In this essay I draw attention to the intersection between the social scientific literature on organizational culture and the legal ethics literature. Drawing from the organizational theory literature I detail a framework for assessing organizational culture and explain how organizational culture reflects more than rules and structure within an organization, but rather represents deeper values, practices, and ways of thinking. While organizational culture is difficult to change, it can be modified or sustained through power, status, rewards, and other mechanisms. After establishing a baseline for assessing organizational culture I highlight efforts by the Bush administration to exercise control over a military culture which was resistant to the administration's legal policy initiatives. This effort at control manifested itself in the creation of the military commissions in 2001, an attempt to minimize the influence of military attorneys in 2003, and efforts to exercise political control over military commissions in 2006; each effort was successfully resisted by members of the military. I conclude by observing that the literature on organizational culture can provide insights into the literature on legal ethics and political control of the military specifically and political control of bureaucracies more generally.
In this symposium essay I plan to highlight key points where the literature on organizational culture can aid scholars in understanding the impact of values, practices, and ethical rules on the behavior of attorneys within politicized organizations. To accomplish this goal, I first detail a framework for assessing organizational culture and explain how organizational culture reflects more than rules and structure within an organization, but rather represents deeper values, practices, and ways of thinking. Next, I use the example of the military commissions and the Bush administration's interrogation policy to demonstrate how the Bush administration tried unsuccessfully to exercise control over a military culture which was resistant to its legal policy initiatives. I also explain how members of the military successfully resisted these efforts to modify their organizational culture and resisted enhanced political control over the activities of the military. Taken together, these observations suggest that the literature on organizational culture can provide useful insights into the literature on legal ethics and political control of the military specifically and political control of bureaucracies more generally.
AN OVERVIEW OF ORGANIZATIONAL CULTURE THEORY
Organizational cultures are slowly evolving reflections of the shared and learned values, beliefs, and attitudes of an organization's members. (1) Culture can be conceived of as a collection of unspoken rules and traditions that play a part in determining the quality and nature of organizational life. (2) In short, "[t]he culture of an organization influences who gets promoted, how careers are either made or derailed, and how resources are allocated." (3) Organizational culture theory places its focus on "the culture that exists in an organization, something akin to a societal culture." (4) It analyzes "intangible phenomena, such as values, beliefs, assumptions, perceptions, behavioral norms, artifacts, and patterns of behavior." (5) Organizational culture is seen as "a social energy that moves people to act." (6) "Culture is to the organization what personality is to the individual--a hidden, yet unifying theme that provides meaning, direction, and mobilization." (7) The organizational culture perspective is an organizational theory with its own central assumptions, and, given its unique assumptions, it is a counterculture within organizational theory that differs from the rational schools. (8)
Organizational culture theory challenges rational perspectives regarding "how organizations make decisions and ... why organizations--and people in [them]--act as they do." (9) Organizational culture theorists criticize the rational schools because while the rational schools have clearly stated assumptions, those assumptions are premised upon four organizational conditions that must exist for their theories to be valid, but those conditions in practice rarely exist. (10) Those assumptions are: "1. a self-correcting system of interdependent people; 2. [a] consensus on objectives and methods; 3. coordination achieved through sharing information; and 4. predictable organizational problems and solutions." (11) Organizational culture theorists contend that in the absence of those four conditions, "organizational behaviors and decisions are [instead] predetermined by the patterns of basic assumptions held by members of an organization. These patterns of assumptions continue to exist and to influence behaviors in an organization because they repeatedly have led people to make decisions that 'worked in the past.'" (12) Accordingly, "[w]ith repeated use, the assumptions slowly drop out of people's consciousness but continue to influence organizational decisions and behaviors even when the environment changes and different decisions are needed." (13) Organizational culture explains the phenomenon of the phrase "that's the way things are done here"--the organizational culture becomes "so basic, so ingrained, and so completely accepted that no one thinks about or remembers [the assumptions driving behavior]." (14)
Organizational culture theorists believe that "[a] strong organizational culture can control organizational behavior." (15) Such a culture "can block an organization from making [needed] changes" to adapt to its environment. (16) Moreover, "rules, authority, and norms of rational behavior do not restrain the personal preferences of organizational members. Instead, [members] are controlled by cultural norms, values, beliefs, and assumptions." (17) Across organizations, basic assumptions may differ, and organizational culture may be shaped by many factors, some of which may include societal culture, technologies, markets, competition, personality of founders, and personality of leaders. (18) Furthermore, the effect of organizational culture may be pervasive and may include subcultures with similar or distinct influence factors. (19)
Various aspects of organizational culture exist on different levels or layers within an organization, and they differ in terms of visibility and resistance to change. "[T]he least visible, or deepest, level of organizational culture is that of shared assumptions and philosophies, which represent basic beliefs about reality, human nature, and the way things should be done." (20) Organizational cultural values represent the next layer of organizational culture and tend to persist over time, even with changes in organizational membership. (21) Organizational cultural values are the "collective beliefs, assumptions, and feelings about what things are good, normal, rational and valuable." (22) The next layer of organizational culture is represented by shared behaviors, which include "norms, which are more visible and somewhat easier to change than values." (23) The uppermost layer of organizational culture is the most visible and the most superficial. Cultural symbols "are words, gestures, and pictures or other physical objects that carry a meaning with a culture." (24)
"[O]rganizational culture forms in response to two major challenges that confront every organization: (1) external adaptation and survival and (2) internal integration." (25) External adaptation and survival refer to "how the organization will find a niche in and cope with its constantly changing external environment." (26) Internal integration refers to "the establishment and maintenance of effective working relationships among the members of an organization." (27) Organizational culture develops when organizational members share knowledge and assumptions in an effort to develop ways of coping with external adaptation and internal integration. (28) External adaptation and survival involves (1) mission and strategy; (2) goal setting; (3) means; and (4) measurement. (29) Internal integration refers to "the establishment and maintenance of effective working relationships among the members of an organization." (30) It involves; (1) language and concepts; (2) group and team boundaries; (3) power and status; and (4) rewards and punishments.
AN EXAMPLE OF ORGANIZATIONAL CULTURE AND ITS IMPACT
The military commissions established to try alleged terrorists after the attacks of September 11, 2001 were adopted by the Bush administration operating pursuant to an expansive view of executive authority which some have labeled a "New Paradigm." (31) This plenary interpretation of presidential war power is based on a reading of the Constitution that few legal scholars share. (32) It states that "the President, as Commander-in-Chief, has the authority to disregard virtually all previously known boundaries, if national security demands it." (33) The public policy behind the New Paradigm was to allow:
[T]he Pentagon to bring terrorists to justice as swiftly as possible. Criminal courts and military courts, with their exacting standards of evidence and emphasis on protecting defendants' rights, were deemed too cumbersome. Instead, the President authorized a system of detention and interrogation that operated outside the international standards for the treatment of prisoners of war by the 1949 Geneva Conventions.... In November, 2001, [Vice President] Cheney said of the military commissions, "We think it guarantees that we'll have the kind of treatment of these individuals that we believe they deserve." (34) The military commissions which Vice President Cheney referred to were invalidated by the Supreme Court in Hamdan v. Rumsfeld (35) and were replaced by military commissions created by the Military Commissions Act of 2006 (MCA). The MCA, though, featured a...