The Power of Rhetoric in the Civilian-Military Divide

On April 10, Stephen Preston, General Counsel for the Defense Department, spoke at the annual meeting of the American Society of International Law. He ended his remarks on the Authorization for Use of Military Force in standard fashion:

We agency counsel all serve the same client, the United States of America, and each of us answers to the head of our respective agencies. But our highest calling, in my personal view, is to serve those who serve us.

It is not unusual for a top defense official to invoke the roughly two million people who comprise this country’s all-volunteer force. High-level defense officials are often judged by their ability to grasp how their policies affect the lowest ranks. This is one of the chief reasons former Defense Sec. Robert Gates was revered — he saw himself as the custodian of an institution that, down to the greenest private, would outlast his tenure. With good reason, policymakers at the top of the civilian chain of command often appeal to those in uniform. This approach places service members at the locus of discussions that all too often take their sacrifice and adversity for granted.

Yet Preston’s remarks should give us pause. In elevating soldiers, sailors, Marines, and airmen as a special subset of clients, the general counsel draws a distinction between service to military members and service to the general public. Such rhetoric exacerbates an already strained relationship between the military and the rest of American society.

As a technical matter, there is a difference between providing legal counsel to the government and serving “those who serve us.” The military operates under the rule of law and all armed service members take an oath “to protect and defend the Constitution of the United States.” The DOD general counsel works within this legal framework, and more to the point, upholds it by telling the military when it has overstepped its legal bounds. While acknowledging military personnel makes sense given the many challenges that service members and their families face, comments like these threaten to obscure the role that lawyers play in reminding DOD about its constitutional commitments.

Clear legal guidance is particularly vital in the context of the changing character of warfare. Civil wars, insurgencies, and non-state terrorist groups dominate contemporary conflict. Even where there is great power rivalry, as with the United States and Iran, friction unfolds through proxy. Unconventional conflict — with no clear end or enemies — blurs legal and territorial boundaries. This ambiguity has prompted heated debate over the nature and scope of the AUMF. Amidst such debates, we need a Defense Department that sees itself as accountable to the polity.

These issues matter in policy circles. They’re also crucially important on the ground. As they have fought wars in Afghanistan and Iraq, military members have struggled to see the link between the work they do abroad and the political system at home. Many service members believe that decisions on use of force only affect less than 0.5% of the population of the country — a warrior caste set apart, defending a public that doesn’t seem to know or care about the realities of war. Senior leaders and retired flag officers have also highlighted this worrying trend. The law can counteract this gap between military and civilian life. Law connects those who serve to that which they defend. The best way to integrate the military into society is to insist that all members of the defense establishment serve the American people and owe a duty not only to each other, but to the rule of law.

Concerns about the isolation of the US military will only become more acute in coming years. The war in Afghanistan may be coming to a close, but around the world, American military commitments are growing. Al-Qaeda has splintered into several more dangerous regional terrorist groups, including al-Qaeda in the Arabian Peninsula, which stands to gain significantly from recent civil strife in Yemen. ISIS continues to redefine the political geography of the Middle East in dangerous ways. Even the threat from Russia is expanding — the country now sends “little green men” across borders to spread an eastern sphere of influence.

Debates about these emergent threats often focus on the AUMF. Policymakers and politicians disagree about the legal boundaries of the US response to ISIS. These debates represent a democratic juncture—a moment at which the public has the opportunity to weigh in on use of force, and the law can connect the military to the polity.

Uniformed service members have been isolated by a decade and a half of service in a segment of society that is little acknowledged, except superficially, by the rest of the country. Rhetoric that unmoors the military from the law, even if well intentioned, does a disservice to an organization that is increasingly uncertain of its relationship to the society it defends. The general counsel provides a meaningful connective tissue between the military and the people of the United States. At a time when the bond between the two is increasingly feeble, government officials should speak in a way that implicates us all. 

About the Author(s)

Eric Gardiner

Former Naval Special Warfare Officer, Advisor to the President at the Council on Foreign Relations, Graduate and Marshall Scholar of the Naval Academy Follow him on Twitter (@EricDGardiner). The views expressed above are his own.