Counterterrorism and the State: Western Responses to 9/11

Counterterrorism and the State

COUNTERTERRORISM AND THE STATE

WESTERN RESPONSES TO 9/11

DORLE HELLMUTH

UNIVERSITY OF PENNSYLVANIA PRESS

PHILADELPHIA

Copyright © 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.

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Printed in the United States of America on acid-free paper

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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

To Benjamin

Contents

List of Abbreviations

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 Counterterrorism Decision-Making

Summary of Findings and Conclusion

Notes

Index

Acknowledgments

Abbreviations

United States

Germany

Great Britain

France

Miscellaneous

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 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 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 serves as the implicit, if unattainable, ideal for many critics of existing American political institutions.¹⁰ The study of reorganization à 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 informal powers for the French president and result in higher structural barriers in the German case, where the Länder (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-à-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 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 States²¹ 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 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 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 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, first-wave 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.

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 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 hands-on 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 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

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 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 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.

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.

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)