Civil Military Relations in the United States
(Disclaimer: This article represents my own views and does not represent any organization or institution.)
I have taught the civil military relations (CMR) class in the security studies survey course at the Fletcher School of Law and Diplomacy for seven years, and next term I will coteach a semester-long course on the same topic. When I began teaching CMR, it was a bland topic that mostly addressed the developing world. But over my teaching tenure, it morphed into an electrifying subject focused primarily on the U.S. Each time that I have taught the course, I have had to add new material to address the tectonic changes occurring in CMR reflecting the shocking erasure of US CMR norms that used to be sacrosanct. Who would have thought that a former President would accuse his own Chairman of the Joint Chiefs of Staff of actions that should be punished with “DEATH!” But little did I know that I was only at the beginning of the wild CMR ride that would only accelerate during President Donald Trump’s second term.
The first weeks of Trump’s new term have been, to say the least, norm bending and chaotic. Department of Justice prosecutors resigned over administration orders, the President created a department to reform the government without congressional authorization or appropriation, and that new department shuttered another agency, potentially in violation of the law, among many other actions.
That chaos has started to arrive at the Department of Defense, and uniformed leaders will likely face difficult questions that run the knife’s edge of legality and ethicality, if not cross it. Some might even face real world instances of Sophie’s choice, terrible decisions that produce even worse consequences. Because of these possibilities, uniformed leaders should now, quietly and professionally, wargame their role in a series of potential scenarios in case they face such choices, or worse. Leaders should have clear courses of action developed for a variety of scenarios such as orders to shoot protestors or instructions to execute policy in a state where the governor defies presidential executive orders, among many others. This article will not provide any clear solutions to the problems that uniform leaders will face, and in some cases, it might create more questions than answers. But that is also the real objective of this piece: to initiate thought into possibilities that were once thought as impossible, for it is far better to think through potential courses of action when one has the time to do so rather than to do it during a crisis.
While the principle of civilian control of the military is sacrosanct, proper CMR requires a degree of respect between both entities in the relationship. It is, after all, a relationship.
Make no mistake, this article will not call for “resistance” or other opposition to the Trump administration from the US military. Such behavior would be a blatant assault against the norms of proper CMR that uniformed officers should practice towards civilian authorities. When faced with a legal and ethical order that they personally disagree with, uniformed officers have few choices. After offering their best military advice as part of an unequal dialogue, if they are not able to sway the decision of the civilian authority, they can execute that order to the best of their abilities or resign. From my standpoint, General Mark Milley’s decision, if indeed the reporting is accurate, that he would, “fight from the inside” against the Trump administration, would be far across the line of proper behavior. Likewise, the Army Band’s decision to play “One Day More” from Les Misérables during the Governors’ Ball represents another CMR violation, albeit on a smaller scale and more closely aligned with the Peter Feaver’s theoretical notion of a military “shirking” its duties.
The focus of this paper is not what uniformed officers should do if they face a legal and ethical order that they disagree with (the classic lawful but awful scenario), but what they should do if they face an illegal or unethical order in the environment of the second Trump administration. A series of questionable actions as well as disconcerting signals have now put that possibility, one which was nearly unthinkable just a few years ago, squarely into focus. In terms of actions, Trump attempted to unilaterally reverse longstanding legal interpretations of the 14th Amendment by presidential executive order. Administration officials ordered that corruption charges against New York Mayor Eric Adams be dropped in exchange for his support of Trump’s immigration policies, prompting the resignation of more Justice Department officials (including Republican stalwarts who had clerked for Scalia, Kavanaugh, and Roberts) than during the infamous Watergate Saturday Night Massacre.
Likewise, the signals that the second Trump administration has sent about its respect for the rule of law have been deeply troubling. Less than a month after taking an oath to preserve, protect, and defend the Constitution, Trump posted on social media, “He who saves his Country does not violate any Law,” referencing a quote sometimes attributed to Napoleon Bonaparte. Nearly in parallel were posts from Trump and the official White House account that likened Trump to a king, with an imaginary magazine cover that depicted him in a crown, and a matching declaration of, “LONG LIVE THE KING!” Trump has also hinted at running for a third term, which would be a violation of the 22nd Amendment, and his Vice President has suggested ignoring court orders that counter administration policy. Uniformed officers would ignore these warnings at their, and our country’s peril. If our nation has learned anything from Trump’s first term, it should be that if he threatens to do something that is outside the realm of normal US statecraft or behavior, we should believe him at his word.
There are a variety of scenarios, some easy to imagine given past administration actions, others possible, but hopefully far-fetched, that could force uniformed military officers to face illegal or unethical orders. A handful could even put the military on the front row of a constitutional crisis where uniformed officers will have to make Solomonic decisions. It is critical that uniformed officers begin having quiet, but professional discussions on what they would do if they faced a variety of these scenarios. Because they aren’t in the realm of unimaginable nightmares anymore, they are potential destinations towards which we very well may be rocketing at unimaginable speed.
Perhaps the most possible scenarios would be ones considering violations of the laws of armed conflict, or more simply put, war crimes. Trump had previously suggested purposely killing the families of terrorists as an appropriate strategy, an obvious violation. While some supporters have argued that such talk was flippant, or “Trump being Trump,” the fact that he has granted pardons or given clemency to three war criminals should indicate that he has carried out policies that sent ambiguous signals about the longstanding legal norms of armed conflict.
It is critical that the uniformed services have quiet, but professional discussions that wargame what illegal orders they might face and how to properly react to them.
Another clear and present danger would be giving an order to fire on peaceful protestors, which according to former Secretary of Defense Mark Esper, was exactly what Trump proposed in the summer of 2020. While Esper served as a brake to Trump’s worst impulses during his last administration, Trump’s current secretary of Defense, Pete Hegseth, seems open to carrying out that order. For those who claim such a possibility is preposterous, or would never happen in the US, the military has been used to forcefully break up protests in the past. While everyone knows of the Kent State shootings, in which the Ohio State National Guard opened fire on student demonstrators, killing four and wounding nine, a more accurate analogue to the danger posed by a president’s orders is of the 1932 Bonus Army. The Bonus Army was a group of thousands of World War I veterans and their families camped out in Washington, DC, protesting for the government to provide a financial bonus for their wartime service. President Herbert Hoover ordered his Secretary of War to “surround the affected area and clear it without delay.” The Army, led in part by General Douglas MacArthur, used tanks, cavalry, tear gas, and bayonets to carry out the task, burning protestors’ shanties to the ground, often with all of their property. In the ensuing chaos, two veterans were killed by police gunfire, hundreds were injured, and a child died from tear gas asphyxiation.
Unfortunately, there are other, more sinister perils that are within the realm of imagination, if not possibility. During the 2020 election, Trump administration lawyers drafted an executive order for the US military to seize ballot boxes. While the order was vetoed by others within the executive branch, that the order was written at all should be disquieting, to say the least. Other possibilities of extreme peril could include President Trump declaring martial law after an incident such as a terrorist or cyber-attack and then demanding his military arrest political leaders and protesters who oppose the action. Another hypothetical could be that, after such an attack, ordering the military to establish internment camps for Americans from the ethnic group that Trump believes was responsible, as was done during World War II with Japanese Americans. For more fundamental Constitutional issues, leaders should ponder what would the military’s role be in a hypothetical case where Congress passes a law by overriding a presidential veto, that the Supreme Court determines is legal, but Trump ignores? In a similar vein, what if Congress convicts the President or one of his senior leaders of impeachment and they ignore the order?
What will be critical in these discussions is not just how to react initially, but what the uniformed services will do in the long run to keep their honor intact and to carry out their oath to the Constitution. Every junior leader, down to and including brand new sergeants, knows that soldiers are required to refuse an illegal or unethical order. But what happens after that refusal? Most literature on the matter in military doctrine either doesn’t cover that, or is written from the perspective that, when challenged, those giving the illegal or unethical order will see the error of their ways and alter course towards righteousness.
But what happens if they don’t? In the case of New York City Mayor Eric Adams, administration officials gathered the Department of Justice’s Public Integrity Section in a room and told them they had an hour to decide who would carry out their order or else they would all be fired. It is not unrealistic to expect that such a tactic could be employed in one of the previous scenarios presented in this article, with administration officials firing a series of military officers until they find someone who is morally flawed enough to target civilians or to fire on protestors- or carry out even more dire actions. In that scenario, what should the first officer to be dismissed do, knowing he or she could be replaced with someone who might carry out the order? What should the fourth officer to be fired do? Any course of action in such a situation will have profound consequences, both personally and for the civil-military relations of our country. Because uniformed officers could face these questions in the near future, they should be discussing the possible courses of action now, and discussing the action- reaction- counteraction cycle of what could transpire.
What is perhaps one of the most disconcerting issues is that uniformed officers who could be facing such a terrible decision might not have the benefit of falling back on leaders within the chain of command, legal system, or even the inspector general corps to help support them. In a Friday purge, Secretary of Defense Hegseth fired the Chairman of the Joint Chiefs of Staff, the Chief of Naval Operations, the Vice Chief of Staff of the Air Force, and the three services’ senior Judge Advocate General. Those firings were preceded by the firing of the Commandant of the Coast Guard and succeeded by the dismissal of the three star Air Force general who served as his Senior Military Assistant. It appears that more firings are also on the way. While it has not been carried out in the military yet, in other departments the Trump administration has removed more than a dozen independent inspectors general.
While the number of firings are unprecedented, what is even more worrisome is that many, if not all, civilian candidates for senior positions within the Trump administration have had to pass a “purity test” that included questions such as who they voted for, what they thought of January 6, and whether they believed the 2020 election was stolen. Although it is unclear whether such a policy would be applied to senior uniformed officers, given how many CMR norms have been violated already, it would certainly not be unrealistic to question the possibility. Trump’s own words about his choice for Chairman of the Joint Chiefs of Staff, Lt. General John Dan “Razin” Caine, clouds, rather than clarifies the risk associated with such a possibility. According to President Trump, General Caine told him, “I’ll kill for you sir,” and then put on a ‘Make America Great Again’ hat, which, if accurate, would be a violation of the Hatch Act and of proper CMR norms. While Trump’s claims have been contradicted by others and Trump has made things up in the past, it is unarguable that Trump expects extreme loyalty from his subordinates. It would not be illogical to presume that Trump could extend such a purity test to his senior uniformed officers at some point, even if he has not done it yet.
That the administrations firings have included leaders, lawyers, and inspectors general should give additional pause, not only for the optics, but also for the impacts. Without a doubt the administration has the right to select military leaders that it believes are the most fit to execute its policies. But while the principle of civilian control of the military is sacrosanct, proper CMR requires a degree of respect between both entities in the relationship. It is, after all, a relationship. Removing multiple layers of military oversight creates the impression that the administration could be interested in eliminating any potential forces that would identify or oppose an illegal or unethical order. The specter that their replacements might have to preach the party line to acquire their positions gives further concern about the health of the CMR ecosystem.
Together, these dangers put the US CMR in a position which it has rarely faced. Uniformed officers are led by a presidential administration that, at the very least, questions the value of the rule of law and has proposed actions that would constitute illegal orders. The institutions that are meant to buffer officers from having to face such orders have potentially been damaged by the unprecedented firing of senior officers and military lawyers, along with the perception that senior leaders in the administration have to pass strict purity tests. For those reasons it is critical that the uniformed services have quiet, but professional discussions that wargame what illegal orders they might face and how to properly react to them. I am a secular person, but the danger that the Trump administration presents to permanently damaging the civil-military relations in our country is so grave that I have come to prayer for divine providence. I sincerely hope it does not come to that to achieve a favorable outcome, but all the indicators that I see now are pointing that it will be desperately needed.
