Lead Me, Follow Me, Or Get Out of My Way: Rethinking and Refining the Civil-Military Relationship

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STRATEGIC

STUDIES

INSTITUTE

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External Research Associates Program

LEAD ME, FOLLOW ME,OR GET OUT OF MY WAY:

RETHINKING AND REFININGTHE CIVIL-MILITARY RELATIONSHIP

Mark R. Shulman

September 2012

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be forwarded to: Director, Strategic Studies Institute, U.S. ArmyWar College, 47 Ashburn Drive, Carlisle, PA 17013.

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An earlier version of this monograph appeared in the Ford-ham International Law Journal. The author is indebted to theeditors of that journal for their work on it and for permission torevise this work and publish it for a different audience in thismonograph.

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FOREWORD

In this monograph, Dr. Mark Shulman offers im-portant insights into the nature and condition of civil-military relations. Dr. Shulmans broad-ranging expe-rience as a lawyer, military historian, and academicgives him a unique perspective toward this crucialrelationship.

His monograph appears at a critical juncture. Dr.Shulman encourages readers to consider the changingrelationship between the National Command Author-ity and the Armed Services. The all-volunteer force isnearly 40 years old, and our most recent defense reor-ganization (the Goldwater-Nichols Act of 1986) waspassed nearly a quarter-century ago. Dr. Shulmannotes numerous social, legal, political, and technologi-cal changes in recent years that should occasion a new

look at this age-old nexus. The historic drawdownfrom the long wars in Iraq and Afghanistanalongwith the impending budget adjustmentsonly in-creases the need to think deeply about how the ArmedForces work with the political apparatus of our repub-lic.

Dr. Shulman launches this important dialogue bydiscussing two recent books by professors of consti-tutional law. Naturally, scholars in other elds havebeen examining civil-military relations from otherimportant perspectives. Naval War College ProfessorMackubin Mac Owens has been thinking deeplyabout this relationship from the perspective of a na-tional security specialist. Historians Richard Kohnand Andrew Bacevich have also explored these is-

sues. Even television host and political commentatorRachel Maddow has joined the conversation, decryingthe Unmooring of American Military Power. Now


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Dr. Shulman brings to our attention the perspectivesof scholars deeply steeped in constitutional jurispru-

dence.In examining these works of constitutional law,

Dr. Shulman elucidates some of the important schismsbetween members of the Armed Forces and civil soci-ety. He explains the legal maneuvers that created orwidened the distance between them, and he arguesfor more candid, multidisciplinary questioning. Whatshould the civil-military relationship look like, andhow do we get there? Dr. Shulmans monograph at-tempts to frame these crucial questions and providesa constructive start in answering them.

DOUGLAS C. LOVELACE, JR.DirectorStrategic Studies Institute


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ABOUT THE AUTHOR

MARK R. SHULMAN is the Assistant Dean for Gradu-ate Programs and International Affairs and an AdjunctProfessor at Pace Law School. Prior to joining Pace, hedirected the Worldwide Security Initiative at the East-West Institute. Until 2003, he practiced corporate lawin New York. An active member of the Association ofthe Bar of the City of New York, he chairs the Councilon International Affairs and serves on the Task Forceon National Security and the Rule of Law. Over theyears, Dr. Shulman has taught international law andthe laws of war at Columbia Law School and SarahLawrence College, and history and security affairs atYale University, the U.S. Air War College, and Colum-bia Universitys School of International and Public Af-fairs. He also serves as a consultant to the Rockefeller

Foundation and is a member of the board of Next Gen-eration Nepal. He served as editor-in-chief of theJour-nal of Transnational Law at the Columbia Law School.Dr. Shulman has published widely in the elds of his-tory, law, and military and international affairs. Hisbooks include: The Laws of War: Constraints on Warfarein the Western World (1994), Navalism and the Emergenceof American Sea Power(1995),An Admirals Yarn (1999),and The Imperial Presidency and the Consequences of 9/11(2007). His scholarly articles have appeared in theColumbia Journal of Transnational Law,American Journalof International Law, Journal of National Security Law &Policy, Fordham Law Review, Penn State/Dickinson LawReview, Houston Journal of International Law, Journal ofMilitary History, and Intelligence and National Security.

He has also contributed numerous essays to newspa-pers, including the International Herald Tribune and theFinancial Times, as well as to blogs such as Opinio Juris.


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Dr. Shulman holds a B.A. from Yale University, a mas-ters degree from Oxford University, a Ph.D. in history

from the University of California at Berkeley, and aJ.D. from Columbia Law School.


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SUMMARY

This monograph explains why robust civil-militaryrelations matter and discusses how they are evolving.Without meaningful and reliable civilian control ofthe military, governments lose some measure of con-trol over the destiny of their nations. In extreme cir-cumstances, a lack of civilian control can even lead toa coup dtat. Part I discusses A More Perfect Military:How the Constitution Can Make Our Military Strongerby Diane Mazur, a book that examines the jurispru-dence that has reshaped civil-military relations. Ma-zur maintains that since the Vietnam era, the U.S. Su-preme Court has in effect distanced the Armed Forcesfrom general society in order to create a separateandmore socially conservativesphere.

Part II discusses The Decline and Fall of the American

Republic by Bruce Ackerman, a wise and wide-rangingbook that argues that the nations polity is in declineand that the increasingly politicized armed forces mayforce a change in government. Part III asks where wego from here. These important books attribute a thin-ning of civilian control over the military to speciclegal and political decisions. They explain some of themost important implications of this transformation,and they offer proposals about how to improve thatcritical relationship for the sake of enhancing the ef-fectiveness of the armed forces and the vitality of therepublic. This monograph goes on to examine brieyevolving great-power politics, the effects new technol-ogies have on long-standing distinctions and borders,and the relative rise of nonstate actors, including al

Qaedathree sets of exogenous factors that inevitablydrive changes in the civil-military relationship. In the


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end, this monograph points to a more ambitious en-terprise: a complete re-examination of the relationship

between force and society.

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LEAD ME, FOLLOW ME,OR GET OUT OF MY WAY:

RETHINKING AND REFININGTHE CIVIL-MILITARY RELATIONSHIP

Introduction.

The constitutional linchpins of human rightsmost notably, the four key elements: regular elections,habeas corpus, freedom of expression, and civiliancontrol of the militaryensure that the people remainsovereign in a democratic society by allowing themto hold governments accountable. These instrumentswork to prevent arbitrariness in government. They en-able the people to speak and ensure that their leaderswill hear. The instruments imply, too, that the gov-ernment will respond appropriately with remedies for

valid complaints. Without any one of these constitu-tional linchpins, substantive human rights cannot beenforced. In such circumstances, governments maystill recognize the legitimate claims of individualsbut only by grace, not by right.

Each of these elements is necessary to ensure thatthe full host of human rights claims is protected.1 Thesignicance of each particular element has been ex-amined at length elsewhere. For instance, much hasbeen written about the critical roles that regular elec-tions and the freedom of expression play in promot-ing responsive government. Likewise, U.S. policiesand practices for detaining alleged terrorists have,over the past 10 years, given the study of habeas corpusa tremendous boost. But the fourth element, civilian

control of the military, remains less developed.2 Thismonograph explores U.S. civil-military relations andtheir connection to human rights, taking two impor-


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tant new books as a prompt and springboard for fur-ther exploration.

This monograph begins by explaining why robustcivil-military relations matter. Without meaningfuland reliable civilian control of the military, govern-ments lose some measure of control over the destinyof their nations. In extreme circumstances, the lack ofsuch control can even lead to an overthrow of govern-ment. Part I,A More Perfect Military: How the Constitu-tion Can Make Our Military Stronger, by law professorDiane Mazur, examines the constitutional jurispru-dence that has reshaped U.S. civil-military relationsover the past 4 decades. Her carefully documentedargument maintains that since the Vietnam era, theU.S. Supreme Court has hewn the Armed Forces fromthe general society in order to create a separateandmore socially conservativesphere. Part II, The De-

cline and Fall of the American Republic, by constitutionalscholar Bruce Ackerman, is a wise and wide-rangingbook that argues that the nations polity is in declineand that the increasingly politicized armed forces mayultimately lead to a coup. Part III asks where we gofrom here.

The important books under consideration attributea thinning of the civilian control over the military tolegal and political decisions made over the past 30years. They explain some of the most important im-plications of this transformation, and offer sensibleproposals about how to improve the critical military-civilian relationship for the sake of enhancing the ef-fectiveness of our Armed Forces and the vitality ofour republic. But neither work examines the evolv-

ing nature of great-power politics since the end of theCold War, the effects new technologies have on long-standing distinctions and borders, or the relative rise


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of nonstate actors including al Qaedathree sets ofexogenous factors that inevitably drive changes in the

civil-military relationship. So, in the end, these bookspoint to the need for a more ambitious enterprise: acomplete re-examination of the relationship betweenforce and society in the 21st century.

Before discussing the books, a brief discussion ofthe civil-military relationship is required. The aston-ishing events of the Arab Spring in 2011 illuminateimportant truths about the nature of governments andgovernance. Most notably, they demonstrated that inorder to rule, civilian leadership must exercise consis-tent and reliable control over the states security appa-ratus. In the case of repressive regimes, stability maynot be normatively desirable, but it remains a signi-cant factor nonetheless. Without the ability to controlthe army, almost any regime will fall. This lesson may

seem obvious or axiomatic, but it bears repeating andillustrating. The Tunisian militarys refusal to sup-port the long-standing regime in the face of a popularuprising condemned President Zine El Abidine BenAli to a rapid fall from power.3 Shortly thereafter, theworld watched anxiously to see whether the Egyptianmilitary would remain loyal to the regime of Presi-dent Hosni Mubarak or shift the balance of power tothe protesters crowding Cairos Tahrir Square. Muchlike its counterparts in Tunisia, the Egyptian militarytried to appear an honest broker, effectively denyingsupport to the president and thus ensuring the pro-testers the space in which to give effect to their revo-lution.4 Months after Mubarak ed Cairo, the militarycontinues to exercise power, running the interim gov-

ernment.5In contrast, the armed forces of Bahrain and Syria

have thus far remained mostly obedient to their gov-ernments, which in turn have, to date, survived.6 The


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case of Libya illustrates a third way. The Libyan mili-tary was split on supporting the regime of Muammar

Muhammad el-Qadda, resulting in a bitter and hotlyfought civil war.7 In every instance in which the mili-tary has fully supported the government, the govern-ment survived. Where the military turned against thenational leadership, the government fell. Where themilitary has vacillated, violent conict and politicalindeterminacy ensued.

This brief sketch of Arab Spring leads to several ax-iomatic observations that certainly apply in the Mus-lim world and possibly elsewhere. When a nationsarmed forces take orders from the civilian leadership,the government has a good chance of retaining power.When the military is not absolutely obedient, the re-gimes ability to govern is signicantly diminished.When the military defects, a change in leadership

invariably results. The events of Arab Spring offer atimely and poignant reminder of the roles that armedforces can play in the life and death of a state. Thiscritical fact has rarely been commented on with regardto the United States, but it nevertheless remains veryreal. When the government no longer exercises a mo-nopoly on the use of large-scale violence, the regimeseffectiveness and longevity become less certain. Thislesson might seem self-evident, but it is worth spellingout because of its momentous implications.

Of course, Arab Spring affected very differentkinds of countries and therefore offers limited valuefor a study of the United States. The affected countrieswere not functional democracies with robust rule-of-law systems and traditions of ordered liberty. Instead,

they were run by people who had risen to powerthrough the ranks of the armed services or takenpower themselves through military means. Their in-


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stitutions of civil society were meager. Their cultureswere plagued by discontent, particularly among the

vast portion of society that is young and desperatelyunderemployed. The armed forces themselves weremore oriented toward state security roles than thoserequired for ghting wars against other states. Thisorientation may have made the militaries more likelyto make autonomous decisions about whether to sup-port their governments. In all these ways and more,the countries directly affected by Arab Spring differsignicantly from the United States. Nevertheless, thebasic point remains valid: If a countrys leadershipcannot rely on the military for complete and unfailingsupport of its policies, then the range of policies itspolitical leaders can pursue is limited by the militaryand not by political leadership.

Effective civilian control of the military, therefore,

is an unheralded linchpin of human rights. Just as anactual linchpin secures a wheel to the axle, civiliancontrol of the military ensures that the armed forcesdo not spin off or diverge from the policies of the con-stituted governments. U.S. military ofcers take anoath of ofce to support and defend the Constitution.8That oath articulates and embodies the principal obli-gations of ofcers. Without the loyalty commanded bythat oath, the rights of civilians are not fully guaran-teed, even though they may be more or less respectedas a matter of policy or habit. Therefore, civilian con-trol is necessary to: (1) ensure representative govern-ment and, consequently, almost every other humanright; (2) prevent militarization of civil society and thecivilianization of the military; and, (3) ensure effective

barriers between the law, norms, and privileges ofwar and those of civil society.

The 2011 U.S. National Military Strategy providesa crisp statement of the American tradition of ci-


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vilian control over the military and its immediateimplications:

We [the Joint Forces] will maintain the trust andcondence of our elected leaders and the public byproviding frank, professional military advice; beinggood stewards of public resources; and vigorouslyexecuting lawful orders. The militarys adherence tothe ideals comprised in our Constitution is a profoundexample for other nations. We will continue to afrmthe foundational values in our oath: civilian control ofthe military remains a core principle of our Republicand we will preserve it. We will remain an apoliticalinstitution and sustain this position at all costs.9

Inclusion of this statement represents a welcomechange from the previous National Military Strategy,from which it was absent.10

To drive the point home, Admiral Michael Mul-len, then outgoing Chairman of the Joint Chiefs, re-cently explained this principle to a new generationof ofcers, notably at the Class of 2011 Commence-ment ceremony at the U.S. Military Academy atWest Point, NY:

Im going to ask you to remember that you are citi-

zens rst and foremost. This great republic of ourswas founded on some pretty simple ideassimple butenduring. And one of them is that the people, throughtheir elected representatives, will, as the Constitutionstipulates, raise an army and maintain a navy. Thepeople will determine the course the military steers,the skills we perfect, the wars we ght. The peoplereign supreme. We answer to them. We are there-foreand must remaina neutral instrument of the

state, accountable to our civilian leaders no matterwhich political party holds sway.11


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Admiral Mullens account is notable because he in-cluded it in his valedictory commencement address.12

Why did he feel compelled to remind the cadets thatthey remain citizens, and that they must serve as neu-tral instruments of state? What factors moved him tospeak these most fundamental concepts as if there wasan urgent need to express them at this particular time?Constitutional law scholars Diane H. Mazur and BruceAckerman provide some insights to these questions.

A Separate Sphere.

Diane H. Mazur is one of the rare women who hasserved as a military ofcer and then gone on to teachfull time in an American law school.13 As a young AirForce captain, she had served as an aircraft-mainte-nance and then a munitions-maintenance ofcer be-

fore attending law school. Following graduation, shepracticed law for a few years and then joined the fac-ulty of the University of Florida Levin College of Law.Since the mid-1990s, Mazur has written extensively oncivil-military relations, focusing particularly on sexualminorities in the military and the related Dont ask,dont tell policy controversies. She has also writtena number of policy studies for the Palm Center, a re-search institute focusing on gender, sexuality, and themilitary, where she serves as Legal Co-Director. Hernew book, A More Perfect Military: How the Constitu-tion Can Make Our Military Stronger, brings togethera careers worth of military, scholarly, and advocacywork in one powerful argument.

The title of this book plays on the Preamble of the

U.S. Constitution nicely to convey the thesisthatthe military is most healthy when it respects constitu-tional values.14 Mazur argues that [u]nfortunately,


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since the end of the Vietnam draft, our civilian branch-es of governmentthe President, Congress, and the

courtshave been trying to distance the military fromthe Constitution. They assume that constitutional val-ues get in the way of military effectiveness, but thatsnot true.15 Mazur sets out to cut through the cant andchange all the rules that limit the way we talk aboutthe military.16 Unlike Bruce Ackerman, whose newbook will be discussed below, Mazur does not focuson the constitutional implications of a strained civil-military relationship. Recognizing the same generalphenomenon, Ackerman argues that this relationshipmight lead to some sort of military intervention orcoup in the United States. Mazur goes in a differentdirection. She believes that our condence that themilitary will never engage in a coup against civiliangovernment, or anything even remotely close to a

coup should not confuse us into believing that civ-il-military relations are good.17 Mazur believes thatCongress and especially the judiciary have been ef-fectively working to distinquish the members of theArmed Services from the general population, to thedetriment of civil-military relations and, ultimately, tothe vibrancy of the Armed Forces. Mazurs book ar-gues for tearing down the recently constructed legalwalls that have segregated the Armed Forces from therest of society. Doing so will, she argues, endow thenation with a more robust force, one more capable ofdefending the Constitution against all enemies, for-eign and domestic.18

At the heart of Mazurs book is the claim that overthe past 4 decades, conservative lawmakers and judg-

es have carved out a separate sphere for the military.In it, they have promoted conservative social valueswithout heed to the modern constitutional protections


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for individuals. To insulate the Armed Forces fromthe social progress that has been transforming civilian

society, they have created strong rhetorical and legalbarriers that prevent the questioning of military choic-es. To make this argument, Mazur draws widely onrecent American history, including such notable epi-sodes as the 1991 Tailhook Scandal, the formation ofthe Dont ask, dont tell policy, and the abuse of de-tainees at Abu Ghraib early in the Second Gulf War.19But most critically and innovatively, she examines astrand of the Supreme Court jurisprudence of WilliamRehnquist.20 Mazur argues that Justice Rehnquist cre-ated circumstances in which military society couldserve as a safe harbor from the usual constitutional ex-pectations . . . [and] could be used to validate and rein-force socially conservative viewpoints.21 She assertsthat Rehnquist revolutionized American civil-military

relations for the purpose of promoting his conserva-tive social values.

Mazurs story opens with Rehnquist as a recentStanford Law School graduate clerking for JusticeRobert H. Jackson. In 1953, the Supreme Court heardOrloff v. Willoughby, a low-prole case about a doctorchallenging the Armys decisions to draft him underthe Doctors Draft Act of 1948 and then not to commis-sion him as a medical ofcer, presumably because ofhis unwillingness to deny that he was a Communist.22Orloff had argued that because he could be draftedonly on account of his being a doctor, the Army musteither commission him as a medical ofcer or dis-charge him.

The Supreme Court held otherwise, ruling for the

Army. Justice Jackson wrote:


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We know that from top to bottom of the Army, thecomplaint is often made, and sometimes with justica-tion, that there is discrimination, favoritism, or otherobjectionable handling of men. But judges are notgiven the task of running the Army. The responsibilityfor setting up channels through which such grievanc-es can be considered and fairly settled rests upon theCongress and upon the President of the United Statesand his subordinates. The military constitutes a special-ized community governed by a separate discipline from thatof the civilian. [Emphasis added.] Orderly government

requires that the judiciary be as scrupulous not tointerfere with legitimate Army matters as the Armymust be scrupulous not to intervene in judicial mat-ters.23

Mazur agrees with the decision to uphold the Ar-mys authority to self-regulate. She goes on to specu-late that William Rehnquist may have even drafted

this key passage of Justice Jacksons decision.24 Afterall, we know that young Rehnquist had drafted amemo to Justice Jackson, then considering Brown v.Board of Education, that Plessy v. Ferguson was rightand should be re-afrmed.25 Clearly, he was willingto share his conservative views with Justice Jackson(who had been appointed to the bench by Frank-

lin D. Roosevelt), intending to see them written intothe courts opinions. Moreover, Mazur notes thatRehnquist was preoccupied with the question of thejudiciarys proper posture towards the military.26 Inany event, the Korean War-era Orloffdecision achieveda curious form of momentum during the more politi-cally contentious war that followed.

Joining the Supreme Court in his own right in 1972,

Justice Rehnquist set out to push the military outsideour nations constitutional fold and weaken its con-nection to civilian courts and civilian law in a pair of


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early cases dealing with some of the days most hotlydebated issues.27 In late-October 1969, John Flower

had been ordered off Fort Sam Houston, TX, for dis-tributing anti-war iers.28 Six weeks later he returnedand was arrested for being on an otherwise open mili-tary post and for distributing handbill invitations fora Town meeting on the Vietnam War.29 The DistrictCourt convicted Flower of unlawfully entering mili-tary property and sentenced him to 6 months in pris-on.30 The Supreme Court overturned the conviction,holding that [o]ne who is rightfully on a street whichthe state has left open to the public carries with himthere as elsewhere, the constitutional right to expresshis views in an orderly fashion.31 Joined by Chief Jus-tice Warren Burger, Rehnquist dissented:

Simply because some activities and individuals are

allowed on government property does not requirethe abandonment of otherwise allowable restrictionson its use. . . .[T]he unique requirements of militarymorale and security may well necessitate control overcertain persons and activities on the base, even whilenormal trafc ow through the area can be tolerated.32

Whereas governmental decisions to limit free

speech would usually be subject to strict scrutiny,Rehnquist would not even inquire into the legitimacyof those restrictions when applied by the Army. Hewould not ask forlet alone weightheir burdensagainst the benets to morale and security. He woulddefer unquestioningly to the militarys decision.33

The young justice extended this position 2 yearslater in a more high-prole equal-protection case,

Frontiero v. Richardson.34 In this case, Air Force Lieuten-ant Sharron Frontiero challenged the militarys policyof giving all married men extra housing and medical


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benets while requiring married women seeking thesebenets to prove that their husbands were dependent

upon them.35

In an opinion authored by Justice Wil-liam Brennan, the court held that classications basedon sex should be subject to strict scrutiny. He foundthat the Air Forces rationale for this differential treat-ment, which rested on administrative convenience,could not stand up to such scrutiny.36 In Justice Bren-nans trenchant words, there can be no doubt thatadministrative convenience is not a shibboleth,the mere recitation of which dictates constitutional-ity.37 Rehnquist dissented from Brennans opinion,elevating distinctions based on sex to the same pro-tected status as race, alienage, and national origin.38In determining the constitutionality of the statutoryscheme that plaintiffs attack, [he would merely] askwhether the classication established in the legislation

is reasonable and not arbitrary and whether there isa rational connection between the classication and alegitimate governmental end.39 Mazur attributes thisposition to Rehnquists willingness to make Frontieroprove that the claim of administrative convenience bythe U.S. Department of Defense (DoD) did not exist.40Here the record is very thin;41 perhaps Rehnquist tookthis position because of an unwillingness to elevatethe level of scrutiny for sex-based distinctions ratherthan out of deference to the military.

If Rehnquist spoke quietly and perhaps ambigu-ously in Frontiero, he came out roaring in three land-mark cases that followed the end of military conscrip-tion in 1973, Parker v. Levy in 1974, Rostker v. Goldberg in1981, and Goldman v. Weinbergerin 1986.42 With these

three decisions, Rehnquist led the charge to revolu-tionize the relationship between military and civiliansociety.43 According to Mazur, his opinions would


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build [a] wedge on a foundation of four troublingprinciples that have come increasingly to dene the

civil-military relationship in todays United States.44

The military should be portrayed as distant, remote,and separate from civilian society. The more differentthe military is from the civilian society it serves, theless justication there might be for holding the mili-tary to the expectations of civilian law.

The military should be viewed as morally superior tocivilian society and civilian government, and militaryvalues should be elevated above constitutional values.If military values were morally superior to constitu-tional values, it would be much easier to disregard theConstitution when its protections appeared to conictwith assertions of military necessity.

Civilians should be encouraged to withdraw from

active participation in civil-military relations and ci-vilian control of the military and to see themselves asunqualied and undeserving to question assertions ofmilitary necessity. Service members should be encour-aged to resent civilians, civilian society, and civilianinuence over the military.

Judges, courts, and other institutions of law should bereluctant to insert themselves in legal controversies in-

volving the military, creating a vacuum that could belled by political partisanship and allegiance.45

Mazur argues that all this has come to pass, withharmful effects on the military and the republic. Tomake this argument, she offers a provocative accountof Supreme Court decisions affecting the civil-military

relationship.Rehnquist launched this revolution in Parker v.Levy, which ought to have been a simple case. In 1966,


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the Hawkeye Pierce of the Vietnam War, ArmyCaptain Howard Levy, started to tell lower-ranking

personnel that the war was immoral and that blacksoldiers were being discriminated against by beinggiven all the hazardous duty . . . [and that if he] werea colored soldier [he] would refuse to go to Viet Namand . . . refuse to ght.46 Not surprisingly, Levy wascourt-martialed and convicted of conduct unbecom-ing an ofcer and for acts that prejudice . . . goodorder and discipline in the armed forces.47 Nor wasit remarkable that the Supreme Court upheld the con-victions, nding that the charged provisions of theUniform Code of Military Justice were neither uncon-stitutionally vague nor overbroad.

The important part of the Parker v. Levy story thatMazur reveals is how Rehnquist misrepresented theearlier Orloffdecision to establish the proposition that

the military should be seen as distant, remote, andseparate from civilian society.48 To do so, he mischar-acterized Justice Jacksons dictum discussed brieyabove: The military constitutes a specialized commu-nity governed by a separate discipline from that of thecivilian.49 Jackson had been referring to the militaryjustice system, but Rehnquist twisted the words to im-ply that the military was necessarily a society separateand apart from civilian society.50 He offered what be-came a self-fullling argument. The military in whichCaptain Levy served had been highly representativeof American society in general. Soldiers were not rel-egated to lifetimes on remote outposts on the frontieras they had been in the century preceding World WarII. Instead, conscripts and career soldiers lived within

American society. Until the Supreme Court handeddown its decision in Parker v. Levy in 1974, Americassoldiers generally enjoyed all of the freedoms guaran-


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teed by the First Amendment, without admonishmentthat the exercise of those freedoms was inconsistent

with good order and discipline.51

The Parkerdecisionstarted a process of walling the Armed Forces off fromthe rest of American society by cutting back their free-dom of speech.

In the 1981 case of Rostker v. Goldberg, JusticeRehnquist found his opportunity to harden the wallhe was drawing around the military. In 1979, Presi-dent Jimmy Carter had responded to the Soviet inva-sion of Afghanistan by reinstating draft registration.Contrary to the Presidents wish to register womenas well, Congress authorized funds sufcient only toregister eligible men.52 The Goldberg plaintiffs com-plained that the process violated the equal protectionguarantees of men and women.53 Mazur explains thatthe court should have found this an exceedingly dif-

cult case for introducing heightened deference tomilitary decisionmaking.54 First, unlike previous casesthat had generally decided the claims of one person ora small number of people, this case affected all Ameri-can women between the ages of 18 and 26. Becauseso many people were affected, it is hard to pass thepolicy choice off as mere administrative convenience.Second, previous cases had involved the review ofdecisions made by the military; here, Goldberg waschallenging a congressional decision. So the deferencehere was really to Congress. There is no special def-erence to Congress. Congress passes all laws, so theordinary standards of respect among branches shouldautomatically apply. Third, in previous cases, theCourt had decided to defer to the military. In this case,

the military services had requested funds to registerwomen, too; it was Congress that refused to make theauthorization. So the Supreme Court disregarded themilitary perspective.


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Despite these perplexing circumstances, Rehnquistheld that the Constitution itself requires . . . defer-

ence to congressional choice.55

Mazur argues thatRehnquist deferred to the will of Congress over that ofthe military on this military personnel issue becauseCongress was seeking to implement its view about theproper role for women in society.56 This is vexing be-cause in the rest of society, the Constitution specicallydid not defer to decisions to make distinctions basedon sex. It viewed such distinctions as presumptivelyunlawful.57 With the ruling in Goldberg, Rehnquist wasable to promote a social agenda that used the militaryas the means to achieve a nonmilitary end. When themilitary wanted to discriminate in ways that promot-ed conservative social values, the Rehnquist Court de-ferred to the military. When Congress wanted to usethe military to discriminate, Rehnquist would lead the

court to defer to Congress, even against the views ofthe DoD on a personnel question.

In the nal case of this post-draft trilogy, Goldmanv. Weinberger, Rehnquist further bolstered his wall.58 S.Simcha Goldman was a clinical psychologist servingas an Air Force ofcer. As an Orthodox rabbi, he wasrequired by his faith to cover his head. After his supe-rior ofcer ordered him to remove his yarmulke, Cap-tain Goldman sued, claiming that this interpretationof the uniform rule infringed unduly on his right toreligious expression.59 Writing on behalf of the court,Justice Rehnquist held:

In the context of the present case, when evaluatingwhether military needs justify a particular restrictionon religiously motivated conduct, courts must givegreat deference to the professional judgment of mili-tary authorities concerning the relative importance ofa particular military interest. . . . Not only are courts


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ill-equipped to determine the impact upon disciplinethat any particular intrusion upon military authoritymight have, but the military authorities have beencharged by the Executive and Legislative Brancheswith carrying out our Nations military policy.60

The Air Force did not have to explain its policy, letalone justify it. Nor was this a question of deferenceto congressional will; the Air Force had simply issuedand interpreted its own regulation without the notice

and comment that other governmental agencies mustundergo prior to issuing regulations. Captain Gold-man had either to remove his yarmulke or leave theservice, just as every other Orthodox Jew and Sikhin the service would have to do. Rehnquists revolu-tion was complete. No longer would the personnelpolicies of the Armed Forces of the United States besubjected to any meaningful constitutional review. Hehad separated military society from civil society andfrom constitutionally protected rights. Mazur arguesthat in this separate sphere, conservatives proceededto institutionalize their prejudices about homosexu-als,61 women,62 religious minorities,63 and even lawstudents64 in ways that make the military less strong65and America less equitable.

Separate is seldom equal. As noted above, Mazuremphasizes the role that Justice Rehnquist and the Su-preme Court played in the separation of military per-sonnel from American society.66 Having establishedthat claim, she moves on to argue that Rehnquistsviews about the separate nature of the armed servic-eswhile not necessarily accurate when he pennedthemcontributed to their self-fulllment.67 Ten yearsafter the Goldman decision, a former Vice Chief of Na-val Operations observed, The armed forces are no


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longer representative of the people they serve. Moreand more, enlisted [men and women] as well as of-

cers are beginning to feel that they are special, betterthan the society they serve. 68 He added that this isnot healthy in an armed force serving a democracy.69This sense of superiority reached near-critical levels inthe late-1990s. Since the war in Afghanistan started inlate 2001, however, the sense of crisis has greatly sub-sided, even if the separation and feelings of superior-ity have not. Mazur argues that the separate spheregives the political leaders of government innumerableopportunities for mischief, space in which to employquestionable policies. The military is the most re-spected and trusted institution, public or private,70within our society,71 and our elected representativesare not. Mazur argues that this fact may explain sup-port for military detention and trials of accused ter-

rorists. She views the militarys autonomy as a factorcontributing to the ill-advised policies or practices re-lated to detention, interrogation, and trial of personsconsidered dangerous adversaries in the so-calledWar on Terror.72

As will be discussed below, Bruce Ackerman goesfurther. He argues that an untethered militarywithindependent sources of political strengthmay con-tribute to a constitutional crisis with even more far-reaching consequences.73 Ackerman speculates that itmay put the Chairman of the Joint Chiefs in the posi-tion of deciding to end a contested election and plac-ing the opposing candidate in the White House.

The Soldier and the Republic.

Let us turn now to Ackermans more wide-rang-ing book, one that also inquires how the people of the


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United States relate to the members of the militarysworn to support and defend their Constitution. In

Mazurs book, the military is characterized as play-ing an oddly passive role in a campaign waged bysocial conservatives outside the services to carve outa separate sphere. In important contrast, Bruce Ack-ermans book posits military leaders playing a moreactive role in reshaping the American political order.His account ascribes to senior military leaders a rolethat is less central to the narrative but more decisive inthe outcome. Ackerman is a Sterling Professor of Lawand Political Science at Yale, one of the universitysmost distinguished chairs. He earned this honor ingreat part because of his prolic record of high-impactscholarship, having written dozens of books and ar-ticles on economic and civil rights, constitutionalism,and jurisprudence, and, more recently, on national se-

curity.74

Drawing on this extensive background, Ack-erman delivered the prestigious 2010 Tanner Lectureson Human Values at Princeton University and subse-quently published these lectures as The Decline and Fallof the American Republic.75

The books title, of course, echoes the tropes madefamous by the works of two British historians: The His-tory of the Decline and Fall of the Roman Empire, the 18th-century classic by Edward Gibbon, and, less directly,the Rise and Fall discourse so famously articulatedby Ackermans colleague at Yale, historian Paul M.Kennedy.76 These historical discourses are sophisti-cated, nuanced, and ultimately pessimisticendinginevitably with a fall. Gibbons classic attributed thedecline and fall of the Roman Empire to its decadent

civil society and poor leadership, which abdicatedresponsibility for the defense of the realm tomercenaries.


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Public virtue, which among the ancients was denomi-nated as patriotism, is derived from a strong sense ofour own interest in the preservation and prosperity ofthe free government of which we are members. Sucha sentiment, which had rendered the legions of theRoman republic almost invincible, could make but avery feeble impression on the mercenary servants ofa despotic prince; it became necessary to supply thatdefect by other motives, different but no less compul-soryhonor and religion.77

The mercenaries eventually turned on Rome, Gib-bon explained, destroying the worlds greatest powerand condemning Europe to centuries of darkness.While drawn from immense scholarship, Gibbons his-tory was also shaped by the urgent issues of the timein which he wrote. The American Revolution raged,and London relied increasingly on Hessian mercenar-

ies in the long struggle to retain the North Americancolonies.78 To some extent, Gibbons history of ancientRome naturally reected his views on the state of thecontemporary British Empire.

Britain lost a second empire 200 hundred years lat-er. Born in 1945 and writing some 40 years after that,British-born historian Paul Kennedy posited that greatempires overreach and consequently collapse under

the unbearable combined weight of far-ung militaryobligations and unsustainable domestic consump-tion.79 For Kennedy, as for Gibbon, the responsibilityfor a great powers decline typically lies in ill-consid-ered grand strategy or, more specically, in the fail-ure of that societys leaders to make the tough choicesnecessary for allocating resources to sustain vital insti-

tutions.80

Rise and Fall studies inevitably correlatethe vigor of societys with the extent to which theirleaders decisions are virtuous. These studies exhibit


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an essentially historicist way of explaining the world.They focus on where things went wrong and how con-

scious (and contingent) human decisions shaped des-tiny. Many other scholars would, of course, attributenational or imperial decline to exogenous factors, suchas ill-tempered gods, uncontrollable plagues, drinkingwater pipes made of deadly lead, or foreign invadersled by generals of unique genius.81 But for members ofthe School of Decline, the fault lies not in our stars,but in ourselves.

Applying this formula to examine the troublesof todays great power,82 Ackerman argues that theUnited States has started its decline, and that it willfall. Whereas for Kennedy, the word fall signies arelative loss of economic and military power, for Ack-erman it means a loss of a republics virtue, the demiseof the very characteristic that denes the society, gives

it integrity, and makes it strong. Ackerman grimlypredicts in one breathless paragraph:

(1) [T]he evolving system of presidential nominationswill lead to the election of an increasing number ofcharismatic outsider types who gain ofce by mobi-lizing activist support for extremist programs of theleft or right; (2) all presidents, whether extremist or

mainstream, will rely on media consultants to designstreams of sound bites aimed at narrowly segmentedmicropublics, generating a politics of unreason thatwill often dominate public debate; (3) they will in-creasingly govern through their White House staff ofsuperloyalists, issuing executive orders that their staff-ers will impose on the federal bureaucracy even whenthey conict with congressional mandates; (4) theywill engage with an increasingly politicized military

in ways that may greatly expand their effective powerto put their executive orders into force throughout thenation; (5) they will legitimate their unilateral actions


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through an expansive use of emergency powers, and(6) assert mandates from the People to evade or ig-nore congressional statutes when public opinion pollssupport decisive action; (7) they will rely on elite law-yers in the executive branch to write up learned opin-ions that vindicate the Constitutionality of their mostblatant power grabs. These opinions will publicly rub-ber-stamp presidential actions months or years beforethe Supreme Court gets into the act . . . [w]ith . . . thepresidents media machine generating a groundswellof support for his power grab, the Supreme Court may

nd it prudent to stage a strategic retreat, allowing thepresident to displace Congress and use his bureau-cracy and military authority to establish a new regimeof law and order.83

This is his outline and argument. In short, Acker-man predicts an executive coup made partially pos-sible by a politicized and anti-democratic military.

While he assembles an argument that explainssome serious problems, his conclusions sometimesseem overreaching. Ackerman reads widely and fre-quently spots subterranean trends before others; butin this instance, he may have over-learned the lessonsfrom his principal case studies. Specically, Acker-man rests his argument on the lessons he draws from

three recent crises in the recent American constitu-tional experience: Watergate, Iran-Contra, and the so-called War on Terror. While Ackerman refers to thescandals of the early-1970s and mid-1980s throughoutthis book, it seems that he would not have written itwithout the outrageous Torture Memos issued bythe Justice Departments Ofce of Legal Counsel inthe summer of 2002.84 Ackerman rests much of his ar-

gument on the claim that the torture memos do notrepresent a momentary aberration but a symptom ofdeep structural pathologies that portend worse abusesin the future.85


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With the scandalous Torture Memos as his princi-pal source of inspiration, Ackerman ascribes the loss of

republican values to the transformation of the WhiteHouse into a platform for charismatic extremism andbureaucratic lawlessness.86 Ackerman does not fore-see a decline in the nations morality or its democraticprocesses. He expects America to continue to developinto a more moral nation and to continue to hold regu-lar elections. He does, however, predict that the dulyelected Presidents will govern radically and withoutadequate checks from Congress or the Judiciary.87 InAckermans dark interpretation of the emerging ad-ministrative Presidency, the United States will cometo be governed through a largely unaccountable exec-utive branch.88 Presidents will set policy by edict andimplement it through the burgeoning White Housestaff rather than through the executive departments or

agencies. These unaccountable Presidents will deter-mine policy on their own or through czars who havenot faced the conrmation process. They will establishthe policies through decrees, executive orders, execu-tive agreements, administrative rules, interpretations,or signing statements. Superloyalist lawyers in theOfce of Legal Counsel at the Justice Department orthe White House Counsel will provide self-provinglegal support for these policies. Pollsters and spin-masters will hone the public messages. Thousands ofpolitical appointees will implement them.89 The Presi-dents will enjoy the tacit consent of a fragmented Con-gress and an excessively deferential judiciary. In eachof Ackermans scenarios, the military plays a criticalrole. In the direst of these, the military will operate as

a power behind the throne.90One of Ackermans most compelling concerns is

the increasingly politicized and autonomous mili-


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tary.91 This three-part argument notes rst that theChairman of the Joint Chiefs has become an unelected

political force of his own. Second, the military colo-nization over national security decisionmaking hasbeen supported by the ever-increasing number of of-cers and retired ofcers obtaining high-level civil-ian appointments. Third, and possibly fatally, thesetwo premises have been reinforced because militaryprofessionals have become more political and parti-san. In short, Ackerman posits that the ofcer corps,which over time has increasingly identied with theconservative wing of American politics, may resolvesome future political crisis by handing the presidencyto the Republican candidate on the basis that only bydoing so could a security catastrophe be prevented(discussed below).92

First, Ackerman explains that since the passage of

the Goldwater-Nichols Department of Defense Re-organization Act of 1986, the Chairman of the JointChiefs has enjoyed an increasingly autonomous andpowerful status as the unied voice speaking on be-half of the Armed Forces.93 Charismatic chairmen,such as Colin Powell and Michael Mullen, have beenable to pursue policy objectives by appealing directlyto the public, to the House or Senate leadership, and tothe executive. Thus, they may have sometimes outma-neuvered their civilian defense secretaries and evenPresidents in contests to shape military policy.94 Forexample, Ackerman claims, that because he enjoyeda signicant autonomous power base, General Pow-ell was able to foist on President Clinton his epony-mous strategic doctrine amplifying the earlier Wein-

berger doctrine, inter alia limiting interventions tocircumstances in which the United States could exertoverwhelming force.95 This maneuver, in Ackermans


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view, left the elected leadership with a less meaning-ful ability to shape national security policy.

Secondly, Ackerman argues that career ofcershave colonized the key positions of the nominally civil-ian leadership of the military and paramilitary institu-tions, in the DoD, the National Security Council (NSC),and the intelligence community. Prior to 1980, the ci-vilian leadership within the DoD was overwhelming-ly nonmilitary; only 17 percent of these ofcials hadas much as 5 years of military service.96 Since 1980, thenumbers have changed considerably. Nearly a quarterof them have had 15 years of service, and 44 percenthave had 5 years.97 Why is this shift problematic? First,having spent so much time in military careers, theseofcials are imbued with military culture and militaryviews. Such views are neither wrong nor inferior, butthey are frequently different from the civilian perspec-

tives that are supposed to be setting policy. Likewise,those with a military background may have bureau-cratic advantages (for instance, communicating withpeople in uniform in ways that enable them to connectbetter) that give them a bureaucratic-operational ad-vantage over true civiliansparticularly in an era inwhich the civilian appointments turn over so rapidlyand take so long to ll.98

Ackerman also notes with concern the signicantincrease in the incidence of military professionalsleading other security-related institutions such as theNSC and intelligence agencies.99 For 4 decades follow-ing the establishment of the position in 1947, civiliansserved as National Security Advisor. Particularly inthe years following President John Kennedys ap-

pointment of McGeorge Bundy, heavyweights suchas Walt W. Rostow, Henry Kissinger, and ZbigniewBrzezinski provided meaningful civilian control of the


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national security establishment. Ackerman further as-serts that President Ronald Reagans unfortunate ap-

pointments of Marine Colonel Robert Bud McFar-lane and then Vice Admiral John Poindexter resultedin the Iran-Contra scandal. He cites Ivo Daalder and I.M. Destler, who note that Reagans preferred choice,James A. Baker, would probably have exercised thecommon sense and the administrative skill needed toprevent the asco.100 Even after the scandal threatenedto bring down his administration, Reagan turned toanother military ofcer, Colin Powell, and then Presi-dent George H. W. Bush similarly appointed ArmyLieutenant General Brent Scowcroft. The trend hasonly continued to intensify, as Presidents have sinceappointed career ofcers to chair the NSC,101 to holdkey posts in the Central Intelligence Agency (CIA),102and, more recently, to serve as Directors of National

Intelligence.103

Ackerman makes this point cogently:

A similar pattern prevails at the Defense Depart-ment. Its recent decision to create an undersecretaryof defense for intelligence is a big dealthe new ofceranks just behind the reliably civilian undersecretary[sic] in the departments pecking order. But only therst incumbent was a civilian [Stephen Cambone], andhe has been followed by a retired three-star general[James Clapper, U.S. Air Force]. If this military turncontinues, the undersecretary will not function as acivilian check on the enormous intelligence operationsrun by the departments Defense Intelligence Agencyor its National Security Agencyboth under the lead-ership of active-duty three-stars. He will be lookingat the world through the same professional prisms ashis subordinates. When he leaves the Pentagon to talk

with the presidents new director of national intelli-gence [Admiral Dennis Blair], the conversation willcontinue in the same veinso long as the director is


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a military man, one retired three-star general will betalking to another retired three-star. And if they gettogether to give the president advice, he undoubtedlywill want to hear the opinion of his four-star nationalsecurity advisor [Retired Marine Corps General JamesL. Jones].104

Ackermans point here is very important: the na-tion does not have meaningful civilian control over themilitary intelligence apparatus if its civilian leaders

are retired generals.105

Even though the overwhelm-ing majority of intelligence activities, personnel, andfunding are military, the intelligence process retainsfundamental political dimensions, and therefore re-quires civilian input.106 Relying on a relatively ho-mogeneous military community to lead intelligenceactivities deprives decisionmakers of other valuableperspectives.

Ackermans snapshot may not be quite as predic-tive as he fears. In the year following Ackermanswriting of this passage, President Barack Obama hasappointed civilians to succeed military men in the po-sitions of Under Secretary of Defense for Intelligence(Michael Vickers) and National Security Advisor(Thomas E. Donilon).107 Today, only one of the top 15

people on the NSC staff has signicant military expe-rience. Moreover, command responsibilities continueto require that the directors of the Defense IntelligenceAgency (DIA) and the National Security Agencybe uniformed ofcers, indicating that Congress hasdeemed appointment of ofcers to these positions asnecessary for the agencies success.108 Likewise, Acker-man found 14 of 29 key positions in the Obama DoD

were held by retired ofcers.109 My own survey (ap-proximately a year later) nds 15 of 92 appointmentsat the level of Deputy Assistant Secretary or above


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were held by retired military. Of these 15 retired of-cers, more than half direct units administering person-

nel or military community and family affairs (includ-ing reserve and prisoner-of-war affairs) for which theleadership of veterans seems uniquely appropriate.Likewise, the service departments of the Army, Navy,and Air Force do have a higher proportion of senioradministrators with signicant military experience,which also makes good sensegiven their mission toorganize, train, and equip military personnel. On theother hand, civilians dominate in DoDs most politi-cally sensitive strategy and policy positions.

Over the past several decades, in addition to tak-ing on new and more politically oriented roles in thegovernment, individual ofcers have become morepoliticized and partisan. First of all, they are voting.Prior to World War II, [t]he overwhelming majority

of ofcers even refused to vote, since it required themto think of themselves as partisans for the time it tookto cast a secret ballot.110 By 1944, however, a quarterof senior ofcers voted in the presidential election.111Since then, political participation became common.The Reagan Revolution brought another dramaticchange. In the late-1970s, over half of all higher-rank-ing ofcers identied themselves as political indepen-dents and only a third as Republicans.112 In 1984, overhalf self-identied as Republicans, a portion that roseto two-thirds in 1996at which point only 7 percentwere Democrats.113 Mazur also notes the increasinglevels of partisanship, citing as support a statementmade by a West Point professor and a speech givenby Secretary of Defense Robert Gates at the Air Force

and Naval Academy graduations in 2007.114 Becausethe current ofcer corps is also more likely than not tobelieve it acceptable to advocate publicly for specic


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military policies,115 civilian control is diminishedparticularly if that civilian is viewed as soft on nation-

al defense.Ackerman discusses possible implications of hav-

ing an ofcer corps that overwhelmingly favors oneparty over another. Here he echoes Gibbons accountof the fall of Rome. He identies several hypotheticalscenarios in which the constitutional order faces criti-cal but not implausible challenges. One such scenarioinvolves a highly contested election la Bush v. Gore,in which the Supreme Court demurs from decidingthis political question, even as the crisis continuespast Inauguration Day, (much as it threatened to doin 1876-77 and again in 2000).116 Finally, the Chairmanof the Joint Chiefs steps in and calls a halt to the chaosin the name of national security.117 He declares theconservative to be the winner, based on his reading of

polling data (not votes in the Electoral College), whichnds that candidate more popular. Ackerman doesnot seem as exorcised by this hypothetical interven-tion itself as he is by the dangerous precedent it setsfor further military meddling in the constitutional or-der.118 His other hypotheticals also involve some formof military participation in their resolution.119

After painting the disturbing crises that mightimpend, Ackerman proposes a variety of construc-tive institutional solutions to ensure that the WhiteHouse and the military reconnect more faithfully withthe constitutional order that has sustained the repub-lic for more than 2 centuries. First, he proposes a raftof arrangements to improve the functioning of thedemocratic process. To reduce the likelihood of elect-

ing demagogues to the presidency, he revives his pro-posal for a national Deliberation Day.120 To ensurethat serious journalists continue to perform watchdog


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functions, he would create the Internet news vouch-er and a National Endowment for Journalism.121

To avoid another contested electoral crisis, Acker-man supports the Popular Sovereignty Initiative, aninterstate pact in which states commit their ElectoralCollege votes to whichever candidate earns the mostpopular votes.122

Then Ackerman offers a more radical set of orga-nizational adjustments intended to halt the march ofthe institutional presidency and restore the rule oflaw. First, Ackerman would establish a Supreme Ex-ecutive Tribunal composed of nine judges appointedto long but staggered terms and subject to conrma-tion by the Senate.123 This tribunal would review thelegal opinions made by the White House Counsel andthe Department of Justices Ofce of Legal Counselin an effort to hammer out consensual positions on

questions related to executive authority.124

As part of agrand bargain restructuring the separation of powersamong the branches of government, Ackerman wouldalso reform the Senates libuster rules to ensure thatpresidential appointments receive up or down votes.125

Among Ackermans many reform proposals, andmost important for our purposes, is his recommenda-tion to draft and adopt a new Canon of Military Eth-ics, aimed at reinvigorating the principle of civiliancontrol.126 Ackerman hopes that a Presidential Com-mission on Civil-Military Relations would under-take several years of study to shape a realistic codeof conduct. Once drafted, Congress would enact it,or the President could order it into effect.127 At rstblush, this proposal seems facile. The principle of ci-

vilian control of the military is clearly important andrelatively noncontroversial as far as principles go, butwhat does it mean? Ackerman does not really answer,


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but would hand this question to the Presidential Com-mission. Given the diverse social, political, cultural,

technical, and administrative issues involved, Acker-man may be correct. Perhaps ordinary political pro-cesses cannot resolve such a complex set of problems,and a Commission is required.

To support necessary changes, Ackerman also of-fers a few more specic proposals. He would pass anew emergency powers law that requires increasedlevels of congressional involvement as security crisescontinue.128 He would amend the Goldwater-Nicholslegislation so that the Chairman of the Joint Chiefsno longer has a statutory seat on the NSC; he or shewould attend meetings only at the invitation of theSecretary of Defense or the President.129 Ackermanwould extend civilian experience requirements be-yond the top echelons of the DoD. Currently the Secre-

tary and Deputy Secretary of Defense must spend, re-spectively, 10 and 7 post-uniformed years as civiliansbefore they can be appointed.130 The service secretariesmust spend at least 5 years as civilians.131 The UnderSecretary of Defense for Policy must also come fromcivilian life, although no specic time requirement isimposed.132 Ackerman would extend this mechanismmore broadly within the DoD and to the National Se-curity Advisor and Director of National Intelligence.

While I applaud the effort to encourage Presidentsto reach beyond the military to nd their civilian lead-ers, this particular x seems somewhat ill tailored. Af-ter 20 or 30 years in the military, individuals are notlikely to dramatically change their mindsets by spend-ing 5 years working for a defense contractor or doing

defense-related work in academia. If they have beenworking for 5 years in a eld completely unrelated tothe military, their relevant skills and interest in mili-tary affairs may have diminished signicantly. At the


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risk of being one of those reviewers who writes aboutwhat he would include in the book rather than what

is included, I wish that Ackerman had instead focusedsome attention on what inuential educational andcivic institutions could do to educate future militaryand civilian leaders to make wiser decisions.133 Asthese institutions invest more in this kind of educa-tion, their graduates seem more likely to receive lead-ership appointmentsand to fulll their roles wisely.

What Kind of Civil-Military RelationshipDo We Want?

These two important books raise troubling ques-tions about the relationship between AmericasArmed Forces and the wider society. Both point to theisolation of the military from broader society and dis-

cuss the signicant risks that this isolation creates. Butneither goes far enough in examining what we shouldexpect from that relationship. In general terms, thewish list has not changed in decades. First, militaryofcers should do as they are directed by the NationalCommand Authority in the legitimate pursuit of na-tional security and related objectives. Second, militarypersonnel should act publicly in a politically neutralway. Third, the Armed Forces should be appropri-ately equipped and adequately trained to completetheir assigned tasks. Fourth, their leaders should pro-vide civilian leadership with the appropriate militarycapabilities needed to protect the nation and executenational policy. These axioms remain valid as far asthey go, but, as Mazur and Ackerman observe, much

else has changed. Mazur focuses on the military cul-ture, which has evolved dramatically since the end ofthe draft, mostly in ways that further distanced it from


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the wider society. Ackerman focuses on changes in theconstitutional orderin our politythat portend for

the military a new role as power broker. Both authorsoffer some laudable suggestions for how to improvethe relationship between the military and civil society.

The end of the draft and the rise of the modern mil-itary-industrial state inevitably changed the range ofpossibilities for civil-military relations. An institution-alized volunteer military has supplanted the nationslong reliance on citizen-soldiers. The implications ofthis change for the nation are myriad. For example,the military is now composed of a less representa-tive sample of Americansvolunteers as opposedto draftees. American society is thus composed of asmaller portion of people with military experience,since volunteer regulars generally serve longer thandraftees on 2-year tours. This has led to a growing

gap in mutual understanding between the militaryand civil sectors. Likewise, fewer of our elected lead-ers have military experience, which would give thempersonal insight into war and the militaryand thecredibility to make decisions contrary to the advice ofmilitary professionals.

Half a century ago, outgoing President Dwight D.Eisenhower presciently warned against the distrac-tions imposed by the military-industrial complex onthe diligent in pursuit of the Nations great goals.134

In the councils of government, we must guard againstthe acquisition of unwarranted inuence, whethersought or unsought, by the military-industrial com-plex. The potential for the disastrous rise of misplacedpower exists and will persist.


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We must never let the weight of this combinationendanger our liberties or democratic processes. Weshould take nothing for granted. Only an alert andknowledgeable citizenry can compel the proper mesh-ing of the huge industrial and military machinery ofdefense with our peaceful methods and goals, so thatsecurity and liberty may prosper together.135

Despite Eisenhowers admonitions, the clusterof interests representing members of Congress and

their nancial supporters, the military services, uni-versities, think tanks, and the defense industries hasdramatically reshaped the nations political, research,economic, and strategic landscapes. I see no way tounravel that complex as long as the military needsspecialized weapons, logistics, and communicationssystems. So we need more sophisticated tools andtheories for controlling these interests and managing

the conicts of interest.Yes, domestic factors and the choices leaders make

do matter a great deal. In the tradition of British his-torians of empire, Edward Gibbon and Paul Kennedy,American constitutional law professors Bruce Acker-man and Diane Mazur offer explanations of the declineof civil-military relations that rely on internal factors.

For a more complete and possibly more problematicunderstanding, however, we should also examine theexternal factors that contribute to reshaping the rela-tionships between the armed forces and general soci-ety. In great part, civil-military relations have changedbecause of the end of the Cold War, the revolutionaryubiquity of information technology, and the rise in im-portance of nonstate actors, most notably of al Qaeda.

First, since the end of the Cold War released stateand nonstate actors from the constraints of the super-power rivalry, conict has proliferated. As a result,


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the United States has experienced a militarization offoreign relations. The increased resources invested

in diplomacy, public diplomacy, and nonmilitaryforeign aid pale in comparison to the proliferation ofDoD relations with foreign governments, the inu-ence of Regional Combatant Commands, and the im-pact of military assistance programs.136 Even withoutwartime supplemental nancing, the DoD budget isover 30 times greater than that of the State Depart-ment.137 The DoD consists of approximately 1,400,000service members on Active Duty, 860,000 Reserveand National Guard, and 790,000 civilians on instal-lations in the United States and around the world.138The Department of State has approximately 29,000employees.139 With far greater resources than the StateDepartment dispersed over far-ung locations, theDoD plays ever-more-diverse roles in U.S. foreign re-

lations. Many of the changes blur the lines betweenthe roles and missions traditionally deemed militaryand those viewed as diplomatic or political.

Second, the Information Revolution is constantlyblurring the lines between civil and military capaci-ties, issues, and campaigns. Cyberthreats and cy-berwarfare can be conducted by military or civilianauthorities and against states, nonstate entities, orindividuals. Likewise, unmanned aerial vehicles arebeing operated by military and nonmilitary organiza-tions, often with operationally indistinguishable mis-sions. Global information systems and highly exibledrones erase many of the distinctions between themilitary and civilian spheres. These new technologiesirrevocably smudge the lines between war and peace.

The war against al Qaeda has rapidly acceleratedthe breakdown between civil and military spheres be-cause the United States has been ghting a war with


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a nonstate actor. The National Command Authority isconstantly deciding whether to employ military or ci-

vilian assets in combating al Qaeda. For example, theU.S. President now possesses dramatically expandedpowers to order the killing of an individual outside atraditional war zone. The law has been hard pressedto keep up with these developments. The nature of theenemy (nonstate, transnational), the tools available(weapons, cyber media, diplomacy, public affairs),and the laws and norms applicable (humanitarian,human rights, domestic, privacy, and secrecy laws) allshape the landscape in ways that inevitably alter civil-military relations. If this is emblematic of an epoch inwhich sovereignty itself is in decline, then it will notbe repaired with the demise of al Qaeda.

Diane Mazur and Bruce Ackermans new booksmake important contributions to the dialogue, re-

minding us that a healthy relationship between civilsociety and the military matters for the nations se-curity and governance. Such a relationship does notemerge inevitably from some natural law of war andpeace or intrinsic characteristics of civilian and mili-tary, let alone immutable, principles dening their in-terrelationships.140 We must constantly evaluate theserelationships to preserve essential values in the faceof revolutionary change. The piecemeal and episodicdecisions made by public authorities, such as JusticeRehnquist or President Obama, have tremendous andsometimes unseen cumulative signicance. So, too,do global trends far beyond their control. Perhapsthe most valuable contribution Professors Mazur andAckerman make is to reframe and restart a national

discussion about the relationship between our nation-al security apparatus and our republic.


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ENDNOTES

1. The U.S. National Security Strategy articulates a similar listin explaining the importance of promoting democracy abroad byworking to strengthen key institutions of democratic account-abilityfree and fair electoral processes, strong legislatures, ci-vilian control of militaries, honest police forces, independent andfair judiciaries, a free and independent press, a vibrant privatesector, and a robust civil society. The White House, The NationalSecurity Strategy of the United States of America, Washington, DC,2010, p. 37, available from www.whitehouse.gov/ sites/ default/ les/ rss_

viewer/ national_security_strategy.pdf.

2. Surprisingly few scholars have attempted signicant stud-ies of the civil-military relationship in the United States. To theauthors knowledge, no one has completed a more thorough ex-amination of civil-military relations since Samuel P. Huntingtonpublished his magisterial work, The Soldier and the State, in 1957.See Samuel P. Huntington, The Soldier and the State: The Theory andPolitics of Civil-Military Relations,Cambridge, MA: Belknap Press

of Harvard University Press, 1957; see also Deborah N. Pearlstein:The Soldier, the State, and the Separation of Powers, Texas LawReview, Vol. 90, 2012 (providing an extensive review of the litera-ture and analyzing the ways in which professional military advicedoes, does not, and can better conform to separation of powerstheory); and Morris Janowitz, The Professional Soldier: A Social andPolitical Portrait, New York, NY: The Free Press, 1971.

3. See David Kirkpatrick, Military Backs New Leaders in Tu-

nisia, TheNew YorkTimes, January 16, 2011, p. A4; CNN, OustedTunisian Strongman Convicted of Corruption Charges, June 20,2011, available from articles.cnn.com/2011-06-20/world/tunisia.ben.ali _1 _corruption - charges- abidine- ben-ali-tunisians?_s= PM:WORLD.

4. See, e.g.,Larisa Epatko, What is the Role of the Militaryin Egypts Transition? The Rundown, PBS NewsHour, February 7,2011, available from www.pbs.org/newshour/rundown/2011/02/egypt-military.html.

5. See David Kirkpatrick, Military Flexes Its Muscles asIslamists Gain in Egypt, The New York Times,December 8, 2011,p. A6.


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6. See, e.g., Zoltan Barany: The Role of the Military,Journalof Democracy, Vol. 22, No. 4, October 2011, pp. 31-34.

7. See, e.g., ibid., pp. 28-31.

8. Oath of Ofce, 5 U.S.C. 3331, 2006. The oath taken byNational Guard ofcers also includes support and defense of thestates constitution and obedience to its governor. AppointmentOath, 32 U.S.C. 312, 2006.

9. Chairman of the Joint Chiefs of Staff, The National MilitaryStrategy of theUnitedStatesof America 2011: RedeningAmericasMilitary Leadership, Washington, DC: Joint Chiefs of Staff, 2011,available from www.jcs.mil// content/ les/ 2011-02/ 020811084800_2011_NMS_-_08_FEB_2011.pdf.

10. Contrast ibid. withChairman of the Joint Chiefs of Staff,The National Military Strategy of the United States of America: A Strat-egy for Today; A Vision for Tomorrow, Washington, DC: Joint Chiefsof Staff, 2004, available from www.defense.gov/news/mar2005/d20050318nms.pdf.

11. Admiral Michael Mullen, Chairman of the Joint Chiefsof Staff, Commencement Address at the U.S. Military Academy,May 21, 2011, available from www.jcs.mil/speech.aspx?ID=1598.

12. For other examples of this kind of high-prole reminder,see Secretary of Defense Robert M. Gatess admonition that as of-cers, you will have a responsibility to communicate to thosebelow you that the American military must be non-political, asdelivered in graduation speeches in 2007 at the U.S. Naval Acade-my, Annapolis, MD, and at the U.S. Air Force Academy, ColoradoSprings, CO. Robert M. Gates, Secretary of Defense, Commence-ment Address at the U.S. Naval Academy, May 25, 2007,availablefrom www.defense.gov/ speeches/ speech.aspx?speechid= 1154; idem,Commencement Address at the U.S. Air Force Academy,May 30, 2007, available from www.defense.gov/speeches/speech.aspx?speechid=1157; see also Admiral Michael Mullen, From theChairman: Military Must Stay Apolitical, Joint Forces Quarterly,Issue 50, Third Quarter, 2008, p. 2 (reminding the members of theArmed Services to remain apolitical in an essay published duringthe 2008 U.S. presidential campaign).


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13. See University of Florida Levin School of Law, Fac-ulty and Staff: Diane H. Mazur, available from www.law.u.edu/faculty/mazur/.

14. Michael F. Shaughnessy, Interview with Diane H. Ma-zur, Education News, November 9, 2010, available from www.educationnews.org/commentaries/102607.htm.

15. Ibid.

16. Diane H. Mazur,A More Perfect Military: How the Constitu-tion Can Make Our Military Stronger, New York: Oxford UniversityPress, 2010, p. 5.

17. Ibid., p. 13.

18. See generally ibid.

19. See, e.g., ibid., pp. 120-126, 146-164, 174-180.

20. See generally ibid., pp. 53-73.

21. Ibid. p. 88.

22. Orloff v. Willoughby, 345 U.S. 83 (1953), p. 91; see Mazur,pp. 42-45.

23. Orloff, 343 U.S., pp. 93-94 (emphasis added), notes that themilitary is governed by military law and military justicea sepa-rate system of order and disciplinebut not that it constitutes aseparate society.

24. Mazur, p. 42.

25. William H. Rehnquist, A Random Thought on theSegregation Cases, Nomination of Justice William HubbsRehnquist: Hearings Before the Senate Committee on theJudiciary, 99th Cong., 1986, p. 315, available from www.gpoaccess.gov/congress/senate/judiciary/sh99-1067/browse.html.

26. Mazur, p. 45, quotes Frank I. Michelman: The SupremeCourt 1985 TermForward: Traces of Self-Government, HarvardLaw Review, Vol. 100, No. 4, 1986, pp. 4-77, especially p. 8.


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27. Mazur, p. 45.

28. See Flower v. United States, 452 F.2d 80 (5th Cir. 1972), pp.81-82, reversed 407 U.S. 197, 1972.

29. Ibid., p. 82; Mazur, p. 46.

30. Flower, 452 F.2d, p. 91. Flower was convicted under 18U.S.C. 1382: Whoever reenters or is found [within a militarypost] after having been removed therefrom or ordered not to re-enter by any ofcer or person in command or charge thereofShall be ned not more than $500 or imprisoned not more than sixmonths, or both. Ibid., p. 87 (internal quotation marks omitted).

31. Flower, 407 U.S. pp. 198-199, quotes Jamison v. Texas, 318U.S. 413 (1943), p. 416.

32. Ibid., pp. 200-201 (citations omitted).

33. SeeMazur, p. 47.

34. 411 U.S. 677 (1973); see Mazur, p. 49.

35. Frontiero, 411 U.S., pp. 680-681; Mazur, p. 48.

36. Frontiero, 411 U.S., pp. 688, 690-691.

37. Ibid., p. 690.

38. Ibid., p. 691.

39. Frontiero v. Laird, 341 F. Supp. 201 (M.D. Ala. 1972),p. 206.

40. Mazur, pp. 48-49.

41. Rehnquist did not actually draft a dissenting opinion. Thesyllabus merely notes that he dissented by endorsing the rea-sons stated by Judge [Richard] Rives in his opinion for the DistrictCourt. Frontiero, 411 U.S., p. 691.


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42. Parker v. Levy, 417 U.S. 733 (1974); Rostker v. Goldberg, 453U.S. 57 (1981); Goldman v. Weinberger, 475 U.S. 503 (1986).

43. Mazur, pp. 55-56.

44. Ibid., p. 56.

45. Ibid.

46. Ibid., p. 57, citations for Levys public statement noted inParker, 417 U.S., p. 737.

47. Parker, 417 U.S., pp. 736, 738.

48. Mazur, p. 59.

49. Parker, 417 U.S., p. 744, quotesOrloff v. Willoughby, 345U.S. 83 (1953), p. 94.

50. SeeMazur, p. 59; see also Parker, 417

Documents

Lead Me, Follow Me, Or Get Out of My Way: Rethinking and Refining the Civil-Military Relationship