US Military: Praetorian Guard or Non-Partisan Policy Instrument?
A recent Small Wars Journal article by Frank Sobchak offers a look at the current civil-military relations. Sobchak argues that given President Trump’s tendencies and past behavior, he will inevitably issue illegal orders that threaten to misuse the US military. As such, senior military leaders should prepare in advance for how they will respond to this eventuality. This essay argues that any preemptive actions would be an egregious breach in the special trust and confidence bestowed by the Commander in Chief and incongruent with Congressional power to regulate the military. The US military was never intended to be a praetorian guard and – as S.L.A Marshal wrote – is not “the sole repository of national honor and national morality.”
The pendulum of politics in our republic perpetually swings back and forth, expressing the change in collective will of our people. Despite the shifting political landscape, our elected leaders must consider the totality of competing issues and craft and implement policies to address those issues, while always remaining accountable to the American people.
Within this complex context, the uniformed military profession must remain non-partisan while also remaining subordinate to civilian direction. The reality is that senior military leaders are appointed and confirmed to assume positions that directly influence and, when directed, implement policy related to military matters. However, it is not the senior military leader, but rather the elected officials who directly exercise the powers vested by the American people.
Within this civil-military framework, the US military is not a praetorian guard—it does not get a formal vote in policymaking. Their role is limited to advising on military matters, and when directed, to perform actions which are directed under the authority of the US’s national command authority. Likewise, the military does not self-determine how and when it will be used. Our history, much like that of other states, reveals a meandering path of successful steps and missteps in military advice, policy recommendations, and the implementation of policy.
Historical View of US Civil-Military Relations
The nature of civil-military relations is often tumultuous. For example, dispassionately consider the larger context of US civil-military relations in time and place. Many historical episodes in our nation’s past have been characterized by visceral politics, and the use of the US military during those times tested civil-military authority.
During the 19th century, the US Army was used to suppress Native Americans. In the 20th century, the Army was also used to forcibly break domestic labor disputes and to help enforce of civil rights law. More specifically, in 1949, there was the Revolt of the Admirals, whereas in the 1980s the Service Chiefs stoutly resisted what became the Goldwater-Nichols Act. Although this list is not comprehensive, each of the circumstances noted were politically volatile issues in their day. In these and other instances, there was a collision between different interpretations of ethical, legal, and moral dimensions that encumbered relations, yet the power of civilian control was sustained.
The Founding Fathers feared tyranny of the majority and strove to preserve individual liberty by the purposeful distribution of power and placing limits on government. Checks and balances were created to account for possible excesses. Their study of history also suggested a permanent standing armies are dangerous if (and when) they no longer controlled by the elected political leaders. Furthermore, when military leadership decide for themselves what Presidential orders are (or are not) constitutional civil-military control is lost. This should be unthinkable.
Civil-Military Relations Today
Political polarization is reflected in narratives which suggest that the oath of service—which is predicated on the responsibility to support and defend the constitution— might paradoxically justify actions that run afoul of civil control of the military. This is a dangerous perspective. This proposition stands true even if there is a high degree of public discord, political polarization, and diminishment in intra-governmental decorum.
This author offers a counterpoint to Sobchak’s position: presumptively assuming that President Trump will issue unconstitutional, or illegal, orders to the US military sets a very dangerous precedent. Such precedent will subsequently open pandora’s box—any serving military member might well question all orders, at all levels of command. This is a disastrous proposition for an institution that functions under delegated Presidential authority and is built around discipline and order.
The argument can be made that any such preemptive actions reflect a lack of faith and allegiance to our constitutional system, the collapse of good order and discipline, and the loss of civil control over the military. Moreover, the argument can be made that it is either (or both) conspiratorial or treasonous for senior military officers to “have quiet, but professional discussions that wargame what illegal order they might face and to properly react to them.”.
It is never appropriate for the US military’s leaders to discuss hypotheticals about the current civilian leadership’s authority, especially as it relates to orders from the Commander-in-Chief. As an institution, the US military has a role to serve like other elements of the government. Nonetheless, this is not to suggest that a day will not come in which the military will be directed to take actions that it deems unethical or illegal.
Could an order from the Commander-in-Chief be both constitutional and yet morally or ethically disagreeable? Yes. However, senior military leaders should only make judicious decisions about these types of order only if, or when, such orders are issued. If senior military leaders come to believe that they are the arbiter of the legal, moral or constitutional powers of any branch of government, the military will have broken from necessary civilian control. The levers of checks and balances are not in the hands of the military, nor should they be.
The Constitution and National Security
Making sense of the current context of civil-military relations may benefit from relooking at the US Constitution relating to National Security. Article 1, Section 8 of the US Constitution gives Congress the power to “provide for common defense,” and in Clause 11, the power to declare war or authorize the use of military force.
Beginning at the end of WWII and sustained by the National Security Act, the US has found reason to maintain a very large military enterprise even after the collapse of the Soviet Union, which justified a large-scale, standing military. Many argue this circumstance is necessary to keep us safe in a dangerous world. Perhaps a discussion for another essay. Alternatively, many Americans lack trust in the institutional power and politicization of the military.
Article II, Sect 2, Clause 1 states the President shall be Commander-in-Chief and directs the military, whereas Congress funds and provides authority for the use of force. The US Constitution frames shared and divided powers related to war. However, as Howard Shuman writes, the conflict between the two branches over war-making powers is an “enduring problem that flares up” throughout our history. It is inappropriate for the military to engage in this struggle.
The Supreme Court has shown great deference to the power of Congress relating to its enumerated power to make rules for the “regulations of the land and naval forces.” The Court has argued that “[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian, and further stating that “the different character of the military community and of the military mission requires a different application of those (protections)” that are guaranteed to all other citizens.
The limits placed on government by our founders included military institutions and its delegated power. Samuel Huntington’s work on civil-military relations illuminates the challenge consequent to the rise of a military profession, arguing that in time, institutions form their own norms and traditions that evolve over time. For many reasons, there is a growing divide between our civilian and miliary society with difference in interests, beliefs, and norms. The military should endeavor to remain connected to the people it ultimately serves.
Military Profession and Its Authority
It is important to note that simply, every US military officer’s authority is not separate from – rather derived – from the President’s role as the Commander-in-Chief as expressed in Article II of the Constitution and exercises delegated authority within regulations established by Congress. As such, officers serve at the pleasure of the President. This is equally true for military officers placed in or removed from positions of trust and confidence by their superiors throughout military chains of command. Picking the right leader at the right time and for the right context matters for maintaining warfighting effectiveness.
The military profession subordinates personal views, ego, and institutional preferences to a role within a constitutional system to which they swear. This means despite the forever shifting tides of politics, rise in societal division, or one’s personal political beliefs, one remains a non-partisan instrument directed by others. There is no disagreement with Sobchak that current political dynamics will test civil-military relations in ways not seen for decades. This can be very difficult, especially for those senior military leaders that are intimately close Presidential decision making.
The US military must maintain true faith and allegiance to our system of government and avoid any action, perceived or real, that undermines the principle of civil control of the military. This includes strict adherence to regulating rules outlined in the Uniformed Code of Military Justice created by Congress. Trust that the Constitution provides for a system that accounts for and is resilient to social, political, and economic disruptions in government, across our land or in the international arena. The military is not a praetorian guard and must avoid politicization and forever preserve civil control of the military in both words and deeds.
