One sure sign of a “civil-military crisis” is when journalists, scholars, lawyers, and politicians all publicly express genuine concern that an incumbent president would use the American military to aid his re-election campaign, or others suggest that the military may be called upon to dislodge a president who refuses to acknowledge electoral defeat even past Inauguration Day. This is not a civil-military crisis sparked by war-waging policy differences or moral misgivings, but one of true constitutional dimensions. Short of an unprecedented “military intervention,” there is a principled and far safer way for senior military leaders to register their disagreement with a legally questionable political decision that both respects the rule of law and informs the civilian public of the military’s rationale so that civilians, not the military, can conduct an informed intervention, just as the Constitution would have it.
The problem is defining what a “constitutional civil-military crisis” really means – both literally (what part of the Constitution is under duress or strained?) and practically (what should the parties to the civil-military relationship do, if anything, with that information?). Martin L. Cook, a professor of military ethics at the Naval War College, makes it plainer: “The foundation of the American professional military ethic lies in the oath to the Constitution [but] few officers have even read it, let alone possess a deep historical grasp of the meaning and central values it represents.” As a result, he says, “Officers of vast experience and the best of good will disagree fundamentally in their understanding of the scope and limits of the requirements of military professionalism in relation to civilian leadership.”
There is a very recent example of what happens when a potential crisis in constitutional democracy leads otherwise reasonable people to advocate, premised on a belief in military professionalism, for an action that itself would trigger a crisis in civil-military relations. On Aug. 11, two retired U.S. Army lieutenant colonels wrote an open letter to Chairman of the Joint Chiefs of Staff General Mark Milley. The retired officers enjoy a reputation within the defense community of iconoclastic thinking and speaking truth to power. One of them, Paul Yingling, once penned a now infamous essay while on active duty, condemning the “failure” of senior strategic military elites managing the Iraq War. The co-author, John Nagl, a former Rhodes Scholar, turned his doctoral dissertation into a book that strongly influenced the nation’s nascent counterinsurgency doctrine.
Their reputation is what likely made their open letter worth reading. But it is what they wrote that makes their open letter worth rebuking. They noted that we live in unusual times, and warned of a “constitutional crisis” on the foreseeable horizon. They speculated that an electorally defeated President Donald Trump might refuse to leave office on Inauguration Day. Yingling and Nagl based their conjecture on the president’s current public statements about electoral fraud, his pattern of using paramilitary forces to violently disperse protesting crowds, a history of dismissing facts as “fake,” and a record of defying nearly every presidential norm.
The authors warn that this scenario leaves two bare options for the military: do nothing or do something. The authors urge Milley in the strongest of terms to do the latter: to order the military to physically escort Trump from the White House in the face of what is sure to be armed protection from either law enforcement or public supporters: “If Donald Trump refuses to leave office at the expiration of his constitutional term, the United States military must remove him by force, and you must give that order,” they wrote, reminding Milley of the oath of office he first swore upon commissioning as a young lieutenant and which he repeated at all eight subsequent promotions. Failure to do so, they argue, is to be “complicit in a coup d’état,” for the military will be the “only institution capable of upholding our constitutional order.” That American national security pundits, scholars, and the public are engaging in this speculation at all is as frightening and remarkable as Yingling and Nagl’s recommendation would be in practice.
As these authors should know from their work in counterinsurgency, use of a military’s overwhelmingly capable force may not only be ineffective but counterproductive. Instead, “winning the hearts and minds” of the public, to undermine the claims of legitimacy made by the adversary, is often the only long-term solution that satisfies our obligation to the rule of law.
A Non-Military Weapon
The authors’ proposed course of action – in this worst-case scenario – ignores the one non-military weapon at the chairman’s disposal that, if used thoughtfully and deliberately, may well avoid the unprecedented scenario they forecast: talking. It is through strategic communication, whether within the Executive Branch bureaucracy or in Congress, not through an implicit threat of armed escorts, that public sentiment is shaped to persuade a recalcitrant administration that it would be politically and administratively untenable to trigger such a constitutional crisis. That is to say, the communication aims to persuade the target that the effort is not worth the expense.
So when military elites see or expect what they deem to be a misuse of military force by civilian political leadership, what kind of talking is effective, legal, and within customary professional norms and traditions? In early June, I surveyed all public statements that retired generals and admirals made when reacting to Trump’s deployment of force against protesters in Lafayette Square. In a distinct departure from the civil-military relations norm of not commenting on policy decisions, the vast majority of these retired officers (including Colin Powell, William McRaven, and James Mattis) invoked the sanctity of the U.S. Constitution and the officers’ oaths to “support and defend” it, just as Yingling and Nagl did in their letter to Milley.
These retired officers’ allusions to the Constitution provided an arguably non-partisan, principled basis on which to justify their extraordinary public candor. But allusions are usually vague, and the concept alluded to is one that can be interpreted as support for more than one valid viewpoint. When the likes of James Mattis or Vincent Brooks point to the Bill of Rights, others will counter with Article II, Section 2’s grant of commander-in-chief power to civilians, and that proper military subordination requires the military to stay in its lane – the lane marked by the commander-in-chief. But as Risa Brooks and Jim Golby recently reminded us, “civilian control is not presidential control.” Congress has, under the Constitution, co-parentage responsibility.
When retired flag officers of national renown and strong reputation within the military come off the bench to weigh in on matters of public policy or national affairs, one motive they have may be to signal the “military perspective” to the White House or to Congress on behalf of the active duty leaders who may feel restrained. Another motive may be to target not just civilian political actors in the White House, Pentagon, and at Capitol Hill, but senior uniformed leaders still on active duty who will be “in the room where it happens” – to influence the influencers. But these communication strategies are also susceptible to public and private misinterpretations. Those swerving outside the normal lanes need a more explicit way to make their case and register their dissent, disagreement, or even disobedience.
The stakes for miscommunicating, or acting without adequately articulated justifications, rise to the extreme when all this unfolds against the backdrop of a global pandemic in which the military has already been put to use – to provide healthcare and support vaccine-development efforts and other measures to counter the coronavirus. Under these fraught conditions (frankly, inconceivable to most national security professionals even a few years ago), tense and delicate questions of “what constitutes a legal order” to the military, and “how would (or should) the military interpret, engage with, execute, or disobey such orders” need to be addressed.
Unfortunately, the very public servants who can and should “speak truth to power” often do not. Not because of a misguided or naïve reliance on custom or deference to authority; they do not object because an order’s legal ambiguity and impenetrability in these extreme conditions (its constitutionality) naturally encourages a default compliance with their duty to obey. Most officers are not trained to spot thorny, intractable problems of separation of powers, let alone interpret poorly crafted statutes about those powers, and it is not their job to do so anyway.
But in this grey space, either before or after such a contested election, military officials face a very real challenge, requiring hard choices well before the courts can reasonably adjudicate broader questions of executive authority. They will surely hear from a chorus of retired flag officers, who – in their efforts to influence the narrative and shape decision-making – will also be challenged by the lack of “on point” legal authority. They will surely hear from members of Congress, too.
This challenge leads to others: from whom do lawful orders, national security strategy, and policy direction and guidance come? What happens if the legality of an order to use military force is not facially evident, even though the form of that order seems legitimate? Such would be the trigger of an acute civil-military relationship crisis.
What Makes an Order “Illegal” or “Unlawful?”
To the military, and under threat of criminal punishment, an order from a relevant commanding authority, the president, or the secretary of defense is presumptively lawful. Under the federal law regulating the military, there are only four exceptions: (1) if the order is contrary to the Constitution; (2) if the order is contrary to the laws of the United States; (3) if the order is contrary to lawful superior orders; and (4) if it is “beyond the authority of the official issuing it.”
The reality is that the military officer in receipt of an order is the one who must interpret the order, often under extreme pressure of time and physical risk, and decide whether to obey it or not. The officer also is cautioned that “an order requiring the performance of a military duty or act . . . is disobeyed at the peril of the subordinate.” The “dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.”
But “contrary to the Constitution” is easier said than explained. The strategic military leaders administering the various branches and the four-star operational combatant commands reporting directly to the Secretary of Defense are by default going to read that exception narrowly. The “beyond the authority” exception is similarly opaque, especially if the authority claimed by the civilian principal is an implied power under Article II of the Constitution.
Ironically, the Manual for Courts-Martial – a series of Executive Orders signed by the president – administers the Uniform Code of Military Justice (UCMJ) and provides a bit more of a perimeter around the idea of a lawfulness. To be “lawful,” it says in Part IV, para. 16.c.(2)(a)(iv), “the order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the Service.” Of course, this too suffers from the curse of circularity: ultimately, it is the president as commander-in-chief who may dictate what the “military mission” is. “Duty” is deliberately not defined, for it might be “imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the Service.”
In the event that no clear answers to such tortuous questions are forthcoming, senior military leaders are left to make decisions based on what they think is “best.” But what does that mean? Retired Admiral McRaven recently said that the guiding framework is do what is not just legally correct, but also “morally” and “ethically” correct. That, unfortunately, does not help enough here: while it gives two other frames for assessing an order when the legality is ambiguous, it doesn’t tell us what those terms mean or how to use them effectively to justify asking critical questions, nor for disagreement, dissent, or disobedience.
When the president wants to use the military as an institution, or employ military force, in such a legal grey area – where it is unclear as to whether the president has domestic constitutional or statutory authority to do so – senior military leaders and commanders are faced with at least six overlapping dilemmas, not the binary “depose” or “acquiesce” choices pitched by Yingling and Nagl:
- How should they follow through on the promise to act only when it is not illegal, immoral, or unethical to do so?
- In what manner should they follow through on their commitment, embodied in their oaths of office, to “support and defend the Constitution?”
- Do they accept and follow the norm of not resigning?
- How should they communicate down through the chain of command the why of a political decision to use force?
- How should they follow through on the mantra of using military force, or any police force, only as a last resort in defense of self or others?
- How much weight should they give to reputational and image concerns? On a personal level, will they be conscious of the question: what side of history am I on? On an institutional level, will they be guided by a principle that says “do nothing that would harm the credibility and respect for the military, or create a basis for a new norm that places the military in a position that looks like it is taking sides in a domestic political or ideological contest?
It seems sensible to provide senior military and civilian leaders facing these dilemmas with tools to help them identify that they are, in fact, facing such dilemmas and to help them craft a strategy for resolving the resulting tensions. One such tool is a set of questions that they should be asking the political decision-maker. This would be nothing more than an appropriate illustration of what retired Marine General James Dubik (who also holds a doctorate in philosophy) calls the “principle of continuous dialogue.” If the answers to these questions, in any context, are not forthcoming or are clearly unmoored from facts, the senior military or civilian agents have principle-based grounds on which to rest their doubts, inquiries, dissent, or disagreement. This is a far safer and stronger position than resting on instinct, misgivings, one’s conscience, or vague citations to military professional cultural norms or to the Constitution.
Lenses on Lawfully Suspect Orders
A senior military official staring down at a lawfully suspect order from, say, a civilian political authority will likely view it through several lenses. First, the officer’s oath “to support and defend the Constitution” (which, of note, is written by Congress) is not taken lightly nor easily forgotten. That so many of the retired flag officers made this oath into an explicit moral lodestone in their condemnations of the Lafayette Square event is evidence of its rhetorical strength.
A second way to look at a lawfully suspect order is that of public perception and attentiveness to behavior that might establish negative norms and precedent. Milley’s apology acknowledged the danger of such a perception.
Third, orders of the kind that might deploy military forces to “protect” elections or public safety during riots will have already been vetted by both civilian and military legal advisors in the White House and Pentagon, assuming a normal bureaucratic process unfolds. While that is no guarantee of legality, and while those opinions are just opinions and they may not even all agree, a senior military officer with that order in hand is entitled to presume it has at least a plausible legal basis by the time it gets to him or her.
Fourth, the unusually high volume of retired flag officers publicly commenting in early June was a clear indicator of a much wider angst with the administration’s comfort deploying military forces against no discernible military threat. These comments may be seen as sending a message to those still on active duty that “defense of the Constitution and norms” is a valid basis on which to register dissent and possibly disobedience. But not having the right words or concepts to express concerns or objections also renders officers less confident and probably less likely to express those concerns. Senior leaders, facing these weighty decisions in a world seemingly turned upside down, will gravitate toward a useful vocabulary for registering their worries privately or for dissenting publicly if they feel justified in breaking long-standing norms and expectations.
Reframing for Affirmative Norms
So there is a fifth, underappreciated, way of looking at a lawfully suspect order: Certain articles of the UCMJ can be recast or reframed into affirmative duties of care, competence, candor, and other standard norms that structure normal principal-agent relationships. This means imagining them not merely as punitive prohibitions but also as standards of conduct, principles of professionalism, and presumptively unbreakable obligations – “thou shall,” not just “thou shall not.”
Military law – even after it became more formalized and “civilianized” into a recognizable criminal justice system – has long been understood to reflect martial ideals, not merely the deterrence and punishment of dangerous acts. For example, in the UCMJ, it is a crime to “feign illness, physical disablement . . . or intentionally inflict…self-injury” with an intent to “avoid work, duty, or service;” to be willfully or negligently “derelict in the performance” of ones duties;” to “wrongfully” wear on one’s uniform an “insignia, badge, ribbon, device, or lapel button” one has not earned or is not authorized to wear; and to knowingly make a false official statement.
Recast, these proscriptions essentially command personnel to: do your job to the standard required and expected, even when it is dangerous or difficult; do not inflict more harm upon yourself or others to gain advantages or benefits when held by the enemy; do be truthful and candid about your qualifications and military experience, especially about that which is bestowed for exceptional martial merit and valor; act in ways that fortify the command’s ability to effectively manage an orderly and usually self-controlled force.
In this reframing, a military code of justice is example-setting: it establishes the minimum qualifications for being a “good soldier” (or Marine, sailor, airman, etc.). But it also establishes affirmative (even if not enforceable in court) duties of senior military agents with respect to following the policy or direction of civilian principals, especially in ambiguous, contentious, and norm-defying circumstances.
The crime of disobeying a lawful order can be recast as an affirmative duty to disobey an unlawful order; the crime of “dereliction of duties” can be recast as an affirmative duty to seek clarity and legal justification when higher headquarters imposes an order that would significantly depart from conventional norms in the use of military force, fits in the “grey area” of legality, or would impose a questionable “duty.” The crime of “conduct unbecoming an officer” can be recast as an affirmative duty to maintain one’s personal honor and integrity as a senior representative of the officer corps and institution – one who diligently follows the moral demands of the oath of office, not one who diligently follows every whim or caprice of the principal. Finally, the crime of engaging in “conduct of a nature to bring discredit upon the Armed Forces” (a vague but not unconstitutionally vague idea) can be recast as an affirmative duty to protect the institutional military’s reputation as a non-partisan, selfless, honest broker, and to preserve the public’s esteem and confidence in the institution
By no means is it certain that a combination of public health, public safety, and electoral challenges will induce or require the kind of specific military actions that have already been glimpsed on small scales and decried. But two things are certain. If it happens, the senior military leadership will feel pinned between a rock and a hard place – if they salute and move out smartly, they risk the perception of partisanship; if they disobey, publicly dissent or otherwise manifest disagreement, or disengagement, they risk the perception of partisanship. Second, if it happens, the senior military leadership will be forced to reckon with a number of uncomfortable professional dilemmas. And while defending the Constitution “from all enemies foreign and domestic” and defending norms of a non-partisan, apolitical profession are like holy commitments, these generic allusions may not effectively communicate with enough granularity.
Cautious, realistic determination to “get it right” will drive senior military leaders to seek the kind of duty-based principles that military law already implies. Ultimately, it is not for the military’s sake alone that the senior military elites should rely on existing principles implied by military criminal law. Rather, it is a strategy for “winning the hearts and minds” of the civilian public – including those of their representatives in Congress – which must demand that any and all public officials adhere to the rule of law, not a show of force.
The measure of a successful, principle-based communication campaign will be the orderly transfer of executive power from one civilian to another with the military’s role being safely irrelevant to the equation. It should go without saying that the military is never the right or best tool to solve a domestic political predicament—even the grave ones. But, now that using this tool is part of the public conversation, it bears repeating that the military’s only legitimate role is one of fidelity to the Constitution without picking up arms to solve a political problem.
There is an ironic twist to this story. The military’s reaction to the administration’s political pushing on the constraints of the law may trigger the armed forces’ reliance on existing military criminal law – the very law managed and defined by the commander-in-chief – as its normative standard, model of professionalism, and grounds for registering its resistance.
(Special thanks from the author to Dr. Risa Brooks for her insight and careful reading of an earlier draft. The opinions and analysis in this essay are those of the author alone and do not reflect the official positions or policies of the U.S. Government.)
IMAGE: US President Donald Trump shakes hands with Joint Chiefs Chairman General Mark Milley after addressing troops at Bagram Air Field during a surprise Thanksgiving day visit, on Nov. 28, 2019 in Afghanistan. (Photo by OLIVIER DOULIERY/AFP via Getty Images)