The "Petraeus" [read Bush] Report and Civilian Control of the Military

Mark Tushnet

Bruce Ackerman has an interesting piece in the Financial Times, here (subscription apparently required) and here, raising questions about the propriety of the Bush administration's reliance on active-duty military officers to make the case for sustaining the escalation in Iraq. Ackerman questions whether such a use of military officers is consistent with the tradition -- which I think ought to be called "constitutional" -- of civilian control of the military.

On its face, Ackerman's concern is puzzling. One might say that the "Petraeus" report exemplifies civilian control of the military: President Bush has determined that escalation in Iraq is good policy, and he has directed a military officer to say so. (Of course, to the -- apparently rather large -- extent that people understand that General Petraeus is simply saying what his civilian superiors are directing him to say -- or even that he is saying what he has calculated will best advance his career prospects in the military, given who his civilian superiors are --, the credibility boost the administration seems to hope for would seem likely to be small. What would be interesting is this: General Petraeus calculates that his career prospects will be advanced by rejecting the escalation ["I've really done my best, and so have the soldiers under my command, but frankly I don't see any realistic prospect that the escalation has any reasonably chance of long-term success."]) A more generous view is that the Bush administration has sincerely sought the honest opinions of professional military officers on matters within their professional expertise, on the basis of which the administration will make its own decisions. This too would seem to exemplify civilian control of the military.

There's an additional complication to which Ackerman's article alludes: How are we to understand civilian control of the military in a separation-of-powers system? Suppose one set of civilians -- the administration -- prefers one policy and another set -- Congress -- appears to be on a course of preferring another. Is it inconsistent with civilian control of the military for an active-duty officer to take the position that, until there is a definitive resolution of the conflict among the civilians, the officer may -- or must -- follow the path set by the administration, even to the point of (under direction) criticizing advocates of the position rejected by the administration?

Of course there would be a real question if Congress enacted a law (presumably over the President's veto) inconsistent with the President's policy, and the President directed the military to disregard the statute. That, though, isn't really a question about "civilian control of the military," but rather about the relation between the legislative and executive branches more generally.

I suspect that the constitutional norm of civilian control of the military is that active-duty military officers must follow the orders given them by the civilians legally authorized to give such orders, and that everything else -- including the matters to which Ackerman alludes, such as the administration's use of Petraeus, should be understood as "merely" political, in the ordinary, low-level sense of politics.
Posted 10:21 AM by Mark Tushnet [link]