Loren Voss writing for Lawfare:
Military firings, removals from promotion lists, and
early retirements have rarely, if ever, been in the headlines as much as they
have been over the past year. Recent domestic military deployments with
never-before-used authorities (10 U.S.C. § 12406) or reinterpreted authorities
(32 U.S.C. § 502(f)) have sparked vociferous
debate in Congress over presidential power and the role of the federal
military, particularly on the home front.
Kori Schake’s “The State and the Soldier” provides a
framework for understanding and evaluating the current contested state of
civil-military affairs in the United States. In Schake’s view, American
civil-military relations has three central tenets: Members of the military owe
their loyalty to the Constitution; they are subordinate not only to the
president as commander in chief and but also to Congress; and they can only
faithfully carry out civilian orders or resign. Her new book’s central thesis
is that an evaluation of healthy civil-military relations can be distilled into
two tests: (a) Can the president fire military leaders with impunity? and (b)
Will the military carry out policies they don’t agree with?
Schake argues that despite the founders’ fears about
the risks associated with a standing army, the U.S. military has never posed a
threat to civilian governance. Throughout the book, she uses historical
examples to explain how the military professionalism that so worried the
founding generation has instead become a bulwark of American democracy. Her
history effectively demonstrates the importance of military professionalism but
also raises the question: What obligations do civilian leaders have to ensure the
military does not pose a threat to democracy?
Schake starts with the origin story of civil-military
relations in the United States during George Washington’s tenure as commander
in chief of the American colonies’ revolutionary army. Her account of
Washington’s is considerably more interesting and accurate than the sentimental
story of the reluctant but near-perfect politician who led America at its
founding. She argues that his “every act was imbued with politics, and the
consciousness of their consequence caused that great man to weigh those acts in
light of strengthening the nascent republic.” He wore his uniform in sessions
of the Continental Congress; made his last act as a general a political
appeal—a public letter to state governments outlining what he thought was
needed next; and used his veteran status for political ends. Yet his enduring
legacy, established while in uniform, was the foundational subordination of the
military to elected civilian leaders.
Schake then regales readers with stories of “bad
examples” of military officers’ acting on political considerations, many of
which seem nearly unbelievable today. In 1804, the senior-most officer of the
Army, James Wilkinson, joined a conspiracy to overthrow the U.S. government and
establish a new country, led by former Vice President Aaron Burr. Wilkinson
revealed the effort to the president, but only after he believed the effort
would fail. Schake recounts a confrontation between Gen. Ulysses S. Grant and
President Andrew Johnson in 1866 in which Johnson, afraid that Grant would side
with Congress in any executive-legislative fight, ordered Grant to the Mexican
border to undertake some negotiations. Allegedly, Grant privately stated that
he would disobey the order because it was a political order to get rid of him.
Johnson posed the issue to the attorney general at a cabinet meeting. Grant
argued that he had a responsibility to carry out the commander in chief’s
military orders, but the president did not have the authority to order him in
areas beyond the military sphere. Although this was Grant’s most direct refusal
to submit to civilian control, Grant frequently circumvented the president’s
directives in areas directly within the military realm.
Schake recounts how Civil War generals Grant, Zachary
Taylor, George McClellan, and Winfield Scott all campaigned for the presidency
while on active duty. Indeed, Taylor and Grant both won the presidency but did
not resign their commissions until months later, Grant not until the day he
took the presidential oath of office. Scott, by contrast, won his party’s
nomination only once but campaigned for the presidency three times while
serving as commanding general of the army, and kept the role after losing.
But in gauging the significance of these examples, it
is important to keep in mind two caveats. First, civil-military norms in that
era were different from those today; thus there did not appear to be any
general outcry about these generals’ electoral efforts (not that a lack of
criticism makes it good unto itself). Second, the meaning of active duty at the
time was also different from today—McClellan had specifically relinquished
command of the Army of the Potomac almost two years prior and had no military
assignment while running for office.
Schake concludes that these bad examples are actually
few and far between throughout the country’s 250-year history, and, more
importantly, they did not become precedents later military actors built upon.
Her historical narratives lead to the somewhat surprising realization that the
lack of a threat to civilian control of the military appears to be largely due
to the military’s professionalism rather than to the enforcement of
civil-military norms by civilian leadership, which frequently let bad behavior
by senior military officers go unpunished.
Strong
professional ethics is one reason the military is frequently touted as the
“most trusted public institution” (although it’s worth noting that the
military’s reputation in this regard sits near a multi-decade low).
However, Schake raises the concern that the popularity of the military, and
particularly of certain military leaders, may then pose risks to civilian
control. She offers numerous examples in which military insubordination or
creative reinterpretation of orders should have resulted in the
court-martialing or firing of senior military leaders, but presidents decided
not to pursue such actions for fear of political repercussions. President
Monroe, for example, authorized Maj. Gen. Andrew Jackson to defend against
Seminole raids. Jackson instead engaged Spanish forces and occupied Pensacola,
arguably with the intention of conquering Florida. Jackson’s popularity
stemming from previous battlefield successes constrained the president’s
ability to rein in Jackson’s insubordination. Monroe gave control of Florida
back to Spain but did not offer a real rebuke of Jackson’s actions.
In most of these “bad examples,” the military officers
knew what civilian leadership intended and determined they knew better. Schake
seems to believe the largest concern is this kind of praetorianism,
in which military leaders believe they possess better judgment about the true
public interest than their civilian superiors. The term is derived from a class
of soldiers during the Roman Republic who became so powerful they were able to
determine political outcomes.
Schake also tells a story of military officers who did
not stand up to civilian leadership but were then criticized for their silence
(or at least their public silence). H.R. McMaster’s “Dereliction of Duty” is
well-known in military circles as a compelling account of mistaken Vietnam War
policy decisions by civilian leaders that went largely unchallenged by the
chiefs of staff. In Schake’s view, McMaster’s book implies that the military
leadership of the time should have been more public in expressing their
disagreement with the president and the secretary of defense. Schake disagrees,
arguing that the president and secretary of defense allowed the joint chiefs to
make their case during the policy formation stage, but ultimately rejected
their advice because it was inconsistent with the administration’s domestic
priorities. All of this, in her view, was consistent with the president’s
prerogative as the country’s elected civilian leader.
Schake is certainly right that civilian leaders must
have the final say, even when their judgments prove to be mistaken. But
McMaster’s thesis runs deeper than Schake suggests. Misrepresenting the costs
of the war (and various other deceptions
by President Lyndon Johnson, well covered in the literature) was more than just
“crafting a political strategy” in conflict with military advice; it involved
misleading Congress and the American people when they had little or no access
to independent sources of reliable information. Is this a misuse of the
military by a civilian leader that would harm civil-military relations? It
doesn’t appear to fail Schake’s two-part test, which is a somewhat unsatisfying
answer.
The book also covers a range of more recent
civil-military controversies, including military leaders sharing their policy
views publicly. In 2021, Maj. Gen. Patrick Donahoe responded to Tucker
Carlson’s insulting of women’s service by providing a photo of him reenlisting
a woman and saying Carlson was wrong. Schake argues that civilian Defense
Department leadership should have spoken up instead because it was a divisive
political issue. The Department of Army Inspector General investigated
Donahoe and found that he had failed to display Army values for this post (and
other messages). While insults are clearly unprofessional, it is less clear
where the line is between what constitutes a “divisive political issue” and
what is a matter for professional military expertise. Twitter disagreements
with political TV personalities are not the right medium for such messages, but
is defending the combat capabilities of members of the force, when backed up
with facts, not a matter for professional military expertise?
Another example Schake offers is Gen. Mark Milley’s
defense of critical race theory (CRT) appearing on military reading lists
during a 2021 congressional hearing. If you remove CRT, would it not seem that
the education of military members falls within the realm of military expertise?
If being a “political issue” results in a topic’s being removed from the
category of topics that fit within military expertise, the space in which
military members can give their expertise will shrink as more and more aspects
of life, and therefore military service, become politicized. An alternative
answer might be not that they cannot give their views on topics within their
military expertise but, rather, that they must be more circumspect about the
venues in which they do so and the words they choose.
The book ends with a series of recommendations based
on lessons learned, and they fall on the military side of the equation to
implement—adopt George Marshall’s rule that politicians have a right to be
wrong; be clear about the issue of professional expertise and respectfully
decline to give views on anything outside of it; enforce military rules, even
against top performers; when the law conflicts with the commander in chief,
choose the law; reinforce the difference between the military and veterans; military
leaders may appeal to Congress to advance their policy preferences as a means
of “legalized insubordination”; and trust is what makes civil-military
relations work best.
These recommendations might help our system pass
Schake’s two-part test, but one might wonder if it might still fail the broader
goal those tests are meant to achieve. At the beginning of the book, Schake
makes two claims about the strength of civil-military relations in the United
States. One is that there has never been an organized attempt by the U.S.
military to overthrow the U.S. government. The other is that the military has
never posed a threat to democracy. While the two are used somewhat interchangeably,
the latter is considerably broader than the former. Her two-part test arguably
measures whether the military threatens civilian control, but not whether the
military might be used by civilian leaders to threaten democracy.
We should care that the military, as an institution,
has never posed a threat to democracy. And we should want to understand why
that is so and thus keep future threats minimal. The book ends with a teaser on
this point—“the American system of civil-military relations will falter if we
continue to rely on the military alone to prevent civil-military relations from
becoming dangerously unbalanced.” Schake’s two-part test places the obligation
fairly heavily on the military rather than on the civilian side of
civil-military relations.
The more important question today appears to be: What
are the obligations of the civilian leadership to the military which they
control? Schake acknowledges that a problem could arise from an “unprincipled
principal,” per the language
of military ethics scholar Pauline Shanks Kaurin. In the introduction, Schake
speculates about a situation in which Congress either cedes more of its
constitutional authority to the president for partisan purposes, or governors
advance partisan policies by offering National Guard units to other states or
the federal government.
In another setting, Schake argued
that “[t]here is virtually no one in the American military qualified to
ascertain what lawful orders are democracy-corroding” and that the appropriate
response to democracy-corroding orders is to make them unlawful. The critical
takeaway Schake wants everyone to have is that, in these situations, as
tempting as it is to turn to a professional force to fix a problem, military
members are not the guardians of American democracy against the civilian
officials whom Americans elect, directly or indirectly. Once the military, as
an institution, takes on this role, it sets the United States on the same
historical path other countries have followed, in which militaries threaten
freedom rather than protect it.
Her reliance on the law to fully address the problem,
however, is overly optimistic. The legal frameworks governing the use of the
military, particularly domestically, are a confusing patchwork, and, in some
cases, the exact boundaries are uncertain. Schake writes about the law in a
straightforward manner, but the law is considerably less determinate than her
presentation suggests. Unsettled
debates about the constitutional and statutory powers of Congress and the
president give rise to a greater future risk that the military will pose a
threat to democracy, possibly through an unprincipled principal, than the book
recognizes.
Schake writes that the Posse Comitatus Act prohibits
the use of the military for law enforcement purposes “unless authorized by
Congress, requested by a state legislature, or the president proclaiming the
country is under invasion or there exists an insurrection requiring force to
put down.” To be clear, the exact language of the act allows exceptions only by
express authorization in the Constitution or an act of Congress. The law is
less expansive yet more complex than she treats it. For example, the executive
branch has also claimed a “military purpose” carve-out for roughly 50 years,
providing that any action undertaken primarily to further a Department
of Defense or foreign affairs function falls outside the scope of the Posse
Comitatus Act. Courts have supported this military purpose doctrine in specific
circumstances. And finally, in the sphere of the military and national
security, Congress and the courts frequently accord significant deference to
the president so that threats to the nation can be addressed quickly and fully.
We are seeing the law’s complexity come to the
forefront in the nation’s capital. Washington, D.C., just passed the one-year
mark of a National Guard deployment for a “crime emergency”/“beautification”
effort, with 23 states, D.C., and two territories sending troops. The D.C.
National Guard is operating under the command of the president (though this
authority has been delegated to the Secretary of the Army), and troops from
other states receive their operational orders from the D.C. National Guard. The
result is a federal force (according to the government’s own legal argument),
albeit not the Army, Navy, Marines, Air Force, or Space Force, and therefore
not subject to the limitations of the Posse Comitatus Act. Schake, reacting to
the Los Angeles domestic deployment last year but still relevant today,
correctly observes that the “Trump administration is test-driving a novel legal
theory that you can circumvent the restrictions on domestic law enforcement by
the American military.”
Reliance on military professionalism and the law is
necessary but not sufficient for healthy civil-military relations. If the goal
is truly not just that the military not become a threat to civilian control,
but that it not be a threat to democracy more generally, then healthy
civil-military relations should also be about appropriate norms on the civilian
side of the equation and proper use of the military by civilian leaders.
When discussing the firing of several military leaders
within the first month of President Trump’s second term, Schake emphasizes the
necessity of the military accepting even unfair civilian decisions, because
that is the test of subordination to civilian supremacy. But in cases when such
firings are partisan in nature—that is, firing military officers not for lack
of competency but for lack of political alignment—this would seem to encourage
more partisan acts by military members in the future. If the real reason behind
a large number of firings of senior officers was partisan, a president would
have violated civil-military norms on the civilian side of the equation. Today,
politicians from both parties find it to their short-term advantage to
politicize the military in various ways, including by using it as a validator
of their opinions. If political leaders continue to flout these norms
regularly, it would be unreasonable to expect military professionalism to
sustain norms that the civilian side systematically undermines.
Schake’s historical examples do give some insight into
the appropriate norms for the civilian side. She describes the dangerous
precedent set by Lincoln’s suspension of habeas corpus and continued military
enforcement of the suspension, even after the chief justice of the United
States (riding circuit in Maryland) determined
that only Congress, not the president, had the authority to suspend it. Lincoln
persisted for two years after the decision, even though Congress had not legislated
on the issue and provided the president the power to suspend habeas corpus for
the duration of the war. So, for an almost two-year period, Schake concludes,
the military chose to “obey the commander in chief rather than the law.”
The specifics of this example make it more
complicated, but the conclusion even more important. Lincoln described
suspension of the writ of habeas corpus in his message to Congress as
permitting federal officials “to arrest and detain, without resort to the
ordinary processes and forms of law.” Because availability of habeas was
considered such a fundamental right, the Constitution
allows only Congress to suspend it and only in very limited circumstances,
namely, rebellion or invasion. In Congress’s 1861 special session and later
sessions, most of the congressional debate was focused not on whether the
president’s suspension was right or wrong (the congressional
records
from the time seem to indicate most thought it was right, even if views were
split on the legality) but, rather, on the appropriate language to approve it
after the fact and how to regulate its future suspension.
Congress did support the war effort in various other
ways, such as through increased funding and recruitment, and on Aug. 6, 1861, legalized
all previous acts of the president “respecting the army and navy” and
“militia or volunteers from the States” since his inauguration on March 4. But
Congress as a body stayed silent on the issue of habeas corpus suspension until
1863. Senior military leaders had to be aware, at least in general, that the
issue had been discussed in Congress. Still, their correspondence and actions
indicate that the generals paid little attention to the debate over which
political branch had the final say. The nuance here, from a civil-military
perspective, is that the senior military leaders did not claim emergency powers
for themselves and instead ensured they had clear orders from their commander
in chief. Under Schake’s two-part test for healthy civil-military relations,
the situation would appear to pass while failing to serve the test’s underlying
purpose: gauging whether the military poses a threat to democracy.
Another striking example in the book ends with the
military leader siding with Congress. President Andrew Johnson suspended
Secretary of War Edwin Stanton in 1867, and Grant, then commanding general of
the Army, begrudgingly became secretary of war ad interim. Under the law at the
time, the Tenure
of Office Act, the Senate voted not to concur with Stanton’s suspension,
which effectively reinstated him. Grant could potentially have been subject to
criminal penalties for continuing in the role. Johnson offered to pay the fine
and serve the prison sentence if Grant were convicted. Nonetheless, Grant
complied with the Senate’s decision. This chain
of events, including Johnson’s subsequent removal of Stanton, led to
Johnson’s impeachment, but not conviction.
The interesting angle addressed indirectly through
these two preceding examples and the other stories Schake tells is the
interplay between the two political branches of government, both of which
exercise authority over the military. It is perhaps clearest what a military
leader should do when one of the two civilian branches with control over the
military is breaking the law, while the other is asking the military to follow
the law. Real life, however, is seldom so clear-cut.
Schake writes that “[s]erving military members have a
constitutional responsibility to provide Congress their military judgments.”
Although no explicit constitutional provision imposes such a responsibility,
her argument makes one critical point that much of the civil-military
conversation today misses: Civilian control of the military is not just
presidential; it is congressional as well. Congress needs access to military
information and professional military judgments from senior military leaders to
exercise its Article I responsibilities.
According to notes
from a 1966 White House meeting, President Lyndon Johnson did not want Congress
to have accurate figures or plans related to Vietnam. Yet, while the joint
chiefs and other military leaders were not willing to go public with their
different views on how to prosecute the war (which is a good thing, as Schake
explains), they did give their honest military opinions in congressional
hearings when asked to testify. A Senate subcommittee held closed hearings in
1967 and found
a “sharp difference of opinion between the civilian authority and the top-level
military witnesses.” While recognizing civilian control of the military as one
of the “great bulwarks” of the U.S. system of government, the subcommittee
report concluded that greater weight should be given to recommendations for
military actions from high-ranking military experts. This example underscores a
broader point—military professionalism can protect civilian control without
requiring military deference to one civilian branch at the expense of the
other.
Schake convincingly demonstrates the critical role of
military professionalism in protecting civil-military relations throughout
American history. Bad examples exist, presidents tolerated their behavior,
ambiguous legal authorities create unclear restraints, and political actors
have sought to use the military to their partisan benefit. But the negative has
not become precedent, and Schake’s history shows the extraordinary importance
of our military’s ingrained professionalism.
If the ultimate goal is to keep the military from
posing a threat to democracy, though, military professionalism alone cannot
sustain healthy civil-military relations. A corresponding civilian
professionalism is necessary as well. Military leaders are constrained by norms
even when they believe the decisions of civilian leaders are wrong. Civilian
leaders must likewise be constrained by norms governing how they exercise their
authority over the military.
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