Discussion: Examining Ethical Issues in CasesJust as an individual’s culture influences his or her values, beliefs, behaviors, and ethics, an organization’s culture has an impact on the shared values, beliefs, behaviors, and ethics of its members. Although organizational ethics are often deeply entrenched because they take time to develop, decision makers such as public administrators are in a position to influence organizational cultures. An ability to grasp the ethical issues inherent in both cultures and situations is imperative if a public administrator is to develop strategies that will promote ethical organizational cultures.To prepare for this Discussion, review this week’s resources. Select one of the following cases: Guantanamo (McNeal, 2010) or the Exxon Valdez (Kurtz, 2003). Then, consider the following:How did organizational culture influence ethical decision making?What are the ethical issues?What are the issues facing the decision makers?How did the organizational culture influence decision making?What did you learn from this case that you can use as a public administrator?What, if anything, does the case have in common with the 2013 Internal Revenue Service (IRS) scandal over IRS audits of conservative nonprofit agencies?To what extent does attention by the American public media influence ethical decision making of public and nonprofit public administrators? Do you think that such media exposure should determine administrative decisions?Post by Day 3 a brief description of your chosen case. Identify the ethical issues within the case. Then, explain how the organizational cultures influence the decision making related to ethics in your chosen case. Finally, suggest two strategies that public administrators might use to promote an ethical organizational culture.
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ORGANIZATIONAL CULTURE, PROFESSIONAL ETHICS AND
GUANTÁNAMO
Gregory S. McNeal’
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 ofthe military specifically and political control of
bureaucracies more generally.
I. INTRODUCTION
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 reñects more than rules and structure within an organization, but
rather represents deeper values, practices, and ways of thinking. Next, I use
the example ofthe 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
Gregory S. McNeal, Visiting Assistant Professor of Law, Pennsylvania State University Dickinson School of Law.
125
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resisted enhanced political control over the activities of the rhilitary. 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.
II. AN OVERVIEW OF ORGANIZATIONAL CULTURE THEORY
Organizational cultures are slowly evolving reflections of the
shared and leamed values, beliefs, and attitudes of an organization’s members. ‘ 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.^ In short, “[t]he culture of an organization influences who gets
promoted, how careers are either made or derailed, and how resources are
allocated.”^ Organizational culture theory places its focus on “the culture
that exists in an organization, something akin to a societal culture.”‘* It analyzes “intangible phenomena, such as values, beliefs, assumptions, perceptions, behavioral norms, artifacts, and patterns of behavior.”‘ Organizational
culture is seen as “a social energy that moves people to act.”* “Culture is to
the organization what personality is to the individual—a hidden, yet unifying theme that provides meaning, direction, and mobilization.”^ 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.^
Organizational culture theory challenges rational perspectives regarding “how organizations make decisions and . . . why organizations—
‘
D O N HELLRIEGEL & JOHN W . SLOCUM, ORGANIZATIONAL BEHAVIOR 418 (2007).
2
Id
‘
Id. (noting that “organizational culture includes: routine ways of communicating, such
as organizational rituals and ceremonies and the language commonly used; the norms shared
by individuals and teams throughout the organization . . . the dominant values held by the
organization . . . the philosophy that guides management’s policies and decision making . . .
the rules ofthe game for getting along in the organization . . . the feeling or climate conveyed
in an organization by the . . . way in which [organizational members] interact with . . . outsiders.”).
“* Gregory S. McNeal, Organizational Theory and Counterterrorism Prosecutions: A
Preliminary Inquiry, 21 REGENT U. L. REV. 307, 325 (2009) (citing JAY M . SHAFRITZ & JAY
STEVENS OTT, CLASSICS OF ORGANIZATION THEORY 352 (2005)).
^
*
McNeal, supra note 4 (citing SHAFRITZ & OTT, supra note 4).
McNeal, supra note 4 (citing SHAFRITZ & OTT, supra note 4 (citing RALPH H . KJLMANN
ET AL., GAINING CONTROL OF THE CORPORATE CULTURE, at xi (1985))).
‘
McNeal, supra note 4 (citing SHAFRITZ & OTT, supra note 4 (citing KJLMANN ET AL.,
supra note 6, at ix)).
* McNeal, supra note 4 (citing SHAFRITZ & OTT, supra note 4).
2009]
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and people in [them]—act as they do.”‘ 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.'” Those assumptions are: ” 1 . a self-correcting
system of interdependent people; 2. [a] consensus on objectives and methods; 3. coorditiation achieved through sharing information; and 4. predictable organizational problems and solutions.”” 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.'”‘^ 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.”‘^ 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].”””
Organizational culture theorists believe that “[a] strong organizational culture can control organizational behavior.”‘^ Such a culture “can
block an organization from making [needed] changes” to adapt to its environment.’* 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.”‘^ 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.’^ Furthermore, the effect of organizational cul-
McNeal, supra note 4 (quoting SHAFRITZ & OTT, supra note 4).
McNeal, supra note 4 (citing SHAFRITZ & OTT, supra note 4).
McNeal, supra note 4 (quoting SHAFRITZ & OTT, supra note 4).
McNeal, supra note 4 (quoting SHAFRITZ & OTT, supra note 4, at 352-53).
McNeal, supra note 4, at 325-26 (quoting SHAFRITZ & OTT, supra note 4, at 353).
McNeal, supra note 4, at 326 (quoting SHAFRITZ & OTT, supra note 4, at 353).
McNeal, supra note 4, at 326 (quoting SHAFRITZ & OTT, supra note 4, at 353).
McNeal, supra note 4, at 326 (quoting SHAFRITZ & OTT, supra note 4, at 353).
McNeal, supra note 4, at 326 (quoting SHAFRITZ & OTT, supra note 4, at 353).
McNeal, supra note 4, at 326 (citing SHAFRITZ & OTT, supra note 4, at 353).
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ture may be pervasive and may include subcultures with similar or distinct
influence factors.”
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 oí shared assumptions and philosophies, which represent basic
beliefs about reality, human nature, and the way things should be done.”^”
Organizational cultural values represent the next layer of organizational
culture and tend to persist over time, even with changes in organizational
membership.^’ Organizational cultural values are the “collective beliefs,
assumptions, and feelings about what things are good, normal, rational and
valuable.”^^ 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.”^^ 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.”^”
“[Ojrganizational culture forms in response to two major challenges
that confront every organization: (1) external adaptation and survival and
(2) intemal integration.”^’ External adaptation and survival refer to “how
the organization will fmd a niche in and cope with its constantly changing
external environment.”^* Internal integration refers to “the establishment
and maintenance of effective working relationships among the members of
an organization.”^^ Organizational culture develops when organizational
members share knowledge and assumptions in an effort to develop ways of
coping with external adaptation and intemal integration.^^ External adaptation and survival involves (1) mission and strategy; (2) goal setting; (3)
means; and (4) measurement.^’ Intemal integration refers to “the establish” McNeal, supra note 4, at 326 (citing J. STEVEN OTT, THE ORGANIZATIONAL CULTURE
PERSPECTIVE ch. 4 ( 1989)).
^^ HELLRIEGEL & SLOCUM, supra note 1, at 419 (emphasis in original).
^’ Id
^^ Id. (citing C.B. Gibson & M.E. Zellmer-Bmhn, Metaphors and Meaning: An Intercultural Analysis of the Scope of Teamwork, 46 ADMIN. SCI. Q. 274 (2001)) (emphasis omitted).
^^ HELLRIEGEL & SLOCUM, supra note 1, at 419 (emphasis omitted).
^*
Id. (citing E.H. SCHEIN, ORGANIZATIONAL CULTURE AND LEADERSHIP (1985)) (emphasis
omitted).
^’ HELLRIEGEL & SLOCUM, supra note 1, at 421 (citing E.H. SCHEIN, supra note 24, at 4 9 84).
^* HELLRIEGEL & SLOCUM, supra note 1, at 421 (emphasis omitted).
^’ Id. (emphasis omitted).
” Id
” Id
2009]
ORGANIZATIONAL CULTURE
129
ment and maintenance of effective working relationships among the members of an organization.”^” It involves; (1) language and concepts; (2) group
and team boundaries; (3) power and status; and (4) rewards and punishments.
III. 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.”^’ This plenary interpretation of presidential war power is based on a reading of the Constitution that few legal scholars share.^^ It states that “the President, as Commander-in-Chief, has the
authority to disregard virtually all previously known boundaries, if national
security demands it.”” 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 intemational 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.”^”
The military commissions which Vice President Cheney referred to
were invalidated by the Supreme Court in Hamdan v. Rumsfeld^^ and were
replaced by military commissions created by the Military Commissions Act
of 2006 (MCA). The MCA, though, featured a command structure which
created a culture within the military commissions system wrought with political influence. One statutory provision designates a political appointee to
serve in the powerful role of Convening Authority,^* while a second statutoId. (emphasis omitted).
^’ See, e.g., Jane Mayer, The Hidden Power: The Legal Mind Behind the White House’s
War on Terror, NEW YORKER, July 3, 2006, at 44, available at http://www.newyorker.coin/
archive/2006/07/03/060703fa_factl.
” Id at 44.
”
Id
^” Id. at 46.
” 548 U.S. 557, 591 (2006).
^* Military Commissions Act of 2006, Pub. L. No. 109-366, § 948(h), 120 Stat. 2600.
(“Military commissions under this chapter may be convened by the Secretary of Defense or
by any officer or official ofthe United States designated by the Secretary for that purpose.”).
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ry provision provides trial counsel with enhanced protection from undue
infiuence. ^^ The legislative history ofthe MCA suggests that congressional
drafters accepted legislation proposed by the White House in September
2006,^^ and while Congress added to the bill an important protection against
undue influence,^^ they failed to consider how that provision would interact
with other provisions within the bill. Moreover, the protection Congress
intended to extend to trial counsel has been largely undermined by a broad
delegation of authority to the Executive branch to promulgate rules for military commissions outside the normal rulemaking procedures.'”‘ As a result,
the Department of Defense took advantage of the opportunity to exercise
control over military commissions and created a structure and promulgated
rules for the military commissions which allowed for political manipulation
of nearly all aspects of the trials. It is possible that the creation of this culture of political infiuence was intentional, a point I will elaborate on
below.^’
Section 948(h) of the MCA declares: “Military commissions under
this chapter may be convened by the Secretary of Defense or by any officer
or official of the United States designated by the Secretary for that ptirpose.””^ This seemingly innocuous provision allows the Secretary of Defense to select a civilian political appointee to serve in the important role of
Convening Authority, a substantial departtire from courts-martial practice.’*^
This raises an obvious problem: a political appointee lacks the presumption
”
‘*
Id § 949(b).
See Gregory S. McNeal, Institutional Legitimacy and Counterterrorism Trials, 43 U.
RICH. L. REV. 967 (2009).
” Military Commissions Act of 2006, Pub. L. No. 109-366, § 949(b), 120 Stat. 2600.
^ See Letter from Barry M. Kamins, President, The Association of the Bar of the City of
New York, to Senators Patrick Leahy, Arlen Specter, Carl Levin, and John McCain and
Representatives John Conyers, Lamar S. Smith, Ike Skelton, and Duncan Hunter (Mar. 12,
2008), available at
http://www.harpers.org/media/image/blogs/misc/guantanamoletter
remc311 .pdf (discussing the urgent need for Congressional oversight hearings given the
potential for undue political influence and organizational changes which impact the independence of the military commissions). See also Eugene R. Fidell, Military Commissions t&
Administrative Law, 6 GREEN BAG 379, 382 (2003), available at http://www.nimj.
org/documents/GreenBag.pdf. (stating that transparency in the form of notice and comment
rulemaking for military commissions can contribute to public confldence in govemment
decision-making and improved decisions).
•” See Letter from Barry M. Kamins, supra note 40, at 3 (stating “this restructuring places
the General Counsel [a political appointee] at the apex of the military commissions system
with the power to influence and direct it from every perspective” and “the supervisory structure underlying the military commissions . . . establishes a blueprint for conflict and political
influence on the prosecution and conduct ofthe military commissions.”).
“^ Military Commissions Act of 2006, Pub. L. No. 109-366, § 948(h), 120 Stat. 2600 (emphasis added).
“‘ Cf Uniform Code of Military Justice, 10 U.S.C. § 822 (2006).
2009]
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of unbiased and apolitical decision-making that accompanies the role of a
military commander.’*” The Convening Authority is a unique official with
no civilian equivalent.”^ In the case of the commissions, she also has no
military equivalent; her position exists solely for the purpose of trying one
class of alleged offenders. The Convening Authority’s responsibilities include reviewing the sufficiency of charges and whether they should be dismissed, selecting those cases and associated charges that should be referred
to trial by military commission, selecting members of the panel (the jury),
and reviewing findings of guilt and sentences.”^
In Section 948(h), Congress created a Convening Authority with all
the power found in military commanders but without the attendant command responsibility justification; moreover, by allowing this individual to
be a political appointee. Congress allowed for the creation of a politicallymotivated organizational culture in what should be an apolitical organizational culture. It is certainly up to Congress to prescribe “the level of independence and procedural rigor” of military courts.”*^ But Section 948(h) also
implicates the broader protections of the trial process, and in this respect is
govemed by Common Article 3 of the Geneva Conventions which is concerned with “matters of structure, organization, and mechanisms to promote
the tribunal’s insulation from command influence.”‘*^ It is not clear that
Common Article 3 would prohibit an organizational culture that was driven
by politics, as politics are an accepted aspect of many ordinary criminal
trials. However, in his concurrence in the Hamdan opinion. Justice Kennedy
made clear that a major failure ofthe military commissions which preceded
those created by the MCA of 2006 was that they were not structurally independent.'”
The organizational culture and political influence point is key to
understanding what section 948(h)’s impact is—by allowing for a politically
appointed convening authority it violates the principle that military justice
should be insulated from a politically motivated organizational culture.
‘*’ Convening Authority under the UCMJ are commanders and military officers. Id. As
such they are protected from removal from their position, and any such removal would raise
significant questions especially in light of their other non-judicial responsibilities. See id. §
804 (granting an officer the right to challenge his or her dismissal in a trial by court-martial).
•” See Lindsay Nicole AUeman, Who Is in Charge, and Who Should Be? The Disciplinary
Role ofthe Commander in Military Justice Systems, 16 DUKE J. COMP. & INT’L L. 169, 170
(2006).
*^
DEP’T OF DEF., THE MANUAL FOR MILITARY COMMISSIONS, pt. 2., § 2-3, (2007), ovo/Va-
¿)/earhttp://wvw.defenselink.mil/news/Apr2007/Reg …
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