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In reflecting a bit on the oath of office, it has me thinking again about two of my pet peeves: (1) conflating civilian control with presidential control; and (2) focusing too much on the concept of "dissent" and not enough on candid, honest advice. 1/ https://twitter.com/jimgolby/status/1265356163006201857
Our system of civilian control relies on "separate institutions, sharing powers" to quote Neustadt. The President clearly has certain responsibilities as CiNC, but - in practice - Congress & the President both use the Constitutional tools they have to try to shape mil policy. 2/
And members of the military are subordinate to both, and also to the Supreme Court.
The oath of office makes that clear, in requiring officers to swear their oath to the Constitution, and not to the President -- as service members do when they take the oath of enlistment. 3/
The oath of office makes that clear, in requiring officers to swear their oath to the Constitution, and not to the President -- as service members do when they take the oath of enlistment. 3/
Does this mean officers and enlisted troops should respond to lawful orders differently?
In practice, not really. But that is because they're LAWFUL orders: they're executed under the authority of the Executive AND Congress.
POTUS issued the order; Congress passed the law. 4/
In practice, not really. But that is because they're LAWFUL orders: they're executed under the authority of the Executive AND Congress.
POTUS issued the order; Congress passed the law. 4/
This doesn't mean this problem is easy, as @brooks_rosa has discussed before. In some cases, it can be really difficult for military officers (who aren't lawyers) to know if an order is even lawful or not. 5/ https://www.washingtonpost.com/outlook/2020/01/08/if-trump-orders-war-crimes-military-will-face-an-impossible-choice/
But here is a little secret: I haven't been "ordered" to do most of the things I've done in the military, and the President doesn't issue orders every time he wants the military to do something. Nor does Congress always pass laws. Sometimes they rely on informal authority. 6/
And if we treat Presidential control as equal to civilian control, we strip away both formal and informal authority from Congress -- and undermine the Constitution. Contrary to the oath of office. 7/
This is related to my second point: the concept of dissent, that we talk about in PME and write about in our journals, is almost certainly HARMFUL in this respect.
It causes us to presume an officer's disagreement with POTUS is different than a disagreement with Congress. 8/
It causes us to presume an officer's disagreement with POTUS is different than a disagreement with Congress. 8/
As a result, we think of incidents where someone like GEN Shinseki disagreed with the administration on policy prior to the Iraq War as a rarity.
And we ask officers to consider circumstances under which they should express disagreement with POTUS as a major decision. 9/
And we ask officers to consider circumstances under which they should express disagreement with POTUS as a major decision. 9/
Of course, there's a lot of art to how this works in practice due to personal relationships and the need to balance trust. I'm not advocating for officers to go to the press to influence policy.
But it should inform how officers interact with, and testify before, Congress. 10/
But it should inform how officers interact with, and testify before, Congress. 10/
Because, with a healthier understanding of officers' responsibilities to the Constitution -- to the President AND Congress AND the Court (AND ultimately to the people) -- we see that issue of "dissent" is harder than we realize. 11/
In a polarized environment, officers will almost ALWAYS "dissent" from elected members from one party or the other. Sometimes, they will disagree with both.
But we need to teach officers how to operate and communicate in this environment. 12/
But we need to teach officers how to operate and communicate in this environment. 12/
Because their responsibility is not to the President or to presidential control. They have responsibilities to the Constitution and all branches of government, and they need to help elected and appointed officials carry out their Constitutional responsibilities as well. 13/
There's a lot more I could, and should, say. But we need to help officers think more constructively about advice and how to operate in political environments--instead of focusing them narrowly on questions of dissent. It's healthier for us all, and is required by our oath. 14/14
