War makes the state, but not as it pleases: Homeland security and American anti-statism

Security Studies

Volumn 15, Issue 2, 2006, Pages 225-270

  Kroenig, Matthew ^a   Stowsky, Jay ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33747096895     PISSN: 09636412     EISSN: 15561852     Source Type: Journal    
DOI: 10.1080/09636410600829489     Document Type: Article

References (291)

1. A selection of the proposals to create federal strategies, agencies, and departments to counter the terrorist threat include the following: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162 (USA PATRIOT Act), 24 October 2000
2. Homeland Security Act of 2002, H.R. 5005, 22 November 2002
3. Aviation and Transportation Security Act of 2001, S. 1447, 16 November 2001
4. Military Order of 13 November 2000 Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism
5. Bill to Establish a Homeland Intelligence Agency (short title: Foreign Intelligence Collection Improvement Act of 2003), S.410, 13 February 2003
6. President's Critical Infrastructure Protection Board, "National Strategy to Secure Cyberspace," draft released 18 September 2002, available at http://csrc.nist.gov/policies/cyberstrategy-draft.pdf; and the Pentagon's Total Information Awareness Program.
7. Popular books that take this position include James Bovard, Terrorism and Tyranny: Trampling Freedom, Justice, and Peace to Rid the World of Evil (New York: Palgrave Macmillan, 2003)
8. and Robert O'Harrow, No Place to Hide: Our Emerging Surveillance Society (New York: Free Press, 2005).
9. Major media outlets, such as the Washington Post and the New York Times, have written countless news stories and editorials about the expansion of executive power under the Bush administration, including "A Travesty of Justice," editorial, New York Times, 16 November 2001, A24
10. "Justice Deformed: War and the Constitution," editorial, New York Times, 2 December 2001, Sec. 4, 14
11. William Safire, "You Are a Suspect," New York Times, 14 November 2002, A35
12. "Too Much Power," editorial, Washington Post, 4 January 2004, B06
13. and Michael Powell, "No Choice, but Guilty," Washington Post, 29 July 2003, A01.
14. The American Civil Liberties Union (ACLU) has issued dozens of action items, position papers, and press releases about a perceived government assault on civil liberties, including "ACLU Calls on President Bush to Disavow New Cyber-Spying Scheme That Seeks to Put Every American under Scrutiny," 14 November 2002, available at http://www.aclu.org.
15. Conservative politicians have even sounded warning bells. Representative Ron Paul (R-Tex.), for example, issued a number of speeches, statements, and press releases, including "Police State USA," Texas Straight Talk: A Weekly Column, 10 August 2004, available at http://www.house.gov/paul
16. and "Is America a Police State?" statement on the floor of the House of Representatives, 27 June 2002.
17. Recent works on the relationship between war and state building are Bruce D. Porter, War and the Rise of the State: The Military Foundations of Modern Politics (New York: Free Press, 1994)
18. and Charles Tilly, Coercion, Capital, and European States, AD 990-1990 (Oxford: Blackwell, 1992).
19. For a discussion of crisis and state growth in the United States, see Robert Higgs, Crisis and Leviathan: Critical Episodes in the Growth of American Government (Oxford: Oxford University Press, 1987).
20. This article focuses on the state's mobilization strategies and its regulatory and investigative powers. The state's extractive powers have not expanded in the wake of September 11 either; the Bush administration has not raised taxes or reinstated conscription, although it has (controversially) extended tours of duty for both the armed services and the National Guard. Furthermore, although the new Department of Homeland Security has millions of dollars' worth of private contracts, it has not sought to mobilize American industry in any centrally directive way.
21. According to Charles Tilly, war makes the state and the state makes war. Tilly, Coercion, Capital, and European States, 67-95.
22. Karl Marx once wrote that "men make their own history, but they do not make it just as they please; they do not make it under self-selected circumstances, but under circumstances directly encountered, given, and transmitted from the past." Karl Marx, 18th Brumaire of Louis Bonaparte (New York: International Publishers, 1963), 1.
23. See Peter Gourevitch, "The Second Image Reversed: The International Sources of Domestic Politics," International Organization 32, no. 4 (Autumn 1978): 881-911.
24. Tilly, Coercion, Capital, and European States, 67-95.
25. For a competing explanation of the rise of the international state system, see Henrik Spruyt, The Sovereign State and Its Competitors (Princeton: Princeton University Press, 1996).
26. Porter, War and the Rise of the State.
27. Michael C. Desch, "War and Strong States, Peace and Weak States?" International Organization 50, no. 2 (Spring 1996): 237.
28. Karen A. Rasler and William R. Thompson, War and State Making: The Shaping of the Global Powers (Boston: Unwin Hyman, 1989), 2.
29. Brian Downing, The Military Revolution and Political Change (Princeton: Princeton University Press, 1992)
30. Gourevitch, "Second Image Reversed"
31. and Otto Hintze, "Military Organization and the Organization of the State," in The Historical Essays of Otto Hintze, ed. Felix Gilbert (New York: Oxford University Press, 1975), 178-215.
32. Steven D. Krasner, "Approaches to the State: Alternative Conceptions and Historical Dynamics," Comparative Politics 16, no. 2 (January 1984): 223-46.
33. Jeffrey Herbst, States and Power in Africa (Princeton: Princeton University Press, 2000).
34. Fernando López-Alves, "The Transatlantic Bridge: Mirrors, Charles Tilly, and State Formation in the River Plate," in The Other Mirror: Grand Theory through the Lens of Latin America, ed. Miguel Angel Centeno and Fernando López-Alves (Princeton: Princeton University Press, 2000).
35. Dani Rodrik, Has Globalization Gone Too Far? (Washington: Institute for International Economics, 1997).
36. Peter A. Hall and David W Soskice, eds., Varieties of Capitalism: The Institutional Foundation of Comparative Advantage (New York: Oxford University Press, 2001)
37. and Steven Vogel, Freer Markets, More Rules: Regulatory Reform in Advanced Industrial Democracies (Ithaca: Cornell University Press, 1998).
38. Higgs, Crisis and Leviathan.
39. Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities (New York: Cambridge University Press, 1982).
40. This view was advanced in the various writings cited in note 2.
41. John Yoo has argued that unilateral executive-branch measures for dealing with security threats are consistent with the Constitution and have rich historical precedent. See John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (Chicago: University of Chicago Press, 2005).
42. "ACLU Calls on President Bush to Disavow New Cyber-Spying Scheme."
43. Safire, "You Are a Suspect."
44. Paul, "Police State USA."
45. Other definitions include the state as ruling class, the state as government, and the state as normative order. See Stephen Krasner, "Approaches to the State: Alternative Conceptions and Historical Dynamics," Comparative Politics 16, no. 2 (January 1984): 238.
46. Stephen Krasner operationalizes the state as the central decision makers in the executive branch, specifically the "President and those [executive] bureaus relatively insulated from societal pressures." Stephen Krasner, Defending the National Interest: Raw Materials Investments and U.S. Foreign Policy (Princeton: Princeton University Press, 1978), 62.
47. For literature on the state, see Peter B. Evans, Embedded Autonomy (Princeton: Princeton University Press, 1995)
48. Peter B. Evans, Dietrich Rueschmeyer, and Theda Skocpol, eds., Bringing the State Back In (Cambridge: Cambridge University Press, 1985)
49. Peter Katzenstein, ed., Between Power and Plenty: Foreign Economic Policies of Advanced Industrialized Economies (Madison: University of Wisconsin Press, 1978)
50. Krasner, Defending the National Interest
51. Krasner, "Approaches to the State"
52. Joel Migdal, Strong Societies and Weak States (Princeton: Princeton University Press, 1988)
53. Alfred C. Stepan, The State and Society: Peru in Comparative Perspective (Princeton: Princeton University Press, 1978)
54. Ellen Kay Trimberger, Revolutions from Above: Military Bureaucrats and Development in Japan, Turkey, Egypt, and Peru (New Brunswick: Transaction, 1978)
55. and Fareed Zakaria, From Wealth to Power (Princeton: Princeton University Press, 1999).
56. Desch, "War and Strong States," 241 Michael C. Desch, "War and Strong States, Peace and Weak States?" International Organization 50, no. 2 (Spring 1996):
57. Friedberg, In the Shadow of the Garrison State, 10
58. Theda Skocpol, "Bringing the State Back In: Strategies of Analysis in Current Research," in Evans, Reuschmeyer, and Skocpol, Bringing the State Back In, 15
59. and Krasner, Defending the National Interest, 55. Stephen Krasner, Defending the National Interest: Raw Materials Investments and U.S. Foreign Policy (Princeton: Princeton University Press, 1978), 62.
60. On strong and weak states, see Katzenstein, Between Power and Plenty. Peter Katzenstein, ed., Between Power and Plenty: Foreign Economic Policies of Advanced Industrialized Economies (Madison: University of Wisconsin Press, 1978)
61. On minimal vs. maximal states, see Desch, "War and Strong States," 241. Desch, "War and Strong States," 241 Michael C. Desch, "War and Strong States, Peace and Weak States?" International Organization 50, no. 2 (Spring 1996):
62. Desch, "War and Strong States," 245 Desch, "War and Strong States," 245 Michael C. Desch, "War and Strong States, Peace and Weak States?" International Organization 50, no. 2 (Spring 1996):
63. Rasler and Thompson, War and State Making, 209. Karen A. Rasler and William R. Thompson, War and State Making: The Shaping of the Global Powers (Boston: Unwin Hyman, 1989), 2.
64. These are the six elements of the U.S. National Strategy for Homeland Security, released July 2002, available at http://www.whitehouse.gov.
65. For a small sample of the many articles and books citing these cases as real or potential expansions of executive power, see Dhalia Litwak and Julia Turner, "A Guide to the Patriot Act, Part I: Should You Be Scared of the Patriot Act?" Slate.com, 8 September 2003, available at http://slate.msn.com/id/2087984/
66. Anthony Lewis, "License to Torture," New York Times, 15 October 2005, A19
67. Carson Carlson, "IT Warns Against Slippery Slope to Regulation," E-Week.com, 22 November 2002, http://www.eweek.com/article2/0,1759,1662335,00.asp
68. Kate O'Beirne, "Encountering Turbulence: So How Goes the Federal Takeover of Airline Security?" National Review, 17 June 2002, available at http://www.nationalreview.com/issue/kob061702.asp
69. Gail Russell Chaddock, "Security Act to Pervade Daily Lives," Christian Science Monitor, 21 November 2002, available at http://www.csmonitor.com/2002/1121/p01s03-usju.html
70. ACLU, "ACLU Criticizes Federal Commission Internal CIA Recommendation; Questions Need for Domestic Intelligence Agency," 16 December 2002, available at http://www.aclu.org.
71. USA Patriot Act.
72. When Attorney General John Ashcroft first introduced the Patriot Act legislation, he gave Congress one week to pass the bill_without changes. After minor modifications and hurried negotiations, the bill passed the Senate 98-1 and the House 357-66. The bill became law less than one month after the its introduction. Robert O'Harrow, Jr., "Six Weeks in Autumn," Washington Post, 27 October 2002, W06.
73. ACLU, "On Eve of War, New Right-Left Coalition Forms to Fight Justice Department Plans for Legislation That Would Diminish Liberty, Fail to Bolster Security," 17 March 2003, available at http://www.aclu.org
74. and Edward Epstein, "Left and Right United to Challenge Patriot Act Provisions," San Francisco Chronicle, 23 March 2005, A3.
75. For instance, see John Cristofferson, "Judge Rules against Government in Patriot Act Case," Associated Press, 9 September 2005.
76. Dan Eggen, "Congress Urged to Renew Patriot Act: Minor Changes Would Address Concerns, Gonzales and Mueller Tell Senate Panel," Washington Post, 6 April 2005, A17.
77. "Ashcroft Kicks Off Campaign to Defend Patriot Act," CNN.com, 19 August 2003
78. and Michael Fletcher, "President Calls on Congress to Extend Patriot Act Provisions," Washington Post, 21 July 2005, A06.
79. E. J. Dionne, Jr., "Their Own Patriot Act," Washington Post, 20 December 2005, A31.
80. Charles Babington, "Congress Renews Patriot Act, with Changes," Washington Post, 8 March 2006, A03.
81. Alison Mitchell, "Letter to Ridge Is Latest Jab in Fight over Balance of Powers," New York Times, 5 March 2002, A8.
82. Department of National Homeland Security Bill of 2001, S. 1534, 11 October 2001.
83. Quoted in Brody Mullins, "Ridge: Bush Should Veto Cabinet-Level Homeland Security Office," Congress Daily, 30 May 2002, available at http://www.govexec.com/dailyfed/0502/053002cd1.htm.
84. Hearings held by the Senate Committee on Governmental Affairs include "Critical Infrastructure Protection: Who's in Charge?" 4 October 2001
85. "Has Airport Security Improved?" 14 November 2001
86. "How Secure Is Our Critical Infrastructure?" 12 September 2001
87. "Legislative Options to Strengthen Homeland Defense," 12 October 2001
88. "The Local Role in Homeland Security," 11 December 2001
89. "Public Hearing to Discuss Legislation to Establish a Department of National Homeland Security and a White House Office to Combat Terrorism," 11 April 2002
90. "Responding to Homeland Threats: Is Our Government Organized for the Challenge?" 21 September 2001
91. "Riding the Rails: How Secure Is Our Passenger and Transit Infrastructure?" 13 December 2001
92. "Weak Links: Assessing the Vulnerability of U.S. Ports and Whether the Government Is Adequately Structured to Safeguard Them," 6 December 2001
93. and "Weak Links: How Should the Federal Government Manage Airline Passenger and Baggage Screening?" 25 September 2001.
94. Press criticisms include Jo Warrick and Joe Stephens, "Before Attack: U.S. Expected Different Hit: Germ Agents Focus of Preparations," Washington Post, 2 October 2001, A01
95. Matthew Wald, "Earlier Hijackings Offered Signals That Were Missed," New York Times, 3 October 2001, B2
96. and Steve Fainaru and James V. Grimaldi, "FBI Knew Terrorists Were Using Flight Schools," Washington Post, 23 September 2001, A24.
97. Bush gave a televised address to the nation calling for a cabinet-level department on 6 June 2002. A short report titled "The Department of Homeland Security" was posted on the White House website the same day.
98. Homeland Security Act of 2002, H.R. 5005, 22 November 2002.
99. According to the Homeland Security Act of 2002, the department's primary responsibilities correspond to the five major functions identified in the bill: Information analysis and infrastructure protection; chemical, biological, radiological, nuclear, and related countermeasures; border and transportation security; emergency preparedness and response; and coordination with other parts of the federal government, with state and local governments, and with the private sector. The act also directs the department to continue to carry out other functions of the agencies it will absorb.
100. Susan B. Glasser and Josh White, "Storm Exposed Failure at the Top," Washington Post, 4 September 2005, A01
101. Charles Mann, "Homeland Insecurity," Atlantic Monthly 290, no. 2 (September 2002), available at http://www.theatlantic.com/doc/prem/ 200209/mann
102. Tim Naftali, "Department of Homeland Security Screw-Up: What Is the Bush Administration Doing?" Slate.com, 6 September 2005, available at http://www.slate.msn.com.
103. Daniel Eisenberg, "How Safe Can We Get? The System Has Been Vulnerable for Years; Marginal Improvements Aren't Enough," Time, 24 September 2001, available at http://www.time.com/time/covers/1101010924/bsecurity.html.
104. Ibid.
105. Ibid.
106. Aviation and Transportation Security Act, S. 1447, 11 October 2001.
107. The Airport Security Federalization Act, H.R. 3150, 1 November 2001.
108. Representative Don Young (R-Alaska), Chairman of the House Transportation and Infrastructure Committee, said in his statement to the floor that in the House bill, "the Federal government will take over the job of screening passengers and their baggage at our airports.... [W]here we differ from some of our colleagues is how do we best achieve the goal of a truly secure federally controlled aviation screening process. We do it by insuring that it is the federal government that will set the compensation for the screeners. It is the federal government that mandates the level of competency and training for the screeners ... and if the screeners don't do their job and perform well, under our bill they can be removed, their certificates can be revoked and the entire company can be fired and fined for any violations of rules or regulations." Text of Don Young's statement to the floor available at http://www.house.gov/transportation/press/ press2001/release144.html.
109. Aviation and Transportation Security Act of 2001, S. 1447, 16 November 2001. Young stated, "On the issue of expanded screening security, we reached a compromise that will allow total federal oversight and authority of the screening process. We will have a trained federal workforce for the first two years and pilot programs that will be based upon the successful European federal-private sector model. After two years, each airport will then be given the flexibility to work with the new Undersecretary of Transportation Security to determine which program would provide the best screening security for each airport." Statement available at http://www.house.gov/transportation/press/press2001/release151.html.
110. Ibid.
111. Committee on Transportation and Infrastructure, Aviation Subcommittee, "Hearing on a Review of the Airport Screener Privatization Pilot Program (PP5)," 22 April 2004, transcript available at http://www.house.gov/transportation/aviation/04-22-04/108-61.pdf. Similar conclusions were reached in a follow-up report released a year later, which noted that, despite the federalization of most passenger screeners, airport security at passenger checkpoints had not measurably improved since September 11.
112. TSA, "Sioux Falls Regional Airport Is to Join TSA's Screening Partnership Program," press release, 27 July 2005, available at http://www.tsa.gov/public/display?theme=44&content=0900051980150f8b.
113. Chris Strom, "TSA Prepares Airport Guidance on Using Private Screeners," GovExec.com, 23 April 2004, available at http://www.govexec.com/dailyfed/0404/042304c1.htm.
114. Prior to September 11, the FBI was primarily a law enforcement agency that focused on criminal investigations. It was nominally charged with domestic intelligence responsibilities, but intelligence collection and analysis were not high priorities. (Due in part to legal changes that came out of the Church Committee investigations into the executive abuses of the 1970's, a conscious effort had been made to erect legal barriers between law enforcement and domestic intelligence collection.) The lack of attention to intelligence was also the result of the culture at the FBI that rewarded employees for criminal prosecutions, but not for intelligence analysis. Since September 11, the wall between law enforcement and domestic intelligence has been knocked down and the FBI has attempted - unsuccessfully according to most analysts - to better perform the domestic intelligence and counterterrorism functions.
115. See John Poindexter, remarks as prepared for delivery at DARPATech 2002 Conference, Anaheim, Calif., 2 August 2002.
116. Cynthia L. Webb, "FutureMAP Has No Future," Washington Post, 30 July 2003, available at http://www.findarticles.com/p/articles/mi m0NTQ/is 2003 July 30/ai 106042669.
117. Audrey Hudson. "Congress Kills Data-Mining Computer Program," Washington Times, 25 September 2003, available at http://www.washingtontimes.com/national/20030925-115156-7992r.htm.
118. Michael Meacher. "This War on Terrorism Is Bogus," The Guardian, 6 September 2003, available at http://politics.guardian.co.uk/iraq/comment/0,12956,1036687,00.html.
119. This is the prevailing view among leading constitutional scholars. John Yoo, however, has recently argued that the Constitution actually grants the executive wide authority to conduct foreign affairs and national security policy. See Yoo, Powers of War and Peace.
120. For proponents of the prevailing view, see Louis Henkin, Foreign Affairs and the U.S. Constitution (Oxford: Oxford University Press, 1997)
121. Harold Koh, National Security Constitution: Sharing Power after the Iran-Contra Affair (New Haven: Yale University Press, 1990)
122. and Michael Glennon, Constitutional Diplomacy (Princeton: Princeton University Press, 1991).
123. Constitution of the United States of America, Art. I, sec. 8.
124. Quoted in Arthur Schlesinger, The Imperial Presidency (Boston: Houghton-Mifflin, 1973), 5
125. and cited by Friedberg, In the Shadow of the Garrison State, 17.
126. Federalist No. 51, "On a Just Partition of Power," cited by Friedberg, In the Shadow of the Garrison State, 17.
127. For example, Charles Jones argued that too exclusive a focus on the presidency distorts the picture of how national government really works. He explores how presidents find their place in the permanent government and how they are "fitted in" by others, most notably those on Capitol Hill. Charles O. Jones, the Presidency in a Separated System (Washington: Brookings Institution Press, 1994).
128. Franklin D. Roosevelt's proposed legislation to pack the Supreme Court with New Deal sympathizers was resisted and eventually killed in Congress. A more sympathetic Court was realized only when one judge changed his voting pattern and others retired of their own volition. See Kenneth S. Davis, Into the Storm: 1937-1940 (New York: Random House, 1993)
129. and Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004).
130. Maeva Marcus, Truman and the Steel Seizure Case: The Limits of Presidential Power (Durham: Duke University Press, 1977)
131. and Alan F. Westin, The Anatomy of a Constitutional Law Case: Youngstown Sheet & Tube Co. v. Sawyer: The Steel Seizure Decision (New York: Notable Trials Library, 1958).
132. Seminal works on interest-group politics include Jeffrey M. Berry, Lobbying for the People (Princeton: Princeton University Press, 1977)
133. Jeffrey M. Berry, The New Liberalism: The Rising Power of Citizen Groups (Washington: Brookings Institution Press, 1999)
134. Allan J. Cigler and Burdett A. Loomis, Interest Group Politics, 6th ed. (Washington: CQ Press, 2002)
135. Hugh Heclo, "Issue Networks and the Executive Establishment," in The New American Political System, ed. Anthony King (Washington: American Enterprise Institute, 1990)
136. and Jack L. Walker, Jr., Mobilizing Interest Groups in America: Patrons, Professionals, and Social Movements (Ann Arbor: University of Michigan Press, 1991).
137. The classic work on bureaucratic politics is Graham T. Allison, Essence of Decision: Explaining the Cuban Missile Crisis (Boston: Little, Brown, 1971).
138. Allison's formulation was preceded by other work in a similar vein, including Richard Neustadt, Presidential Power and the Modern Presidents (New York: Wiley, 1960).
139. For excellent critiques of Allison see Robert J. Art, "Bureaucratic Politics and American Foreign Policy: A Critique,"Policy Sciences 4, no. 4 (December 1973): 467-90
140. and Stephen Krasner, "Are Bureaucracies Important? Or Allison Wonderland," Foreign Policy 7 (Summer 1972): 159-79
141. For excellent reviews of the debate, see David Welch, "The Organizational and Bureaucratic Politics Paradigms: Retrospect and Prospect," International Security 17, no. 2 (Fall 1992): 112-46
142. and Jonathan Bender and Thomas H. Hammond, "Rethinking Allison's Models," American Political Science Review 86, no. 2 (June 1992): 301-22.
143. Allison, Essence of Decision, 176.
144. Ibid., 168, 175.
145. Amy B. Zegart, Flawed by Design: The Evolution of the CIA, JCS, and NSC (Palo Alto: Stanford University Press, 2000).
146. For examples, see Steve Chan, "Bureaucratic Politics and Belief System: Explaining the Chinese Policy Debate 1964-66,"Journal of Peace Research 16, no. 4 (1979): 333-47
147. Karen Dawisha, "The Limits of the Bureaucratic Politics Model: Observations on the Soviet Case," Studies in Comparative Communism 13, no. 4 (Winter 1980): 300-346
148. Morton H. Halperin and Arnold Kanter, eds., Readings in American Foreign Policy, A Bureaucratic Perspective (Boston: Little, Brown, 1973)
149. Morton Halperin, Bureaucratic Politics and American Foreign Policy (Washington: Brookings Institution, 1974)
150. Roger Hillsman, The Politics of Policy Making in Defense and Foreign Affairs: Conceptual Models and Bureaucratic Politics (Englewood Cliffs: Prentice Hall, 1987)
151. David C. Kozak and James M. Keagle, eds., Bureaucratic Politics and National Security: Theory and Practice (Boulder: Lynne Rienner, 1988)
152. and Jim Valenta, "Bureaucratic Politics and the Soviet Invasion of Czechoslovakia," Political Science Quarterly 94, no. 1 (Spring 1979): 55-76.
153. See Military Order of 13 November 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, available at http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html.
154. Ex parte Quirin, 317 U.S. 1 In 1942, eight Nazi German saboteurs were captured by the FBI. They had entered the United States by submarine, shed their uniforms, and planned to use explosives in attacks on American war industries. The president proclaimed that enemies who entered the United States to commit "hostile or warlike acts should be promptly tried in accordance with the laws of war." Proclamation No. 2561, of July 2, 1942, 7 Fed. Reg. 5101, 56 Stat. 1964. The Supreme Court denied the saboteurs their writs of habeas corpus and further argued that citizenship was irrelevant to "enemy belligerent" status.
155. "Guantanamo Bay: Empty Beds, Empty Stomachs," The Economist, 24 September 2005, 38.
156. "Freeing Mr. Hamdi," editorial, Washington Post, 24 September 2004, A24.
157. U.S. Supreme Court, Hamdi v Rumsfeld, Secretary of Defense, et al., no. 03-6696, decided 28 June 2004.
158. For more details on the Hamdi case, see "Hamdi Voices Innocence, Joy about Reunion: Man Held as Enemy Combatant Now Back in Saudi Arabia," CNN.com, 14 October 2004, available at http://www.cnn.com/2004/WORLD/meast/10/14/hamdi/
159. and "The Hamdi Backflip," editorial, Washington Post, 12 August 2004, A22.
160. A "dirty bomb," or radiological dispersion device, combines a conventional explosive with radioactive material. Most of the deaths from a dirty bomb explosion would likely be due to the conventional munitions. The radioactive materials in a dirty bomb could cause panic but would probably not lead to severe illness or death. For this reason. dirty bombs are sometimes called weapons of mass disruption.
161. U.S. Court of Appeals for the Second Circuit, Jose Padilla v Donald Rumsfeld, no. 03-2235 (L); 03-2438 (Con.), argued 17 November 2003, decided 18 December 2003.
162. David Stout, "Supreme Court Expands Review of Enemy Combatant Cases," New York Times, 9 January 2004, available at http://www.nytimes.com/2004/01/09/national/0 9CND-SCOT.html?ex=1130821200&en=e8938894a679288a&ei=5070.
163. U.S. Supreme Court, Rumsfeld v Padilla, no. 03-1027, decided 28 June 2004.
164. U.S. District Court for the District of South Carolina, Jose Padilla v Commander C. T. Hanft, no 2:04-2221-26AJ, decided 28 February 2005.
165. Phil Hirschcrom, "Federal Judge: Charge Padilla or Release Him," CNN.com, 1 March 2005.
166. U.S. Circuit Court of Appeals for the Fourth Circuit, Padilla v Hanft, no. 05-6396, decided 9 September 2005
167. and Gina Holland, "Terror Suspect Takes Case to High Court," Associated Press, 27 October 2005.
168. They argued that a key difference between the Padilla and Hamdi cases is that Padilla was arrested in the United States, whereas Hamdi was arrested on a battlefield in Afghanistan. This raises the burden of proof for the government in the Padilla case. See Neil A. Lewis, "Judge Says U.S. Terror Suspect Can't Be Held as an Enemy Combatant," New York Times, 28 February 2005, available at http://www.nytimes.com/2005/03/01/ 01terror.html?ex=1267419600&en=7f8871e1943f70f8&ei=5090& partner=rssuserland
169. and Jerry Markon, "U.S. Can Confine Citizens without Charges, Court Rules," Washington Post, 10 September 2005, A01.
170. Fred Barbash, "Padilla's Lawyers Suggest Indictment Helps Government Avoid Court Fight," Washington Post, 22 November 2005, available at http://www.washingtonpost.com/wp-dyn/content/article/2005/11/22/ AR2005112201061.html.
171. U.S. Supreme Court, Rasul v. Bush, no 03-334, decided 28 June 2004.
172. "Combatant Status Review Tribunal Order Issued," 7 July 2004, no. 651-04, available at http://www.defenselink.mil/releases/2004/ nr20040707-0992.html.
173. Josh White, "3 Guantanamo Detainees Freed," Washington Post, 21 July 2005, A02.
174. Joyce Hens Green, U.S. District Court for the District of Columbia, "Memorandum Opinion Denying in Part and Granting in Part Respondents' Motion to Dismiss or for Judgment as a Matter of Law," in regard to Guantánamo Detainee Cases 02-CV-0299, 02-CV-0828, 02-CV-1130, 04-CV-1135, 04-CV-1136, 04-CV-1137, 04-CV-1144, 04-CV-1164, 04-CV-1194, 04-CV-1227, and 04-CV-1254, decided 31 January 2005.
175. Carol D. Leonnig, "Judge Rules Detainee Tribunals Illegal," Washington Post, 1 February 2005, A01.
176. Jonathan Weisman, "Senators Agree on Detainee Rights: Deal Would Allow Some Court Access," Washington Post, 15 November 2005, A01.
177. As quoted in "Empty Beds, Empty Stomachs," The Economist, 22 September 2005, 38.
178. Matthew Waxman, "Beyond Guantanamo," Washington Post, 20 August 2005, A17.
179. "Empty Beds, Empty Stomachs."
180. Josh White, "Guantanamo Staffing to Be Reduced about 20%," Washington Post, 22 February 2006, A06.
181. Ibid.
182. Waxman, "Beyond Guantanamo."
183. Computer Emergency Response Team (CERT) Coordination Center, "CERT Advisory 1999-04 Melissa Macro Virus," 27 March 1999, http://www.cert.org/advisories/CA-1999-04.html
184. and "Love Bug Virus Running Amok," Wired News, 4 May 2000, http://www.wired.com/news/technology/ 0,1282,36113,00.html?tw=wn_story_related. This was also the period during which much media-hyped attention was directed at the looming "crisis" that might be caused by "the Y2K problem" - the concern that major computer-controlled systems and infrastructures might go haywire if internal clocks were to mistakenly interpret the date 1 January 2000 as 1 January 1900.
185. The White House, "Defending America's Cyberspace: National Plan for Information Systems Protection, Version 1.0, An Invitation to Dialogue," January 2000, available at http://www.fas.org/irp/offdocs/pdd/CIP-plan.pdf.
186. CERT Coordination Center, "CERT Advisory 2001-26 Nimda Worm," 18 September 2001, http://www.cert.org/advisories/CA-2001-26.html
187. and the White House, "Executive Order 13231, Critical Infrastructure Protection in the Information Age," 16 October 2001, http://www.whitehouse.gov/news/releases/2001/10/20011016-12.html.
188. Many computer security experts question the Pearl Harbor analogy, believing there are easier targets for terrorists to attack and that there is too much redundancy in most computer-operated infrastructures for them to fail completely or for long. There is, however, a strong consensus that a terrorist cyber attack is possible, probably as an adjunct to a physical attack. Many cyber attacks are now almost completely automated; they can also be embedded with "sleeper" commands that could conceivably be pre-programmed to coordinate a cyber attack with a physical terrorist attack on some future date.
189. President's Critical Infrastructure Protection Board, "National Strategy to Secure Cyberspace."
190. Ibid., recommendations R2-5, R3-15, R4-25, and R4-26.
191. Ibid., recommendations R2-5, R3-17, and R4-39.
192. Ibid., recommendations R2-2, R2-7, R3-1, R3-2, R3-5, R3-10, R3-17, R4-14.
193. Ibid., recommendation R4-4.
194. Clarke's "seat belt" analogy appears in many of his speeches; he first made the comment publicly in a speech to computer security practitioners in Las Vegas in August 2002. See Ann Saita, "Cybersecurity Czar Takes Aim at Private Industry," Security Wire Digest 4, no. 58 (5 August 2002)
195. and Robert Lemos, "Security Czar Points Finger of Blame," CNET
196. President's Critical Infrastructure Protection Board, "National Strategy to Secure Cyberspace," recommendation R3-6.
197. Clarke made this recommendation in public speeches. Although the recommendation did not make it into the draft, the IT industry leaders were still troubled by this recommendation, perhaps fearing that it would re-emerge in the final version of the strategy. See Saita, "Cybersecurity Czar."
198. President's Critical Infrastructure Protection Board, "National Strategy to Secure Cyberspace," 41.
199. Erin Kenneally, "Who's Liable for Insecure Networks?" Computer 35, no. 6 (June 2002): 93-95
200. Stewart D. Personick and Cynthia A. Patterson, eds., Critical Infrastructure Information Sharing and the Law: An Overview of Key Issues (Washington: Committee on Critical Information Infrastructure Protection and the Law, National Research Council, 2003)
201. Michael Rassmussen, "IT Trends 2002: Security Standards and Compliance," Ideabyte, 15 January 2002, available at http://images.telos.com/files/external/Giga_IT_Trends_2002.pdf
202. and Hal Varian, "Managing Online Security Risks," New York Times, 1 June 2000, C2.
203. Percentage cited in Robert Lemos, "Government Unveils Cybersecurity Plan," CNET News, 8 September 2002, available at http://news.com.com/2100-1023-956353.html.
204. See Robert Marsh, "Critical Foundations: Protecting America's Infrastructure," the Marshall Institute, 12 November 1997, available at http://www.marshall.org/article.php?id=65.
205. The White House, "Defending America's Cyberspace."
206. The White House, "Executive Order 13231, Critical Infrastructure Protection in the Information Age."
207. Elise Ackerman, "Summit in California's Silicon Valley to Focus on Cybersecurity," San Jose Mercury News, 3 December 2002.
208. Archived minutes of meetings of the National Infrastructure Advisory Council (NIAC) are available online at http://www.dhs.gov/dhspublic/ interapp/editorial/editorial 0353.xml
209. see also Carson Carlson, "IT Resists Mandatory Cyber Security," E-week.com, 8 January 2003, available at http://www.eweek.com/article2/ 0,3959,813715,00.asp.
210. As quoted in Carlson, "IT Resists Mandatory Cyber Security."
211. Carlson, "IT Warns Against Slippery Slope."
212. Archived minutes of NIAC meetings; and Carlson, "IT Resists Mandatory Cyber Security."
213. Personick and Patterson, Critical Infrastructure Information Sharing.
214. Carlson, "IT Warns Against Slippery Slope."
215. "Feds Delay Release of Cyber-Security Plan," E-week.com, 17 September 2002, available at http://www.findarticles.com/p/articles/mi_zdewk/is_200209/ai_ziff31142.
216. White House, The National Strategy to Secure Cyberspace, February 2003, available at http://www.whitehouse.gov/pcipb/.
217. The most thorough and best known proposal is the bill introduced by Senator John Edwards (D-N.C.) in February 2003 to establish a Homeland Intelligence Agency: Foreign Intelligence Collection Improvement Act of 2003, S. 410, introduced 13 February 2003.
218. For examples of resistance by civil libertarians, see "ACLU Says Intelligence Czar Should Not Spy on Americans," 9 December 2002, available at http://www.aclu.org
219. and "ACLU Criticizes Federal Commission."
220. For overviews of bureaucratic resistance, see Dana Priest and Dan Eggen, "Bush Aides Consider Domestic Spy Agency: Concerns of FBI's Performance Spurs Debate of Options," Washington Post, 16 November 2002, A1
221. and David Johnston, "Administration Begins to Rewrite Decades-Old Spying Restrictions," New York Times, 30 November 2002, A1.
222. Martin Kady II, "Lawmakers Put Domestic Spy Agency on Their Agenda," Congressional Quarterly Daily Monitor, 15 October 2002, available at http://www.smithbrandon.com/news.aspx?id=31.
223. Michael Isikoff and Mark Hosenball, "Terror Watch: At Odds," Newsweek, 7 July 2004, available at http://www.msnbc.msn.com/id/5388509/site/newsweek/.
224. Preist and Eggen, "Bush Aides Consider Domestic Spy Agency."
225. Senate Select Committee on Intelligence and House Permanent Select Committee on Intelligence, Report of the Joint Inquiry into the Terrorist Attacks of September 11, 2001, released December 2002, http://www.gpoaccess.gov/serialset/creports/911.html.
226. Officials in attendance included National Security Advisor Condoleezza Rice, White House Chief of Staff Andrew Card, Defense Secretary Donald Rumsfeld, Director of Central Intelligence George Tenet, Attorney General John Ashcroft, and FBI Director Robert Mueller. Priest and Eggen, "Bush Aides Consider Domestic Spy Agency."
227. "ACLU Says Intelligence Czar Should Not Spy on Americans,"
228. and "ACLU Criticizes Federal Commission."
229. Johnston, "Administration Begins to Rewrite Decades-Old Spying Restrictions."
230. Doug Sample, "DoD Intel Chief Addresses 9/11 Commission Recommendations," American Forces Information Service, 11 May 2005, available at http://www.defenselink.mil/news/Aug2004/ n08112004_2004081105.html.
231. Johnston, "Administration Begins to Rewrite Decades-Old Spying Restrictions."
232. Markle Foundation Task Force on National Security in an Information Age, "Protecting America's Freedom in an Information Age," 7 October 2002, available at http://www.markletaskforce.org. Members of the task force included Ashton Carter, Wesley Clark, Sidney Drell, John Gage, Morton Halperin, John Hamre, Judith Miller, and Philip Zelikow, among others.
233. Office of the Press Secretary, the White House, "Fact Sheet: Strengthening Intelligence to Better Protect America," 14 February 2003, available at http://www.whitehouse.gov/news/releases/2003/02/ 20030214-1.html.
234. The guidelines had been introduced in the 1970s in response to perceived FBI abuses in the last decades of the J. Edgar Hoover era, which included spying on law-abiding civil rights activists and anti-war protesters.
235. The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations, 30 May 2002, available at http://www.usdoj.gov/olp/generalcrimes2.pdf.
236. For background and analysis, see Center for Democracy and Technology (CDT), "CDT's Analysis of New FBI Guidelines," 30 May 2002, available at http://www.cdt.org/wiretap/020530guidelines.shtml.
237. Robert Mueller, "Speech to Citizens Crime Commission of New York City," 19 December 2002, available at http://www.fbi.gov/pressrel/ speeches/milsteinlecture.htm.
238. Michael Isikoff and Mark Hosenball, "Terror Watch: At Odds."
239. Priest and Eggen, "Bush Aides Consider Domestic Spy Agency."
240. "A New Spy Agency?" editorial, Washington Post, 28 November 2002, A46.
241. Priest and Eggen, "Bush Aides Consider Domestic Spy Agency."
242. "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" (Gilmore Commission Report), 15 December 2002, available at http://www.rand.org/nsrd/terrpanel.
243. George W. Bush, "State of the Union Address," 28 January 2003, available at http://www.whitehouse.gov/news/releases/2003/01/ 20030128-19.html.
244. John O. Brennan, "Statement for the Record of John O. Brennan, Director, Terrorist Threat Integration Center, Before the House of Representatives Committee on the Judiciary and the House of Representatives Select Committee on Homeland Security," 22 July 2003, available at http://judiciary.house.gov/legacy/brennan072203.htm.
245. An FBI representative stated, "The FBI strongly supports the formation of the Terrorist Threat Integration Center (TTIC) and is proud to be a partner with the CIA, the Department of Homeland Security, the Department of Defense, and all the other participating agencies." Testimony of Pasquale J.D. Amuro, executive assistant director for counterterrorism/counterintelligence, FBI, at a hearing before the Senate Governmental Affairs Committee, "Consolidating Intelligence Analysis: Review of the President's Proposal to Create a Terrorist Threat Integration Center," 26 February 2003, available at http://hsgac.senate.gov/_files/shrg10854ttic.pdf.
246. Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, "Final Report to the President," 31 March 2005, available at http://www.wmd.gov/report
247. and National Commission on Terrorist Attacks upon the United States (9/ 11 Commission), 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks upon the United States (New York: Norton, 2004).
248. For arguments for and against a director of national intelligence, see Commission Hearings of the 9/11 Commission,14 October 2003, available at http://www.9-11commission.gov/archive/hearing4/ 9-11commission_hearing_2003-10-14.htm
249. Alfred Cumming. "The Position of Director of National Intelligence: Issues for Congress," Congressional Research Service Report for Congress, 12 August 2004, available at http://www.fas.org
250. John Prados, "Intelligence: No Easy Fix," Bulletin of the Atomic Scientists, September-October 2004, 17-19
251. John F. Kerry, "Making America Secure Again: Setting the Right Course for Foreign Policy," Speech to the Council on Foreign Relations, 3 December 2003, available at http://www.cfr.org/publication.html?id=6576
252. Office of Senator Dianne Feinstein (D-Calif.), "Sponsors of Senate Bill to Create Director of National Intelligence Urge President to Support their Legislation," 3 August 2004, available at http://feinstein.senate.gov/04Releases/r-bush-dni-ltr.html.
253. For example, in testimony before the House Appropriations Committee in June 2004, Mueller discussed the FBI's "vision to enhance [its] enterprise-wide intelligence capabilities." He argued that, for two and a half years, the FBI "had been transforming and realigning resources to combat international terrorism" and was now dedicated to strengthening its intelligence program. Robert Mueller, Testimony Before the House Appropriations Committee, Subcommittee on the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies, 3 June 2004, available at http://www.fbi.gov/congress/congress04/mueller060304.htm.
254. Intelligence Reform and Terrorism Prevention Act, PL 104-408, 7 December 2004.
255. Dan Eggen and Walter Pincus, "Bush Approves Spy Agency Changes," Washington Post, 30 June 2005, A01.
256. For examples of some of the FBI's failures as it sought to remake itself as an intelligence agency, see Dan Eggen, "FBI Lags in Security," Washington Post, 21 October 2005, A08
257. and Terry Frieden, "Report: FBI Wasted Millions on Virtual Case File," CNN.com, 3 February 2005, available at http://www.cnn.com/2005/US/02/03/fbi.computers.
258. The president's WMD commission also cited FBI problems in its final report. See Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, Final Report to the President, 31 March 2005, available at http://www.wmd.gov/report.
259. Gary Thomas, "CIA Identity Flap Sparks Debate over Need for New Domestic Intelligence Agency," Voice of America, 30 September 2003, available at http://www.iwar.org.uk/news-archive/2003/09-30-5.html.
260. Fiona Hill, "Governing Russia: Putin's Federal Dilemmas," New Europe Review, January 2005, available at http://apps49.brookings.edu/views/articles/hillf/20050104.htm
261. "The Kremlin Is Going Too Far," editorial, Financial Times, 14 September 2004, available at http://www.guardian.co.uk/editor/story/ 0,1304552,00.html
262. and Oksana Yablokova, "Duma Gives Nod to Putin's Governors Bill," Moscow Times, 1 November 2004, available at http://www.rusnet.nl/news/2004/11/01/print/currentaffairs02.shtml.
263. Louis Hartz, The Liberal Tradition in America (New York: Harcourt, 1991).
264. For a review of domestic political explanations in security studies and their origin as a response to systemic theories, see Matthew Evangelista, "Domestic Structure and International Change," in New Thinking in International Relations Theory, ed. John Ikenberry and Michael Doyle (New York: Westview, 1997), 202-28
265. and James Fearon, "Domestic Politics, Foreign Policy, and Theories of International Relations," Annual Review of Political Science 1 (1998): 289-313.
266. For seminal works that argue for the importance of domestic politics in security studies, see Bruce Bueno de Mesquita and David Lalman, War and Reason (New Haven: Yale University Press, 1992)
267. Paul Huth, Standing Your Ground: Territorial Disputes and International Conflict (Ann Arbor: University of Michigan Press, 1996)
268. Elizabeth Kier, Imagining War: French and British Military Doctrine between the Wars (Princeton: Princeton University Press, 1997)
269. Jeffrey Legro, Cooperation under Fire: Anglo-German Restraint during World War II (Ithaca: Cornell University Press, 1995)
270. Jeffrey Legro, Rethinking the World: Great Power Strategies and International Order (Ithaca: Cornell University Press, 2005)
271. Susan Peterson, Crisis Bargaining and the State: Domestic Politics and International Conflict (Ann Arbor: University of Michigan Press, 1996)
272. Bruce Russett, Grasping the Democratic Peace (Princeton: Princeton University Press,1993)
273. Jack Snyder, Myths of Empire: Domestic Politics and International Ambition (Ithaca: Cornell University Press, 1991)
274. and Alan Stamm, Win, Lose, or Draw: Domestic Politics and the Crucible of War (Ann Arbor: University of Michigan Press, 1996).
275. For another approach to counterterrorism policy, see Peter Katzenstein, "Coping with Terrorism: Norms and Internal Security in Germany and Japan," in Ideas and Foreign Policy: Beliefs, Institutions, and Political Change, ed. Judith Goldstein and Robert O. Keohane (Ithaca: Cornell University Press, 1993), 265-95.
276. Friedberg, In the Shadow of the Garrison State, 19
277. and Higgs, Crisis and Leviathan.
278. Theodore J. Lowi, The End of Liberalism: The Second Republic of the United States (New York: Norton, 1979)
279. Jonathan Rauch, Demosclerosis: The Silent Killer of American Government (New York: Times Books, 1994)
280. and James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It (New York: Basic Books, 2000).
281. Richard E. Neustadt, Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan (New York: Free Press, 1991)
282. and Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston: Mariner, 2004).
283. For a thorough overview, see O'Harrow, No Place to Hide.
284. Jane Mayer, "Outsourcing Torture: The Secret History of America's Extraordinary Rendition Program," New Yorker, 14 February 2005, available at http://www.newyorker.com/fact/content/?050214fa fact6.
285. See Glenn Kessler, "Rice Defends Tactics Used against Suspects: Europe Aware of Operations She Implies," Washington Post, 6 December 2005, A01.
286. This finding has implications for a growing body of work on the privatization of security. Scholars have recently begun to chronicle the proliferation of private firms that are performing defense and security functions and to explore the consequences of this phenomenon for accountability, national security, and the future role of the state. See Deborah D. Avant, The Market for Force: The Consequences of Privatizing Security (Cambridge: Cambridge University Press, 2005)
287. Caroline Holmquist, "Private Security Companies: The Case for Regulation," Stockholm International Peace Research Institute policy paper no. 9 (January 2005)
288. Robert Mandel, Armies without States: The Privatization of Security (Boulder: Lynne Rienner, 2002)
289. Ann Markusen, "The Case against Privatizing National Security," paper presented at the Study Group on the Arms Trade and the Transnationalization of the Defense Industry, Council on Foreign Relations, New York City, 1 October 1999, available at http://www.gao.gov/a76panel/fortherecord/amarkusenpaper.pdf
290. Ken Silverstein, Private Warriors (New York: Verso, 2001)
291. and P. W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca: Cornell University Press, 2004). This scholarship, however, unnecessarily limits the scope of the phenomenon it seeks to describe. The United States is not merely "privatizing" security but "outsourcing" it. Outsourcing security includes both privatizing security functions to nongovernmental firms and organizations as well as "offshoring" security functions to foreign governments. Although the extant literature has thoroughly explored the consequences of privatizing security, it has not developed a compelling theoretical explanation for why privatization, or offshoring for that matter, occurs in the first place. Our work suggests that the outsourcing of security is at least partly the result of domestic political processes that have thwarted U.S. government attempts to develop new capacities for dealing with nontraditional security challenges.