Civilian Control and the Unitary Executive
posted by Thomas Crocker
Who sets military policy under our constitutional system? The answer is one that is (largely) free from any ambiguities of constitutional interpretation: the President is Commander in Chief. Beginning with the President, our constitutional tradition has firmly entrenched the idea of military policy chosen by politically accountable civilian actors. Although controversial expansive domestic law enforcement powers have been asserted by the past Administration under the Commander in Chief power to conduct activities such as electronic surveillance of Americans outside of statutory authorization, there has never been any doubt about the President’s authority over military policy. In this, the executive is truly unitary. This unity is why General McChrystal’s comments, and those of his staff, are so abrasive. They suggest a lack of respect for this fundamental feature of our system and a division within the executive branch that should not exist. Add to that, the increased politicization of military officers, and we get a glimmer of shifting attitudes and priorities within our constitutional system that we would do well to confront.
Writing in the L.A. Times, Bruce Ackerman proposes creating a presidential commission on civil-military relations tasked with formulating a new canon of military ethics to clarify principles of constitutional governance in the modern world, and writes about these issues in his forthcoming book. Given the enormous amount of national resources the military consumes, and given the ability of policy to follow resources, the militarization of our politics risks distorting the order of priority in constitutional governance. Do military officers exist to serve civilian leaders and national policy, or do civilian leaders and national policy exist to serve military interests? The answer should be clear, but the more military officers become active in everyday politics—and I take McChrystal and his staff to be openly doing just that in its most bare-knuckled form—the more we risk inverting the proper answer. I would not be the first to observe that the rationality of war has a way of organizing the rationality of everyday political practice. Military interests all too easily can become the interests of all political policy. Civilian control of the military, however, at least guarantees that such rationality will be employed by politically accountable actors, making possible alternative ways of organizing our collective political life. General McChrystal’s actions, and those of his aides, challenged these settled constitutional governing principles. It is therefore good for the nation that McChrystal resigned today—but this is not enough. I think it is important to implement something like Ackerman’s proposal to avoid relying on faith that McChrystal’s case is sui generis and does not reflect growing attitudes and tendencies within the military that might further distort the rationality of our politics and the integrity of our constitutional system.
Update after the break.
Alice Ristroph comments that the whole affair reminds her (again!) of Dr. Strangelove. (If you have not seen her fantastic essay, Professors Strangelove, I highly recommend having a read). From the film:
Ripper: Mandrake, do you recall what Clemenceau once said about war?
Mandrake: No, I don’t think I do, sir, no.
Ripper: He said war was too important to be left to the generals. When he said that, 50 years ago, he might have been right. But today, war is too important to be left to politicians. They have neither the time, the training, nor the inclination for strategic thought. I can no longer sit back and allow Communist infiltration, Communist indoctrination, Communist subversion and the international Communist conspiracy to sap and impurify all of our precious bodily fluids.
Alice also reminds us that a similar dialogue occurs in A Few Good Men, where Jack Nicholson’s Colonel Jessep repeats many of the same themes as Ripper. “I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it.”
Although General McCrystal’s comments do not rise to either of these rhetorical levels, I do think that the attitude behind his actions is not very far at all from the fictional representations.
June 23, 2010 at 5:31 pm
Posted in: Constitutional Law, Military Law
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Responses (7)
Alice Ristroph - June 23, 2010 at 7:42 pm
I’m reminded of General Jack D. Ripper in Dr. Strangelove, who rejects Clemenceau’s famous claim that “war is too important to be left to the generals.” According to Ripper,
“Today, war is too important to be left to politicians. They have neither the time, the training, nor the inclination for strategic thought. I can no longer sit back and allow Communist infiltration, Communist indoctrination, Communist subversion and the international Communist conspiracy to sap and impurify all of our precious bodily fluids.”
Of course, Jack Nicholson later reprised some of the same themes (not the worry about contaminated bodily fluids!) as Col. Jessep in A Few Good Men.
Ryan - June 24, 2010 at 3:53 pm
The liberal “Atlantic” magazine shows how absurd Ackerman is to use this incident as evidence of Republican partisanship in the military:
“Even more about McChrystal: now it can be told. The story about him voting for Obama is not contrived. He is a political liberal. He is a social liberal. He banned Fox News from the television sets in his headquarters. Yes, really. This puts to rest another false rumor: that McChrystal deliberately precipitated his firing because he wants to run for President.” http://www.theatlantic.com/politics/archive/2010/06/the-night-beat-obama-borrows-the-military-back/58635/
The military is, of course, overwhelmingly Republican because that is the type of person most likely to be drawn to military life, just like liberals are more likely to be drawn to become law professors. Does anyone doubt that the political beliefs of law professors are every bit as unbalanced as those of military officers? This obviously has a huge distortion on the law, which is every bit as important as the military.
Thomas Crocker - June 24, 2010 at 6:49 pm
Ryan, it should have been clear that Ackerman’s point is about the politicization of military officers, no matter their particular partisan affiliation. It is a contingent fact that officers disproportionately identify with the Republican Party, but the issue of politicization would be no different if their affiliation were with the Democratic Party.
Maryland Conservatarian - June 25, 2010 at 10:49 am
You will understand, I hope, my skepticism about the chances of Prof. Ackerman being concerned with the “politicization” of the military were the self-identification among officers mainly as Democrats.
But maybe he just doesn’t think much of the caliber of our military (imbued as the overwhelming majority are without Ivy League credentials). Earlier this month, Prof. A was whining in the Wash Post about the President appointing a retired (for over a decade) AF general to the post of DNI. [Meaning one more prestigious position that won't go to a civilian Yalie, I guess]
[Further worthy of mocking was his closing against Gen . Clapper: "Does Clapper have the breadth of exposure to civilian life that will give him a deep appreciation of democratic values and aspirations?"
This from a man whose whose only adult experience outside the Ivy Leagues seems to be a couple of years of law clerking.]
You want to put a strain on civilian-military relationships? Suggest to the officer corps that a bunch of Johnnies and Yalies are now going to help them develop a new “canon” whose sole purpose seems to be to put academics like Prof. A at ease over a situation he discerned in between classes in New Haven.
Logan Roise - June 25, 2010 at 12:29 pm
The issue isn’t the officer corps political beliefs but there public expression of them. As an Army Major told me once, “I don’t have to respect the person, I just have to respect the rank.” And McChrystal didn’t respect the rank.
Ryan - June 25, 2010 at 1:00 pm
I also find it amusing that Ackerman pipes up at this point in time. Why didn’t we hear of this creeping danger of military officers challenging civilian control during the Bush presidency – the “Revolt of the Generals” against Secretary Rumsfeld? The left also lionized the public dissent of Gen. Eric Shinseki, the Army Chief of Staff, on the Iraq War strategy – he now serves in the Obama administration as Secretary of the VA! It is because Ackerman is a partisan hack, and the fact that this post takes him seriously speaks volumes.
Logan Roise - June 25, 2010 at 3:24 pm
Ryan, if you feel this blog is part of a leftist conspiracy to take down the country you might want to try and find a less partisan one. Not that you will because ConcurringOpinions is the most neutral blog I’ve ever seen but it’s worth a shot.
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