James Joyner and Butch Bracknell
War on the Rocks
October 31, 2022
Officers in the U.S. armed forces take an oath to the constitution upon commissioning and renew it each time they are promoted to a new rank. In doing so, they pledge their loyalty to the country and their subordination to its laws. This oath is central to maintaining healthy civil-military relations, but it is not enough. As repeated crises over the last several years have shown, the military’s fealty to the constitution cannot be expected to save American democracy from presidents who violate their own oath to it.
The recent open letter in these pages signed by every living former secretary of defense except Dick Cheney and every living former chairman of the Joint Chiefs of Staff except retired Army Gen. Hugh Shelton demonstrates the strength of U.S. military’s commitment to civilian control. The signatories include those who served under six presidents of both parties, and all four of the longstanding military services. Especially noteworthy is their embrace of Peter Feaver’s dictum that “Elected (and appointed) civilians have the right to be wrong.” This pithy statement means, essentially, that perfection in decision-making is not required — only sobriety, steadfastness, competence, and integrity, supported by a constitutionally accountable political mandate.
These high-level principles, however, do not tell the full story about the complexity of civil-military relations on a month-to-month or year-to-year basis. Both Congress and the courts have significant roles in shaping defense policy through substantive statutes, appropriations acts, and judicial orders, but these are of little direct concern to the rank and file. Civilian control of the military is, as a practical matter, exercised through the chain of command, which runs to the president as commander-in-chief. Neither laws nor court decisions are self-executing. Until the Office of the Secretary of Defense and the Joint Chiefs of Staff turn Congress’s will or a court’s mandate into policy orders, they have little direct effect.
As a result, if Congress is worried about the risks posed by an erratic president, it is their responsibility to codify safeguards into law, rather than counting on the country’s generals to act as a last line of defense. Instead of expecting the military to ignore a lawful nuclear launch order, for example, elected representatives could act now to help reduce that risk. At the same time, in an increasingly partisan climate, the public still expects generals and admirals to understand the political environment and navigate it. This means that they will have to be more cautious than ever to avoid stepping on political landmines and appearing to be partisans for either side. In other words, at a particularly fraught moment, the military’s oath of loyalty is necessary but not sufficient to keep the constitutional order functioning.
Understanding the Chain of Command
As just one example of how complicated the chain of command can be, consider Public Law 115-68, the Women, Peace, and Security Act of 2017, which Donald Trump signed on Oct. 6 of that year. While its text had significant implications for the curriculums of professional military education institutions, it is only slowly making its way into policy. The Trump White House did not issue its U.S. Women Peace and Security Strategy until June 2019, almost two years after signing the act into law. The ensuing Department of Defense Women, Peace, and Security Strategic Framework and Implementation Plan was published a year later, in June 2020. As of March 2022, a Department of Defense Instruction was still in the works. Changes still have not made it to the Officer Professional Military Education Policy, which was last revised a month earlier. Nor has it been a Chairman’s Special Area of Emphasis. In other words, a law was enacted over five years ago, following the normal constitutional processes, but has had very little practical effect because the executive branch has not completed the steps that turn it into useful guidance for the relevant military departments.
To be sure, many if not all of the staff and war colleges are working to carry out congressional intent on this matter, piecing together a mosaic approach from the various clues that Congress and the Office of the Secretary of Defense have provided so far. But that’s as much a function of organic support from leaders and scholars at these institutions as it is a matter of Congress having made its wishes known. Indeed, the act was signed into law near the end of the 114th Congress. We’re now approaching the end of the 117th. The lag between the passage of the legislative requirement and the issuance of meaningful and specific Defense Department guidance demonstrates the primacy of the executive branch’s leadership for the rank and file on this and similar issues.
Moreover, the fact that the military answers to the Congress as well as the president works both ways. It gives the brass two bites at the apple, allowing them a second avenue for prevailing in policy fights that they have lost against the executive branch. As Alice Hunt Friend and Sharon Weiner note, Congress routinely allows the service chiefs to lobby for “unfunded requirements” that were not part of the president’s budget.
Perhaps the most famous case of this was the rearguard action by the Navy Department against President Harry Truman’s efforts to unify the armed forces into a single department, which would have stripped the Navy of its airplanes and shuttered the Marine Corps. Ultimately, Navy and Marine leaders persuaded Congress that Truman’s plan would consolidate too much power in the executive at the expense of the legislature. Instead of unifying two service departments into one, America ended up with an additional Department of the Air Force that, oddly, did not have a monopoly on fighter jets. And instead of the Marine Corps being rolled into the Army, Congress not only codified its preservation into law but also went so far as to pledge a minimum of three divisions in perpetuity.
This example is hardly unique. Military leaders have prevailed over the wishes of their commander-in-chief by lobbying Congress on everything from gays in the military to the roles of women and special operations forces. As Friend and Weiner note, civilian masters tend to defer to the brass “not because they believe military expertise to be substantively superior in every possible instance, but rather because it is politically challenging to oppose military advice and often politically beneficial to align with military opinion.”
Yet despite this, going to the Hill is a tightrope walk for generals and admirals, who in fact serve at the pleasure of the president. For example, Joint Chiefs chairman Gen. Mark Milley earned the ire of Speaker of the House Nancy Pelosi for adhering to Trump’s insistence that he keep lawmakers out of the loop on the decision to kill Quds Force commander Qassem Suleimani, even going so far as to provide evasive answers in his testimony.
Here, again, the constitution is of little help. The framers’ intentional division of powers over military and foreign policy between the president and Congress has long been understood as an “invitation to struggle.” Further, as Friend rightly notes in a recent commentary here, while they are required by their professional ethic to refrain from being partisan, senior uniformed leaders are inherently political actors. Both service chiefs and combatant commanders are charged with fighting over “who gets what, when, and how,” the very definition of politics.
Enter the Courts
Similarly, while judicial review of policies, orders, and actions involving the military is a form of civilian control, the process is circuitous. While officers are trained from their earliest days as cadets and midshipmen that they must disobey illegal orders, legality and constitutionality are rarely so straightforward that these determinations are easy for the individual officer to make, even at the four-star level.
For example, the Supreme Court held in Hamdi v. Rumsfeld (June 2004) that the president may not suspend the right of an alleged enemy combatant who was also a U.S. citizen to challenge his detention in the federal courts. The Defense Department quickly responded, creating Combatant Status Review Tribunals, a new mechanism designed to comply with the holding. Two years later, in Hamdan v. Rumsfeld (May 2006), the court held that these tribunals, too, were unconstitutional because only Congress, not the president and his executive branch delegates, had the power to create judicial bodies. Congress filled the breach by passing Public Law 109-366, the Military Commissions Act of 2006, which President George W. Bush signed into law on Oct. 17. Finally, in Boumediene v. Bush (June 2008), the court ruled that the Military Commissions Act was an unconstitutional suspension of the right of habeas corpus. Pursuant to this ruling, a lower court judge ordered that Lakhdar Boumediene and four other foreign nationals detained at Guantanamo be released. Congress also passed the Military Commissions Act of 2009, remedying the cited defects in the 2006 version, as part of that year’s National Defense Authorization Act.
At every step of the way, then, the Defense Department and many of its officers were acting in ways that were, in retrospect, unconstitutional. Presumably, they were doing so in good faith. It took multiple Supreme Court cases, over a period of many years, to flesh out what procedures were necessary for constitutional compliance. These issues are hard and often novel, and the answers are not immediately apparent. In fact, even years later they remain somewhat difficult for trained professionals, including military lawyers, to understand. Indeed, updated implementation guidance was issued as recently as March.
To take a more recent example, in August 2021, the Defense Department ordered all of its employees, uniformed and civilian, to get vaccinated against COVID-19, pursuant to implementation guidelines issued by the services, military departments, and field agencies. The next month, President Joe Biden issued an executive order requiring all executive branch employees to get vaccinated. While precise numbers are hard to come by, the services have already discharged over 5,700 uniformed members who have refused to comply with these orders. Meanwhile, the department’s inspector general has expressed “concern” that requests for religious exemptions were dismissed too hastily rather than being given the individualized scrutiny required by law. Now, dozens of lawsuits are underway. More than one federal judge has expressed sympathy for those asserting that their religious objections should take precedence over mission-related concerns of the department. It would be no surprise if the current Supreme Court upheld this view, overturning generations of extraordinary deference to presidents and the military brass on matters of good order and discipline.
Ultimately, of course, the military will follow the law as determined by the courts — to the extent that a court’s order and mandate are clear and executable. In the meantime, though, the orders of the president and the secretary of defense are presumed lawful. It would be chaos, indeed, if every unit commander, much less every member of the armed forces, were to take it upon themselves to offer their interpretation of the Free Exercise Clause, or to make individual judgments about the fitness of female soldiers to serve in the infantry or for gay soldiers to serve at all.
Indeed, as Texas National Security Review executive editor Doyle Hodges has pointed out, while the Nuremberg trials famously rejected the “just following orders” defense, they prefaced that by noting, “it is certainly not incumbent upon a soldier in a subordinate position to screen the orders of superiors for questionable points of legality. Within certain limitations, he has the right to assume that the orders of his superiors and the State which he serves and which are issued to him are in conformity with International Law.” Unless they are “manifestly unlawful,” a very high bar, they are presumed legal.
Most officers can discern the easy cases, but these are not the ones that occasionally shake institutions to their cores. The lawfulness of kinetic targeting of U.S. citizens, Defense Department policy on transgender servicemembers, and the shifting landscape over the War Powers Act are three examples where ten different senior officers — indeed, ten different military lawyers — might have ten different views on lawfulness and constitutionality.
Under the Trump administration, there were numerous instances when the commander-in-chief issued policy directives that looked a whole lot like orders via tweet. Many of them were, in both our judgment and that of senior Defense Department officials at the time, unwise. They were irregular in form. But almost all of them could be presumed legal. Constitutionally, no matter how reckless, ugly, and irresponsible, they were presumptively lawful orders from the president, bound to be operationalized and tested for lawfulness over time.
For the first time in decades, the erratic nature of the sitting president caused members of Congress, national security scholars, and others to panic over the fact that the commander-in-chief has essentially untrammeled authority to launch nuclear strikes. The Senate Foreign Relations Committee even held hearings on the matter, questioning whether the policy should change. Many members asserted that “without congressional authority, a preventative or preemptive U.S. military strike would lack either a constitutional basis or legal authority.” That view, of course, was not universally held, and the constitution is predictably silent on this particular matter, written as it was more than a century and a half before the advent of the nuclear age. Given the exigent nature of such orders, however, there would be no time to resolve this matter via the courts. And the commanding general of U.S. Strategic Command is neither a judicial officer nor elected policymaker.
Further, it is the most senior officers who have the primarily responsibility for ensuring that orders are in accordance with the constitution and other applicable laws. It is problematic, indeed, to argue that it is the duty of all officers to make those judgments. Outside of narrow cases like the law of armed conflict, that is simply not realistic, particularly as international law is evolving and outcomes often turn on hard facts.
An illustrative case is that of former Army Lt. Col. Terrence Latham. A distinguished physician with multiple combat deployments, Latham refused in early 2010 to deploy to Afghanistan, asserting that President Barack Obama was not a native-born U.S. citizen and therefore not constitutionally eligible to be president or issue orders through the chain of command. A military court martial rightly convicted him, sent him to prison, and ousted him from the service. This was not just because Obama was unquestionably born in Hawaii and thus constitutionally eligible — a matter the judge refused to even allow to be litigated at Lakin’s trial — but because lieutenant colonels are not the constitutional officers charged with deciding such things. Now a small minority of servicemembers are vocally asserting that Biden is not the legitimate commander in chief — a position thankfully rejected by the Joint Chiefs.
The Devil in the Details
That officers should “act constitutionally” and “follow the constitution” is so uncontroversial as to be axiomatic. But the devil is in the details. Figuring out what acts are actually constitutional can require constant attention, balance, advice, and good-faith judgments. Acting constitutionally is often interpreted as following the orders of the president faithfully. But when a president himself acts irregularly, in ways that may be inconsistent with the constitution, officers have to balance between the executive, the legislature, and the courts. In these situations, repeating that an officer’s duty is to the constitution provides little guidance.
Just ask Milley, who many argue routinely overstepped his authority in his efforts to circumvent a president he viewed as dangerous. Milley is an educated man, with a political science degree from Princeton, a master’s degree in international relations from Columbia, a certificate from the Massachusetts Institute of Technology’s Seminar XXI National Security Studies Program, and another master’s degree from the Naval War College. One presumes he got substantial training in civil-military relations along the way. Nothing in his classroom experience or four decades of military service could have prepared him for Trump, who was sui generis in his disregard for the norms of the office of commander-in-chief. We tend to agree with Feaver that Milley should therefore be graded on a curve. No officer could have been prepared for the chaos of the Trump administration.
Even from afar, Milley’s concerns about a petulant and erratic president seemed reasonable. His stated goals of ensuring Trump didn’t start an unnecessary war overseas, use the military in the streets against the American people, or undermine the military’s integrity are ones we share. Still, we agree with Hodges that civilian policymakers, not the chairman of the Joint Chiefs, are the proper authorities for making those judgments. Generals don’t get to choose which wars the country fights. Nor do they have the right to refuse to follow legal orders that they find morally distasteful.
At the same time, Friend is correct that these discussions of the civil-military relationship tend to let the civilians off the hook. The entire national security apparatus of the United States is predicated on presidents who respect the constitution and follow longstanding norms. To the extent they don’t, the responsibility is on Congress to remove them from office via the impeachment process or for the vice president and cabinet to step in by invoking the 25th Amendment. Those mechanisms all failed because Trump’s co-partisans refused to hold him accountable — even after he incited a violent mob to storm the Capitol to steal an election. Under those circumstances, it is difficult to be too harsh in judging Milley for overstepping his bounds. Future senior military leaders will hopefully not face the challenges he did. But they should be better prepared than Milley if they do.