Civilian Control Is A Fundamental Part of Our Norms and Constitution
More recently, following controversy around President Biden’s decision to withdraw troops from Afghanistan, Pentagon leaders testified to Congress that they recommended the president leave some troops in Afghanistan, publicly contradicting some of the president’s past claims that he was not advised to leave troops in the country.
These public frays have renewed conversation about the longstanding American principle of “civilian control of the military” and the appropriate role of civilian and military leaders. Although Americans should not be worried about the fundamental nature of civilian control of the military fracturing anytime soon, recent incidents should remind policymakers of the historical and structural importance of a civilian-led military.
Civilian Control of the Military: An American Tradition
Civilian control of the military is not simply a norm. It is embedded in the nation’s founding. One of the grievances levied against King George III in the Declaration of Independence was that Great Britain had “kept among us, in times of peace, Standing Armies without the Consent of our legislatures.” In other words, soldiers were deployed in the country without the permission of the civilian legislature.
Near the end of the Revolutionary War, there were calls for General George Washington – then more popular than the Continental Congress – to take control of the new American government, replacing a monarch with a military dictator. However, Washington declined. After Washington heard mumblings of a mutiny against the Congress for unpaid wages, he gave a speech in Newburgh, New York, where he emphasized to senior officers the “great duty I owe my Country, and those powers we are bound to respect.”
These principles became ingrained in the Constitution. The president, a civilian elected by the public, became the “Commander in Chief.” The civilian Congress was provided the power to declare war, appropriate money for the military, and create rules and regulations for U.S. armed forces.
Since the Founding, these principles have been emphasized time and again. During the 1794 Whiskey Rebellion, President Washington “ensured that his subordinates understood the importance of upholding civil rule of law” while quashing the riots. During the Civil War, President Abraham Lincoln dismissed Major John Key for public criticisms of his war strategy. In more recent times, President Harry S. Truman famously dismissed General Douglas MacArthur after their public disagreements on military strategy in Korea. In his memoir, President Truman later wrote: “If there is one basic element in our Constitution, it is civilian control of the military. Policies are to be made by the elected political officials, not by generals or admirals.”
A Discouraging Trend
Following World War II, the National Security Act of 1947 consolidated the war agencies into the modern-day Department of Defense, creating the new position of the Secretary of Defense that would oversee this massive military bureaucracy. The law mandated that the secretary must be a civilian, at least 10 years removed from military duty. In 2007, Congress changed the requirement to seven years.
The original law was quickly put to the test in 1950 when President Truman nominated General George C. Marshall as Secretary of Defense. Supporters of Marshall’s confirmation argued that the ongoing Korean War justified the recent law’s exemption. For over 60 years, Marshall’s confirmation was the only time the law had been waived. However, in the last five years, Congress has waived the requirement twice: first in 2016 with President Donald Trump’s nomination of General James Mattis, who had retired only three years earlier, and again last year with President Biden’s nomination of current Defense Secretary Lloyd Austin, who retired five years earlier.
The National Security Act of 1947 was designed “to create greater unity of [military] command” while not harming “the principle of civilian control of the military.” Near consecutive waivers of the nearly 75-year-old law have led to several questions about its effectiveness, the implication of these waivers, and lawmakers’ acquiescence. Earlier last year, President Biden argued that Austin’s skills were “uniquely matched to the challenge and crisis we face.” As commentators have noted, this supposes “Austin is the only person for the job—that he is so different from the alternatives that it is worth permanently altering norms surrounding the waiver.” Of course, this is not the case.
These recent waivers also raise questions about the increasing blur between civilian and military control. Consequently, this presents awkward political perceptions for military officers only recently retired from their posts, now serving the president and the presumptive head of their respective political party.
Of course, this discouraging trend is also in part reliant on a consenting Congress. After all, Congress must grant the waiver, which it did overwhelmingly in both 2017 and 2021. Beyond a general unwillingness to question why presidents have increasingly sought an end-around to the civilian requirement for defense secretary, Congress in recent decades has been unengaged with its war powers authority, often deferring to the president who in turn has deferred to the Pentagon. This leaves voters even more removed from questions of war and peace.
The Path Forward
There are logical ways forward for both presidents and Congress in reasserting the American principle of civilian control of the military. First, future administrations should comply with federal law and nominate a solidly civilian defense secretary. If a future administration should seek a waiver, it should show why this nominee – above any others – is uniquely qualified for the job. It should be a rare hurdle that leaves only exceptional circumstances for a non-civilian to lead the Pentagon.
Congress also has a role in the path forward. One important step is the most recent National Defense Authorization Act. In the latest authorization, Congress would extend the waiver requirement for future defense secretaries from seven back to 10 years as it was originally written in the 1947 legislation. Further, it would require the waiver to be passed by a three-fourths majority in both chambers. Although these requirements would raise the hurdle, a bipartisan nominee can overcome it. Beyond this statutory change, more long-term and institutional efforts are needed, including greater oversight and a reexamination of Congress’s constitutional war powers.
Civilian control of the military is based on tradition and constitutional structure, with an eye toward avoiding the pitfalls of past democracies. The events of this past year should remind institutions that our separation of powers system is flexible and policymakers must ensure that it always remains properly balanced.
Image credit: Bumble Dee
