Speaking Law to War: International Law, Legal Advisers, and Bureaucratic Contestation in US ...

279 Pages·2015·1.49 MB·English

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
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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

201 5
© 2015 Arturo Jimenez Bacardi
DEDICATION

To

Arturo, Montserrat, and Martha

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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

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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

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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

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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.

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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
European Journal of
2015 I“nDtaevrinda itnio Gnoalli Ratehla’st iCointasdel: Mobilizing the UN Security Council’s Normative
Power for Palestine” (with Jonathan Graubart).
, Epub ahead of print, DOI:
10.1177/1354066115571762. International
2015 “JoCularsnhailn ogf oHvuemr aDnr oRnigehs:t sThe Legal and Normative Gap between the U.S. and
the Human Rights Community” (with Daniel Brunstetter).
In, V Poela. c1e9 R:2e, vpiepw. 1: 7A6 J-o1u9r8n.a l of Social Justice
2013 “Climate Science and Peace in the Middle East” (with Jay Famiglietti and
Daniel Wehrenfennig). , Vol. 25:4,
pp. 1-7. The
2013 “PTohlieti cPso owf etrh ea nGdlo Lbiamliiztas toiof nIn otfe Lrnaawt:i oGneattli Lnagw fr:o Cmh aRlilgenhtgsi ntog Jtuhset iBcuesh
Administration’s Extra-Legal Detention System.” In Alison Brysk (Ed),
. New York:
RoutleTdhgee P, oplpit.i 1cs2 o7f- 1th4e3 G. lobalization of Law: Getting from Rights to Justice
2013 “The Politics of the Globalization of Law” (with Alison Brysk). In Alison Brysk
(Ed), .
New York: Routledge, pJpo.u 1r-n2a5l .o f Human Rights
2012 ”The Globalization of Law: Implications for the Fulfillment of Human Rights”
(with Alison Brysk). In , 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).
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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.

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