Monday, September 10, 2007

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.


Mr. Bush's alleged reliance on the the advice of his military officers is mostly political spin for public consumption. Polling pretty consistently show that the public has not trust in politicians to run the war, but would defer to the military.

However, while Mr. Bush wraps himself in the imprimatur of the military, it is very clear that he makes the final decisions as CiC. Just like Lincoln, Bush has been going through generals to find one who can win. This is hardly the mark of a President who delegates his CiC power to his generals.

Civilian control over the military in our separation of powers system is not particularly hard to understand. Article II grants the President plenary power to command the military to the extent that Congress is not exercising an enumerated Article I power. Article I does not grant Congress any authority to command the deployment of troops. At best, Congress has the power of the purse to indirectly influence command decisions. However, given that Congress does not want to accused of denying support for the troops, the threat of defunding the war is pretty hollow. Therefore, in reality, the President is the only civilian commander making deployment decisions for the troops.

I don't think there's any problem here regarding the civilian control of the military. I tend to see the issue from the opposite side: that the civilians are using the military to make political claims. This happens two ways. First, Bush keeps firing all the generals who disagree with him, then he forces them to play Charlie McCarthy to his Edgar Bergen.

That's an abuse of the military, but it's not because there's inadequate civilian control.

I take Ackerman's central thesis to be that it's a violation of the U.S. constitutional principle of civilian control of the military for uniformed officers to assume, or to be pressed into, the role of defending or criticizing Presidential or Congressional war policies. This seems like a stretch. To be sure, officers on active duty should avoid arguing with governing executives and lawmakers in excessively combative or defiant terms. But as long as the policy assessment of a military officer is given (and taken) not as a command, but merely as a recommendation of expert counsel, civilian control of the military remains unscathed.

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