The American Military Officer and the Constitution

My latest publication.

My latest for War on the Rocks, “THEY MAKE YOU TAKE AN OATH TO THE CONSTITUTION: THEY DON’T MAKE YOU READ IT,” co-authored with Butch Bracknell, was published today.

It began as a response to an open letter on civil-military relations published at the same venue in September and signed by every living former Secretary of Defense other than Dick Cheney and every living Chairman of the Joint Chiefs other than Hugh Shelton* but evolved into a broader reflection on the relationship of the American military officer to the US Constitution.

The setup for that argument is this:

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.

The detailed argument, which runs roughly 3000 words, defies excerpting but is viewable for free at the link.

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*We have no reason to think these men, who happen to also be the oldest representatives of those offices, have any significant disagreements with its contents.

FILED UNDER: Military Affairs, National Security, Published Elsewhere, Self-Promotion, , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. steve says:

    Nicely done. I think I would disagree about Trump’s tweets counting as orders. If he sent a tweet directly to military leadership maybe that counts but his general public tweets should be seen as commentary, testing the waters, trolling or whatever you like but I would never consider them as orders. Orders should either be identified as orders or should occur in context, ie you are meeting with your superior who tells you what you and/or others need to do.

    Steve

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  2. Just nutha ignint cracker says:

    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.

    Great! Now all we have to do is get Congress to agree on a President’s actions being erratic. Sadly, I’m not optimistic on that part.

    On the more positive side, the risk might be greatly reduced if the erratic President’s party was the Democrats–at least until the “let’s give the Rethuglicans a taste of their own medicine” camp become ascendant. Then (maybe even before, who knows?) Dr. Taylor’s musings about the nature of partisanship take back over.

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  3. Flat Earth Luddite says:

    A hearty thank-you to you and Mr. Bracknell. In 3,000 words I got a clear, concise explanation of the challenge faced by the officer corps. It increases my appreciation for the tightrope act that officers follow. That being said, I wonder how “I was following orders” will be viewed when (if?) an officer is charged after ordering the firing on protesters. *

    * No, it hasn’t happened since Kent State, but I’m sadly expecting it before I shuffle off this mortal coil.

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  4. gVOR08 says:

    @Flat Earth Luddite: Don’t worry about it. After President DeSantis orders protesters shot there aren’t going to be any courts-martial.

  5. Flat Earth Luddite says:

    @gVOR08:
    True. No one above the rank of Captain (more likely 2nd Lt) will be part of the ritual auto-da-fé after unarmed protestors die. After all, that’s what they get for being on the losing side.

  6. rondo1342 says:

    @Just nutha ignint cracker:

    What about a senile president? As a retired USAF Lt Col who was assigned to USSTRATCOM several years ago, when (fortunately exercise) missiles are inbound, POTUS has to make snap decisions very quickly on what level of response is called for. I’m not confident Biden would have any idea what is going on, would probably ask for an ice cream cone. Who would be calling the shots in such a situation? “Dr” Jill? SECDEF, CJCS, commander of STRATCOM, commander of NORTHCOM/NORAD, commander PACOM all have input during the frantic missile launch conference, but it’s ultimately up to POTUS to decide, and I have very little confidence in the current POTUS’s decision making abilities….but hey, no mean tweets, right??

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  7. Just nutha ignint cracker says:

    @rondo1342: If you can’t get your Rethuglican buddies in Congress to argue that Biden is too senile to run things, that’s on YOU, not me.

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  8. Michael Reynolds says:

    @rondo1342:
    Biden is handling the Ukraine situation brilliantly. Leaving me to wonder if it may be you suffering cognitive difficulties. Try a bit harder to see reality.

    Excellent piece, James.

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  9. James Joyner says:

    @steve: I think most of them were reasonably entitled to be interpreted as orders. That does not, however, mean that it was the duty of the brass to carry them out immediately and without further discussion. Even as a lieutenant, I frequently questioned the orders of my superiors if I thought them rash or inconsistent with other directives.

    @Just nutha ignint cracker: That we’re screwed if POTUS and Congress both violate their oaths is, alas, the nature of our system.

    @Flat Earth Luddite: It’s almost always going to be an illegal order for American troops to fire on unarmed protestors.

    @Flat Earth Luddite: @Michael Reynolds: Thanks!

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  10. Kathy says:

    “The Projection is strong with this one, ” Darth Vader.

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  11. Rick DeMent says:

    @James Joyner:

    It’s almost always going to be an illegal order for American troops to fire on unarmed protestors.

    I admire your optimism.

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  12. Scott says:

    Just got around to reading this. A good piece.

    WRT to the vaccine controversy.

    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.

    I find this tangentially similar to the Latham incident whereby individual members of the military are allowed to insert religious arguments concerning everyday policies and procedures. Just like ” because lieutenant colonels are not the constitutional officers charged with deciding such things” nor are individual members of the military charged with deciding what is a tenet of faith or not. That is a pandora’s box that the judicial system is opening the lid on and that will not be good.

    This is a very dangerous road to go down.

    Second immediate thought concerns how these concepts are supported or undermined by popular culture. No disrespect to this fine piece but popular culture may have a greater influence than that of thoughtful pieces like this one. How many war movies have we seen where the heroes are those who buck orders? Or movies like Seven Days in May or War Games. Or in real history when Harry Truman fired MacArthur because MacArthur publicly worked to assert his Korean strategy over that of Truman.

    One last thought. The idea that we “let civilians off the hook” is just depressing. Because it is human nature to let things slide until we are forced to deal with the issues. And usually that is because there is a crisis.

  13. just nutha says:

    @Rick DeMent: I’ve been avoiding making this comment for several hours, but a comment on Kent State attributed to a National Guardsman at the event still sticks in my mind to this day.

    I didn’t see students, I saw the enemy.

    ETA: If someone wants to Scopes that, feel free. I cite it as an example of how something might spin out of control and lead to firing on unarmed protestors. It’s not a hypothetical. It happened.

  14. steve says:

    “What about a senile president? ”

    The former president exhibited a lot of emotional lability and clearly confabulated almost all fo the time. Those are markers of dementia. When I was a USAF doctor I would have had a person with those kinds of symptoms have an evaluation. A real one.

    Steve