 1990s, see Nathalie Cettina, ‘‘The French Approach: Vigour and Vigilance,’’ in Confronting Terrorism: European Experiences, Threat Perceptions and Policies, ed. Marianne Van Leeuwen (The Hague: Kluwer Law, 2003), 71–94; Guillaume Parmentier, ‘‘France,’’ in Counterterrorism Strategies: Successes and Failures of Six Countries, ed. Yonah Alexander (Dulles, Va.: Potomac Books, 2006), 44–71; Jeremy Shapiro and Be´ne´dicte Suzan, ‘‘The French Experience of CounterTerrorism,’’ Survival 41, 1 (2003): 67–98. 77. Cettina, ‘‘French Approach,’’ 75. 78. Frank Foley, Countering Terrorism in Britain and France: Institutions, Norms and the Shadow of the Past (Cambridge: Cambridge University Press, 2013), 102. 79. Brodeur and Dupeyron, ‘‘Democracy and Secrecy,’’ 14, 18. 80. Shapiro and Suzan, ‘‘The French Experience,’’ 77. 81. This point has been clarified by Foley, Countering Terrorism, 99. 82. Cettina, ‘‘The French Approach,’’ 85. 83. The investigating antiterrorism magistrates are tasked with conducting initial, impartial investigations. In a second step, cases are referred to prosecutors and defense attorneys and argued in front of a judge (juge de sie`ge). See also Jeremy Shapiro, ‘‘France and the GIA,’’ in Democracy and Counterterrorism, ed. Robert Art and Louise Richardson (Washington, D.C.: USIP, 2007), 133–66, at 154–55. 84. While the freedom and detention judges assumed authority to rule on pre-trial detention starting in 2001, they tend to side with the recommendations of the investigating magistrates. See Gary Schmitt, ‘‘France: In a League of Its Own,’’ in Safety, Liberty, and Islamic Terrorism, ed. Gary Schmitt (Washington, D.C.: AEI, 2010), 31–47, at 41; Human Rights Watch, ‘‘Preempting Justice: Counterterrorism Laws and Procedures in France,’’ Human Rights Watch Report, July 2008, 28–29. 85. Interviewee 46, Paris, July 2006; Shapiro, ‘‘France and GIA,’’ 145. 86. Shapiro, ‘‘France and GIA,’’ 146. 87. Foley, Countering Terrorism, 110–11. 88. Cettina, ‘‘French Approach,’’ 73. 89. Ibid., 85–86. 90. Ibid., 86–87. See also Dominique de Villepin, Prevailing Against Terrorism: White Paper on Domestic Security Against Terrorism (Paris: Documentation Franc¸aise, 2006), 53–54. 91. Gregory, ‘‘France and the War on Terrorism,’’ 139. 92. See opening statement of Daniel Vaillant in Se´nat, Compte rendu inte´gral, XIe`me le´gislature, session ordinaire de 2001–2002 (October 16, 2001), 29.

Notes to Pages 198–201 343 93. Foley, Countering Terrorism, 47. 94. Ibid., 48,77. 95. De Villepin, Prevailing Against Terrorism, 7. 96. Ibid., 5. 97. Franc¸ois Hollande, French White Paper: Defence and National Security (Paris: Documentation Franc¸aise, 2013), 42. 98. Rohan Gunaratna, Inside Al Qaeda: Global Network of Terror (London: Hurst, 2002), 121; Jean Chichizola, ‘‘Un terroriste appelle a` attaquer les inte´reˆts franc¸ais,’’ Le Figaro, December 8, 2005. 99. Open Source FEA20060915027636, Salafist Group for Call and Combat Website, September 13, 2006, ‘‘Algeria’s GSPC Joins Al-Qa’ida’’; Open Source GMM20080306317001, Algiers, Jihadist Websites, OSC Summary in Arabic, January 1, 2006, ‘‘Al-Qaida in Lands of Islamic Maghreb’s Al-Wadud Says France Is Our First Enemy.’’ See also Jean Chichizola, ‘‘La France, ennemi nume´ro un pour les islamistes alge´riens du GSPC,’’ Le Figaro, September 28, 2005. 100. Open Source FEA20060912027565, Jihadist Websites, OSC Report, September 11, 2006, ‘‘Jihadist Website Posts Al-Zawahiri 9/11 Anniversary Video.’’ 101. De Villepin, Prevailing Against Terrorism, 34. 102. Ibid., 129–30. 103. See Assemble´e Nationale, Proposition de Loi No 2437 (tendant a` renforcer les liberte´s et la se´curite´ du consommateur et a` ame´liorer la concurrence dans la socie´te´ de l’information), XIe`me le´gislature, May 30, 2000. 104. Interviewee 43, Paris, July 2006. See also ‘‘Il y a des risques de de´rapage,’’ Libe´ration, October 17, 2001. 105. ‘‘France Adopts Controversial Anti-Terror Legislation,’’ Agence France Presse, October 31, 2001. 106. See comments of Interior Minister Daniel Vaillant and Jean-Pierre Schosteck in Se´nat, Compte rendu inte´gral, XIe`me le´gislature, session ordinaire de 2001–2002 (October 16, 2001), 29. 107. Until 2003, EU telecommunication providers were obligated to erase or to make anonymous data as soon as the communication was completed, unless ‘‘measures to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences’’ dictated otherwise. See EU, Directive 97/66/EC, Official Journal OJ L24/1 (January 1, 1998), Article 14. 108. Comments of Justice Minister Marylise Lebranchu in Se´nat, Compte rendu inte´gral, XIe`me le´gislature, session ordinaire de 2001–2002 (October 17, 2001), 42. 109. Comments of Pierre He´risson in Se´nat, Compte rendu inte´gral (October 17, 2001): 42. 110. See Meryem Marzouki, ‘‘Cybercrime and Data Retention: French Situation and Articulation with the International Context,’’ paper presented at Public Voice in Internet Policy Making Conference of the Electronic Privacy Information Center, Washington, D.C., June 22, 2002. 111. See criticisms of Bouloc, ‘‘Il y a des risques de de´rapage.’’ 112. See Daniel Vaillant in Se´nat, Compte rendu inte´gral, XIe`me le´gislature, session ordinaire de 2001–2002 (October 16, 2001), 29; Assemble´e Nationale, Compte rendu inte´gral, XIe`me le´gislature, session ordinaire de 2001–2002 (October 31, 2001), 6913.

344 Notes to Pages 201–205 113. Comments of Marylise Lebranchu, Se´nat, Compte rendu inte´gral (October 17, 2001): 42. 114. Jacqueline Coignard, ‘‘La France fait quelques entorses a` ses principes,’’ Libe´ration, October 31, 2001. 115. Jocelyne Cesari, ‘‘Islam, Secularism and Multiculturalism after 9/11: A Transatlantic Comparison,’’ in European Muslims and the Secular State, ed. Jocelyne Cesari and Sean McLoughlin (Burlingon, Vt.: Ashgate, 2006), 39–51, at 41; Interviewee 45, Paris, July 2006. 116. On the connection between delinquency, minor crimes, and terrorism, see also Guillaume Parmentier, ‘‘France,’’ 52–54. 117. Comments of Daniel Vaillant in Se´nat, Compte rendu inte´gral, XIe`me le´gislature, session ordinaire de 2001–2002 (October 16, 2001), 29. 118. Loi no. 2001–1062 du 15 novembre 2001 relative a` la se´curite´ quotidienne, Journal Officiel 266 (November 16, 2001): 18215–29. 119. Pascal Ceaux and Herve´ Gattegno, ‘‘L’Elyse´e veut faire de Philippe Massoni son Monsieur Se´curite´,’’ Le Monde, November 2, 2001. 120. ‘‘Un super-pre´fet a` l’Elyse´e,’’ Le Monde, November 2, 2001. 121. Interviewee 42, Paris, July 2006; Eric Aeschimann, ‘‘Jospin occupe le terrain parisien,’’ Libe´ration, September 19, 2001; Pascale Robert-Diard, ‘‘Lionel Jospin refuse de ce´der tout le terrain diplomatique a` Jacques Chirac,’’ Le Monde, September 26, 2001. 122. Robert-Diard, ‘‘Jospin refuse de ce´der.’’ 123. Herve Gattegno, ‘‘Le Front inte´rieur de Jean-Pierre Raffarin,’’ Le Monde, March 27, 2003. 124. Pre´sidence de la Re´publique, De´cret 2002–890 du 15 mai 2002 relatif au Conseil de se´curite´ inte´rieure, Journal Officiel 133 (May 16, 2001). 125. Anne Fulda, ‘‘Jacques Chirac prend la se´curite´ en main,’’ Le Figaro, May 15, 2002. 126. Cettina, ‘‘The French Approach,’’ 83. 127. Open Source EUP20020529000415, Paris, LCI Te´le´vision (in French), May 29, 2002, ‘‘French Ex-Minister Says Planned Security Shake-up Unconstitutional.’’ 128. See ‘‘De´claration de politique ge´ne´rale du gouvernement’’ of Prime Minister JeanPierre Raffarin in Assemble´e Nationale, Compte rendu analytique, XIIe`me le´gislature, session extraordinaire de 2001–2002, 2e`me se´ance du 3 Juillet 2002, 2; see also part II.A.2.b) in Se´nat, Rapport no. 371, XIIe`me le´gislature, session extraordinaire de 2001–2002, July 24, 2002. 129. The National Gendarmerie was officially placed under the Ministry of the Interior on January 1, 2009. 130. Statement of Raffarin in Assemble´e Nationale, Compte rendu analytique (July 3, 2002), 2. 131. Justice Minister Dominique Perben promptly followed suit and introduced the judicial counterpart to the LOPSI act in the National Assembly the following day. 132. Pascal Ceaux, ‘‘Le projet de loi sur la se´curite´ re´organise police et gendarmerie,’’ Le Monde, July 11, 2002. 133. LOPSI, Part II, Article 2. See also Pascal Ceaux, ‘‘Came´ras, fichiers, e´coutes: de nouveaux moyens re´pressifs pour les forces de l’ordre,’’ Le Monde, July 11, 2002. 134. LOPSI, Part II, Articles 1 and 2. 135. LOPSI, Part II, Article 2 a) 2o. 136. Remarks of Nicolas Sarkozy in Se´nat, Compte rendu inte´gral, XIIe`me le´gislature, session extraordinaire de 2001–2002 (July 30, 2002), 3.

Notes to Pages 205–209 345 137. See, for example, remarks of Christian Vanneste in Assemble´e Nationale, Journal Officiel des De´bats: Compte rendu inte´gral 28.1, XIIe`me le´gislature, session extraordinaire de 2001–2002 (July 17 2002), 2069. 138. Parmentier, ‘‘France,’’ 66. 139. See under Annexe II, I.4. 140. Barth Elie, ‘‘Le Conseil constitutionnel censure partiellement la loi sur la se´curite´,’’ Le Monde, August 24, 2002; Renaud Recadre, ‘‘Loi Sarkozy: du vent, selon les ‘sages,’ ’’ Libe´ration, August 23, 2002; Conseil Constitutionnel, De´cision no. 2002–460 du 22 aouˆt 2002, Journal Officiel 202 (August 30, 2002), 14411. 141. Loi no. 2002–1094 du 29 aouˆt 2002 d’orientation et de programmation pour la se´curite´ inte´rieure, Journal Officiel 202 (August 30, 2002), 14398–410. 142. Pascal Ceaux and Ce´cile Prieur, ‘‘Le gouvernement e´largit conside´rablement les pouvoirs de la police,’’ Le Monde, September 27, 2002. 143. Ceaux and Prieur, ‘‘Le gouvernement e´largit.’’ See also Jean-Marc Leclerc, ‘‘Les 44 articles de Sarkozy pour la se´curite´,’’ Le Figaro, October 4, 2002. 144. See also Meryem Marzouki, ‘‘French Constitutional Council Validates Computer Search Without Warrant,’’ EDRI-gram 5 (March 27, 2003), under European Digital Rights, http://www.edri.org/edrigram/number5/search. 145. Assemble´e Nationale, Compte rendu analytique, XIIe`me le´gislature, session ordinaire de 2002–2003, 2e`me se´ance du 16 Janvier 2003. 146. Interviewee 43. 147. Ceaux and Prieur, ‘‘Le gouvernement e´largit.’’ 148. Ibid. 149. Quoted in Marianne Arens and Francis Dubois, ‘‘New Powers Proposed for French Police,’’ World Socialist Website, November 18, 2002, http://www.wsws.org. 150. Pascal Ceaux, Herve Gattegno, and Piotr Smolar, ‘‘Nicolas Sarkozy se veut le de´fenseur de la France des oublie´s,’’ Le Monde, October 24, 2002. 151. ‘‘Sarkozy defend son projet au Palais Bourbon,’’ Le Monde, January 14, 2003. 152. Open Source EUP20030111000124, Paris, France Info Radio (in French), January 11, 2003, ‘‘Rather Small Turnout at French Security Bill Marches.’’ 153. Conseil Constitutionnel, De´cision 2003–467 DC du 13 mars 2003, Journal Officiel 66 (March 19, 2003): 4789; ‘‘Le Conseil constitutionnel pre´cise la loi Sarkozy,’’ Le Monde, March 15, 2003; Olivier Pognon, ‘‘Les sages valident la loi de se´curite´ inte´rieure,’’ Le Figaro, March 15, 2002. 154. Loi 2003–239 du 18 Mars 2003 pour la se´curite´ inte´rieure, Journal Officiel 66 (March 19, 2003), 4761-89. 155. Didier Bigo and Colombe Camus, ‘‘Overview of the French Anti-terrorism Strategy,’’ in First Inventory of Policy on Counterterrorism: Germany, France, Italy, Spain, the United Kingdom and the United States—‘‘Research in Progress’’, ed. Rudie Neve et al. (The Hague: Justice Ministry/WODC, 2006), 38; Open Source EUP20040624000291, Paris, LCI Te´le´vision (in French), June 24, 2004, ‘‘French Minister Says Terrorism, Cybercrime Among Priorities.’’ 156. ‘‘Dominique de Villepin: L’Etat doit eˆtre sans faiblesse face au terrorisme,’’ Le Figaro, May 13, 2004. See also Jean Chichizola, ‘‘Le plan Villepin contre l’islamisme radical,’’ Le Figaro, September 27, 2004. 157. ‘‘Dominique de Villepin,’’ Le Figaro, May 13, 2004.

346 Notes to Pages 209–212 158. Christophe Cornevin, ‘‘Les six grands chantiers de Villepin,’’ Le Figaro, June 25, 2004. 159. Interviewee 46. 160. ‘‘Jacques Fournet: On se heurte a` des objections de carrie`re et a` des inconve´nients politiques,’’ Le Monde, December 26, 2003. 161. Jean-Marc Leclerc, ‘‘Les renseignements ge´ne´raux et la direction de la se´curite´ du territoire re´fle´chissent a` leur re´organisation, voire a` leur fusion,’’ Le Figaro, August 19, 2002. 162. Jacky Durand, ‘‘Les mondes paralle`les du renseignement,’’ Libe´ration, April 26, 2006. 163. Piotr Smolar, ‘‘Comment se pre´pare la re´organisation du renseignement inte´rieur,’’ Le Monde, December 26, 2003. 164. Laurent Zecchini, ‘‘L’exception franc¸aise du renseignement,’’ Le Monde, July 12, 2006. 165. Interviewee 42. See also Open Source EUP20021024000499, Paris, Intelligence Online (in English), October 24, 2002, ‘‘France’s DGSE in Full Disarray.’’ 166. Pascal Ceaux, ‘‘Vers une fusion des RG et de la DST?’’ Le Monde, March 29, 2002; Piotr Smolar, ‘‘Aux RG, une transformation progressive, loin des missions originelles,’’ Le Monde, December 26, 2003. 167. Herve Gattegno, ‘‘L’Elyse´e accuse les services secrets d’avoir enqueˆte sur M. Chirac sous le gouvernement de M. Jospin,’’ Le Monde, June 24, 2002. 168. Ceaux, ‘‘Vers une fusion?’’ 1; Jean-Marc Leclerc, ‘‘Les renseignements ge´ne´raux changent de patron,’’ Le Figaro, January 21, 2004; Smolar, ‘‘Comment se pre´pare la re´organisation’’; Piotr Smolar, ‘‘L’Elyse´e et l’inte´rieur sont parvenus a` un compromis sur le nom du directeur des renseignements ge´ne´raux,’’ Le Monde, January 22, 2004; Durand, ‘‘Les mondes paralle`les.’’ 169. Piotr Smolar, ‘‘Une cellule permanente contre le terrorisme a e´te´ cre´e´e autour de la DGSE,’’ Le Monde, September 18, 2004. 170. Ludo Block, ‘‘Evaluating the Effectiveness of French Counter-Terrorism,’’ Terrorism Monitor 3, 17 (September 8, 2005), under Jamestown Foundation, http://www.jamestown.org/. 171. Interviewee 44. 172. Arnaud de La Grange, ‘‘Les nouveaux de´fis impose´s a` l’antiterrorisme franc¸ais,’’ Le Figaro, July 16, 2005. 173. Ibid. 174. Jean Chichizola, ‘‘Islamisme radical: la police d’Ile-de-France multiplie les de´couvertes,’’ Le Figaro, May 18, 2005; Jean Chichizola, ‘‘Parti de Manchester, le franc¸ais e´tait un professionnel du djihad,’’ Le Figaro, June 29, 2005. 175. Jean-Marc Leclerc, ‘‘Deux services trop souvent en concurrence,’’ Le Figaro, August 19, 2002; see also Pascale Combelles Siegel, ‘‘An Inside Look at France’s Mosque Surveillance Program,’’ Terrorism Monitor 5, 16 (August 16, 2007). 176. Open Source EUP20051215029018, Paris, Ministry of Internal Affairs (in French), December 15, 2005, ‘‘France’s Villepin Explains Focus of White Paper on Terrorism.’’ 177. de Villepin, Prevailing Against Terrorism, 39–54. 178. See Bigo and Camus, ‘‘Overview,’’ 53. 179. ‘‘M. Sarkozy: Il ne serait pas anormal qu’un e´tranger puisse voter,’’ Le Monde, October 25, 2005.

Notes to Pages 212–215 347 180. ‘‘Alain Marsaud: Donner aux enqueˆteurs les outils pour travailler,’’ Le Figaro, November 23, 2005. 181. Laurence de Charette and Jean-Marc Gonin, ‘‘Terrorisme: le gouvernement parie sur la vide´osurveillance,’’ Le Figaro, July 27, 2005. 182. See also Jean Chichizola, ‘‘Antiterrorisme: la nouvelle panoplie franc¸aise apre`s les attentats de Londres,’’ Le Figaro, September 10, 2005. 183. ‘‘L’antiterrorisme, selon le patron des RG,’’ Le Monde, November 25, 2005. See also Jacky Durand, ‘‘Prudences sur la future loi antiterroriste,’’ Libe´ration, September 27, 2005. 184. Assemble´e Nationale, Journal Officiel des De´bats: Compte rendu inte´gral 96.2, XIIe`me le´gislature, session ordinaire de 2005–2006 (November 23, 2005), 7461, comments of Ge´rard Le´onard. 185. ‘‘French Approve Anti-Terror Laws,’’ CNN.com, November 29, 2005; see also Guillaume Perrault, ‘‘Sarkozy entend durcir la le´gislation antiterroriste,’’ Le Figaro, November 23, 2005. 186. Assemble´e Nationale, Journal Officiel des De´bats: Compte rendu inte´gral 96.1, XIIe`me le´gislature, session ordinaire de 2005–2006 (November 23, 2005), 7423, comments of Nicolas Sarkozy. 187. Ibid., 7428, comments of Andre´ Gerin; see also Assemble´e Nationale, Journal Officiel des De´bats: Compte rendu inte´gral 96.2, XIIe`me le´gislature, session ordinaire de 2005–2006 (November 23, 2005), 7459, comments of Daniel Vaillant. 188. Assemble´e Nationale, Journal Officiel des De´bats: Compte rendu inte´gral 96.2, XIIe`me le´gislature, session ordinaire de 2005–2006 (November 23, 2005), 7469, remarks of Julien Dray. See also ‘‘IRIS Protest Against Delay by French Government,’’ EDRI-gram 2, 20 (October 20, 2004), http://www.edri.org. 189. Interviewees 43, 45; ‘‘Alain Marsaud: Donner aux enqueˆteurs les outils pour travailler,’’ Le Figaro, November 23, 2005. 190. Assemble´e Nationale, Journal Officiel des De´bats: Compte rendu inte´gral 96.1, XIIe`me le´gislature, session ordinaire de 2005–2006 (November 23, 2005), 7469, comments of Julien Dray. 191. See, for example, Assemble´e Nationale, Journal Officiel des De´bats: Compte rendu inte´gral 112.1, XIIe`me le´gislature, session ordinaire de 2005–2006 (December 22, 2005), 8651, comments of Andre´ Chassaigne; Assemble´e Nationale, Journal Officiel des De´bats: Compte rendu inte´gral 99.2, XIIe`me le´gislature, session ordinaire de 2005–2006 (November 29, 2005): 7641, comments of Jacques Floch. 192. Assemble´e Nationale, Journal Officiel des De´bats: Compte rendu inte´gral 96.2, XIIe`me le´gislature, session ordinaire de 2005–2006 (November 23, 2005): 7460, comments of Noe¨l Mame`re. 193. Open Source, EUP20051106950026, Paris, France Info Radio (in French), November 6, 2005, ‘‘France’s Chirac Holds Crisis Meeting amid Ongoing Urban Violence’’; Beatrice Gurrey, Christophe Jakubyszyn, and Philippe Ridet, ‘‘Dominique de Villepin choisit l’e´tat d’urgence,’’ Le Monde, November 9, 2005; Open Source, EUP20051114950018, LCI Te´le´vision (in French), November 14, 2005, ‘‘French Government Adopts Bill Extending State of Emergency.’’ 194. Interviewee 44. 195. Open Source EUP20051123950040, Paris, RTL Radio (in French), November 23, 2005, ‘‘Islamists Not Involved in Recent Riots in France—Domestic Intelligence Chief.’’

348 Notes to Pages 215–219 196. ‘‘French Parliament to Debate Anti-Terror Law,’’ Agence France Presse, November 22, 2005. 197. Assemble´e Nationale, Journal Officiel des De´bats: Compte rendu inte´gral 96.1, XIIe`me le´gislature, session ordinaire de 2005–2006 (November 23, 2005), 7420. 198. Patrick Roger, ‘‘Les socialistes pourraient voter le texte de M. Sarkozy, sous re´serves de clarifications,’’ Le Monde, November 25, 2005; Didier Hassoux, ‘‘Dans la lutte antiterroriste, les socialistes pre´fe`rent se taire,’’ Libe´ration, November 30, 2005. 199. Assemble´e Nationale, Journal Officiel des De´bats: Compte rendu inte´gral 96.2, XIIe`me le´gislature, session ordinaire de 2005–2006 (November 23, 2005), 7470. 200. Assemble´e Nationale, Journal Officiel des De´bats: Compte rendu inte´gral 97.2, XIIe`me le´gislature, session ordinaire de 2005–2006 (November 24, 2005), 7532–33. 201. See, for example, Open Source, EUP20051123950012, RTL Radio (in French), November 2005, ‘‘Intelligence Chief Says French Antiterrorism Bill No Threat to Civil Liberties.’’ 202. Hassoux, ‘‘Les socialistes pre´fe`rent se taire.’’ 203. Assemble´e Nationale, Journal Officiel des De´bats: Compte rendu inte´gral 112.1, XIIe`me le´gislature, session ordinaire de 2005–2006 (December 22, 2005), 8649, statement of Alain Marsaud. 204. Ibid., 8651, comments of Andre´ Chassaigne. 205. Comments of Jean-Pierre Sueur and Richard Yung in Se´nat, Journal Officiel de la Re´publique Franc¸aise: Compte rendu inte´gral 119, XIIe`me le´gislature, session ordinaire de 2005–2006 (December 22, 2005), 10262–63. 206. See Conseil Constitutionnel, De´cision no. 2005–532 du 19 Janvier 2006, Journal Officiel 20 (January 24, 2006). The senators also succeeded in getting Article 19 deleted altogether. 207. de Villepin, Prevailing Against Terrorism, 53. 208. Loi no. 2006–64 du 23 janvier 2006 relative a` la lutte contre le terrorisme et portant dispositions diverses relatives a` la se´curite´ et aux controˆles frontaliers, Journal Officiel 20 (January 24, 2006), 1129–37. 209. Isabelle Mandraud, ‘‘ Alliot-Marie veut prolonger le dispositif de lutte antiterroriste,’’ Le Monde, February 7, 2008. 210. de La Grange, ‘‘Les nouveaux de´fies’’; Durand, ‘‘Les mondes paralle`les.’’ 211. Arnaud de La Grange and Jean-Marc Leclerc, ‘‘La de´licate coordination des services secrets,’’ Le Figaro, May 15, 2006. 212. Piotr Smolar, ‘‘La cre´ation d’un service unique pour le renseignement inte´rieur se pre´cise,’’ Le Monde, May 18, 2006. 213. Smolar, ‘‘La cre´ation d’un service unique.’’ 214. Open Source EUP20070308029001, Paris, De´fense (in French), January 1, 2004– February 28, 2007, Interview with Nicolas Sarkozy, ‘‘France’s Sarkozy Sets Out Defense Policy Guidelines.’’ 215. Open Source EUP20070222338004 Paris, Intelligence Online in English language, February 23, 2007, ‘‘French Interior Minister Intent on Merging Domestic Spy Agencies.’’ 216. Open Source, ‘‘Elyse´e Will Keep Tight Control on Ministers.’’ Pre´sidence de la Re´publique, De´fense et Se´curite´ Nationale (Paris: Le Livre Blanc 2008), 253–54. 217. Pre´sidence de la Re´publique, no. 2009–1657 du 24 de´cembre 2009 relatif au conseil de de´fense et de se´curite´ nationale et au secre´tariat ge´ne´ral de la de´fense et de la se´curite´ nationale, Journal Officiel 301 (December 29, 2009), 22561.

Notes to Pages 219–222 349 218. Floran Vadillo, ‘‘Le Conseil National du Renseignement: Une pre´sidentialisation sans justification,’’ La fondation progressiste terra nova note, December 7, 2009, 1. On this issue, see also Floran Vadillo, ‘‘Vers une nouvelle coordination du renseignement,’’ Le Monde, March 7, 2011; Nathalie Cettina, ‘‘Antiterrorisme: Une fragile coordination,’’ Centre Franc¸ais de Recherche sur le Renseignement, Note de Re´flexion No. 9, April 10, 2011, 8–11. 219. Vadillo, ‘‘Le Conseil national du renseignement,’’ 1. 220. Cettina, ‘‘Antiterrorisme,’’ 10–12. 221. Foley, Countering Terrorism, 123; Cettina, ‘‘Antiterrorisme,’’ 12–13. 222. ‘‘Exclusif: le texte inte´gral de la lettre de mission de Bernard Bajolet,’’ LePoint.fr, July 23, 2008. 223. Philippe Hayez, ‘‘Renseignement: The New French Intelligence Policy,’’ International Journal of Intelligence and CounterIntelligence 23, 3 (June 2010): 474–86, at 480. 224. Vadillo, ‘‘Une nouvelle coordination.’’ 225. Loi no. 2007–1443 du 9 octobre 2007 portant cre´ation d’une de´le´gation parlementaire au renseignement, Journal Officiel 235 (October 10, 2007), 16558. See also de La Grange and Leclerc, ‘‘La de´licate coordination des services secrets’’; Piotr Smolar, ‘‘En France, le controˆle parlementaire des services de renseignement se fait toujours attendre,’’ Le Monde, February 8, 2007. 226. See Assemble´e Nationale, Rapport No. 1951 (fait au nom de la Commission de la De´fense Nationale et des Forces Arme´es sur la proposition de loi no. 1497 tendant a` la cre´ation d’une de´le´gation parlementaire pour les affaires de renseignement), XIe`me le´gislature, session ordinaire de 2005–2006, November 23, 1999. 227. Jean-Marc Leclerc, ‘‘Le plan des commissaires pour le renseignement,’’ Le Figaro, August 19, 2002, 7. 228. Assemble´e Nationale, Journal Officiel des De´bats: Compte rendu inte´gral 96.2, XIIe`me le´gislature, session ordinaire de 2005–2006 (November 23, 2005), 7470, remarks of Thierry Mariani. 229. Jean-Marc Leclerc, ‘‘RG, DST et PJ antiterroriste doivent fusionner,’’ Le Figaro, May 14, 2007. 230. Patricia Tourancheau, ‘‘Un risque de re´cidive terroriste par rapport a` 1995,’’ Libe´ration, October 8, 2007. 231. Piotr Smolar, ‘‘DST et RG, nouveaux voisins de palier,’’ Le Monde, May 25, 2007, 3. 232. ‘‘Speech by M. Nicolas Sarkozy, President of the Republic, at the Ceremony to Remember Victims of Terrorism (Excerpts),’’ Embassy of France in London, September 25, 2007. 233. Isabelle Mandraud, ‘‘Le blues des RG, engloutis dans le nouveau poˆle du renseignement,’’ Le Monde, April 8, 2008. 234. Assemble´e Nationale, Commission des lois constitutionnelles, de la le´gislation et de l’administration ge´ne´rale de la Re´publique, Compte rendu 35, XIIIe`me le´gislature, session ordinaire de 2009–2010 (January 27, 2010). 235. Assemble´e Nationale, Projet de Loi no. 1697, XIIIe`me le´gislature, session ordinaire de 2009–2010, May 27, 2009, 4. 236. Ibid., 15. 237. Ibid. 238. Se´nat, Journal Officiel, compte rendu inte´gral des de´bats, XIIIe`me le´gislature, session ordinaire de 2009–2010 (September 9, 2010), Amendment 108.

350 Notes to Pages 222–226 239. Ibid., Amendment 336. 240. Ibid., Amendments 338, 339. 241. Ibid., Amendment 341. 242. Assemble´e Nationale, Rapport de la commission des lois sur le projet de loi d’orientation et de programmation pour la performance de la se´curite´ inte´rieure (no. 2271) (M. E´ric Ciotti), XIIIe`me le´gislature, session ordinaire de 2009–2010 (January 27, 2010), 208. 243. Ibid., 209–10. 244. Ibid., 206–7. 245. Ibid., 211. 246. Loi no. 2011–267 du 14 mars 2011d’orientation et de programmation pour la performance de la se´curite´ inte´rieure, Journal Officiel 62 (March 15, 2011): 4582. 247. Par Soren Seelow, ‘‘Plan Vigipirate e´carlate discret dans la ville rose, ‘‘Le Monde, March 21, 2012. 248. ‘‘Franc¸ois Hollande e´voque a` son tour une ‘faille’ dans la surveillance de Merah,’’ Le Monde, March 23, 2012. See also Marcelo Wesfreid and Jean-Marie Pontaut, ‘‘Rencontre Secre`te entre Rebsamen et Squarcini,’’ L’Express, March 16, 2012. 249. Laurent Borredon et Jacques Follorou, ‘‘Bernard Squarcini: Nous ne pouvions pas aller plus vite,’’ Le Monde, March 23, 2012. 250. Geoffroy Husson and Benjamin Ferran, ‘‘Sarkozy veut punir l’acce`s aux sites Internet terroristes,’’ Le Figaro, March 22, 2012. 251. Cyrille Vanlerberghe, ‘‘Une loi antiterroriste peut eˆtre vote´e avant l’e´lection,’’ Le Figaro, March 23, 2012. 252. Jean-Marie Leclerc, ‘‘Mercier: Re´primer la provocation au terrorisme,’’ Le Figaro, April 10, 2012. 253. Husson and Ferran, ‘‘Sarkozy veut punir l’acce`s.’’ 254. ‘‘Un projet de loi antiterroriste a` l’examen,’’ Le Figaro, September 16, 2013. 255. The final version referred to ‘‘long-time residents of France.’’ 256. Laurent Borredon, ‘‘Apre`s l’affaire Merah, le filet antiterroriste est e´largi,’’ Le Monde, October 4, 2012. 257. Damien Leloup, ‘‘Consultation de sites terroristes: Manuel Valls s’inspire directement de Sarkozy,’’ Le Monde, September 18, 2012. 258. Leloup, ‘‘Consultation de sites terroristes.’’ 259. Loi no. 2008–1245 du 1er de´cembre 2008 visant a` prolonger l’application des articles 3, 6 et 9 de la loi no. 2006–64 du 23 janvier 2006 relative a` la lutte contre le terrorisme et portant dispositions diverses relatives a` la se´curite´ et aux controˆles frontaliers, Journal Officiel 280 (December 2, 2008): 18361. 260. Se´nat, Projet de loi no. 6 (relatif a` la se´curite´ et a` la lutte contre le terrorisme), XIVe`me le´gislature, October 3, 2012. 261. Se´nat, Projet de loi: Lutte contre le terrorisme, 1e`re lecture, Liste des amendements par ordre de discussion, October 15, 2012. 262. Ibid., Amendment 19. 263. Ibid., Amendment 17. 264. Comments of Manuel Valls in Se´nat, Compte rendu inte´gral, XIVe`me le´gislature, session ordinaire de 2012–2013 (October 16, 2012), 3898. 265. ‘‘Terrorisme: le texte contre les apprentis djihadistes franc¸ais adopte´ au Se´nat,’’ Le Monde, October 17, 2012.

Notes to Pages 226–242 351 266. Loi no. 2012–1432 du 21 de´cembre 2012 relative a` la se´curite´ et a` la lutte contre le terrorisme, Journal Officiel 298 (December 22, 2012). 267. Jacques Follorou and Franck Johanne`s, ‘‘Re´ve´lations sur le Big Brother franc¸ais,’’ Le Monde, July 4, 2013. 268. Laurent Borredon and Jacques Follorou, ‘‘En France, la DGSE au cœur d’un programme de surveillance d’Internet,’’ Le Monde, June 11, 2013. 269. Jacques Follorou and Franck Johanne`s, ‘‘Le Parlement et l’opacite´ du Big Brother franc¸ais,’’ Le Monde, August 23, 2013; see also Cettina, ‘‘Antiterrorisme,’’ 13. 270. Jonathan Pariente´, ‘‘Quelles sont les enqueˆtes en cours dans l’affaire Merah?’’ Le Monde, November 2, 2012. 271. Laurent Borredon et Jacques Follorou, ‘‘Le Parlement exige un controˆle accru du renseignement,’’ Le Monde, May 14, 2013. 272. Ministe`re de l’Inte´rieur, Interventions du Ministre, Re´forme du renseignement, June 17, 2013; Laurent Borredon, ‘‘Re´forme du renseignement: Manuel Valls choisit la continuite´,’’ Le Monde, June 17, 2013. 273. Borredon, ‘‘Re´forme du renseignement.’’ 274. Jean-Jacques Urvoas, ‘‘Les RG, la SDIG et apre`s?’’ Le Monde, February 1, 2012. 275. Ministe`re de l’Inte´rieur, Re´forme du renseignement, June 17, 2013. 276. Ibid. 277. ‘‘Le renforcement du controˆle se heurte a` la coope´ration internationale entre services,’’ Le Monde, August 22, 2013. 278. de Villepin, Prevailing Against Terrorism, 53.

Chapter 6. Comparative Analysis of Structural Effects on Counterterrorism Decision-Making 1. The 2001 Anti-Terrorism Act did include a five-year sunset provision for indefinite detention, but the clause was replaced by control orders in 2005. 2. Amy Zegart, Spying Blind: The CIA, the FBI, and the Origins of 9/11 (Princeton, N.J.: Princeton University Press, 2007), 179. 3. Noting the importance of the structural framework in addition to bureaucratic forces, Zegart points out that ‘‘the United States’ separation of powers system will always provide opportunities for opponents of reform to water down legislative proposals.’’ See Amy Zegart, ‘‘September 11 and the Adaptation Failure of U.S. Intelligence Agencies,’’ International Security 29, 4 (Spring 2005): 109. 4. These determine whether (1) counterterrorism mandates are distinct or overlap; (2) there is a clear division of labor between many or few security agencies; and (3) reforms are prescribed from above or evolve in a bottom-up fashion. Foley further argues that these organizational routines of security agencies need to be combined with ‘‘inter-institutional conventions’’ that govern how executive and judicial branches cooperate. Frank Foley, Countering Terrorism in Britain and France: Institutions, Norms and the Shadow of the Past (Cambridge: Cambridge University Press, 2013). 5. Foley, Countering Terrorism, 67. 6. Peter Katzenstein, ‘‘Same War-Different Views: Germany, Japan, and Counterterrorism,’’ International Organization 57, 3 (Fall 2003): 731–60; Dirk Haubrich, ‘‘September 11, Anti-Terror Laws and Civil Liberties: Britain, France and Germany Compared,’’ Government and Opposition 38, 1 (2003): 21–22. Haubrich also discusses threat perceptions as one of three

352 Notes to Pages 242–273 possible explanations for the varying scope of counterterrorism legislation in France, Germany, and Great Britain. 7. Haubrich, ‘‘September 11,’’ 21. 8. Foley, Countering Terrorism, 69–70. 9. For example, Foley argues that France, contrary to other Western countries, ‘‘did not make any significant formal or ‘top-down’ reforms to the organization . . . of France’s counterterrorist agencies in the decade after 1995.’’ He goes to great lengths to explain the DST-RG merger by arguing that it was driven by a powerful President Sarkozy who acted on his concerns about duplicative mandates and spending, see Foley, Countering Terrorism, 121–22. 10. Ibid., 48, 77. 11. The argument about different threat perceptions also did not hold in any of my interviews with German government officials, members of Parliament, or security agencies, even when interviewees represented the left-of-center Green or Social Democratic Parties. 12. However, Britain and France still had to transpose the directive into national law. 13. Foley, Countering Terrorism, 134, 171. 14. Jacqueline Hodgson, French Criminal Justice: A Comparative Account of the Investigation and Prosecution of Crime in France (Oxford: Hart, 2005), 47–49, 92. 15. Zegart’s focus on the Department of Defense is also misleading, as it misconstrues CIA and FBI concerns regarding the new TTIC arrangement. 16. Foley, Countering Terrorism, 47. 17. Alan Travis, ‘‘May Reprimands Own Terror Review Supervisor as No 10 Fears ‘Car Crash’,’’ Guardian, November 1, 2011. 18. Edward Cody, ‘‘Sarkozy Seeks Changes That Would Reinforce Presumed Innocence of Suspects,’’ Washington Post, January 9, 2009. 19. Foley, Countering Terrorism, 112. 20. While Great Britain does not have a national police like France, the London Metropolitan police are the lead coordinator on counterterrorism. 21. In contrast to Germany, the United States does not have a domestic intelligence agency, albeit it has significant domestic surveillance capabilities. 22. However, executive decrees may still be reviewed by the Council of State, an administrative court that is chaired by the prime minister. 23. The White House homeland security advisor and council continue to exist, despite the creation of the Department of Homeland Security. 24. Samuel Huntington, The Common Defense: Strategic Programs in National Politics (New York: Columbia University Press, 1961). 25. Warner R. Schilling, ‘‘The Politics of National Defense: Fiscal 1950,’’ in Warner R. Schilling, Paul Y. Hammond and Glenn H. Snyder, Strategy, Politics and Defense Budgets (New York: Columbia University Press, 1962), 5–27. 26. Stephen Krasner, ‘‘Are Bureaucracies Important?’’ in American Foreign Policy: Theoretical Essays, ed. G. John Ikenberry (Glenview, Ill.: Scott, Foresman, 1989), 419–33. 27. Laura Donohue, The Cost of Counterterrorism (New York: Cambridge University Press, 2008), 3. 28. Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (New York: Cambridge University Press, 2011).

Notes to Pages 273–287 353 29. Ibid., 169. 30. George Tsebelis, Veto Players: How Political Institutions Work (Princeton, N.J.: Princeton University Press, 2002). 31. Foley, Countering Terrorism, 67. 32. Similar to Roach’s analysis, Donohue’s assessment of British and U.S. counterterrorism responses also leaves out institutional reforms. 33. Admittedly, Weaver and Rockman were not merely interested in assessing structural effects but also attempted to ascertain countries’ strong or weak governing capabilities as a result of structural effects, which is subject to more normative judgment. See R. Kent Weaver and Bert A. Rockman, ‘‘When and How Do Institutions Matter,’’ in Do Institutions Matter? Government Capabilities in the United States and Abroad, ed. R. Kent Weaver and Bert A. Rockman (Washington, D.C.: Brookings Institution, 1993), 445–61.

Summary of Findings and Conclusion 1. On this point, see also Robert Art, ‘‘Bureaucratic Politics and American Foreign Policy: A Critique,’’ in American Foreign Policy: Theoretical Essays, ed. G. John Ikenberry (Glenview, Ill.: Scott, Foresman, 1989), 433–57, at 436; Stephen Krasner, ‘‘Are Bureaucracies Important?’’ in American Foreign Policy, ed. Ikenberry, 419–33. 2. Kenneth Waltz, Foreign Policy and Democratic Politics: The American and British Experience (Boston: Little, Brown, 1967), 62. 3. Eugene R. Wittkopf and James M. McCormick, eds., The Domestic Sources of American Foreign Policy, 4th ed. (Lanham, Md.: Rowman & Littlefield, 2004), 7. 4. Art, ‘‘Bureaucratic Politics,’’ 434.

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Index

Page numbers in bold type refer to tables. absconders, 169, 174 Act of July 22, 1996 (France), 197 Act of September 9, 1986 (France), 196 Adenauer, Konrad, 80, 81, 82 administrative subpoenas, 34, 59, 66, 74 Afghanistan, 89, 198 Algeria, 196, 197, 198 Allen, Graham, 129 Alliot-Marie, Michele, 221, 222 Allison, Graham, 8, 271, 282 Al-Qaeda, 87, 140, 194, 198–99. See also Jihadi terrorism alternative explanations, 240–43 Al-Zawahiri, Ayman, 198 Anti-Terrorism, Crime and Security Act (2001, Great Britain), 141–46, 174, 250, 273, 277, 280; indefinite detention provision in, 351n1; legislative debate and, 177; ruling on, 149–50 Antiterrorism Database Act (2006, Germany). See Gesetz zur Errichtung einer standardisierten zentralen Antiterrordatei von Polizeibeho¨rden und Nachrichtendiensten von Bund und La¨ndern (Antiterrordateigesetz, Antiterrorism Database Act, ATDG) (2006) Anti-Terrorist Branch (ATB) (Great Britain), 154–55, 180, 258 armed forces. See military Armed Islamic Group of Algeria (GIA), 194, 197 Armey, Richard, 44 Art, Robert, 10 Ashcroft, John, 32, 39, 50

Auerswald, David, 13 Authorization for the Use of Military Force (AUMF) (2001, U.S.), 58 Ayrault, Jean-Marc, 227, 229 Baader Meinhof group. See Rote Armee Fraktion (RAF) backbenchers, British, 128, 134, 146, 162–63, 260, 277 Bagehot, Walter, 3, 81, 128 Bajolet, Bernard, 219 Basic Law (Germany), 79, 84, 110, 116 Bell, David S., 185 Belmarsh case (2004), 149–50, 331n160 Bennett, Douglas, 21 Be´zat, Jean-Michel, 188 BfV. See Bundesamt fu¨r Verfassungschutz (Federal Office for the Protection of the Constitution, BfV) BKA. See Bundeskriminalamt (Federal Criminal Police Office, BKA); preventive powers of BKA BKA Act (2008, Germany), 110–15, 119–20, 121, 122, 124, 125, 249 BKA clause. See preventive powers of BKA Blair, Tony, 151, 174–5; acting presidential, 132–3; creation of intelligence coordinator position by, 147; creation of regional intelligence/law enforcement network by, 153–54; on Jihadi terrorism threat, 179; lack of cabinet routines under, 132; political power of, 140, 259, 260; precharge detention periods and, 156, 157; reorganization of Home Office by, 158,

356 Index Blair, Tony (continued ) 159, 239; support of, within party, 181, 246, 271 Blunkett, David, 141, 142, 144, 145, 146, 160 BMI. See Bundesministerium des Inneren (Federal Ministry of the Interior, BMI) BND. See Bundesnachrichtendienst (Federal Intelligence Service, BND) Border Police Service (France), 195 border security, U.S., 36, 39–41, 46, 57, 71, 258 Bouchite´, Joe¨l, 220–21 Brennan, John, 48, 49 Britain. See Great Britain Brokenshire, James, 167, 171–72 Brown, Gordon: Counter-Terrorism Act and, 161–62, 163, 272; creation of regional intelligence/law enforcement units by, 154; Home Office reorganization and, 160; on responsibilities of JIC chairman, 148, 333n224; support of, within party, 175, 260 Bruguie`re, Jean-Louis, 218 Bundesamt fu¨r Migration und Flu¨chtlinge (Federal Office for Migration and Refugees, BAMF), 93, 109–10 Bundesamt fu¨r Verfassungschutz (Federal Office for the Protection of the Constitution, BfV): analysis board run by, 100; centralization plans and, 101–2; data collection authorities of, 90, 92, 314n78; headquarters of, 317n138; informationsharing and, 93, 99, 100, 103, 105, 109–10; oversight of, 93, 318n148; relationship with state intelligence agencies, 93, 99, 109–10, 126; spyware and, 112, 121, 249 Bundeskriminalamt (Federal Criminal Police Office, BKA), 275, 280; expansion of powers of, 239; headquarters of, 317n138; reform of 2008, 110–15, 119–20, 120, 121, 122, 124, 125, 250. See also preventive powers of BKA Bundesministerium des Inneren (Federal Ministry of the Interior, BMI), 246–47; BKA clause and, 92, 94; BKA reform and, 111, 112, 114, 115, 124; counterterrorism packages and, 90, 91, 92; EU data retention directive and, 117; GTAZ and, 101, 121; joint database and, 103–4,

105–6, 256; spyware and, 112, 121, 123; TBEG Act and, 108, 109, 118. See also Bundesamt fu¨r Verfassungschutz (Federal Office for the Protection of the Constitution, BfV); Bundeskriminalamt (Federal Criminal Police Office, BKA) Bundesnachrichtendienst (Federal Intelligence Service, BND): data collection authorities of, 92, 109, 314n78; headquarters of, 317n138; information-sharing and, 100; oversight of, 93, 318n148 Bundespolizei (Federal Police, BP), 100 Bundesrat (German federal council), 86, 122, 253–54, 310n1; BKA bill in, 113–14; BKA clause and, 98–9; counterterrorism packages and, 91, 93, 94; federalism and, 85, 126; joint database and, 103, 106, 107, 126; powers of, 79, 252; TBEG act and, 109–10 Bundestag (German federal diet), 86, 253–54; BKA act in, 113, 114; BKA clause and, 98–99; counterterrorism packages and, 91, 93–94; dissolution of, 79, 311n5; federalism and, 85; joint database and, 106, 107; powers of, 79–80; TBEG act and, 109–10 Bu¨ndnis 90/Die Gru¨nen (Alliance ’90/The Greens), 82. See also Green Party (Germany) Burch, Martin, 132 bureaucratic-politics model of decisionmaking, 2, 8–11, 241, 249–51, 256, 257–58, 271, 282–83 Burke, Edmund, 286 Bush, George W.: creation of DHS and, 40–41, 42, 44, 46; creation of DNI/NCTC and, 51, 52; creation of homeland security advisor position by, 76; creation of National Security Branch by, 55; creation of OHS by, 29; creation of TSC by, 50; creation of TTIC by, 47–48; FISA reforms and, 62; NSA program and, 58; Patriot Act and, 33 Butler Report (2004), 132, 134, 148 Byrd, Robert C., 38, 53–54 cabinet, British, 128, 130–33, 140 Cabinet Office (Great Britain), 148, 158; Home Office reorganization and, 159; ISC

Index 357 and, 136, 174; JIC within, 147; National Security advisor in, 167 Cameron, David, 175; coalition government under, 164; coalition partner concerns and, 169–70, 180; control order reforms and, 168, 169–70, 260; NSC and, 148, 167, 168; Protection of Freedoms bill and, 164, 178; TPIMs bill and, 168–69, 172 Card, Andrew, 30, 40, 41, 47 Carlile, Lord Alex, 144, 152, 153, 166, 168–69, 171, 173 case study approach: benefits of, 17–18 CDSN. See Conseil de De´fense et de Se´curite´ Nationale (Defense and National Security Council, CDSN) CDU. See Christliche Demokratische Union (Christian Democratic Union, CDU) Central Intelligence Agency (CIA) (U.S.), 26, 47–48, 48–49, 54–55, 352n15 chancellor democracy, 82–3 chancellor, German: Bundestag and, 80; election of, 80; as mediator, 83, 85; powersharing and, 78, 79, 274; powers of, 82–83, 246. See also executive branch, German; Merkel, Angela; Schro¨der, Gerhard Chassaigne, Andre´, 216 checks: in British system, 128–29, 133–35, 146, 180, 264–65, 276; in French system, 214, 231–32, 265, 276; in German system, 78, 79–80, 264; judicial, 180, 214, 231–32, 264–66, 276; in U.S. system, 3, 21, 26, 28, 55, 76, 264 Cheney, Richard, 28, 29–30, 53 Cheve`nement, Jean-Pierre, 208 Chirac, Jacques, 197, 245; in cohabitation with Jospin, 187–88, 210–11; in cohabitation with Mitterrand, 188, 189; dissolution of National Assembly by, 339n9; intelligence and, 210–11, 260–61; on president/prime minister relations, 185–86, 190; security czar of, 201–2 Christliche Demokratische Union (Christian Democratic Union, CDU), 80, 86, 99, 121–22, 246–47; BKA bill and, 112, 113; in coalition with FDP, 123, 256; in coalition with SPD, 104–5, 110, 112, 114, 115, 120, 256, 322n224; counterterrorism packages and, 91–92, 93–94, 315n84; joint

database proposal and, 106; reorganization plans and, 101; TBEG bill and, 118 CIA. See Central Intelligence Agency (CIA) (U.S.) CILAT. See Comite´ Interministe´riel de Lutte Anti-Terroriste (Interministerial Committee of the Fight Against Terrorism, CILAT) CIR. See Comite´ Interministe´riel du Renseignement (Interministerial Committee of Intelligence, CIR) Clapper, James, 67, 68 Clarke, Charles, 151, 154, 155, 156, 157 Clarke, Kenneth, 174 Clarke, Peter, 139, 154 Clegg, Nick, 169–70 Clift, Ben, 190 Clinton, Bill, 21, 133 coalition agreement of 2005 (Germany), 104, 110–11 coalition agreement of 2010 (Great Britain), 164, 167, 168 coalition governments, 80, 274; CDU-FDP (Germany), 123, 256; CDU-SPD (Germany), 104–5, 110, 112, 114, 115, 120, 256; Conservatives-Liberal Democrats (Great Britain), 137, 164–65, 166, 169–70, 177; SPD-Green Party (Germany), 86, 92, 95, 99, 104, 119 Coast Guard (U.S.), 36, 39, 40, 41, 42, 46, 57 cohabitation, 187–91, 197, 244, 245, 260–61; Chirac on, 185–86; constitutional amendment regarding, 189–90; dissolution of National Assembly and, 339n9; intelligence services and, 194–95, 210–11, 219; power sharing in, 187–89; security agencies and, 251 Collins, Susan, 49, 51, 54 colonialism, terrorism related to, 194, 291n24, 294n52 Combating Terrorism Act (2006, France). See Loi relative a` la lutte contre le terrorisme et portant dispositions diverses relatives a` la se´curite´ et aux controˆles frontaliers (Combating Terrorism Act) (2006) Comite´ Interministe´riel de Lutte AntiTerroriste (Interministerial Committee of the Fight Against Terrorism, CILAT), 195, 196, 203, 209

358 Index Comite´ Interministe´riel du Renseignement (Interministerial Committee of Intelligence, CIR), 195, 219, 260 Commission Nationale de l’Informatique et des Liberte´s (Commission on Information Technology and Liberties, CNIL), 192, 214, 215, 222, 225, 238 Commission Nationale du Controˆle des Interceptions de Se´curite´ (National Commission for the Control of Security Wiretaps, CNCIS), 192, 214, 226, 238 commission reports, 29–30, 35, 57. See also 9/11 Commission Committee of Imperial Defense (Great Britain), 4 Commons. See House of Commons (Great Britain) Communist Party (France), 199, 208, 215, 216 Congress, U.S., 35–36, 36–38, 40, 74–76, 254, 284, 290n15; executive orders and, 70–72; FISA reforms and, 61–62, 63–64, 65, 68–69, 69–70; foreign policy and, 26–28; gang of eight, 59, 76, 237; Homeland Security Act and, 35–39, 41–46, 55–58, 69; Intelligence Reform Act and, 51–55, 69; Patriot Act in, 32–33, 59–60, 65–68, 69, 70; powers of, 20–23, 26–29, 272, 283, 284; president and, 21, 23–25; Protect America Act and, 63, 69, 72, 75–76, 270; reorganization of, 55–58, 76; TTIC and, 49. See also House of Representatives; Senate, U.S. Conseil de De´fense et de Se´curite´ Nationale (Defense and National Security Council, CDSN), 232, 250, 259, 276–77, 277, 279; creation of, 218–19, 228, 233 Conseil de Se´curite´ Inte´rieur (Domestic Security Council, CSI), 212–13, 250, 259, 277, 279; CDSN replacing, 219, 232; CILAT and, 209; creation of, 202–3, 228, 232; in LOPSI bill, 204 Conseil du Renseignement Inte´rieur (Domestic Intelligence Council, CRI), 209, 228, 232, 250, 259, 277, 279 Conseil National du Renseignement (National Intelligence Council, CNR), 219, 231, 233, 250, 259, 277, 279 Conservatives (Great Britain), 137, 162, 164–65, 166, 168, 169–70, 177

constitution, French, 183, 184–85, 185–86, 341n66 constitution, U.S., 21–23, 58 Constitutional Act on the Modernization of the Institutions of the Fifth Republic (2008, France), 192–93 Constitutional Council (France), 352n22; Combating Terrorism Act in, 216, 217, 232; influence of on legislation, 229; on LOPPSI II, 223; LOPSI and, 205–6; LSI and, 208; scrutiny by, 230, 265 Constitutional Court (Germany), 311n5; on data retention measures, 116, 120, 316n110; on parliamentary party discipline, 81; post-legislative scrutiny by, 123, 254, 264; surveillance powers and, 110, 111, 112, 113 constitutional law, British, 128, 129–30 Constitutional Reform Act (2005, Great Britain), 135 CONTEST strategy, 147, 330n143 control orders, 169, 179, 336nn294, 303, 351n1; debate over, 150–52, 169, 237, 336n294; ECHR and, 331n179; legislative debate and, 177–78; reform of with TPIMs, 168–74; types of, 152 Cook, Robin, 151 Corwin, Edward, 22 Council of Ministers (France), 185, 189, 204, 206, 213, 224, 225, 326n63 counterradicalization, 147, 250, 277, 279 counterterrorism, domestic: defined, 16, 290n19; focus on, 5–6 Counterterrorism Act (2001, Germany). See Gesetz zur Beka¨mpfung des internationalen Terrorismus (Terrorismusbeka¨mpfungsgesetz) Counter-Terrorism Act (2008, Great Britain), 160–64, 175, 250, 273, 277 Counter-Terrorism (Temporary Provisions) bill (2008, Great Britain), 163 Counter Terrorism Command (CTC), 250, 259, 273, 275, 280; ATB merged into, 154, 180; reorganization and, 182, 239, 258, 269, 272; Special Branch merged into, 154, 175 counterterrorism coordinator of EU, 14–15 Counter Terrorism Intelligence Units (CTIUs), 153–54, 180, 182, 250, 273, 277, 280

Index 359 counterterrorism measures, comparison tables of, 273, 275, 277 counterterrorism packages, 89–94, 98, 107–10, 119, 235, 250, 275, 280 Counterterrorism Supplemental Act (2006, Germany). See Gesetz zur Erga¨nzung des Terrorismusbeka¨mpfungsgesetzes (Counterterrorism Supplemental Act, TBEG) (2006) Counter Terrorism Units (CTUs), 250, 273, 277, 280; creation of, 154, 182; MI5 and, 180, 232, 238 Counter-Terrorist Analysis Centre. See Joint Terrorism Analysis Centre (JTAC) (Great Britain) Cowley, Philip, 137 Cox, Chris, 57 CRI. See Conseil du Renseignement Inte´rieur (Domestic Intelligence Council, CRI) Crossman, R. H. S., 131 CSI. See Conseil de Se´curite´ Inte´rieur (Domestic Security Council, CSI) Customs and Excise (Great Britain), 141 Customs Service (France), 195, 211, 213 Customs Service (Germany), 100, 105 Customs Service (U.S.), 36, 39, 40, 41, 46, 57 czar positions, 239, 250, 258, 259, 273, 275, 277, 280; in France, 201–2, 228, 244, 250, 259, 277, 279; in Great Britain, 250, 259, 273, 277, 280; in U.S., 36, 54, 258, 259, 273, 275, 279 Daalder, Ivo, 42 Daniels, Mitchell, 38, 40 Daschle, Tom, 38, 41–42, 46 data retention, 283, 293n40; in France, 199–200, 207, 226, 352n12; in Germany, 235; in Great Britain, 141–42, 145, 352n12. See also EU data retention directive; joint database, German Davis, David, 164 DCPJ. See Direction Centrale de la Police Judiciaire (Central Directorate of the Judicial Police, DCPJ) DCRG. See Direction Centrale des Renseignements Ge´ne´raux (Central Directorate of General Intelligence, DCRG) DCRI. See Direction Centrale du Renseignement Inte´rieur (Central Directorate of Domestic Intelligence, DCRI)

decision-making mode (executive vs legislative), 249–52; comparison of by country, 236; comparison tables of, 250, 273, 275, 277, 279, 280; in France, 228–29; in Germany, 120–21; in Great Britain, 175–76; as measure of government structures, 17; in U.S., 70–72, 236 decision-making processes: alternative explanations regarding, 240–43 Defence and Overseas Policy Committee for International Terrorism (Great Britain), 141 Defence Committee (Great Britain), 140 Defense and National Security Council. See Conseil de De´fense et de Se´curite´ Nationale (Defense and National Security Council, CDSN) Defense Ministry (France), 194–95, 203 de Gaulle, Charles: dissolving National Assembly, 191, 339n9; on executive pecking order, 185; presidential power and, 186–87, 190; as principal architect of constitution, 184 deparliamentarization, German, 80–82 Department of Defense (DOD) (U.S.), 352n15; creation of DNI and, 249; creation of TTIC and, 9, 47, 241, 257, 283; intelligence reforms and, 52, 53, 54, 257 Department of Homeland Security (DHS) (U.S.), 6, 259; agencies merged into, 41, 42–43, 57, 239; government reorganization and, 55–58, 270, 284–85, 352n23; Lieberman-Specter bill for, 35–56, 38–39, 41, 42, 44–45; management rules in, 42–43, 44, 45; TTIC and, 46–47, 49–50; White House proposal and, 40–42, 43–44, 45 Department of Justice (DOJ) (U.S.), 32, 39, 40, 50, 52, 58–59, 66, 67, 69, 72 detention of terrorist suspects. See indefinite detention of terrorist suspects, Great Britain; pre-charge detention of terrorist suspects DGPN. See Direction Ge´ne´rale de la Police Nationale (Directorate-General of the National Police, DGPN) DGSE. See Direction Ge´ne´rale de la Se´curite´ Exte´rieure (Directorate-General of External Security, DGSE) DHS. See Department of Homeland Security (DHS) (U.S.)

360 Index Direction Centrale de la Police Judiciaire (Central Directorate of the Judicial Police, DCPJ): investigative powers of, 200, 204–5, 207, 217, 231; magistrates and, 196–97 Direction Centrale des Renseignements Ge´ne´raux (Central Directorate of General Intelligence, DCRG), 211, 250, 277, 279; domestic focus of, 195; investigative powers of, 213, 217; merger with DST, 209–10, 217–18, 220–21, 226–27, 233, 260, 263, 277, 352n9 Direction Centrale du Renseignement Inte´rieur (Central Directorate of Domestic Intelligence, DCRI): creation of, 217–21, 239; restructuring of, 226–27, 228 Direction de la Protection et de la Se´curite´ de la De´fense (Directorate of the Protection and Security of Defense, DPSD), 195 Direction de la Surveillance du Territoire (Directorate of Territorial Surveillance, DST), 195, 211, 250, 279; investigative powers of, 217, 232; magistrates’ alliance with, 196–97, 261–62, 263, 265; merger with DCRG, 209–10, 217–18, 220–21, 233, 260, 277, 352n9 Direction du Renseignement Militaire (Directorate of Military Intelligence, DRM), 195 Direction Ge´ne´rale de la Police Nationale (Directorate-General of the National Police, DGPN), 195, 203, 213 Direction Ge´ne´rale de la Se´curite´ Exte´rieure (Directorate-General of External Security, DGSE), 209, 216, 226, 250, 259, 277, 279; intelligence center at, 211, 231, 232, 240, 264; responsibilities of, 195 Direction Ge´ne´rale de la Se´curite´ Inte´rieure (Directorate-General of Domestic Security, DGSI), 226, 227. See also Direction Centrale du Renseignement Inte´rieur (Central Directorate of Domestic Intelligence, DCRI) Directorate of Domestic Intelligence. See Direction Centrale du Renseignement Inte´rieur (Central Directorate of Domestic Intelligence, DCRI) Director of Central Intelligence (DCI) (U.S.), 47, 50, 51, 54

Director of National Intelligence (DNI) (U.S.), 259; budgetary authority of, 51–52, 54–55, 257, 258, 270; creation of, 54, 240, 249–50, 254, 284; FISA reforms and, 61–62, 63, 64, 68; intelligence reform and, 75, 239; Patriot Act renewal and, 67 disclosure powers: in France, 199–200, 201, 207, 213, 231, 240; in Germany, 99, 108–9, 115, 116, 122–23, 240; in Great Britain, 141–42, 143, 144, 145, 155, 179, 240; in U.S., 240 Division Nationale Anti-Terroriste (National Anti-Terrorism Division, DNAT), 197, 209, 218 Dixon-Smith, Robert (Baron Dixon-Smith), 144 DNI. See Director of National Intelligence (DNI) (U.S.) domaine re´serve´, 186, 202, 244, 261, 277 Domestic Intelligence Council. See Conseil du Renseignement Inte´rieur (Domestic Intelligence Council, CRI) Domestic Security Act. See Loi sur la se´curite´ inte´rieure (Domestic Security Act, LSI) (2003) Domestic Security Council. See Conseil de Se´curite´ Inte´rieur (Domestic Security Council, CSI) Domestic Security Enhancement Act (Patriot II) (2003, U.S.), 52–53, 59, 71, 307n253 Donohue, Laura, 272, 278, 279, 353n32 dragnet searches. See Rasterfahndung (dragnet searches) DST. See Direction de la Surveillance du Territoire (Directorate of Territorial Surveillance, DST) Duverger, Maurice, 191, 340n33 Eberstadt Report (1945), 4 ECHR. See European Convention on Human Rights (ECHR) Eden, Anthony, 11, 131 Eden, Oliver (Lord Henley), 167 elections, British, 134–35, 137, 150, 153 elections, German, 80, 104, 120 elections, U.S., 45–46, 53, 65, 69–70, 73 electronic surveillance, 32–33, 34, 61–65 Elgie, Robert, 184, 188–89 Elyse´e cabinet, 185, 186, 201–2, 250, 259, 277, 279

Index 361 Estrosi, Christian, 207 ethnoseparatist terrorism, 291n24, 294n52 European Convention on Human Rights (ECHR), 135, 142, 144, 149–50, 152, 166, 170, 179, 331n179 European Court of Justice (ECJ), 117, 120, 293n42 European Union (EU), 142, 143, 146, 241–42, 249; counterterrorism cooperation in, 6, 14–15. See also EU data retention directive EU data retention directive, 120, 121, 122, 236, 247, 250, 275, 280, 343n107; German implementation of, 115–17, 256, 293n42; in Great Britain and France, 293n43, 352n12 EU Intelligence Analysis Centre, 15 Europol, 15, 97, 293n47 Everyday Security Act. See Loi sur la se´curite´ quotidienne (Everyday Security Act, LSQ) (2001, France) Ewing, K. D., 135 executive branch, British, 158–60, 181, 280. See also prime minister, British executive branch, French, 183, 245, 278–79. See also president, French; prime minister, French executive branch, German, 78–79, 79–80, 80–81, 280. See also chancellor, German executive branch, U.S., 10, 20–25, 42–43, 45, 74–75. See also president, U.S. executive orders: reforms implemented by, 236, 245, 250, 272, 273, 275, 277, 279, 280; retroactive scrutiny of, 238, 254 executive orders, decision-making by in France, 228–29, 236, 244–45, 248, 249, 252, 276 executive orders, decision-making by in Germany, 101, 119, 120–21, 236, 252 executive orders, decision-making by in Great Britain, 175–76, 236, 248, 249, 252, 272, 276 executive orders, decision-making by in U.S., 70–71, 236, 249, 252, 254; Congressional oversight and, 25, 28, 37, 254; NSA program ordered by, 58–59, 254; Office of Homeland Security created by, 30, 37, 69; TTIC created by, 47–48, 70, 84, 248 executive privilege, 25, 28, 37 External Action Service, 15

Falconer, Charles (Baron Falconer of Thoroton), 151 Falkenrath, Richard, 31, 43 FBI. See Federal Bureau of Investigation (FBI) (U.S.) FDP. See Freie Demokratische Partei (Free Democratic Party, FDP) Federal Bureau of Investigation (FBI) (U.S.), 32, 41, 250, 273, 275, 279, 300n94, 352n15; in charge of domestic intelligence, 76–77; increase of state presence by, 239, 262; intelligence reforms and, 55, 74; leading TSC, 50; National Security Letters and, 66; TTIC and, 47–48. See also National Security Branch Federal Emergency Management Agency (FEMA), 36, 41, 57 federalism: German system and, 1, 4, 84–86, 250, 275, 280 Federalism Commission, 101, 102, 110, 121, 236, 249, 276 Federal Office for the Protection of the Constitution. See Bundesamt fu¨r Verfassungschutz (Federal Office for the Protection of the Constitution, BfV) Fifth Republic. See France Fillon, Franc¸ois, 186, 223 FISA. See Foreign Intelligence Surveillance Act (FISA) (1978, U.S.) FISA Amendments Act (2008, U.S.), 64–65, 70, 71, 72, 73, 75–76, 283; reauthorization of, 68–69, 70 FISA Court. See Foreign Intelligence Surveillance Court (FISA Court) Florian, Pierre, 215 Foley, Frank, 9, 198, 241, 242, 245, 251, 259–60, 261, 277, 351n4, 352n9 Foley, Michael, 133 Foreign Intelligence Surveillance Act (FISA) (1978, U.S.), 32; reforms to, 61–65, 69, 250, 273, 279. See also FISA Amendments Act (2008, U.S.); Protect America Act (2007, U.S.) Foreign Intelligence Surveillance Court (FISA Court), 32, 34–35, 59, 60, 61, 62–63, 64, 76, 283 foreign policy decision-making models, 8–10 foreign policy/national security: levels of analysis in, 1–2, 282–23 foreign secretary, British, 147, 155, 159

362 Index Foster, Christopher, 135 Fournet, Jacques, 209 France, 183–233, 241–42, 263–64, 277, 279, 285; blurring of law enforcement/intelligence in, 263, 265; colonial terrorism and, 194, 291n24, 294n52; compared with Great Britain, 276–78, 286; compared with U.S., 278–79; Fifth Republic establishment in, 183–84, 192, 233, 340n32; Jihadi terrorism and, 196–97, 197–98, 198–99, 223, 230, 291n23; perspective on 9/11 attacks, 194–99; policy inheritances of, 243–44, 245; political conditions of, 260; political culture of, 242; threat perceptions of, 245 France, influence of government structure on decision-making in, 1, 4–5, 183–94, 227–33, 282, 286; decision-making modes, 228–29, 236, 249, 251, 252; extent and nature of reforms, 230–33, 238, 240; public scrutiny and debate, 229–30; speed of response by, 243, 244–45, 248 France, post-9/11 counterterrorism responses in, 199–227, 283; CDSN, 218–19; Combating Terrorism Act, 212–17; CRI, 209; CSI, 201–4; Directorate of Domestic Intelligence, 217–21; Domestic Security Act, 206–8; Everyday Security Act, 199–201; LOPPSI II Act, 221–23; LOPSI Guidance Act, 204–6; regional connectedness, 209–12; Security Act, 223–27 France, reforms in, 250, 259, 262; extent and nature of, 230–33, 238, 240; horizontal, 258, 260–62, 266; vertical, 262–63, 267 Free Democratic Party. See Freie Demokratische Partei (Free Democratic Party, FDP) Freie Demokratische Partei (Free Democratic Party, FDP), 93–94, 116–17, 118, 122, 123, 247, 256 Friedrich, Hans-Peter, 118 Frist, Bill, 51 fusion centers, joint analysis, 250, 273, 275, 279; in France, 196, 211; in Germany, 99, 239, 262, 267; in Great Britain, 148–49; in U.S., 49, 50–51, 76–77, 239, 250, 262, 267 fusion of powers, 128–30, 246, 268. See also separation of powers

G10-Commission, 84, 92–93, 108, 122, 123, 238, 254 Gates, Robert, 26 GBA. See Generalbundesanwalt (Federal attorney general, GBA) GCHQ. See Government Communications Headquarters (GCHQ) Gemeinsames Terror-Abwehr Zentrum (Joint Counter-Terrorism Center, GTAZ), 119–22, 236, 247, 249, 250, 259, 275, 280; centralization and, 124, 126–27; creation of, 99–101; loose design of, 101, 240, 249, 256–57, 263, 275; as vertical reform, 262 Generalbundesanwalt (Federal attorney general, GBA), 95, 97, 100, 127 Gephardt, Richard, 41, 43 Germany, 78–127, 275, 280, 285; blurring of law enforcement/intelligence in, 263; compared with Great Britain, 279–81; compared with U.S., 273–76, 286–87; federal-state relationship in, 91; left-wing ideological terrorism in, 86–89, 291n24, 294n52; multilateral obligations of, 92; perspective on 9/11 attacks, 86–89; policy inheritances of, 243, 247; political conditions of, 242; political culture of, 242; threat perceptions in, 242, 247 Germany, influence of government structure on decision-making in, 1, 4–5, 78–89, 119–27, 249–51, 286; extent and nature of reforms, 123–27, 239, 240; mode of decision-making, 120–21, 236; public scrutiny/debate, 121–23, 237, 238, 253–54; speed of response by, 119–20, 235, 243, 246–47, 248, 273–74 Germany, post-9/11 counterterrorism responses in, 89–119; BKA reform, 94–99, 110–15; counterterrorism packages, 89–94; EU data retention directive, 115–17, 293n42; federal reorganization plans, 101–2; GTAZ counterterrorism center, 99–101; joint database, 101, 103–7; TBEG Act, 107–10, 117–19 Germany, reforms in, 250, 259, 262; extent and nature of, 123–27, 239, 240; horizontal, 256–57; vertical, 262 Gesetz zur Abwehr von Gefahren des internationalen Terrorismus durch das

Index 363 Bundeskriminalamt (BKA Act) (2008), 115 Gesetz zur Beka¨mpfung des internationalen Terrorismus (Terrorismusbeka¨mpfungsgesetz) (Counterterrorism Act) (2001), 91–94, 121–22 Gesetz zur Erga¨nzung des Terrorismusbeka¨mpfungsgesetzes (Counterterrorism Supplemental Act, TBEG) (2006), 107–10, 124, 250, 275, 280; reauthorization of, 117–19, 122–23 Gesetz zur Errichtung einer standardisierten zentralen Antiterrordatei von Polizeibeho¨rden und Nachrichtendiensten von Bund und La¨ndern (Antiterrordateigesetz, Antiterrorism Database Act, ATDG) (2006), 104–7, 120, 250, 275, 280 GIA. See Armed Islamic Group of Algeria (GIA) Gilmore Commission (U.S.), 35 GIRs. See Groupements d’Intervention Re´gionaux (Regional Intervention Units, GIRs) Giscard d’Estaing, Vale´ry, 190–91, 192 Glasgow airport attacks (2007), 154, 161, 175 glorification of terrorism clause, 156, 157–58 Goggins, Paul, 171 Gonzales, Alberto, 59 Gourevitch, Peter, 5 Government Communications Headquarters (GCHQ) (Great Britain), 136, 142, 147, 158, 159, 330n146 government reorganization, British, 153–55, 158–60, 175–76, 182, 239 government reorganization, French, 217–21, 232–33, 239 government reorganization, German, 101–3, 239 government reorganization, U.S., 35–43, 55–58, 75, 239 government structures, 251–52, 282–24, 286; importance of as influence, 240–41, 267; measurement of, 5, 17 Gramm, Phil, 45 Great Britain, 128–82, 241, 253, 264, 273, 277, 280, 285; blurring of law enforcement/intelligence in, 263–65; compared with France, 276–78, 286; compared with Germany, 279–81;

compared with U.S., 271–73; perspective on 9/11 attacks, 137–41; policy inheritances of, 243–44; political conditions of, 242, 259–60; political culture of, 242; separatist terrorism and, 137–39, 154; threat perceptions in, 242, 259–60. See also Home Office (Great Britain); London attacks (2005) Great Britain, influence of government structure on decision-making in, 1, 3–4, 128–37, 174–82, 286; extent and nature of reforms, 179–82, 238, 240; mode of decision-making, 175–76, 236, 249, 251–52; public scrutiny/debate, 177–79, 237, 238; speed of response, 174–75, 235, 243, 245–46, 248 Great Britain, post-9/11 counterterrorism responses in, 141–74; Anti-Terrorism, Crime and Security Act, 141–46; CounterTerrorism Act, 160–64; Home Office reorganization, 158–60; intelligence coordinator, 147–48; JTAC, 148–49; Prevention of Terrorism Act, 149–53; Protection of Freedoms Act, 164–68; regional connectedness, 153–55; Terrorism Act, 155–58; TPIMs Act, 168–74 Great Britain, reforms in, 250, 259, 262; extent and nature of, 179–82, 238, 240; horizontal, 258–60, 266–67; vertical, 262–63, 267 Green Party (Germany): BKA clause and, 96; in coalition with SPD, 86, 92, 95, 99, 104, 119; counterterrorism packages and, 92; intelligence reform and, 104, 106; opposition to BKA reform, 102 Greens (France), 216 Grenzschutzgruppe 9 (Border Guard Group 9, GSG 9), 88 Groupements d’Intervention Re´gionaux (Regional Intervention Units, GIRs), 203, 204, 231, 233, 250, 277, 279 GSPC. See Salafist Group for Preaching and Combat (GSPC) GTAZ. See Gemeinsames Terror-Abwehr Zentrum (Joint Counter-Terrorism Center, GTAZ) Gunaratna, Rohan, 198

364 Index Halperin, Morton, 8 Hamilton, Alexander, 22, 24 Hart, Gary, 36 Hart-Rudman Commission, 36 Hastert, Dennis, 33, 43, 52, 53 Haubrich, Dirk, 242 Heffernan, Richard, 133 Helms, Ludger, 130, 131 Hennessy, Peter, 132 He´risson, Pierre, 200 High Court (Cour d’Appel, France), 169, 196, 331n179 Hilsman, Roger, 11, 270, 282 Hoffmann, Leonard, 149–50 Hoffmann, Stanley, 187, 340n32 Hogg, Quintin, 129 Holder, Eric, 67 Hollande, Franc¸ois, 223–24, 226, 227, 245 Holliday, Ian, 132 Home Affairs Committee (Great Britain), 140, 143, 146; Antiterrorism bill and, 177; Counter-terrorism bill and, 161, 178; precharge detention clause and, 156, 157, 161; Protection of Freedoms Act and, 168 Homeland Security Act (2002, U.S.), 35–46, 55–58, 250, 273, 275, 279 homeland security advisor position, 30, 31, 36, 69, 76, 243, 352n23. See also Ridge, Tom Homeland Security Committee oversight (U.S.), 56–57 Homeland Security Council (HSC) (U.S.), 250, 259, 273, 275, 279; consolidation with NSC, 65; creation of, 29–31, 69; creation of DHS and, 39, 40–41 Home Office (Great Britain), 147, 170, 250, 259, 273, 277, 280. See also Great Britain; Home Office reorganization Home Office reorganization, 250, 259, 273, 277, 280; Blair and, 259–60; bureaucratic perspective on, 283; effects of, 158–60, 182, 258; executive power and, 175, 176, 266; structural perspective on, 285 House of Commons (Great Britain): Antiterrorism bill in, 139, 141–44, 177; CounterTerrorism bill in, 161, 162; decline of, 135; early elections and, 134–35; election of prime ministers and, 134; Lords and, 130, 137, 151–52, 176; powers of, 129, 136; Prevention of Terrorism bill in, 151–53;

Protection of Freedoms bill in, 166–67; rebellion in, 181; Terrorism bill in, 155–56, 157–58; TPIMs bill in, 170–71, 172–73 House of Lords (Great Britain): Antiterrorism bill in, 143–44, 144–46, 177; Commons and, 130, 151; CounterTerrorism bill in, 161, 163; powers of, 136–37, 176, 181, 264, 283; Prevention of Terrorism bill in, 151–53; Protection of Freedoms bill in, 167; Terrorism bill in, 157–58; TPIMs bill in, 173 House of Lords Act (1999, Great Britain), 137 House of Lords Reform Bill (2012, Great Britain), 137 House of Representatives (U.S.): FISA Reform Act in, 63–64, 68, 71, 72; Homeland Security Act in, 44, 46, 57; Intelligence Reform Act in, 52–53; Patriot Act in, 32–33, 60, 67–68, 71; Protect America Act in, 62 House Select Committee on Homeland Security (U.S.), 56–57 Hughes-Ryan Amendment (1974, U.S.), 26 Human Rights Act (1998, Great Britain), 135, 169 Hunter, Duncan, 52, 53–54, 71 Huntington, Samuel, 10, 270, 282 IAIP. See Information Analysis and Infrastructure Protection (IAIP) Directorate (U.S.) IMK. See Innenministerkonferenz (Interior Minister Conference, IMK) Immigration Naturalization Service (INS) (U.S.), 39, 40, 41 immigration services, German, 90, 93 immunity: for imprisoned terrorists, 88; for religious associations, 89–90; for telecommunication providers, 61, 63, 64 IMSI-catchers, 90, 108, 113, 114 incitement to commit terrorism clause, 155–56, 157 incitement to commit terrorism on the Internet, 224 incitement to religious hatred clause, 142–43, 144, 146, 176 indefinite detention of terrorist suspects, Great Britain, 156–57; adoption of, 142;

Index 365 amendments to, 144; as discriminatory, 149–50; sunset clause on, 144. See also control orders Independent Reviewer of Terrorism Legislation (Great Britain), 152, 170, 177 Information Analysis and Infrastructure Protection (IAIP) Directorate (U.S.), 46, 47, 49, 50 information sharing, 238–40; in EU, 15; government structures and, 263–66; horizontal reforms and, 255–62; vertical reforms and, 238, 262–63 information sharing, in France, 194, 204–5, 207, 209, 211, 226–27, 230–31, 238, 240 information sharing, in Germany, 239, 240, 263, 276; with antiterrorism database, 101, 103–7; counterterrorism bills and, 90, 93, 98; with GTAZ, 99–101, 100, 263; vertical, 103 information sharing, in Great Britain, 141, 161, 238 information sharing, in U.S., 74, 75, 239; with IAIP, 46, 50; with Patriot Act, 34–35; resistance to, 4, 32–33; in TTIC, 47–49; vertical, 50–51 Innenministerkonferenz (Interior Minister Conference, IMK): antiterrorism database and, 101, 103, 105–6, 107; BKA reform and, 124; formation of, 85; La¨nder influence through, 107, 126; second counterterrorism package and, 94 intelligence, British, 147–49, 153–55, 179–80, 238, 239, 240; oversight of, 136, 174. See also Government Communications Headquarters (GCHQ); Joint Intelligence Committee (JIC); Joint Terrorism Analysis Centre (JTAC); Secret Intelligence Service (MI6); Security Service (MI5); Special Branch of London’s Metropolitan Police Service (Scotland Yard) intelligence, French: oversight of, 192; prior to 9/11, 194–96. See also Direction Centrale des Renseignements Ge´ne´raux (Central Directorate of General Intelligence, DCRG); Direction Centrale du Renseignement Inte´rieur (Central Directorate of Domestic Intelligence, DCRI); Direction de la Surveillance du Territoire (Directorate of Territorial Surveillance,

DST); Direction Ge´ne´rale de la Se´curite´ Exte´rieure (Directorate-General of External Security, DGSE); Direction Ge´ne´rale de la Se´curite´ Inte´rieure (Directorate-General of Domestic Security, DGSI); Unite´ de Coordination de la Lutte Anti-Terroriste (Anti-Terrorism Coordination Unit, UCLAT) intelligence, German, 239, 240; fusion centers, 99–101; oversight of, 84, 318n148, 333n224; state involvement in, 91, 93, 95, 98, 99, 105, 110, 113. See also Bundesamt fu¨r Verfassungschutz (Federal Office for the Protection of the Constitution, BfV); Bundesnachrichtendienst (Federal Intelligence Service, BND); Gemeinsames Terror-Abwehr Zentrum (Joint CounterTerrorism Center, GTAZ); Landesamt fu¨r Verfassungsschutz (State Office for the Protection of the Constitution, LfV); Milita¨rischer Abschirmdienst (Military Counter-Intelligence Service, MAD) intelligence, U.S., 32–35, 46–55, 239, 240; oversight of, 26, 59, 64–65, 283. See also Central Intelligence Agency (CIA); Director of National Intelligence (DNI); Federal Bureau of Investigation (FBI); National Security Branch (NSB); Terrorist Threat Integration Center (TTIC, later National Counterterrorism Center [NCTC]) Intelligence and Security Committee (ISC) (Great Britain), 136, 167–68, 174, 180 Intelligence Assessments Staff (Great Britain), 136, 147 Intelligence Authorization Act (2004, U.S.), 59, 66 Intelligence Information and Analysis Center. See Nachrichtendienstliches Informations- und Analysezentrum (Intelligence Information and Analysis Center, NIAZ) Intelligence Reform and Terrorism Prevention Act (2004, U.S.), 51–55, 69, 73, 75, 250, 257, 270, 273, 275, 279 interagency coordination: in France, 195–96, 202–3, 235, 239, 261; in Germany, 95, 100, 120–21, 125; in Great Britain, 141, 147–49, 176, 258; in U.S., 30–31, 36–37, 40–41, 47–51, 74–75, 235, 258

366 Index interbranch relations, 268, 274–76; in France, 183–85, 190–93; in Germany, 78–80, 85, 94, 248, 252, 266, 268, 275–76; in Great Britain, 130–31, 135–37; in U.S., 20–29, 71, 248, 252, 256, 266, 268, 274–75 intercept evidence, use of in court, 150–51, 161, 164, 169 Interior Committee of Bundesrat, 85, 107 Interior Committee of Bundestag, 93, 97, 107, 109 Interior Ministry (France): counterterrorism authorities and, 194, 252; gendarmerie under, 203, 204, 344n129; intelligence services overseen by, 194–95; LSI bill authored by, 208; power of, 231 Interior Ministry, German. See Bundesministerium des Inneren (Federal Ministry of the Interior, BMI) internment without trial, 138, 142, 179 intraexecutive relations: in France, 183, 184–86, 187–91, 260–61, 279; in Germany, 79, 120, 274; in Great Britain, 266; in U.S., 74. See also coalition governments Irish Republican Army (IRA), 137–39, 154, 327n81 ISC. See Intelligence and Security Committee (ISC) (Great Britain) Istook, Ernest J., 37, 38 Janis, Irving, 8 Jay, John, 22 Jervis, Robert, 8–9 JIC. See Joint Intelligence Committee (JIC) (Great Britain) Jihadi terrorism: compared to Irish separatist terrorism, 138–89, 154; compared to RAF terrorism, 87, 88–89; French experience with, 196–97, 197–98, 198–99, 223, 230, 291n23; as new threat, 6, 15–16 Johnson, Loch, 26 Joint Committee on Human Rights (Great Britain), 143, 162, 171, 172, 177, 178 Joint Counter-Terrorism Center. See Gemeinsames Terror-Abwehr Zentrum (Joint Counter-Terrorism Center, GTAZ) joint database, German, 101, 119–20, 122, 235, 246, 250, 259, 319n166; Bundesrat consent for, 107, 320n182; Constitutional Court rulings on, 316n110; development

of plans for, 103–7; La¨nder interest in, 103, 105, 106, 107, 126, 256 Joint Database Act (2006, Germany). See Gesetz zur Errichtung einer standardisierten zentralen Antiterrordatei von Polizeibeho¨rden und Nachrichtendiensten von Bund und La¨ndern (Antiterrordateigesetz, Antiterrorism Database Act, ATDG) (2006) Joint Intelligence Committee (JIC) (Great Britain), 136, 147–48, 149, 330n146; chairmanship of, 148, 330n148, 333n224 Joint Terrorism Analysis Centre (JTAC) (Great Britain), 250, 259, 273, 277, 280; creation of, 148–49, 180, 240, 264 Joint Terrorism Task Forces (JTTFs) (U.S.), 51, 77, 239, 250, 273, 275, 279 Jones, G. W., 132 Jospin, Lionel, 197, 199, 227; in cohabitation with Chirac, 188, 189, 210–11, 245; domestic intelligence merger and, 210; security czar and, 202 JTAC. See Joint Terrorism Analysis Centre (JTAC) (Great Britain) judicial branch, British, 135, 145, 252. See also checks, judicial; Justice Ministry (Great Britain) judicial branch, French, 169, 196, 200–201, 208, 331n179. See also checks, judicial; Constitutional Council; Direction Centrale de la Police Judiciaire (Central Directorate of the Judicial Police, DCPJ); Justice Ministry (France); magistrates, investigating judicial branch, German. See checks, judicial; Constitutional Court (Germany); Justice Ministry (Germany) judicial branch, U.S., 23, 58–59, 254. See also checks, judicial; Department of Justice (DOJ) (U.S.); Foreign Intelligence Surveillance Court (FISA Court) Judicial Police. See Direction Centrale de la Police Judiciaire (Central Directorate of the Judicial Police, DCPJ) judicial restraints: on executive powers, 263, 264–65, 267, 269 Judiciary Committee (House, U.S.), 33, 66 Judiciary Committee (Senate, U.S.), 32, 65, 67 Justice and Security Act (2013, Great Britain), 174

Index 367 Justice Ministry (France), 208, 231, 252, 265 Justice Ministry (Germany): BKA reform and, 124–25; Bundesrat and, 252; EU data retention directive and, 116, 117; GTAZ and, 121, 257; joint database and, 104, 105, 106, 256; in opposition to BKA clause, 95, 96, 97; power of, 250–51, 264; spyware and, 113; TBEG and, 118 Justice Ministry (Great Britain), 158, 182, 239, 252 Katzenstein, Peter, 10, 84, 242, 271 Katz v. United States (1967), 58–59 Kennedy, John F., 27 Kohl, Helmut, 82 Krasner, Stephen, 9, 271 Kronzeugenregelung (principal witness statute), 88, 92 labor practices: in homeland security management, 42–43, 44, 45 Labour party (Great Britain): Commons decision-making dynamics and, 137; control orders and, 168; pre-charge detention of terrorist suspects and, 156, 157, 162–63; rebellion of 2005, 151; support for Blair in, 140, 246, 260 La¨nder (German states): BKA bill and, 112–14, 120; counterterrorism packages and, 86, 94, 98; federalism and, 85; fusion centers of, 99; GTAZ and, 101; joint database and, 105, 106, 107, 126; law enforcement/domestic intelligence in, 90, 91; powers of, 4, 125; relationship with federal government, 94–95, 98–99, 113–15, 114, 124, 247, 256, 275; Schily’s centralization plans and, 101–3; TBEG act and, 109–10. See also Bundesrat (German federal council); Innenministerkonferenz (Interior Minister Conference, IMK); Landesamt fu¨r Verfassungsschutz (State Offices for the Protection of the Constitution, LfV); Landeskriminalamt (State Criminal Police Offices, LKA) Landesamt fu¨r Verfassungsschutz (State Offices for the Protection of the Constitution, LfV), 91, 93, 99, 105 Landeskriminalamt (State Criminal Police Offices, LKA), 91, 95, 98, 105, 110, 113

Law Lords, 149–50, 175, 177, 252 Leahy, Patrick, 32, 33, 68 Lebanon, 198 Lebranchu, Marylise, 200, 201 left-wing ideological terrorism, 86–89, 291n24, 294n52 Legislative and Regulatory Reform Act (2006, Great Britain), 136 legislative branch, British, 11–12, 181, 272, 276, 286. See also House of Commons; House of Lords; Parliament, British legislative branch, French, 248, 276, 286. See also National Assembly (France); Parliament, French; Senate, French legislative branch, German, 80–81, 249, 286. See also Bundesrat (German federal council); Bundestag (German federal diet) legislative branch, U.S., 10, 249, 286. See also Congress, U.S.; House of Representatives; Senate, U.S. legislative debate. See public scrutiny/debate Le´onard, Ge´rard, 214 Letwin, Oliver, 144 Leutheusser-Schnarrenberger, Sabine, 117, 118 Levin, Carl, 49 LfV. See Landesamt fu¨r Verfassungsschutz (State Offices for the Protection of the Constitution, LfV) Liberal Democrats (Great Britain), 150, 162; in coalition with Conservatives, 137, 164–65, 166, 168–69, 177; influencing Parliamentary decision-making, 137, 153, 176; Protection of Freedoms bill and, 166; on TPIMs, 171, 172–73 Lieberman, Joseph I., 35–36, 38, 44, 45, 51, 54 LKA. See Landeskriminalamt (State Criminal Police Offices, LKA) Loewenstein, Karl, 135 Loi d’orientation et de programmation pour la performance de la se´curite´ inte´rieure (Guidance and Planning for the Effectiveness of Domestic Security Act, LOPPSI II) (2010), 221–23, 229, 231, 250, 277, 279 Loi d’orientation et de programmation pour la se´curite´ inte´rieure (Domestic Security Guidance and Planning Act, LOPSI) (2002), 204–6, 228, 229, 250, 278, 279, 344n131

368 Index Loi no. 2008–1245 du 1er de´cembre 2008 visant a` prolonger l’application des articles 3, 6 et 9 de la loi no. 2006–64 du 23 janvier 2006 relative a` la lutte contre le terrorisme et portant dispositions diverses relatives a` la se´curite´ et aux controˆles frontaliers (2008), 350n259 Loi relative a` la lutte contre le terrorisme et portant dispositions diverses relatives a` la se´curite´ et aux controˆles frontaliers (Combating Terrorism Act) (2006), 212–17, 225, 229, 230, 231, 250, 277, 279 Loi relative a` la se´curite´ et a` la lutte contre le terrorisme (Security and Anti-Terrorism Act) (2012), 223–27, 229, 250, 277 Loi sur la se´curite´ inte´rieure (Domestic Security Act, LSI) (2003), 250, 277, 279; implementing decrees for retention of communication data and, 214; justice ministry and, 231; legislative process and, 228–30; LSQ sunset provisions and, 206–7; passage of, 206–8 Loi sur la se´curite´ quotidienne (Everyday Security Act, LSQ) (2001, France), 229, 231, 235, 250, 277, 279; passage of, 199–201; sunset provisions in, 230 London attacks (2005): British responses to, 140, 153–58, 161, 175, 182, 211, 246, 248, 266; French responses to, 212–17, 228, 235, 244; German responses to, 104, 105, 235 lone wolf terrorists, 55, 60, 65, 66, 307n253 LOPPSI II. See Loi d’orientation et de programmation pour la performance de la se´curite´ inte´rieure (Guidance and Planning for the Effectiveness of Domestic Security Act, LOPPSI II) (2010) LOPSI. See Loi d’orientation et de programmation pour la se´curite´ inte´rieure (Domestic Security Guidance and Planning Act, LOPSI) (2002) Lords. See House of Lords; Law Lords LSI. See Loi sur la se´curite´ inte´rieure (Domestic Security Act, LSI) (2003) LSQ. See Loi sur la se´curite´ quotidienne (Everyday Security Act, LSQ) (2001) Mackintosh, John, 131 Macmillan, Harold, 12, 131

MAD. See Milita¨rischer Abschirmdienst (Military Counter-Intelligence Service, MAD) Madison, James, 3, 20, 22 Madrid attacks (2004): French responses to, 209–12, 235, 244; German responses to, 99–104, 115–17, 119–20, 126, 235, 246, 247 magistrates, investigating, 196–97, 261–62, 265, 342nn83, 84 Magistrates’ Syndicate (France), 208, 214 Mailhos, Pascal, 213, 218 Malmstro¨m, Cecilia, 117 Mariani, Thierry, 215 Markley, Jeff, 68 Marsaud, Alain, 220 Marshall, John, 22 Massoni, Philippe, 201–2, 203 May, Theresa, 165, 170 Mayhew, David, 21 McCain, John, 51 McConnell, Michael, 61–62, 63, 246, 270 McConnell, Mitch, 62 McCormick, James M., 286 McNulty, Tony, 162 Memorandum of Understanding on Information Sharing (2003, U.S.), 47 Merah, Mohammed, 223, 224 Mercier, Michel, 224 Merkel, Angela, 104, 106, 115, 116, 117, 120, 246, 276 MI5. See Security Service (MI5) (Great Britain) MI6. See Secret Intelligence Service (MI6) (Great Britain) Milita¨rischer Abschirmdienst (Military Counter-Intelligence Service, MAD), 90, 100, 109; data collection authorities of, 92, 105, 314n78; headquarters of, 317n138; oversight of, 93, 318n148 military: British, 130, 138; French, 193; German, 83–84; U.S., 22, 24 Military Police (Great Britain), 141, 145 Mineta, Norman, 39 Ministerial Committee on National Security (Great Britain), 159 Mitterrand, Franc¸ois, 186–87, 188, 189, 339n9 Mollaret, Laurence, 214 Montesquieu, Charles de Secondat, 3, 79, 128 Myers, Richard, 53

Index 369 Nachrichtendienstliches Informations- und Analysezentrum (Intelligence Information and Analysis Center, NIAZ), 100 National Assembly (France): Combating Terrorism Act in, 215–16; dissolution of, 184, 187–88, 191, 339n9; Domestic Security Act in, 108, 207; Everyday Security Act in, 199; LOPPSI II in, 222, 223; LOPSI in, 205; powers of, 191–94; Security Act in, 225 National Counterproliferation Center (U.S.), 54 National Counterterrorism Center (NCTC) (U.S.), 240, 259, 263–64, 275; authority over, 55, 258; responsibilities of, 76; state involvement in, 262; TTIC as foundation of, 51. See also Terrorist Threat Integration Center (TTIC, later National Counterterrorism Center) National Gendarmerie (France): coordinating with police, 203–4, 207; data access by, 213, 216, 231–32; domestic security responsibilities of, 203; intelligence capacities of, 195; under Ministry of Interior, 344n129 National Police (France). See Direction Ge´ne´rale de la Police Nationale (Directorate-General of the National Police, DGPN) National Security Act (1947, U.S.), 24, 75 National Security Agency (NSA) (U.S.), 58–59, 60, 236, 250, 273, 275, 279, 283 NSA secret program, 250, 273, 275, 279; disbanding of, 60; FISA reforms and, 63, 65; lacking scrutiny of, 254, 270; presidential authority and, 58–59, 236, 237; telecommunications companies involved with, 61 National Security Branch (NSB) (U.S.), 55, 70, 74, 273, 275, 279 National Security Council (NSC) (UK), 148, 167–68, 278, 250, 259, 273, 277, 280 National Security Council (NSC) (U.S.), 4, 24, 31, 55, 65 National Security Letters (administrative subpoenas), 34, 59, 60, 66–77 NATO, 6 NCTC. See National Counterterrorism Center (NCTC) (U.S.) Negroponte, John, 54

network-centric arrangements, 75, 126–27, 239–40, 256–57, 263–65, 267 Neustadt, Richard, 11, 20, 131, 282 NIAZ. See Nachrichtendienstliches Informations- und Analysezentrum (Intelligence Information and Analysis Center, NIAZ) 9/11 attacks, 29; as baseline for counterterrorism approaches, 5, 15–16; British perspective on, 137–41; French perspective on, 194–99; German perspective on, 86–89 9/11 Commission, 51, 55, 57, 58, 236, 249, 276 no-confidence votes, 79, 129, 191, 246, 277 Northern Ireland, 137–39, 142, 153, 156, 179, 330n145 Northern Ireland (Emergency Provisions) Act (1973–1998, Great Britain), 138 Norton, Philip, 136 NSA. See National Security Agency (U.S.) NSC. See National Security Council (UK); National Security Council (U.S.) nuclear command: British, 131; French, 186, 188; U.S., 24 Obama, Barack, 65, 67, 70, 76 Oberstar, James L., 56 Office for Security and Counterterrorism (OSCT) (Great Britain), 148, 158 Office of Homeland Security (OHS) (U.S.), 250, 259, 273, 275, 279; compared to congressional proposals for DHS, 36; creation of, 29–31; creation of DHS and, 39, 40–41 Office of Management and Budget (OMB) (U.S.), 38, 40, 47 OHS/HSC (U.S.). See Homeland Security Council (HSC) (U.S.); Office of Homeland Security (OHS) (U.S.) Olympics massacre (1972), 87 Omand, David, 147 O’Neill, Paul, 39 online searches: in France, 204–5, 207; in Germany, 111–13, 114, 115, 118, 121, 321n210. See also spyware Onslow, Michael (7th Earl of Onslow), 146 organizational-process model of decisionmaking, 8–10, 282–83. See also bureaucratic-politics model of decision-making

370 Index Osborne, Stuart, 169, 171 overnight residence measures, 170, 171 Paecht, Arthur, 220 Pannick, David (Baron Pannick), 173 Parlamentarisches Kontrollgremium (Parliamentary Control Committee), 84, 92–93, 108, 109, 112, 115, 238, 254 Parliament, British, 128–30, 135–37, 176, 253. See also House of Commons; House of Lords Parliament, French, 191, 238, 245, 253, 341nn66,71; powers of, 191–93; prime minister and, 189. See also National Assembly (France); Senate, French Parliament, German: powers of, 79–80. See also Bundesrat (German federal council); Bundestag (German federal diet) parliamentary-presidential distinctions, 11–13, 283–85 parliamentary sovereignty, 128, 129, 135–36, 142, 145–46, 252, 264, 282 parliamentary systems, 1, 4; comparison of characteristics in, 266–69, 279–81 Partei des Demokratischen Sozialismus (Party of Democratic Socialism, PDS), 106 party democracy, German, 80–82, 85–86 party government, British, 133–35 party politics, French, 190–91 Pascal, Jean-Jacques, 212 Patriot Act (2001, U.S.), 250, 273, 275, 279; passage of, 72, 270; provisions of, 32–35; reauthorizations of, 55, 60, 65–68, 69, 70, 71, 73–74, 75 Patriot II (draft version of Domestic Security Enhancement Act) (2003, U.S.), 52–53, 59, 71, 307n253 Paul, Rand, 68 Pentagon, the, 51–52, 71 PIAZ. See Polizeiliches Informations- und Analysezentrum (Police Information and Analysis Center, PIAZ) Police Information and Analysis Center. See Polizeiliches Informations- und Analysezentrum (Police Information and Analysis Center, PIAZ) policy inheritances, 7, 15, 243, 245, 247 political conditions, 6, 242, 256, 257, 259–60 political cultures, 6, 242, 255, 257, 258, 269

Polizeiliches Informations- und Analysezentrum (Police Information and Analysis Center, PIAZ), 100 post-legislative scrutiny: in France, 230, 237–38, 254; in Germany, 123, 238, 254, 264; in Great Britain, 237, 253; in U.S., 238, 254, 264 Powell, Colin, 39 power: restraint vs. facilitation of, 286 power-sharing arrangements: in Germany, 78–80, 84–86, 251; institutional reforms and, 268–69; in U.S. (separation of powers), 3, 20–21, 69, 248, 251, 351n3 pre-charge detention of terrorist suspects, 237; Counter-Terrorism Act and, 160–64; extended period of, 156–57, 160–61, 162, 163–64, 165–66, 260; in France, 215–16; in Northern Ireland, 138, 142, 156, 179; Terrorism Act and, 156–58 president, French: cohabitation and, 187–91; compared with British prime minister, 276–77; as head of domestic security council, 202–3, 232–33; intelligence services and, 210–11, 219–20; limitations on, 192–93; powers of, 183–87, 236, 244, 284, 339n10. See also Chirac, Jacques; de Gaulle, Charles; executive branch, French; Gistard d’Estaing, Vale´ry; Hollande, Franc¸ois; Mitterrand, Franc¸ois; Sarkozy, Nicolas president, U.S.: compared with British prime minister, 271–72; powers of, 21, 23–25, 27–78, 28–29, 58–59, 133, 236, 244, 278–79, 284–85; and Tom Ridge’s refusal to testify, 36–68, 40. See also Bush, George W.; executive branch, U.S.; Obama, Barack presidential directives. See executive orders presidential-parliamentary distinctions, 11–13, 283–85 presidential systems, 1; comparison of characteristics in, 266–69, 278–79, 284 Prevention of Terrorism Act (2005, Great Britain), 149–53, 175, 177–78, 250, 273, 277, 280 Prevention of Terrorism (Temporary Provisions) legislation (1974–2000, Great Britain), 138 preventive policing: in France, 200–201; in Germany, 98; in Great Britain, 179; in U.S., 74

Index 371 preventive powers of BKA, 94–99; Bundesrat veto and, 114–15; in Bundestag debates, 113; in coalition agreement of 2005, 104, 110–11; government structures and, 256; in second counterterrorism package, 90, 92; in 2008 BKA reform, 110–15, 124 prime minister, British: checks on, 133–35, 180, 246; compared with French president, 276–77; compared with U.S. president, 271–72; Home Office reorganization and, 159, 160, 175–76; House of Lords and, 137; intelligence services and, 147; national security advisor and, 168; powers of, 129–30, 236, 266–67; role of in government, 128, 129–30, 130–33. See also Blair, Tony; Brown, Gordon; Cameron, David; Eden, Anthony; executive branch, British prime minister, French: cohabitation and, 188–91; domestic security and, 202, 232–33, 244; intelligence services and, 210–11; powers of, 191–93, 236; presidential power and, 184–85, 219, 232–33. See also Ayrault, Jean-Marc; Chirac, Jacques; de Villepin, Dominique; Fillon, Franc¸ois; Jospin, Lionel; Raffarin, JeanPierre; Valls, Manuel principal witness program. See Kronzeugenregelung (principal witness statute) Privy Council Committee (Great Britain), 145 Protect America Act (2007, U.S.), 62–63, 69, 72, 73, 75–76, 250, 270, 273, 275, 279 Protection of Freedoms Act (2011, Great Britain), 164–68, 175, 177–78, 250, 273, 277, 280 Prout, Christopher (Baron Kingsland), 151–52 public scrutiny/debate: comparison of by country, 236–38; in France, 229–30; in Germany, 121–23; in Great Britain, 177–79; as measure of government structures, 17; in U.S., 72–74, 237 Question Time, 132, 192 RAF. See Rote Armee Fraktion (Red Army Faction, RAF) Raffarin, Jean-Pierre, 204, 206, 209, 227

Rasterfahndung (dragnet searches), 88, 89, 90, 95, 110–11, 113, 114 Red Army Faction. See Rote Armee Fraktion (Red Army Faction, RAF) reforms, extent and nature of, 351n4; comparison of by country, 238–40; comparison tables of, 250, 259, 262, 279, 280; in France, 230–33; in Germany, 123–27; in Great Britain, 179–82; horizontal coordination, 255–62; information sharing, 263–66; as measure of government structures, 17, 268, 284; in U.S., 74–77; vertical coordination, 262–63 regional centers for combating radical Islam (France), 211–12 regional connectedness, 238, 262–63; in France, 209–12, 233; in Great Britain, 153–54, 182 regional prefects: domestic counterradicalization centers and, 211; powers of, 207, 233, 238, 263; video surveillance and, 213 Regulation of Investigatory Powers Act (RIPA) (2000, Great Britain), 140, 143, 150–51 Reid, John, 139, 159, 160, 164 Renseignements Ge´ne´raux de la Pre´fecture de Police (General Intelligence unit of Paris Police Prefecture, RGPP), 195 republican monarchy, 183–87, 340n33 Rice, Condoleezza, 30, 31, 41 Riddell, Peter, 131, 133 Ridge, Tom, 29, 36–38, 39, 40, 258 RIPA. See Regulation of Investigatory Powers Act (RIPA) (2000, Great Britain) Roach, Kent, 273, 290n15 Rockman, Bert, 12–13, 274, 281, 290n16, 353n33 Roger, Patrick, 188 Rogers, Harold, 42 Roosevelt, Theodore, 22 Rose, Richard, 132 Rostow, Eugene, 28 Rote Armee Fraktion (Red Army Faction, RAF): counterterrorism acts in response to, 88–89; terrorism by, 87 rue Marbeuf attack (1982), 194 Rumsfeld, Donald, 52 Russell, Meg, 151, 152–53 Russell, Richard, 25, 37 Russell Amendment of 1944, 25, 37

372 Index Salafist Group for Preaching and Combat (GSPC), 194, 198 Sarkozy, Nicolas, 186, 190, 205, 212, 214, 215; counterterrorism bill of 2012 and, 224, 350n255; domestic intelligence merger and, 210, 217–18, 218–19, 220–21, 239, 260, 261, 352n9; LSI and, 206, 208; on presidential power, 185, 187 Sartori, Giovanni, 186, 291n25 Scha¨uble, Wolfgang, 104–5, 110–11, 112, 113, 114, 115, 246–47 Schilling, Warner, 11, 270, 282 Schill party (Germany), 92 Schily, Otto, 86, 104–5; BKA clause dropped by, 96; centralization efforts by, 101–2; counterterrorism packages of, 91–92; IMK and, 94 Schlesinger, Arthur, Jr., 24 Schro¨der, Gerhard, 89, 104, 246, 256–57 Sciara, Maria, 151, 152–53 Scotland Yard. See Special Branch of London’s Metropolitan Police Service SDAT. See Sous-Direction Anti-Terroriste (Anti-Terrorism Subdirectorate, SDAT) SDIG. See Sous-Direction de l’Information Ge´ne´rale (Subdirectorate for General Information, SDIG) searches: Rasterfahndung (dragnet searches), 88, 89, 90, 95, 110–11, 113, 114; sneakand-peek searches, 33, 34, 60, 118; stopand-search powers, 138, 140, 141, 155, 166, 177, 200, 202, 231; of vehicles, 138, 140, 200–201, 206–7, 231. See also spyware Secre´tariat Ge´ne´ral de la De´fense Nationale (Secretariat General of National Defense, SGDN), 195 Secret Intelligence Service (MI6) (Great Britain), 142; Home Office reorganization and, 158, 159; JIC and, 147, 330n146; oversight of, 136, 147; powers of, 179 Secret Service (U.S.), 41, 57 Security Act (2012, France). See Loi relative a` la se´curite´ et a` la lutte contre le terrorisme (Security and Anti-Terrorism Act) (2012) security advisors. See czar positions; homeland security advisor position Security Service (MI5) (Great Britain), 149, 150, 160, 250, 273, 277, 280; ATB working with, 154–55, 180, 258; JIC and, 147,

330n146; JTAC housed in, 149, 240, 264; oversight of, 136, 147; regional offices of, 153, 182, 211, 238; reorganization of, 153, 175 Select Committee on Homeland Security (U.S.), 43–44 Senate, French: Combating Terrorism Act in, 216–17; Domestic Security Act in, 206, 207, 208; Everyday Security Act in, 199; powers of, 193; LOPPSI II in, 222; LOPSI in, 205; Security Act in, 225 Senate, U.S., 36–38, 40–41, 42, 69–70, 72–73; DHS reorganization in, 57; FISA reforms in, 63–64, 68–69, 72; Homeland Security Act in, 38–39, 44, 45–46, 71; Intelligence Reform Act in, 51–52; Patriot Act in, 32–33, 67, 68, 72; Patriot Reauthorization Act in, 60, 71; powers of, 21; Protect America Act in, 62 Sensenbrenner, James, 33, 52–53, 56, 57, 71 separation of powers: in France, 193; in Germany, 78, 83, 85, 113; political cultures and, 286; in U.S., 3, 20–21, 69, 248, 251, 351n3. See also fusion of powers; Trennungsgebot principle (separation of intelligence and police powers) separatist terrorism, 137–39, 194, 196, 291n24 September 11, 2011. See 9/11 attacks Service de Coope´ration Technique Internationale de Police (Service of International Technical Police Cooperation, SCTIP), 209, 210 Shays, Christopher, 57 Siddiqui, Zeeshan, 169 Silverstein, Gordon, 23 Skybolt affair, 11 Smith, Jacqui, 160, 162, 163 sneak-and-peek searches, 33, 34, 60, 118 Social Democratic Party. See Sozialdemokratische Partei Deutschlands (Social Democratic Party, SPD) Socialist Party (France), 208, 214, 215, 216–17 Sous-Direction Anti-Terroriste (AntiTerrorism Subdirectorate, SDAT), 218, 221, 233 Sous-Direction de l’Information Ge´ne´rale (Subdirectorate for General Information, SDIG), 226–27

Index 373 Sozialdemokratische Partei Deutschlands (Social Democratic Party, SPD): BKA bill and, 112, 113, 114, 126; in coalition with CDU, 104–5, 110, 112, 114, 115, 120, 125, 126, 256, 322n224; in coalition with Greens, 86, 92, 95, 99, 104, 119; decisionmaking in Bundesrat and, 114–15; joint database and, 104, 105, 106; opposition to BKA clause, 95; second counterterrorism package and, 91, 92–93 SPD. See Sozialdemokratische Partei Deutschlands (Social Democratic Party, SPD) Special Branch of London’s Metropolitan Police Service (Scotland Yard): control orders and, 150; MI5 and, 149; reorganization of, 154–55, 160, 175, 180, 239, 258; TPIMs and, 173 Special Immigration Appeals Commission (Great Britain), 145 Specter, Arlen, 33, 35, 36, 38 speed of response: comparison of by country, 235; in France, 225–26, 227–28, 229–30; in Germany, 91, 116, 119–20, 273–74; in Great Britain, 174–75, 271; as measure of government structures, 17; in U.S., 69–70, 271 spyware: French, 221–23, 231; German, 111, 112, 114, 123, 221, 236, 237, 249, 254. See also online searches state governments. See La¨nder (German states) State of the Union address, presidential, 21, 47, 48 Steinbruner, John, 8 Stevens, Ted, 38 stop-and-search powers, 138, 140, 141, 155, 166, 177, 200, 202, 231 stovepiped departments, 4, 39, 75, 99, 126–27 structural analysis, 8–13, 16, 269–81; BritishFrench comparison and, 276–78; BritishGerman comparison and, 279–81; BritishU.S. comparison and, 271–73; GermanU.S. comparison and, 273–76; U.S.French comparison and, 278–79 structural school of decision-making: debate within, 3; evaluation of, 269–71; focus of, 1–2; significant questions for, 283–84 Suez crisis, 11, 131 suicide attacks. See Jihadi terrorism

Suleiman, Ezra, 184–85, 187 sunset provisions: to British bills, 144, 152, 177, 237, 351n1; to French bills, 206, 225, 230, 238; to German bills, 92, 119, 122–23; scrutiny and, 253, 255, 270; to U.S. bills, 33, 53, 59–60, 62–68, 73 Supreme Court (Great Britain), 135, 252 Supreme Court (U.S.), 58–59, 254 surveillance: electronic, 32–33, 34, 61–65; by video cameras, 113, 205, 206, 212–13, 214, 222; warrantless, 58–59, 61–64, 98. See also wiretaps Sutherland, George, 23, 26 Taft, William Howard, 23, 25 tangible records, 34, 60, 65, 240 TBEG Act (2011, Germany). See Gesetz zur Erga¨nzung des Terrorismusbeka¨mpfungsgesetzes (Counterterrorism Supplemental Act, TBEG) (2006) telecommunication providers: data retention by in EU, 14, 115–16, 247, 343n107; data retention by in France, 199–200, 207, 213–14, 217; data retention by in Germany, 90, 108; data retention by in Great Britain, 141–42, 199–200; immunity granted to in U.S., 61, 64 Tenet, George, 47 terrorism: anticolonialist, 194, 291n24, 294n52; British experience with, 137–40; definitions of, 150, 196; European states’ experience with, 6, 15–16; French experience with, 194–99; German experience with, 86–89; left-wing ideological, 86–89, 291n24, 294n52; separatist, 137–39, 194, 196, 291n24. See also Jihadi terrorism Terrorism Act (2000, Great Britain), 139–40, 142, 143, 144, 150, 156, 166 Terrorism Act (2006, Great Britain), 155–58, 166, 175, 178, 250, 273, 277, 280, 335n265 Terrorism Prevention and Investigation Measures (TPIMs) Act (2011, Great Britain), 168–74, 175, 177, 178–79, 250, 273, 277, 280, 336n303 Terrorist Screening Center (TSC), 50, 70, 250, 259, 273, 279 Terrorist Threat Integration Center (TTIC; later National Counterterrorism Center), 250, 259, 273, 275, 279; bureaucratic perspective on, 241, 283, 352n15; creation

374 Index Terrorist Threat Integration Center (continued ) of, 47–49; decision-making around, 70, 256–57 terrorist training camps, 100, 105, 106, 169, 224–25 third pillar EU measures, 142, 143, 146 Thompson, Fred, 38 Thornberry, William M. ‘‘Mac,’’ 35, 38 threat perceptions: in France, 245; in Germany, 89, 247, 352n11; in Great Britain, 259–60; in U.S., 244; varying by country, 6, 17, 242, 245, 351n6, 352n11 Tocqueville, Alexis de, 3, 23 TPIMs Act. See Terrorism Prevention and Investigation Measures (TPIMs) Act (2011, Great Britain) Transportation Security Administration (TSA) (U.S.), 41, 42, 57 Transport Police (Great Britain), 141, 145 Trennungsgebot principle (separation of intelligence and police powers, Germany), 96–97, 99, 100, 102, 125 Troubles, the (1968–1998), 137–39, 142, 179 Truman, Harry, 27 TSC. See Terrorist Screening Center (TSC) Tsebelis, George, 13, 274, 285 TTIC. See Terrorist Threat Integration Center (TTIC, later National Counterterrorism Center) Turner, Jim, 57 UCLAT. See Unite´ de Coordination de la Lutte Anti-Terroriste (Anti-Terrorism Coordination Unit, UCLAT) UMP. See Union pour un Mouvement Populaire (Union for a Popular Movement, UMP) Union pour un Mouvement Populaire (Union for a Popular Movement, UMP), 202, 205, 229 Unite´ de Coordination de la Lutte AntiTerroriste (Anti-Terrorism Coordination Unit, UCLAT): CNR and, 219; CRI compared to, 209; CSI and, 202–3; DGSE and, 211, 240; establishment of, 195–96; evolution of, 230–31; telecommunications data and, 217 UN Resolution 1373, 92, 241, 243, 244

United States, 20–77, 254, 273, 275, 279, 352n21; blurring of law enforcement/ intelligence in, 263, 264; compared with France, 278–79, 285; compared with Germany, 273–76, 285, 286–77; compared with Great Britain, 11–13, 271–73, 285; political conditions of, 242; political culture of, 242, 258; threat perceptions in, 242, 244 United States, influence of government structure on decision-making in, 1, 3, 20–29, 69–77, 286; decision-making mode, 70–72, 236, 249–51; extent and nature of reforms, 74–77, 239, 240; public scrutiny/debate, 72–74, 237, 238; speed of response, 69–70, 235, 243, 246, 248 United States, post-9/11 counterterrorism responses in, 29–69; Congressional reorganization, 55–58; Department of Homeland Security, 35–46; FBI National Security Branch, 55; FISA reforms, 61–65, 68–69; Intelligence Reform Act, 51–55; Office of Homeland Security, 29–31; Patriot Act, 32–35, 59–60, 65–68; secret NSA program, 58–60; TTIC/TSC, 46–51 United States, reforms in, 250, 259, 262; extent and nature of, 74–77, 256–58; horizontal, 256, 257–58, 266; vertical, 262, 267 United States v. Curtiss-Wright Export Corp. (1939), 23 Unite´ Enqueˆte Judiciaire (Judicial Investigation Unit), 197 urgence de´clare´e procedure, 205, 216, 229 U.S.A. Patriot Act (2001). See Patriot Act (2001, U.S.) Vaillant, Daniel, 198, 199, 200–201, 202, 203, 208 Valls, Manuel, 224, 225–26, 227 Veness, David, 149 vertical reforms, 50–51, 103, 238, 262–63, 267 veto powers: in British Parliament, 136, 176, 326n63; of French president, 189, 285; in Germany, 285, 286; of U.S. president, 21, 285, 286 Vigipirate plan, 202, 223 Villepin, Dominique de, 209, 211, 212, 213, 215, 227

Index 375 Waddington, David (Baron Waddington), 142–43 Waltz, Kenneth, 12, 271–72, 274–75, 285, 286 War Powers Resolution (1973, U.S.), 26, 27 warrantless surveillance, 58–59, 61–64, 98 Weaver, R. Kent, 12–13, 274, 281, 290n16, 353n33 Westminster system. See legislative branch, British whips, parliamentary, 82, 134, 157, 176 white paper on domestic security against terrorism (France), 198, 212 white papers on defense and national security (France), 198, 218–19 Wilson, Woodrow, 21, 23, 131

Winnick, David, 156–57 wiretaps: admissibility in British court, 150–51; in BKA act, 113; FISA reforms and, 62; French oversight of, 192; in Patriot Act, 33, 34–35; preventive, 111; roving, 34, 60, 65, 240; in second German counterterrorism package, 90; secret NSA program for, 58–59; warrantless, 62, 63, 98; warrants for from FISA Court, 32 Wittkopf, Eugene R., 286 Wyden, Ron, 68 Young, Don, 42, 56, 57 Zegart, Amy, 9, 241, 257, 351n3, 352n15 Zypries, Brigitte, 112, 126

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Acknowledgments

I owe a tremendous amount of gratitude to a variety of people and institutions. This book would not have been possible without their inspiration, support, and generosity. In fact, I first developed a passion for government systems, bureaucracies, and national security decision-making processes at the National War College in Washington, D.C. During my six year tenure at Fort McNair, I met many of the fine scholars and practitioners whose guidance and friendship have been invaluable to me. Among the War College crowd, I owe particular thanks to my mentor and friend, Bard O’Neill. I also could not have written this book without Michael Mazarr (who inspired my passion for case studies and the Department of Homeland Security) and Teresa Sabonis-Helf (who has been incredibly supportive throughout the years). Harvey Rishikof, Frank Mora, Mark Pizzo, David Auerswald, and Captain Tom Hale cheerfully provided assistance at critical points of the process. I have since moved on to The Catholic University of America, where my colleagues in the politics department have been kind to protect my time. More important, I can always count on them for precious advice; I am especially indebted to Wallace Thies, Phil Henderson, and Claes Ryn. At CUA, I have also benefited from countless discussions with my students. The comparative politics class I taught in spring 2012 will forever stand out in this regard. Among the wonderful students who have inspired my research, writing, and teaching, Ryan Ososki, Mark Niedziela, Andrew Tomasello, and C. J. Finelli must be mentioned. Among the many students I taught at American University, I was fortunate to have had Gianluca La Manno and Benjamin Schorr in my classes. During my time at AU, my ‘‘U.S. Foreign Policy’’ colleagues further enabled my passion for decisionmaking processes and policy-making through many conversations and classes I taught. Shoon Murray, Sharon Weiner, Tony Quainton, and Jordan Tama deserve special thanks for this.

378 Acknowledgments

I could not have asked for better editorial guidance. Peter Agree and Bill Finan supported this book from day one. I am thankful for the assistance and encouragement I received through numerous emails, phone calls, and meetings. I also thank the reviewers for offering feedback on the manuscript and am especially appreciative of ‘‘reviewer 1’s’’ constructive criticisms and time. During the various stages of the manuscript, the book also greatly benefited from the advice of an eclectic group of scholars and policy-makers. Among them, Peter Katzenstein, Mark Rozell, Rainer Stentzel, Guido Steinberg, and Ulrich Schneckener are of particular importance, as their comments, questions, and suggestions significantly added to the quality of the book. In a more general sense, I continue to profit from the wisdom of Professor Dr. Wilfried von Bredow, who many years ago taught me the intricacies of international relations and the value of qualitative analysis. Likewise, I could not have conducted this many personal interviews in the United States, Germany, Britain, and France without the financial support from the Earhart Foundation, the Embassy of France, the Horowitz Foundation for Social Policy, and the American Institute of Contemporary German Studies (AICGS). My interview partners were extremely generous with their time and in sharing their expertise with me, all the while greatly enhancing my understanding of old and new counterterrorism approaches, political and organizational cultures, and government structures at work. On a personal note, I want to thank Guy Ziv, Thomas Rausch, and Jesse Astbury for their friendship and for making me laugh. I will be forever grateful to my dear parents for allowing me to pursue my dreams. Iris, you are the best friend, sister, and academic consultant one could have! Last but not least, thank you, Benjamin and Aedi, for always being there for me.