Speaking Law to War: International Law, Legal Advisers, and Bureaucratic Contestation in U.S. Defense Policy

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 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 institutionalized international law into their approval process, training, legal advice, and organizational culture. Once the degree of legal institutionalization has been identified, legalized bureaucratic politics involves four steps: intra-agency, inter-agency, operational, and review phase, where adversarial actors will compete for control over wartime management.I test my theory by comparing two cases where the US used torture: the Vietnam War and the Global War on Terror. My findings show that the US legal institutional structure during the Vietnam War was too weak to eliminate the use of torture by US personnel throughout the war. During the Global War on Terror, the US experienced a medium degree of legal institutionalization, too weak to prevent the torture program from being initiated, but strong enough to reverse it