Why an apolitical military is so important in an era of an “All-Volunteer” force

Earlier this month Military Times reporter Kyle Rempfer asked me for comment about a recent case where an Army National Guard officer, in uniform and at a campaign rally, gave a “visibly emotional” but full-throated endorsement of a candidate for the Democratic Party’s nomination for President.  Kyle ultimately used quite a bit of what I gave him in his excellent article, but I wanted to share with you my full input to him and add a couple of comments.

Kyle also asked if I had “any thoughts on some of the more nuanced situations involving MAGA hats being signed by POTUS (see here) during visits to troops and patches on uniforms (see here) that appear to use renditions of campaign slogans.”  In addition, he asked if I had any “practical advice and wisdom on how troops can avoid violating policy during the upcoming campaign.”

Here’s what I told him in an email:

If the reports are true that a military officer in uniform gave an endorsement of a candidate at campaign event, it’s unquestionably something extraordinarily destructive to the principle that in a democracy the military as an institution must remain politically-neutral.  

As it turns out, there is no dispute that the officer did exactly what was reported (a video recorded by a reporter is found here), and it was a clear violation of Department of Defense (DoD) rules.

The rules are crystal clear:

Ironically, just a few months earlier, DoD issued a reminder that is directly on point: 

Under DOD Directive 1344.10, members of the armed forces who are on active duty are permitted to express their personal opinions on political candidates, make a monetary contribution to a campaign, sign a petition to place a candidate’s name on the ballot, and attend a political event as a spectator. Members on active duty may not participate in partisan activities such as soliciting or engaging in partisan fundraiser activities, serving as the sponsor of a partisan club, or speaking before a partisan gathering. In addition, all military members, including National Guard and Reserve forces, are prohibited from wearing military uniforms at political campaign events. (Emphasis added.)

The risk to the military’s apolitical reputation:

To me, this was not a minor breach of military professionalism, but rather a serious offense that undermines what the public deserves to expect from its armed forces.  I told Kyle:

Any democracy ought to be concerned about a military that seems to be taking sides in an election.  Fortunately, in the U.S. there is virtually zero chance that the armed forces would physically interfere with the electoral process, but what’s put at risk here is the military’s standing as the institution in which the American public has the most confidence. 

In my view that sterling reputation is much-based on the public’s belief that the military, unlike so many other entities these days, is an altruistic organization impartially focused on serving the Nation’s interests.  Because the military normally stays apolitical, something too rarely found in today’s hyper-polarized environment, I don’t think it’s perceived as yet another self-serving interest group.  My sense is that people across the political spectrum very much admire that. 

Why what the officer did is so concerning in an era of an All-Volunteer Force

Damaging the military’s apolitical reputation can adversely impact an already challenging recruiting environment for the armed forces, and obviously undermines its efforts to broaden the potential pool of recruits.

The public’s positive perception of the armed forces is especially important in an era of an All-Volunteer Force.  The military needs to draw the best and brightest from all parts of the citizenry, and to do that it must be welcoming to people with differing political views.  There can be no fact or perception of any sort of political litmus test for military service.  A uniformed military officer endorsing a political candidate at a campaign event obviously undermines that effort, and it needs to be made clear that doing so is improper. (Emphasis added).

Furthermore, in her endorsement of the candidate the Army National Guard officer made several references to the “130 soldiers” she evidently commanded or supervised.  After viewing how she was leveraging her military status to give gravitas to her very public support for a specific candidate in a highly-contested race, I could well understand how uncomfortable and concerned those soldiers might be if they supported another candidate in the primary (let alone the candidate from the other party in the coming election). It could make them understandably uncertain of her fairness and, ultimately, her leadership. Her seniors ought to be likewise concerned.

Moreover, the rule against wearing a uniform to a campaign event is, in my experience, well-known throughout the military.  That an officer would nevertheless engage in such flagrant and notorious disobedience sends all the wrong messages to subordinates about discipline and duty.

The Supreme Court’s strong endorsement of military non-partisanship

I also wanted Kyle to know that the Supreme Court has repeatedly endorsed the principle of a politically-neutral military, even at the cost to those serving of some of the rights that civilians enjoy:

Let’s not forget that there’s no First Amendment entitlement at play here.  In 1976 the Supreme Court said that policies aimed at keeping the military “insulated from both the reality and the appearance of acting as a handmaiden for partisan political causes [are] wholly consistent with the American constitutional tradition of a politically neutral military establishment under civilian control.”

The need for commander-in-chief leadership

Even when the behavior of a military officer falls short as it did here, politicians – and especially the commander-in-chief – still have responsibilities.  Here’s what I told Kyle:

Politicians have a role to play here as well.  I understand why they want to align themselves with the nation’s most respected institution, but in the long run a politicized military – or one perceived to be politicized – serves no one.  In my opinion, all commanders-in-chief – including President Trump – need to be very sensitive to the importance of a politically-neutral military.   

Regarding the “MAGA hat” incident, we need ‘commander-in-chief’ leadership.  The President and his team must avoid putting the military in awkward situations (and it wouldn’t be that hard to do).  I explained:

While it wasn’t a technical violation of any rules, the recent incident on a military base where the President was asked to sign MAGA hats and other campaign paraphernalia is the kind of thing that’s nevertheless unhelpful to the military’s goal of being nonpartisan in fact and perception.  Criticism of events on military installations might be avoidable if the White House put the word out that while the President appreciates his supporters, he doesn’t want those in the armed forces to do anything, particularly while in uniform, that would even appear to be improperly partisan.  On this topic especially, commander-in-chief leadership is essential, and he needs to make it clear that he expects the rules to be followed in letter and spirit. 

Both political parties must do better:

Although there is a real need for presidential leadership, the problems are ‘bipartisan’.

It is unfortunate, for example, that the political candidate in the South Carolina incident didn’t seize the opportunity to act “presidential” and gently but firmly indicate to the officer that her appearance in uniform at a political rally is not the kind of behavior he would want to see as president, and that he stood unequivocally for an apolitical military.

I explained to Kyle: 

We shouldn’t think, however, that this is an issue with just one president or one party.  For example, in his last official appearance before a military audience in December of 2016, then President Obama told the troops that they had a “universal right to speak your mind and to protest against authority, to live in a society that’s open and free, that can criticize a President without retribution.”   

Actually, Obama did not have the law quite right.  The Supreme Court has long held that “speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command,” and “if it does, it is constitutionally unprotected.”  Military law makes it pretty clear that troops do not, in fact, have a “universal right” to “protest against authority,” or to criticize the President in any fashion they want.  Depending upon the facts, they could be subject to discipline, even for speech the Constitution readily tolerates for civilians.  

The Supreme Court has found that this differing treatment for those in uniform is justified by the fact that the “armed forces depend on a command structure that, at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself.”  The late Chief Justice William Rehnquist also observed that the “military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment.” 

In his speech Obama did not mention Trump specifically, but to use a formal event on a military base to seemingly invite troops to criticize the incoming commander-in-chief of the opposing party risks inciting politicization inconsistent with the nonpartisanship that military aims to achieve.  As important as robust political debate may be in the civilian setting, we shouldn’t forget the Supreme Court’s admonition that it’s “obvious and unarguable” that “no governmental interest is more compelling than the security of the Nation.”   It’s plainly in the security interests of the Nation to keep those still serving away from partisan battlefields. 

Retired officers have responsibilities as well: 

No one – to include retired officers – should be using the military uniform in a partisan way.  Accordingly, I said:

With respect to the use of the uniform, I believe retired officers also need to be careful. Shortly before the 2018 elections, former Chairmen of the Joint Chiefs of Staff General Marty Dempsey put out a tweet critical of the President’s policies using an account that features Dempsey in his full military uniform.  To me, there’s a real danger that the public would assume that he was somehow speaking for the still-serving military, or even was still on active duty.  If a retired officer wants to engage in partisan debates, the military uniform shouldn’t be part of it. 

Practical advice

In terms of Kyle’s request for “practical advice and wisdom on how troops can avoid violating policy during the upcoming campaign,” the legal office at Joint Base San Antonio put out a short article in 2018, Know the do’s and don’ts of political activity that does a great job at hitting the highlights of the ‘rules of engagement’ so to speak.

The military is going to need to really bear down in the coming election season:

Given how everything seems to be politicized today, it’s really difficult for the military or any organization to avoid allegations of partisanship by one side or another.  Still, everyone – irrespective of party – ought to back the military’s efforts to stay above the political fray – there’s simply too much at stake. 

At the same time, I am not among those who think that those in the military – and officers especially – ought not vote in order to demonstrate their non-partisan bona fides (see here).  Nor am I among those who think we are in some sort of civil-military relations crisis (see here).  But we need to be vigilant and do everything we can to keep the military out of the hyper-partisan political brawls that seem, unfortunately, to be all but inevitable in the coming election year.

Update: I am gratified and humbled by how many people have chosen to read this essay, and it reminded me of yet another reason why it’s so important for the military to be politically-neutral in fact and appearance given all the polarization we see today.  In an earlier post I wrote:

Because the armed forces is the most trusted institution in American society – and one of the most diverse – it can do the nation a real service by being a beacon of unity of purpose.  It can show the country how people from virtually every background can work together to achieve real success not just for themselves, but also for the American people and their allies writ large.  Coming together on a basis of mutual respect is something America needs now, and the military can be an example. 

I still believe that, and I hope you do too.

Still, as we like to say on Lawfire®, gather the facts, assess the arguments and the law, and decide for yourself!

 

 

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