Civilian Control of the Military During an Age of Trump and “Administrative Coups”

Since President Donald Trump’s election, concerns about the health of civilian control of the military and civil-military relations have garnered considerable media attention. And for good reason: Trump has appointed several high-profile retired military officers within his administration, has shown a willingness to delegate broader authorities to the military, and has repeatedly used the military for his own political reasons, breaking with longstanding democratic norms. Most recently, Bob Woodward reported “an administrative coup d’etat” taking place within the Trump administration and a “nervous breakdown” of the executive branch, where senior aides (to include senior military officials) conspire to pluck official papers from the president’s desk so he couldn’t see or sign them, thereby averting what they consider to be potentially disastrous policy decisions. Woodward also reports that orders from the president were either ignored or slow-rolled by senior administration officials, and an anonymous N.Y. Times op-ed last week highlighted how government officials are working to insulate their operations from the commander-in-chief’s whims. While some of Woodward’s assertions remain unconfirmed – such as Trump’s disregarded order that the military assassinate Syrian President Bashar al-Assad following a chemical attack – we are clearly in extraordinary and potentially dangerous times.

Despite an unprecedented turnover in personnel during Trump’s first 16 months in the White House, retired military officers continue to play critical leadership roles in his Administration: Retired Gen. Jim Mattis still serves as the defense secretary and retired Gen. John Kelly says he will keep serving as the president’s chief of staff through 2020 (although that becomes harder to believe by the day). This has provided fertile ground for a broader discussion concerning the overall health of civilian control of the military and civil-military relations more generally. But first, what do we mean, exactly, by civilian control of the military and where is that found in the Constitution? And what is Congress’s role in ensuring civilian control? In a forthcoming article in the Georgia Law Review, I address these questions, and others, asserting that there are underlying institutional reasons for concern that are further exacerbated and accelerated by Trump’s erratic behavior.

As a baseline, the Constitution places an elected civilian commander-in chief at the military’s helm, but the term “civilian control of the military” is wholly absent from the Constitution’s text. It is best understood as a constitutional norm that has served the United States extraordinarily well for the past 200-plus years – witness, thankfully, no military coup d’etats in our nation’s history. But norms can bend and shift over time and are uniquely being stressed at this time in our nation’s history.

In the absence of an express constitutional guarantee, the congressional role and oversight over the military is crucial. Congress has used its constitutional power to “make rules and regulations governing the land and naval forces” to create what amounts to two militaries within the Defense Department (DOD), which remains the largest organization and employer in the world. I refer to these two militaries as the “operational military” and the “administrative military.” Congress exercised its constitutional authority through the passage of the Goldwater-Nichols Act of 1986, which continues to be the roadmap for DOD’s day-to-day operations. What did this law do, and how what does it say about the current state of affairs under Trump?

First, the Act reinforced two distinct, lawful chains of command within the military. This is of critical importance to a hierarchical federal agency that issues orders through the chain of command with the force of criminal law. This Act, passed under the leadership of Sen. Barry Goldwater (Sen. McCain’s predecessor and former SASC Chairman) greatly empowered operational combatant commands. But Congress placed a politically appointed civilian defense secretary between the operational combatant commands and the president. Under Goldwater-Nichols, the defense secretary and his subordinates have a clear legal duty to comply with legal and constitutional presidential orders, but Woodward’s book suggests that Trump’s orders are not always being followed or followed through.

Second, the two-military construct reinforces the centrality of the defense secretary and the chairman of the Joint Chiefs of Staff. After the president, the defense secretary may very well be the busiest job in government, as the secretary must manage both militaries’ competing interests and needs. Both the operational and administrative militaries’ chain of command converge at the Office of the Secretary of Defense via the incredibly talented Joint Staff. Military advice to the president is centralized via the chairman, who serves as the principal military adviser to the president. Today, Gen. Joseph Dunford serves in that role. The legal construct places the civilian president and defense secretary as partners in ensuring civilian control over the uniformed military.  Trump and Mattis are the legal guarantors of civilian control within the executive branch, not Mattis and Dunford.

Third, nearly all forces (weapons, equipment, personnel) are now assigned from each service to the operational military combatant commander. The administrative military is largely focused on staffing, training, and equipping their respective branch of the service (Army, Navy, Air Force) in support of the operational military’s needs. The operational military remains the focus of the executive branch, led by uniformed combatant commanders responsible for planning and fighting the nation’s wars as well as an expanding menu of foreign-relations functions. Congress, in turn, is focused on the administrative military, particularly via its budget authority.

The two-military divide has spawned numerous unintended consequences that have further accelerated under the Trump administration. Consider the following.

First, Congress remains more focused on the administrative military at the expense of operational military oversight. The complex military acquisitions process is inextricably linked to the administrative military and corresponding congressional incentives. For example, in a rare moment of bipartisanship, Congress even established a “Joint Strike Fighter Caucus” composed of Democrats and Republicans, in an effort to protect this massively expensive aircraft from budget cuts. Defense companies, aware of this dynamic, work to portion out pieces of large weapons programs like JSF in multiple states across the country to broaden congressional support and insulate budgets from criticism. Contrast this to congressional oversight over the operational military as witnessed in a recent military tragedy in Niger where several special operations forces lost their lives. The size and scale of U.S. military operations in Niger greatly surprised two high-ranking senators, with Sen. Lindsey Graham (R-S.C.) exclaiming, “We don’t know exactly where we’re at in the world militarily and what we’re doing.”

Second, the Goldwater-Nichols Act was passed in 1986 – when prior military service in both congressional chambers was extraordinarily high – 70 percent. Since that time, it has plummeted to 20 percent with broad oversight ramifications that we are only just beginning to understand. Initial studies indicate that members of Congress with military experience were more likely to vote to increase congressional access to information during the wars in Iraq and Afghanistan. Of course prior military service does not always equate to sound congressional oversight of the military and numerous non-veterans take the time to ask tough questions and learn the issues.

But the decline in congressional-veterans has potentially weakened the legislature’s role in overseeing the operational military. And Congress has only become increasingly polarized since 1986 – something that Amazon CEO Jeff Bezos is trying to counteract with his first ever major political donation to help elect veterans running for Congress.

Third, for some time, we have been witnessing an increased militarization of foreign policy. The two-military divide establishes a set of richly resourced and permanent geographic combatant commanders stationed overseas that are the heart of the operational military. They remain busy in war and peace. These commands reside throughout the world with personnel and resources far outpacing the rapidly shrinking State Department’s size and budget. This often leads to regional combatant commands (like U.S. Southern Command or U.S. Central Command) exercising far more influence and power than their diplomatic counterparts.

Finally, understanding this two-military divide helps place current debates in context. Take, for example, the president’s recent call for a new sixth service – a Space Force. Trump desires an entirely distinct administrative military service with a civilian “secretary of space.” While it remains unclear how much a Space Force will cost, it will likely come with all the trappings of a new service: an enormous budget, Space Force personnel clamoring for resources at the Pentagon, and a new secretary of space, with her or her own cadre of support staff. The Trump campaign was eager to jump right to the logo of the new service, asking voters to weigh in. If a Space Force is created, a Space Academy is sure to follow, and members of Congress will be primed to bring it to their home districts. In contrast, Congress (and Mattis) favors a Space Command that is part of the operational military, similar to the recently established Cyber Command. A Space Command would, in theory, be more streamlined, responsive to threats, and efficient, without the trappings and expense of an entirely new administrative bureaucracy, healthy budget and large staff.

In sum, a self-interested Congress, an erratic Trump, and reports of a possible administrative coup d’etat exacerbate a pre-existing two-military divide. Today’s short-term dysfunction should not be dismissed as a mere peculiarity. After all, there will be a world after Trump and the long-term implications remain to be seen. As these norms erode, we need to keep an increasingly watchful eye on civilian control of the military to ensure that while they may bend, they must not break.

Image: President Donald Trump addresses troops at Miramar Marine Corp Air Station on March 13, 2018 in San Diego, California. Photo by Sandy Huffaker/Getty Images

 

About the Author(s)

Mark Nevitt

Sharswood Fellow at the University of Pennsylvania Law School and former commander in the Navy, serving as a tactical jet aviator and attorney in the Judge Advocate General’s Corps for 20 years. Follow him on Twitter (@marknevitt).