The Current and Future State of Civilian Control of the Military
By Anthony Marcum and Amb. Charles Ray
Civilian Control Is A Fundamental Part of Our Norms and Constitution
By Anthony Marcum – Resident Fellow, R Street Institute
This past year – across two administrations – saw several public blows to civil-military relations. A recent book by Washington Post reporters, Bob Woodward and Robert Costa, reported that the chair of the Joint Chiefs of Staff, General Mark Milley, had secretly called a top Chinese official in the final days of the Trump administration to reassure him that the United States had no plans to attack the country. The report was met with significant criticism, including calls by some lawmakers for President Joe Biden to fire Gen. Milley.
More recently, following controversy around President Biden’s decision to withdraw troops from Afghanistan, Pentagon leaders testified to Congress that they recommended the president leave some troops in Afghanistan, publicly contradicting some of the president’s past claims that he was not advised to leave troops in the country.
These public frays have renewed conversation about the longstanding American principle of “civilian control of the military” and the appropriate role of civilian and military leaders. Although Americans should not be worried about the fundamental nature of civilian control of the military fracturing anytime soon, recent incidents should remind policymakers of the historical and structural importance of a civilian-led military.
Civilian Control of the Military: An American Tradition
Civilian control of the military is not simply a norm. It is embedded in the nation’s founding. One of the grievances levied against King George III in the Declaration of Independence was that Great Britain had “kept among us, in times of peace, Standing Armies without the Consent of our legislatures.” In other words, soldiers were deployed in the country without the permission of the civilian legislature.
Near the end of the Revolutionary War, there were calls for General George Washington – then more popular than the Continental Congress – to take control of the new American government, replacing a monarch with a military dictator. However, Washington declined. After Washington heard mumblings of a mutiny against the Congress for unpaid wages, he gave a speech in Newburgh, New York, where he emphasized to senior officers the “great duty I owe my Country, and those powers we are bound to respect.”
These principles became ingrained in the Constitution. The president, a civilian elected by the public, became the “Commander in Chief.” The civilian Congress was provided the power to declare war, appropriate money for the military, and create rules and regulations for U.S. armed forces.
Since the Founding, these principles have been emphasized time and again. During the 1794 Whiskey Rebellion, President Washington “ensured that his subordinates understood the importance of upholding civil rule of law” while quashing the riots. During the Civil War, President Abraham Lincoln dismissed Major John Key for public criticisms of his war strategy. In more recent times, President Harry S. Truman famously dismissed General Douglas MacArthur after their public disagreements on military strategy in Korea. In his memoir, President Truman later wrote: “If there is one basic element in our Constitution, it is civilian control of the military. Policies are to be made by the elected political officials, not by generals or admirals.”
A Discouraging Trend
Following World War II, the National Security Act of 1947 consolidated the war agencies into the modern-day Department of Defense, creating the new position of the Secretary of Defense that would oversee this massive military bureaucracy. The law mandated that the secretary must be a civilian, at least 10 years removed from military duty. In 2007, Congress changed the requirement to seven years.
The original law was quickly put to the test in 1950 when President Truman nominated General George C. Marshall as Secretary of Defense. Supporters of Marshall’s confirmation argued that the ongoing Korean War justified the recent law’s exemption. For over 60 years, Marshall’s confirmation was the only time the law had been waived. However, in the last five years, Congress has waived the requirement twice: first in 2016 with President Donald Trump’s nomination of General James Mattis, who had retired only three years earlier, and again last year with President Biden’s nomination of current Defense Secretary Lloyd Austin, who retired five years earlier.
The National Security Act of 1947 was designed “to create greater unity of [military] command” while not harming “the principle of civilian control of the military.” Near consecutive waivers of the nearly 75-year-old law have led to several questions about its effectiveness, the implication of these waivers, and lawmakers’ acquiescence. Earlier last year, President Biden argued that Austin’s skills were “uniquely matched to the challenge and crisis we face.” As commentators have noted, this supposes “Austin is the only person for the job—that he is so different from the alternatives that it is worth permanently altering norms surrounding the waiver.” Of course, this is not the case.
These recent waivers also raise questions about the increasing blur between civilian and military control. Consequently, this presents awkward political perceptions for military officers only recently retired from their posts, now serving the president and the presumptive head of their respective political party.
Of course, this discouraging trend is also in part reliant on a consenting Congress. After all, Congress must grant the waiver, which it did overwhelmingly in both 2017 and 2021. Beyond a general unwillingness to question why presidents have increasingly sought an end-around to the civilian requirement for defense secretary, Congress in recent decades has been unengaged with its war powers authority, often deferring to the president who in turn has deferred to the Pentagon. This leaves voters even more removed from questions of war and peace.
The Path Forward
There are logical ways forward for both presidents and Congress in reasserting the American principle of civilian control of the military. First, future administrations should comply with federal law and nominate a solidly civilian defense secretary. If a future administration should seek a waiver, it should show why this nominee – above any others – is uniquely qualified for the job. It should be a rare hurdle that leaves only exceptional circumstances for a non-civilian to lead the Pentagon.
Congress also has a role in the path forward. One important step is the most recent National Defense Authorization Act. In the latest authorization, Congress would extend the waiver requirement for future defense secretaries from seven back to 10 years as it was originally written in the 1947 legislation. Further, it would require the waiver to be passed by a three-fourths majority in both chambers. Although these requirements would raise the hurdle, a bipartisan nominee can overcome it. Beyond this statutory change, more long-term and institutional efforts are needed, including greater oversight and a reexamination of Congress’s constitutional war powers.
Civilian control of the military is based on tradition and constitutional structure, with an eye toward avoiding the pitfalls of past democracies. The events of this past year should remind institutions that our separation of powers system is flexible and policymakers must ensure that it always remains properly balanced.
It’s Not Just the Military We Need to Worry About
By Charles Ray – Former U.S. Ambassador; Chair of the Africa Program, Foreign Policy Research Institute
With the release of their new book Peril, Bob Woodward and Robert Costa revealed that U.S. Chairman of the Joint Chiefs of Staff (CJCS) General Mark Milley had made two calls to China’s top military official, PLA General Li Zuocheng, assuring him that the United States was not planning a nuclear attack on China. This revelation ignited a political firestorm in Washington, D.C., with some Republican legislators calling for his immediate dismissal and the former president, who appointed him to the job, calling his act “treason.”
Senator Marco Rubio (R-FL) called on President Biden to fire Milley, claiming that Milley “worked to actively undermine the sitting Commander in Chief… and contemplated a treasonous leak of classified information.” Rubio also said that this action undermined civilian control of the military.
The firestorm over this incident has since been replaced with other “breaking news of the day,” but the issue of civilian control of the military, which is one of the cornerstones of American democracy, has been much discussed and written about over the past four years. Subordination of military forces to political authority has been a governance problem since the earliest development of organized militaries. As of 2020, 52 nations have a dictator or authoritarian regime ruling the country. Even western democracies such as France and the United States have had to wrestle with this issue, particularly regarding the ability to wage nuclear war. Visions of a Dr. Strangelove scenario have not been confined to the silver screen.
Civilian Control Remains Despite Recent Hiccups
As a veteran of 20 years in the United States Army, I am a firm believer in the principle of civilian control of the military and feel that it is a principle that has been strongly adhered to, despite the actions of some senior military officials over the past few decades. As exemplified by Milley himself after he was criticized for appearing in a photo-op with President Trump at a church near the White House, he apologized and said, “I should not have been there. My presence in that moment and in that environment created a perception of the military involved in domestic politics.” This squares with what I learned as an army officer: the military should stay out of partisan politics.
President Biden and the current Defense leadership have expressed confidence in Milley and have defended his actions, as has Milley himself. In addition, Milley submitted an official memorandum outlining the protocols followed in making the calls and debunking charges that he “went rogue.”
During my 50-plus years of government service (20 in the military and 30 as a diplomat), I noticed a tendency of senior administration officials and members of Congress of both parties to sometimes give undue deference to senior uniformed officers. This has led, for example, to the current and previous administrations nominating and the Congress approving retired military officers to be Secretary of Defense: General James Mattis in 2016 and General Lloyd Austin in 2021. These appointments contravene the provisions of the National Security Act of 1947 that requires military officers to have been at least 10 years removed from active military service, amended by Congress to seven years in 2007. These two successive appointments are just the second and third exceptions to this rule since it was put into effect, the first being President Truman’s appointment of General George C. Marshall in 1950.
There are many who, after Austin’s appointment, argue that this sets a bad precedent. I am not sure that three exceptions in seven decades constitute an ironclad precedent, bad or otherwise. It is inarguable that all three individuals were highly qualified and that the proper procedures were followed to put them in the position.
So far, I have seen nothing that leads me to believe that civilian control of the military has been eroded, not even Milley’s actions during and after the 2020 elections. On the contrary, what I saw was the system working as I believe the framers of the Constitution intended it to work. The fact is that each nomination, beginning with Marshall in 1950, did comply with the law. In each case, the president asked for and received a waiver from Congress.
Worry About the Civilians in Control
An issue that does concern me is the lack of constraints on the civilians in control of the military, in particular the civilian occupying the commander in chief role. This issue has received little note and less discussion. We are right to act to avoid a “Dr. Strangelove” scenario, but I submit that a “Manchurian Candidate” scenario could be just as dangerous.
This might seem a strange thing to be concerned about, given the military’s monopoly on coercive power, but the very things that make military control of government anathema to a functioning democracy apply to the United States under the wrong type of civilian government.
Under Article II of the US Constitution, the president “shall be the Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” Over time, Congress has given the president broad authority to take military actions in defense of the country. The president also has almost unlimited authority in making appointments, including those relating to defense and military affairs, with only the Senate confirmations process to act as a check. What else is there to prevent a president from using the military in a manner that is not consistent with representative or democratic government?
We the People – The Last Line of Defense
I submit that the only effective control over a rogue president is “We the People.” The basic principle of civilian control of the military is so that this control is exercised in line with the people’s wishes. Can we be sure that a rogue president with autocratic tendencies, who has control over appointments, will act according to the will of the people?
We are the last line of defense of our democracy and our freedom. It is left to us to exercise good judgment, common sense, and good citizenship when we cast our ballots for the most important office in the land. We must put our fears and prejudices aside and think of what is good for the country as a whole. We must always keep in mind that evil prevails when good people do nothing.
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Anthony Marcum
Anthony Marcum is a resident fellow at the R Street Institute, where he focuses on the federal judiciary and separation of powers disputes. Prior to joining R Street, Anthony worked at a boutique litigation law firm in Michigan and clerked in federal district courts in West Virginia and New Hampshire. He is an adjunct professor at George Washington University’s Graduate School of Political Management and an Associate Editor of the American Bar Association’s Litigation Journal. Anthony holds a bachelor’s degree from Ohio State University, a JD from Rutgers Law School and a master of laws from Georgetown University Law Center.
Charles Ray
Charles Ray retired from the US Foreign Service in 2012 after a 30-year career. Prior to joining the Foreign Service, he spent 20 years in the US Army. During his 30 years in the Foreign Service, he was posted to China, Thailand, Sierra Leona, Vietnam, Cambodia, and Zimbabwe. He served as deputy chief of mission in Sierra Leone, was the first US consul general in Ho Chi Minh City, Vietnam, and served as ambassador to Cambodia and Zimbabwe. Since his retirement from public service in 2012, he has been a full-time freelance writer, lecturer, and consultant, and has done research on leadership and ethics. He is the author of more than 200 books of fiction and nonfiction. Ray is a trustee and chair of the Africa Program of the Foreign Policy Research Institute.
