The Generals’ Constitution

When retired senior military officers “break ranks” to publicly criticize current political affairs, they often invoke a defense of the Constitution. In light of their oaths and long careers devoted to supporting and defending the Constitution, this is not surprising. But there may be surprises in what, exactly, they choose to emphasize about this venerated charter.

In this article, I attempt to assess every statement made by retired senior military officers (of the 3 or 4 star rank) that have addressed, in part by reference to the Constitution, the president’s handling of the protests gripping the country.

The dam broke on Wednesday, June 3 when retired Marine Corps General and former Secretary of Defense James Mattis finally unleashed his long anticipated, considered judgment on President Donald Trump, and he did so specifically invoking the Constitution. In response to now world-wide protests following George Floyd’s death at the knee of a Minneapolis police officer, the Trump administration called for governors to make mass arrests, use deadly force to defend against rock-throwers, and deployed the D.C. National Guard to disperse protesting crowds near the White House with force. Mattis wrote, “We must reject and hold accountable those in office who would make a mockery of our Constitution,” and specifically about Trump, he said, “Donald Trump is the first president in my lifetime who does not try to unite the American people—does not even pretend to try. Instead, he tries to divide us.”

Mattis’s opinion is significant for at least two reasons. First, it is highly unusual for a retired general and former cabinet official of his reputation and stature to roundly criticize the sitting president’s policies and rebuke him personally. The last time something of that magnitude occurred must be when General Douglas MacArthur spoke out after President Truman relieved him of command in Korea. Upon his return to the States, General MacArthur was greeted by ticker-tape parades, spoke before hundreds of thousands at venues like Chicago’s Soldier Field, and spoke before a joint session of Congress. His later closed-hearing testimony before two Senate committees further highlighted the stark differences between his world view and strategy for the Korean War and the views of his civilian superior.

Mattis’s candor represents a growing list of retired generals and admirals feeling freed to scrutinize this crisis and condemn what they view as excesses of power, risk to rights, and misuse of the military. Speaking out is so unusual for such (former) military leaders because there is an entrenched norm in American civil-military relations, one that is not imposed by the Constitution, or any statute, or any field manual, or any regulation. This unwritten norm expects stoic regard for lawful civilian orders into retirement years, finding greater virtue in silence, even when former military leaders might consider the civilian direction to be “lawful but awful.” Mattis himself often demurred after he resigned in late 2018, deferring to the sanctity of this norm, declining to speak out about his experiences or his opinions of the administration — the timing was not right yet he suggested.

However, this norm has been more the exception than the rule since President Trump took office, with former generals and admirals very publicly criticizing his policy choices as commander-in-chief, his temperament, and even raising alarms of a constitutional enemy on the horizon. Senior generals and admirals remaining on Active Duty may feel duty-bound to work within the system quietly but professionally, rather than resign in protest. They also have professional incentives to remain silent unless facing a manifestly illegal order. Even if speaking out ostensibly as a concerned fellow citizen, the public may take cues about military issues from senior leaders but often laypersons don’t sufficiently distinguish between comments offered by retired flag officers and those currently in charge (each conflated with “the military’s perspective”). What’s more, some retired senior leaders feel compelled to speak as a sort of proxy or surrogate, when the nature of the “threat” is more ambiguous.

This is not a trend that has met with great applause among civil-military relations scholars. Yet, in recent days, several Chairmen of the Joint Chiefs of Staff, the nation’s highest-ranking officer and principal military advisor to a president and secretary of defense, also vigorously condemned the use of troops to combat largely peaceful protests. They responded to the president and secretary of defense’s regrettable references to the streets as “battlespace” to be “dominated,” and politicizing the military on the one hand and fueling a civil-military culture divide on the other. In this sense, Mattis’s “after action review” follows in an increasingly long line of precedent. There remains, though, at least some thread of cynical rejection of these retired officers’ current indignation. Their credibility is shot, according to Andy Kroll of Rolling Stone, because it was these same leaders who, when still in uniform, “endorsed and defended a policy of forever war that has led to tens of thousands of American deaths, hundreds of thousands of dead Iraqis and Afghans and Syrians and Yemenis and Pakistanis, hundreds of thousands of injuries physical and mental suffered by U.S. service members, and many billions of taxpayer dollars poured into endless conflict,” rather than resign in protest about the abuse of governmental power.

But in a different way, Mattis’s statement was significant. Like others, he engaged directly with the Constitution, citing the oath he swore to “support and defend” it and condemning what he saw as political use of the military to constrict and defeat the constitutional rights of fellow citizens protesting injustice. While his statement, by itself, is extraordinarily noteworthy, it is important to observe a theme common to most public criticisms of public officials by (former) military officials. To allege vague “threats” to the Constitution without addressing more specifically the constitutional concerns may be as unhelpful to the public conversation as repeatedly alleging a political rival has committed “treason” or treachery with no evidence.

So, it is worth asking: what exactly about the Constitution are these retired officers warning us might be weakened? Specific provisions in the Bill of Rights, like freedom of assembly? Specific structural provisions, like the proper subordination of the military to civilian control under Articles I and II, the president as commander-in-chief under Article II, or the police power of the states under the 10th Amendment? As a gentle nudge to those still on active duty as a reminder of their professional duties? Or, instead, are they using the Constitution — as a whole — as simply expressive of larger ideals and principles, the “American experiment,” they find most exposed and vulnerable?

It turns out that the answer is a little of almost everything, but there are some general patterns. With the rapidly evolving situation, I conducted a non-scientific survey of public statements by retired and active duty generals and admirals to discover the scope of their constitutional concerns; I had a second objective to see whether there might be similarities in how they expressed these concerns; a third objective was to see if there were any glaring anomalies, gaps, or mischaracterizations. The period this survey covers begins on June 1, 2020, after President Trump’s Rose Garden speech invoking the use of the military in response to the rioting and protesting. This does not include the deluge of public statements made by active and retired flag officers specifically addressing institutional racism, respect, and equality in the immediate wake of the Floyd murder.

Name status Highest rank Last (or current) duty Dates of statement(s), venue Scope and breadth of Constitutional commentary
Tony Thomas Retired, Army General Commander, US Special Operations Command June 1, 2020, Twitter Only in a war on domestic soil or “constitutional failure” should we refer to our streets as “battlespace”
Barry McCaffrey Retired, Army General Commander, US Southern Command, Director Office of National Drug Control Policy June 1, 2020, Twitter “using mil forces other than Nat Guard would be inflammatory”
Martin Dempsey Retired, Army General Chairman of the Joint Chiefs of Staff June 1, 2020, Twitter and June 4, 2020, NPR Military should not treat citizens as the enemy or streets as “battlespace;” “relationship of trust” between American people and the military must be sustained; “All of us [retired generals?] try to stay as far away from politics as we can;” and worried “deeply” about the relationship between elected officials and senior military leaders; implied he was breaking the norm
Mike Franken Retired, Navy Vice Admiral Deputy Director for Mil Ops, US Africa Command June 1, 2020, Twitter The military is “not a tool for political expediency or ego inflation;” military is “tool of last resort to defend our nation;” military is “not a weapon to use against our citizens or our states;” does not directly mention the Constitution
Mike Mullen Retired, Navy Admiral Chairman of the Joint Chiefs of Staff June 2, 2020, The Atlantic “we must, as citizens, support and defend the right—indeed, the solemn obligation—to peacefully assemble and to be heard”
Mike Hayden Retired, Air Force General Director of CIA and NSA June 2, 2020, Twitter The Chairman of the Joint Chiefs of Staff (General Milley) should not have been in his “battle dress” uniform and walked with President to the Church
John Allen Retired, Marine Corps General Commander, US Forces Afghanistan; NATO ISAF June 3, 2020, Foreign Policy “peaceful protesters had just been deprived of their first-amendment rights” might be another signal of the “end of the American experiment;” St. John’s photo op signals breach of “separation of church and state”
James Stavridis Retired, Navy Admiral Supreme Allied Commander, NATO June 3, 2020, Time Magazine Military swears oath to “protect and defend” the Constitution; military force intended only for use in armed conflict, not domestic
James Mattis Retired, Marine Corps General Secretary of Defense June 3, 2020, The Atlantic Reminders of his oath to support and defend the Constitution; subtle reminder of servicemembers’ oaths; hold accountable those who “make a mockery of the constitution;” American streets are not “battlespaces”; using military to violate Constitutional rights
Vincent Brooks Retired, Army General Commander of US Forces Korea June 4, 2020, Belfer Center (HKS) analysis Challenges to Constitution from POV of race relations; loss of public trust in its military to be apolitical and not for “domestic political purposes;” politicization of the CJCS and SECDEF; military is the “reliable protector of American Constitutional democracy”
Mark Hertling Retired, Army Lieutenant General Commander, US Army Europe June 4, 2020, Twitter “constant deterioration” of constitutional norms; not the military’s role to “fix” bad politics
James Pillsbury Retired, Army Lieutenant General Deputy Commanding General, Army Materiel Command June 4, 2020, Alabama-centric online media Oath to “support and defend” the constitution; peaceful protestors are exercising First Amendment rights, not violent enemies; military is not for law enforcement
Loree Sutton Retired, Army Brigadier General (Psychiatrist) Spec. Asst. to Asst. Sec. of Def. (Health Affairs) June 4, 2020, Foreign Policy essay, with Gen (ret) Allen, MG (ret) Dana Pittard, Richard Betts, Harold Koh, and Peter Feaver Federal troops should not be used unless state governors require “additional reinforcements” to “quell domestic unrest”
Dana Pittard Retired, Army Major General Deputy Commanding General – Operations, US Army Central Command June 4, 2020, Foreign Policy essay, with Gen (ret) Allen, BG (ret) Sutton, Richard Betts, Harold Koh, and Peter Feaver Remarks on the novelty of former Chairmen of the Joint Chiefs of Staff speaking out; this is a law enforcement matter, or appropriate for National Guard
Richard Myers Retired, Air Force General Chairman of the Joint Chiefs of Staff June 5, 2020, CNN interview Focused on First Amendment right to seek redress from government; officer’s oath to defend the Constitution; does not think SECDEF Esper should resign; senior military should not be used for political purposes; doesn’t want military to be seen as political; the military “does not judge the person the people elect”
William McRaven Retired, Navy Admiral Commander, Special Operations Command June 5, 2020, MSNBC “Morning Joe” interview Emphasized oath to support the Constitution, “not the president,” and supported other retired Generals’ and Admirals’ decisions to speak out; “the military believes in following the Constitution”
John Kelly Retired, Marine Corps General White House Chief of Staff; Commander, US Southern Command June 5, 2020, Interview “Agrees” with Mattis; calls for the public to be more “careful” when vetting (“filter”) presidential candidates’ character and ethics
Joseph Votel Retired, Army General Commander, US Central Command June 6, 2020, UPENN Center for Ethics and Rule of Law essay Described the military as “apolitical” ten times; military respects civilian control; military represents the people it serves; mentions both the officer’s oath and enlisted oath of office; military is not law enforcement by default – only “exceptional circumstances”
Colin Powell Retired, Army General Chairman of the Joint Chiefs of Staff; Secretary of State June 7, 2020, CNN “State of the Union” interview “agrees” with all of his “former colleagues;” proud of them for speaking out; “we have a Constitution; we have to follow the constitution”

 

Active Duty comparison

Name status Highest rank Last (or current) duty Dates of statement(s), venue Scope and breadth of Constitutional commentary
Mark Milley Active, Army General Chairman of the Joint Chiefs of Staff (current) June 2, 2020, Memo to the Joint Force Oath to support and defend the constitution; equality; freedom of speech and assembly
Joseph Lengyel Active, Air Force General Chief of National Guard Bureau June 3, 2020, Twitter Oath to uphold the constitution and “everything for which it stands”
James McConville Active, Army General Chief of Staff of the Army June 3, 2020, Memo to the Army Oath to support and defend the Constitution; the right to peaceably assemble and to petition the government; “continue to support and defend those rights”

 

Some initial assessments

First, the scope of the nineteen retired officers’ statements were confined to four general areas: (1) the inviolability of the Constitution as a whole; (2) fundamental protections of free speech and assembly; (3) words of war, like “battlespace,” have no place in domestic law enforcement, even in extremis; (4) and concerns about the militarization of law enforcement on two grounds: that a military is never to be turned against its own population and that even the appearance of such use of force violates the spirit of the Constitution. The only legitimate exception they recognized was for National Guard troops retained under a state governor’s command and control to augment civilian police. Six mentioned the officer’s oath of office (Mattis, McRaven, Myers, Pillsbury, Stavridis, and Votel). Only one mentioned the appearance of breaching separation of church and state principles (Allen). Only three mentioned the fragile civil-military relationship being at risk of fracture (Brooks, Mattis, and Votel).

Second, among the active duty generals, all three reminded their subordinates of their oaths to “support and defend” the Constitution, specifically upholding the First Amendment. It would not be far-fetched to imagine these statements were aimed also at relieving any public anxiety that the senior military leadership is deaf to constitutional concerns.

Third, only six of these statements acknowledged, at least tacitly, that in speaking out they were breaching the generally-observed norm of silence (Brooks, Dempsey, McRaven, Mullen, Pittard, and Powell).

Fourth, the venues in which these generals and admirals spoke out (“Morning Joe,” CNN, Twitter, The Atlantic, Time, Foreign Policy) are considered centric or “leaning left,” and not traditional hosts of conservative voices.

Fifth, we have not yet heard from another retired flag officer critic of President Trump’s leadership, character, and policy, General Stanley McChrystal. Consistent with the (admittedly) small population under study, I strongly suspect that if he does publicly comment, he will speak of matters such as the Constitution as under duress; will suggest that the military’s purpose and expertise lie outside the country, in combat, not Main Street; and that service-members can ultimately be counted upon to protect the sanctity of First Amendment rights even if civilian government fails to be as cautious.

Sixth, Admiral William McRaven’s contribution to the conversation follows an earlier effort in his view to support the Constitution, albeit an unusual one. As Chancellor of the University of Texas System in 2016, he rebuked those who would use the opportunity as a forum of protest, issuing a demand that all coaches and athletes stand with hand over hearts, facing the flag, during the national anthem. McRaven pled for gestures of respect for those in the military who fight to protect the freedom of speech, which is either one of the more complicated defenses of free expression I’ve read or the irony was simply lost on him. Just over one year ago, he said, “when I find something that in my heart I just can’t live with, I’ve got to look myself in the mirror every morning and I’m going to stand up and do what I think is right and accept the criticism.” Therefore, it is not surprising that his broadside covered the target of an officer’s oath (the Constitution, not a particular president), the Constitution generally (not, specifically, the First Amendment), and explicitly supported the other former military leaders in their decisions to speak up. Rather than opine on legality of the use of power for the president’s walk to St. John’s church, McRaven skillfully admitted he’d have to research the legal issues, and instead emphasized the operational criterion of morality: every decision must be “legal, ethical, and moral . . . that’s just not right, there’s nothing morally right about” using military force to disperse peaceful protests for a “photo op.”

Seventh, since June 1, each leader of the respective Services has publicly declared staunch support for attacking institutionalized injustice and racism in their respective ranks. This seems the morally right thing to do, especially with the significant diversity in their organizations. Given the natural reluctance to openly criticize the use of military force (see above), narrowly scoping a public statement about current events to this subject alone may be reasonable. But the impetus for the retired officers to publicly warn of Constitutional threats was the dangerous and unjustified use of military force, alongside local civilian law enforcement, to overcome mostly peaceful protests and the president’s express threat to bring in the military if governors did not satisfactorily control the protests.

Given that the protests were spurred by the unjustified police killing of an African American man, I am somewhat surprised that most voices speaking out have been elderly white males, most of whom retired in the last decade. Since 2016, seven African American (male and female) 3 or 4-Star Army generals have retired (considering African Americans make up only 9% of the active duty officer corps, and there are only 71 in the general officer ranks today). Yet, as of this writing, only Colin Powell and Vincent Brooks have addressed either the underlying cause of the protests or the administration’s militarized response to them. Powell, the nation’s first African American Chairman of the Joint Chiefs of Staff warned that Trump had “drifted” away from the Constitution.  Powell tacitly acknowledged the rarity of retired flag officers speaking out,  remarking he was “proud’ of the public statements made by his “former colleagues” because “they were willing to take the risk of speaking honestly and speaking truth to those who are not speaking truth.”  Brooks acknowledged that his commentary was contrary to civil-military relations expectations, and explicitly wrote from two perspectives. First, as an African American man who has personally experienced racism in and out of the military; second, as military commander who has witnessed foreign militaries protecting fragile beginnings of democracy (Iraq, Egypt) and the resistance of the military when pulled into domestic political agendas. He was not circumspect in his criticism: Trump’s actions are the “manipulation of the image of the military” which has been, up to now, the “reliable protector of the American Constitutional democracy,” he wrote. He described the “politicization” of the Chairman of the Joint Chiefs of Staff and the Secretary of Defense by those actions and lamented the risk to trust that the military must maintain from the American people. Finally, he signed it as General (retired) and “American citizen.”

Eighth, despite the issue being the operational use of military force, constitutional liberties, and a president’s constitutional authority, no retired Judge Advocate General’s Corps flag officer has written or spoken out on this subject since commentary began on June 1. As the subject matter experts on these topics, their silence is surprising.  The one exception is retired Air Force major General Charles Dunlap, former Deputy Judge Advocate General of the Air Force and now at Duke Law School.  However, his comments were not critiquing the Administration’s choices, but rather a more detailed explanation of the Insurrection Act, Posse Comitatus, Rules for the Use of Force, and a president’s inherent power.

Ninth, thankfully, none these retired senior leaders seriously misstated or misapplied any provision or right in the Constitution when defending it, which makes this West Point professor of constitutional law relieved. Allen did, however, inaccurately state: “There is no precedent in modern U.S. history for a president to wield federal troops in a state or municipality over the objections of the respective governor.” Counterexamples include President Eisenhower’s reliance on the Insurrection Act to deploy troops from the 101st Airborne Division from Fort Campbell to Little Rock, to forcibly override Governor Orval Faubus’s use of the Arkansas national guard to block nine African American teens from attending high school. Eisenhower turned to federal military troops in a law enforcement capacity not to quell riots and disperse protestors—potential criminal law concerns under state laws—but to enforce Constitutional Law as applied by a Supreme Court decision (Brown v. Board of Education).

Nor did these retired officers oversell the function, role, and limits of the military with grossly overstated assertions of Constitutional authority. This is important because when the commander-in-chief oversells his Constitutional authority, three things can happen: first, he risks eroding his credibility with  those he leads within the executive branch; second, he risks eroding the public’s confidence in the executive branch’s credibility; and third, he may cause hasty, legallyquestionable resorts to the use of U.S. military force both abroad and at home. As Justice Robert Jackson wrote in his famous opinion in the Steel Seizure case, “as we approach the question of presidential power, we half overcome mental hazards by recognizing them.”

But what was not said is also revealing

None of these retired officers called for the assistance of other senior civilians outside the defense department, like the Secretaries of State or Homeland Security or the Attorney General. While there is still some uncertainty and skepticism about the roles these political appointees played in the recent days, these other administration officers and cabinet members could, in theory, reinforce publicly (and privately to the White House if needed) the appropriate course of action on subjects like the distinctions between policing and security, with the potentially persuasive weight of the “interagency” process. It seems like a resource neglected.

Similarly, none of these retired officers called on Congress either, despite Article I and its grant to legislators the authority to makes rules for the military’s internal regulation, to fund and equip the military, to declare war, to describe the duties and authorities of senior defense officials (both civilian and military), and its power (described in Article II) to confirm the president’s nominees to these positions of authority within the defense department. One wonders whether these former officers felt that Congress offers no reliable shield or persuasive sway with the administration. Instead of a crisis that could be mitigated through the effort of a coordinate and equal branch of government, these former military officers seem to view this crisis as an intra-branch affair, to be reckoned with by those within the Executive alone — indeed, only between the military and the president.

Questions for further analysis

This snapshot of a rapidly developing situation is necessarily blurry. In time and with more facts reasonably established and perhaps more examples of retired (or active) flag officers speaking out, a closer inspection of the deeper meaning (if there is one) may have merit. For now, I offer my colleagues with expertise in civil-military relations some lines of inquiry:

  • Is there a relationship between the type of position held in their final assignment (e.g., combatant command, service Chief of Staff, Chairman of the Joint Chiefs, or civilian official) and the probability of making a critical statement in retirement? Is there a relationship between the former position and the specific subject matter of their statements?
  • Is there a relationship between the length of time in retirement and frequency or probability of making critical statements?
  • What should be made of statements by retired senior flag officers that do not directly criticize or condemn policy, but instead voice public support for those retired officers who do so? Here’s retired Marine General and former Trump Chief-of-Staff, John Kelly demonstrating this (the next day, Kelly less obliquely joined the crowd by saying he “agrees with” Mattis’s opinion)
  • Is there a relationship between the amount of time in retirement and the likelihood that a former officer will acknowledge violating the norm of not speaking out?
  • In what ways are statements defending the Constitution by retired military leaders similar or different from statements retired military leaders made criticizing an administration’s wartime strategy (2006’s “Revolt of the Generals”) or changes to personnel policies and laws (like ending “Don’t Ask, Don’t Tell”)?
  • Does public opinion regarding government policy respond, one way or the other, to retired general officer defenses of the Constitution? How do public attitudes compare if the argument is grounded in tradition, precedents, ethics, or morality rather than constitutional law?
  • Does public opinion regarding the active duty military respond, one way or the other, when retired military warn of unconstitutional misuse of the active duty military?
  • Are there meaningful differences between the manner, content, and credibility of Constitution-based warnings and criticisms from retired generals and those made by retired civilian officials (elected and appointed)?
  • Are there meaningful differences between comments made by retired officers signing only for themselves and comments made in a jointly-signed comment or opinion? On June 5, 89 former defense officials (including four former secretaries of defense) signed an open letter. Of the signatories, only 13 were retired flag officers. Only two of the 13 were from the Reserves or National Guard; only five of the 13 were of the 3- or 4-star rank. All were from the Army or Air Force. Also on June 8, over 500 former defense, diplomatic, and intelligence officials signed an open letter, only 33 of whom are retired generals or admirals (5 of whom were of the 3-star rank, and there were no 4-star generals or admirals).  Moreover, 55 retired flag officers signed a different letter, calling for “votes for change in November,” that focused on the erosion of the public’s trust in the military, stressed that the military is to be “above the partisan fray,” and condemned the use of the military to “undermine the constitutional rights of peaceful protestors.”

In terms of scholarly inquiries and research, this practical intersection of civil-military relations and constitutional law is outside the typical boundaries drawn around both subjects. This need not be the case. Though quickly compiled and scratching only the surface, I hope this short work fosters greater conversation.

Image: OLIVIER DOULIERY/AFP via Getty Images

 

About the Author(s)

Daniel Maurer

Army Lieutenant Colonel and Judge Advocate, assistant professor of law at West Point, co-editor of the forthcoming book, Reconsidering Civil-Military Relations (Oxford University Press), and author of Crisis, Agency, and Law in US Civil-Military Relations (Palgrave Macmillan, 2017). The views expressed are entirely his own based on independent research and do not reflect the positions of the U.S. military or West Point. Follow him on Twitter (@dan_maurer).