Is kneeling during the national anthem disrespectful to the American flag, and by extension, to the U.S. military? That’s the charge Donald Trump recently leveled at NFL players who began “taking a knee,” to use the athletes’ language, to protest police brutality against people of color.
 
But underneath that charge is an unexamined assumption that veterans and service members would not share the athletes’ views – and are white.

The rest of this post, which examines demographics in the military in comparison to civilian society, in addition to the attitudes and beliefs of racial/ethnic harassment by those service members is available on the Monkey Cage section of the Washington Post.

What would happen if the President of the United States were to order a strike on an enemy target?  What if the command is to mobilize National Guardsmen to respond to flooding after a hurricane?  Most people would, I think, agree that those orders would be lawful exercises of presidential power, and I think that the law would support those orders.  What if, instead, the orders that were given by the President were to do something patently illegal?  There would certainly be an impetus to obey that order if you were the recipient of that order, but obedience to orders is generally at the peril of the one following them, and ultimately, something obviously illegal would likely not be obeyed.  In these clearly defined black and white examples, there is not much room for uncertainty.  Foreign policy and domestic security are clearly within the President's authority.  Illegal acts are illegal.  What about orders and commands that aren't clearly legal or illegal?

We know that the military has agency; that is, its leaders, officers, and enlisted members do not blindly following orders from the executive.  In the lead up to the 2016 Presidential election, we saw influence by retired military officers attempting to advocate on behalf of candidates.  Recently, we saw active duty officers attempt to lead and influence the Commander-in-Chief in the response after it was announced that transgender individuals would not be able to join the military and after the tragic violence in Charlottesville, VA.

Setting aside for the moment the agency of the military, one of the founding pieces of literature in the field of civil-military relations discussed the role of military in society, and amongst many other astute observations and analysis, identified military officers as "conservative."  Huntington was referring to the conservative realism of the military, praising the highest virtue of military men as obedience.  In the politically charged modern environment, the natural inclination is to assume that "conservative" has a partisan definition. 

To this point, the military being viewed as conservative, and the military being able to make its own choices are two pieces of a tricky triangle.  The final side to lay out before exploring very difficult terrain is that there is a high degree of confidence in the military.  As an occupation, confidence in the military exceeds confidence in teachers, scientists, engineers, and doctors in 2013, and again in 2017.  In 2016, Pew also found that confidence in the military exceeded those same groups, adding in news media, business leaders, and elected officials.  The military is trusted, and one reason for that trust is that it is generally seen as above politics.  That, while its members may be political actors in the sense that they have opinions and that they vote, there are rules in place barring advocacy by them in uniform, and they are largely seen as apolitical in the broadest sense.

The simple question that these points intersect at is whether the military is - or should be - a political tool of the Commander in Chief.  That is, can the military be ordered to vote in a certain manner or compelled, or asked, to reach out to their member of Congress?  Is an allusion to the Forever 9/11 Bill during the commencement speech at the United States Coast Guard Academy?  Is this the President discussing relevant affairs to a new generation of Coast Guard officers and their families, or a call to advocacy for those same officers and families?  What about speaking to Sailors and families at the commissioning of the USS Gerald R. Ford, was President Trump discussing health care reform as part of a national policy debate, or was he issuing an implicit order to each individual who was sworn to obey the President of the United States that his vision for health care is the proper one and instructing them to get involved to achieve that end?  What if the language of the speech specifically calls for advocacy?  In that same speech to the families and Sailors at the commissioning ceremony of the USS Gerald R. Ford, the President said "I don't mind getting a little hand, so call that congressman and call that senator and make sure you get it.  And, by the way, you can call those senators to make sure you get health care."

While it can be easily stated that the President has a right to free speech, and as the President, he has the right and responsibility to discuss matters of public discourse that affect the national interest, the question is not related to that right.  Rather, this is the intersection of the military having a legal right to speak, and legal obligation to obey the President, a sense of agency to influence and affect policy, and a public confidence in them.  If the military were to be an agent of the President and call their representatives, do they lose the confidence that the public has in them and simultaneously reinforce the image that they are a partisan institution?  What if, instead, the military does not heed the President's call, meaning that one of the core tenets of the military  - discerning and following Commander's intent - is weakened?  Does a situation emerge wherein military leaders will have to parse words from the President as to what is an order and what is only discussion?  Politicization of the military is a dangerous, difficult issue that is ripe with issues involving the intersection of rights, and its not one that will soon be answered.

Last week, as part of a series of blog posts on civil-military relations, I offered that military leaders have a separate identity from the Executive.  That is, though military commanders are subordinate to the Commander-in-Chief, they are not without identity and influence on the President.  

Also occurring last week were the violent protests in Charlottesville, Virginia, on and around the campus of the University of Virginia.  One of the results of those protests and clashes was that a woman, Heather Heyer, was seemingly struck, in cold blood, by a gentleman, who was later identified as James Alex Fields, using his vehicle as a weapon.

The response to the attacker was nearly universally visceral with leaders of both parties, most analysts, and most mainstream citizens denouncing the attack and the pro-Nazi ideals that he and the larger movement stood for.  One of the most prominent divergences from that nearly uniform response was made by the President, who made several statements oscillating between placing blame on both sides and denouncing Nazism and white supremacy movements by calling them repugnant.  These statements, and the timing of them, received a substantial amount of negative response, drawing criticism from a number of analysts and others.

One of the more curious responses was interesting not for what was said, but for who said it.  Shortly after the protests and attack on Saturday, the Chief of Naval Operations - the most senior officer assigned in the Department of the Navy and the Deputy to the Secretary of the Navy - quickly tweeted the below response even before the President's response.  

​A few days later, and after the President's response, a series of senior military officials publicly responded with the following tweets by, respectively, GEN Neller, the Commandant of the Marine Corps, GEN Milley, the Chief of Staff of the Army, GEN Goldfein, the Chief of Staff of the Air Force, and GEN Lengyel, the Chief of the National Guard Bureau.

In quick succession, the Service Chiefs articulated their condemnation of racism, extremism, and hatred.  While these statements are consistent with the laws and regulations governing the military, wherein each of the services has a means of separating from the Service individuals who espouse racist or extremist ideas, the more curious fact is not what was said, so much as who​ said it.  

It is the military leaders, who took an oath to support and defend the Constitution, and to obey all lawful orders from their commanders that spoke before and after the Commander-in-Chief did.  Now, each of the leaders that spoke were clear to note that they were not involving themselves in domestic politics, but that they were aiming their comments at those currently in their respective service and to the public, which comprises potential future recruits.  However, the effect of outspokenness is clear - there was a message sent that was separate from obsequiousness and blind obedience.  Certainly, no rational analysis can consider tweets as a harbinger of military revolt, but the responses after Charlottesville by military leaders stand for the clear proposition that there is separation between the Executive and the leaders of the military; that the military has its own morality, code, and sense of professionalism that is independent from the Commander-in-Chief, regardless of party.

It's been a busy week in thinking about civil-military relations.  In the wake of the violence in Charlottesville, in addition to watching the protests and counter-protests occur, I thought about posse comitatus and the use of the military in restoring order in response to domestic issues.  Following that, I was tempted to write about the first lawsuit against President Trump concerning the announced (but not yet implemented) transgender troop ban, but the the deference that the military (and the Commander-in-Chief) receives in policy-making was recently discussed here (thoughts on requiring military members to salute the American flag and analysis of the legal authority of a potential transgender troop ban.  While future posts will likely examine on one or both of these happenings, this post continues a nuts-and-bolts discussion of civil-military relations.

Each of the last two posts in this discussion (GEN (ret) Kelly taking over as White House Chief of Staff and an examination of potential ideological co-opting in the West Wing) had a connection to current events, demonstrating that the need for a robust discussion of civil-military relations is as needed now as it was during the Korean and Vietnam Wars.  This pattern of connection to current events continues here.  This week, Chelsea Handler (formerly of, inter alia, Chelsea Lately and Girls Behaving Badly) tweeted "To all the generals surrounding our idiot-in-chief...the longer U wait to remove him, the longer UR name will appear negatively in history."  One of the most interesting aspects of this statement is that is implicitly assumes that the Generals have the agency to act autonomously.  

That is, the casual assumption of the military is that its enlisted and officers are "Yes Men" when faced with authority.  From the recruit who is just entering the armed services who is given standing orders to obey authority of drill instructors, to the servicemember who is told to execute Commander's intent - what the Commander of a particular unit wants - and to accomplish that intent, to senior leaders depicted with the President in the Situation Room in multiple television shows and movies who loyally call subordinates to execute an order that the President gives, the common understanding is that dissent in the military is almost anathema.  And, for the important reasons, there are expectations that orders, once given, are obeyed.  The military presumes that orders are lawful (see, for e.g., United States v. Kisala, 64 M.J. 50 (2006) (holding that fundamental to an effective armed force is the obligation of obedience to lawful orders and that because an order is presumed to be lawful, a subordinate disobeys an order at his own peril, though a servicemember may challenge the lawfulness of an order at the time it is given or in later disciplinary proceedings).  However, this is not to say that the Generals have no say or pushback to the President.

Returning to Ms. Handler's tweet, we see that there is some level of awareness that the Generals aren't just "Yes Men" who blindly obey the current President's orders.  If it is argued that they should revolt, then that means that they could revolt.  In last week's post, I briefly discussed that civil-military relations exists on a broad spectrum between complete acquiescence to the Executive and revolt to overthrow the Executive, and there are an infinite number of positions between those two poles.  That the military exists somewhere between complete, unflinching loyalty to the President and revolt means that the military has room to maneuver and position itself contrary to a position from the Executive.

The obvious next question is how the Generals - individually or collectively - could protest an order from the Executive.  Arguably, such a protest played out in response to the tweet announcing the transgender troop ban.  Leaders from the services have publicly come out and announced that no action would be taken until clear policy is created that provides guidance and required actions for leaders.  GEN Dunford, the Chairman of the Joint Chiefs of Staff, stated that "no modifications to the current policy [would occur] until the President's direction has been received by the Secretary of Defense and the Secretary has issued implementation guidelines."  Steps beyond a "wait for clarifying guidance" approach are public statements aimed at encouragement of alternative policy and of current (and future) servicemembers.  Secretary of the Navy Richard V. Spencer (note, not Richard B. Spencer), hours after his Senate confirmation, stated that any order from the President would be obeyed, but that "any patriot" should be allowed to serve.  Some days prior to SECNAV Spencer's comments were Coast Guard Commandant Adm. Paul Zukunft's.  Admiral Zukunft stated that "[he] would not break faith with transgender Coast Guardsmen".  Almost certainly on the minds of SECNAV Spencer and Adm. Zukunft were assurance to current transgender servicemembers, as well as recruiting going forward, as uncertainty would likely affect unit and individual morale, as well as the likelihood of attracting new recruits.

To assuage thoughts that dissidence is only a product of the current state of American politics or of the current Commander-in-Chief, a brief trip into history offers insight.  The year is 2006.  The United States is deeply involved with the planning and execution of combat missions in Iraq.  The Secretary of Defense is Donald Rumsfeld, and there is significant discord with how the war is being planned.  Normally, such discord may come from the media or American citizens, but in this instance, it came from recently retired Generals (it is important to note that there are legal distinctions between being on active duty and being retired in terms of freedom of speech/expression and requirement to obey superiors).  So significant were the protestations of these senior leaders that the situation was termed "The Revolt of the Generals".  Publicly and privately, there was dissent of the leadership and policy taken by the Secretary of Defense - a civilian who has oversight and command over the military - by the very individuals who were, until very recently, in charge of planning and executing said policy.  It was in this same timeframe that Thomas Ricks envisioned the deliberate evasion of orders by military leaders due, partially, to a perception that many in the military disapproved of the use of military force by then-President Clinton.

With the "Revolt of the Generals", military revolt of the President didn't happen, and it won't happen today.  But, the fact that it is discussed, both then and now, suggests that there is a tacit awareness that the military isn't comprised of Generals who are "Yes Men" and that military leaders have the capacity to shape Executive opinions and policy in a number of ways.  

Last week, I began the start of a discussion that seeks to examine the role of the military in its governance (Intro and Part 1 available through links) by examining the military precision and order that is so ubiquitously known being brought into the White House in the form of GEN (ret) Kelly being named the White House Chief of Staff and the action that he took almost immediately upon starting that position.  

While there was an impromptu beginning to this discussion last week with the appointment of GEN (ret) Kelly and the rapid departure of Anthony Scaramucci, the questions of who controls the military and how they do it are important ones.  That is, the military, for its Generals and Admirals, rank-and-file officers, and enlisted members, the military is run by a civilian.  Article II, Section 2, Clause 1 of the United States Constitution clearly names the President as the Commander-in-Chief of the Army and Navy of the United States.  Many Presidents have experience in the military, whether they were professional soldiers or citizen-soldiers, who interrupted their civilian lives to serve.  However, regardless of prior experience, arguably and somewhat bluntly, the constitutional function of the President of the United States is to command and control the military, understanding how it fits into a larger picture, and the function of the military is to execute the missions assigned to it.  Framed another way, the President serves as the boss of multiple companies, and the military serves as the employees of one company.  While the grouping of the military as "employees" will be examined in a future post, for now, it is a workable analogy.  In this analogy, it can be easily seen that the boss will have one perspective on the organization, and the employees, another.  It's not that the employees in this organization aren't capable - in fact, they are very skilled at their jobs - but that, the solution to a problem may come from another of the boss' companies, or a mentality only obtained by being the boss.  Returning from the analogy, a foreign policy solution could use "soft" power instead of "hard" power, or the experience of seeing the problem as the President instead of a military leader.  The Commander-in-Chief's obligation is to independently control the military, and that requires a mindset that is open to alternative possibilities and more importantly, is able to lead.

This obligation immediately brings to mind a simple question - what if it is not met?  Civil-military relations isn't a binary state with the two positions being "fine" and "revolt."  At the extremes, an Executive that has been completely ideologically assimilated by the military is dangerous because the military would effectively control the executive.  At the polar opposite position, a military that has no representation in leadership and is completely opposed to its leaders can revolt.  In between those extremes is a massive gray area in which anything but the extremes is workable.  So, what if there is is some overlap between the Commander-in-Chief and military leaders?  Short of those extremes, it is not the end of the world, but where on that spectrum the interactions between the President and the military fall is important to study and understand.

These questions are especially important when viewed in context of the current administration.  The President has nominated, and the Senate has confirmed, a respectable number of current or former military generals as advisors, specifically, GEN (ret) Kelly as Homeland Security Secretary, GEN (ret) Mattis as Defense Secretary, and LTG H. R. McMaster as National Security Advisor.  Any of those posts being helmed by individuals with significant prior military experience is not newsworthy by itself, but in tandem with other developments, it raises the question of the ideological overlap between the Executive and the military.

​Concerning ideological assimilation of the Executive by military leadership, we know that the current White House Chief of Staff is set upon placing military discipline on the West Wing.  Additionally, we know that LTG McMaster is currently on active duty in his post as National Security Advisor.  Beyond that, highlighting the desire to have some separation between the Executive and military leadership, GEN (ret) Mattis had to secure a waiver from Congress to be confirmed to his current post.  Why is that?  Sixty-five years ago, Congress passed legislation which stated that it was "the sense" of lawmakers that "no additional appointments of military men to [the Office of Secretary of Defense] shall be approved after Secretary Marshall.  In 2008, Congress reduced the original ten-year bar on transitioning from military service to the Secretary of Defense to seven years.  Secretary Mattis, at the time of his confirmation, had only been retired from the military for three years, forcing him to secure a waiver from Congress.  At the time of the confirmation hearings, civilian control of the military was discussed, but, GEN (ret) Mattis was overwhelmingly confirmed by the Senate.
 
Finally, in addition to a number of senior military leaders who were recently in that post, or currently in the military, President Trump is believed to be deferential to his Generals.  This anticipated deference, with the number of Generals at senior levels of government raise the questions of who is leading the military and can the overseer separate itself from those that it is to oversee?