UC Irvine UC Irvine Electronic Theses and Dissertations Title Speaking Law to War: International Law, Legal Advisers, and Bureaucratic Contestation in U.S. Defense Policy Permalink https://escholarship.org/uc/item/4zh8k3hx Author Jimenez Bacardi, Arturo Publication Date 2015 Peer reviewed|Thesis/dissertation eScholarship.org Powered by the California Digital Library University of California UNIVERSITY OF CALIFORNIA, IRVINE Speaking Law to War: International Law, Legal Advisers, and Bureaucratic Contestation in U.S. Defense Policy DISSERTATION submitted in partial satisfaction of the requirements for the degree of DOCTOR OF PHILOSOPHY in Political Science by Arturo Jimenez Bacardi Dissertation Committee: Professor Alison Brysk, Co-Chair Professor Wayne Sandholtz, Co-Chair Associate Professor Charles Anthony Smith, Co-Chair Associate Professor Daniel Reed Brunstetter Professor Christopher Alexander Whytock 2015 © 2015 Arturo Jimenez Bacardi DEDICATION To Arturo, Montserrat, and Martha ii TABLE OF CONTENTS Page LIST OF FIGURES iv LIST OF TABLES v ACKNOWLEDGMENTS vi CURRICULUM VITAE vii ABSTRACT OF THE DISSERTATION ix INTRODUCTION 1 CHAPTER 1: Theory of Legalized Bureaucratic Politics 29 CHAPTER 2: Institutionalizing International Law: Policy Makers 52 CHAPTER 3: Institutionalizing International Law: Operators 87 CHAPTER 4: The Vietnam War 147 CHAPTER 5: The Post-9/11 Torture Program 171 CHAPTER 6: Conclusions 234 REFERENCES 241 APPENDIX A: Interviews 265 iii LIST OF FIGURES Page Figure 1.1 Cases Based on Threat Level 20 Figure 1.2 Expectations of US Compliance with LOAC based on Threat Level 21 Figure 2.1 Institutionalization Mechanisms 31 Figure 2.2 Legal Institutionalization of LOAC based on Functional Roles 35 Figure 2.3 Legalized Bureaucratic Politics Theory 47 Figure 3.1 National Security Council Review and Approval Process 78 Figure 3.2 Normative Composition of NSC Lawyers Group 83 iv LIST OF TABLES Page Table 1.1 Post-WWII International Treaties Banning the Use of Torture and Cruel, Degrading, and Humiliating Treatment 4 Table 1.2 Armed Conflicts where the United States Detained Combatants 19 Table 1.3 Cases Selected for Comparative Historical Analysis 24 Table 1.4 Evidentiary Guidelines for Process Tracing 25-26 Table 2.1 Current Institutionalization of LOAC and Organizational Culture for the Top Legal Offices of the National Security Apparatus 49 Table 4.1 Comparison of the Approval Process of CIA Projects from 1949-1967 109 v ACKNOWLEDGMENTS I am deeply grateful for the wonderful support and encouragement that I have received from my dissertation co-chairs, Professor Alison Brysk, Professor Wayne Sandholtz, and Associate Professor Charles Anthony Smith. This dissertation would not have been possible without their commitment to my development as a scholar. Associate Professor Daniel R. Brunstetter also provided an infinite amount of guidance over the years. Professor Chris A. Whytock gave me very constructive advice throughout the entire dissertation writing process. I would also like to thank Professor Jonathan Graubart, my academic mentor for more than ten years, and a true friend. John Prados and the National Security Archive were extremely helpful in showing me how to navigate countless archives. I also want to give a special thank you to my colleague, Daniel Wehrenfennig, who served as an inspiration for what a graduate student can accomplish. Both Daniels along with Paula Garb, Johanna Solomon, Susan Seely, Larry Kugelman, Dulcie Kugelman, Hal Smith, David Rosten, Professor David Snow, Emily Katz, Sarah Ansari, Nina Berman, Fran DeFrance, and the rest of the members of the Olive Tree Initiative and the Center for Citizen Peace Building, provided essential financial support, encouragement, and feedback along the way. I would also like to thank my fellow graduate students from the Political Science Department, including, Tom Le, Alfredo Carlos, Jenny Garcia, Peter Miller, Katja Newman, Beijie Tang, Scott Mills, Josh Gellers, Heidi Nichols Haddad, Thomas Doyle, Nathan Jones, Bron Tamulis, Mark Berlin, Eric Mosinger, Robert Nyenhius, and Tanya Schwarz. Assistant Professor Diana Kapiszewski, Professor Farid Abdel-Nour, and Professor David Kaye also provided great feedback on my work over the years. John Sommerhauser also deserves praise for always going above and beyond with his assistance in navigating the UCI bureaucracy. Financial support for my research was provided by the University of California, Irvine, through the Gordon E. Hein Fellowship, the Miguel Velez Fellowship, the Center for Global Peace and Conflict Studies, and the Department of Political Science. I also received significant financial support from the Herbert F. York Global Security Dissertation Fellowship Award, from the University of California Institute on Global Conflict and Cooperation, University of California, San Diego. I am forever grateful to these wonderful organizations that financed my work. I also want to thank the dozens of individuals that agreed to an interview for this dissertation. This project would not have been possible without their time and help. Finally, I want to thank and dedicate this dissertation to my parents, Arturo Jimenez Cruz and Montserrat Bacardi Gazcon, and to my loving wife, Martha Estrada Grimaldo, who read and commented on more drafts than anyone else. vi CURRICULUM VITAE Arturo Jimenez Bacardi 2015 Ph.D. Political Science, University of California, Irvine 2011 M.A. Political Science, University of California, Irvine 2008 M.A. Political Science, San Diego State University 2004 B.A. History, San Diego State University PUBLICATIONS 2015 “David in Goliath’s Citadel: Mobilizing the UN Security Council’s Normative Power for Palestine” (with Jonathan Graubart). European Journal of International Relations, Epub ahead of print, DOI: 10.1177/1354066115571762. 2015 “Clashing over Drones: The Legal and Normative Gap between the U.S. and the Human Rights Community” (with Daniel Brunstetter). International Journal of Human Rights, Vol. 19:2, pp. 176-198. 2013 “Climate Science and Peace in the Middle East” (with Jay Famiglietti and Daniel Wehrenfennig). In Peace Review: A Journal of Social Justice, Vol. 25:4, pp. 1-7. 2013 “The Power and Limits of International Law: Challenging the Bush Administration’s Extra-Legal Detention System.” In Alison Brysk (Ed), The Politics of the Globalization of Law: Getting from Rights to Justice. New York: Routledge, pp. 127-143. 2013 “The Politics of the Globalization of Law” (with Alison Brysk). In Alison Brysk (Ed), The Politics of the Globalization of Law: Getting from Rights to Justice. New York: Routledge, pp. 1-25. 2012 ”The Globalization of Law: Implications for the Fulfillment of Human Rights” (with Alison Brysk). In Journal of Human Rights, Vol. 11:1, pp. 1-16. FELLOWSHIPS AND GRANTS 2015 Center for Global Peace and Conflict Studies Graduate Student Research Grant, University of California, Irvine. 2014 Herbert F. York Global Security Dissertation Fellowship Award, University of California Institute on Global Conflict and Cooperation, University of California, San Diego. 2013 The Kugelman Citizen Peacebuilding Research Fellowship, University of California, Irvine (Also awarded in 2015). 2012 Marisla Foundation’s Grant for, “Olive Tree Initiative’s Conference on Environmental Cooperation and Peacebuilding” (with Daniel Wehrenfennig), Laguna Beach, California. 2011 Gordon E. Hein Fellowship, University of California, Irvine (Also awarded in 2012 and 2013). vii 2011 Olive Tree Initiative’s Graduate Student Fellowship University of California, Irvine (Also awarded in 2012). 2010 UCI Political Science Department Summer Funding Award, University of California, Irvine (Also awarded in 2012, 2013, and 2015). 2009 Miguel Velez Fellowship, University of California, Irvine. 2008 UCI Social Science Merit Award, University of California, Irvine. viii ABSTRACT OF THE DISSERTATION Speaking Law to War: International Law, Legal Advisers, and Bureaucratic Contestation in U.S. Defense Policy By Arturo Jimenez Bacardi Doctor of Philosophy in Political Science University of California, Irvine, 2015 Professor Alison Brysk, Co-Chair Professor Wayne Sandholtz, Co-Chair Associate Professor Charles Anthony Smith, Co-Chair On September 6, 2006, President George W. Bush declared that the so-called “enhanced interrogation techniques” program “has saved lives” and “remains vital to the security of the United States, and our friends and allies.” Yet, the President’s speech marked the closing of the CIA’s secret prisons where detainees had been routinely tortured. By the end of the Bush administration, every component of the torture program had been reformed, replaced, or revoked in a way that more closely aligned with the United States’ international legal obligations. Why did the Bush administration increasingly adhere to the laws governing the treatment of prisoners of war, even though it believed that doing so would constrain its ability to save American lives? More broadly, under what conditions are states most likely to adhere to the anti-torture provisions found in the laws of armed conflict and human rights law during war? In order to answer these questions, I advance a new theoretical framework, called legalized bureaucratic politics, that emphasizes the degree to which six US national security ix bureaucracies—the White House Counsel, the National Security Council, the Justice Department’s Office of Legal Counsel, the State Department, the Defense Department, and the Central Intelligence Agency—have