General dissent: examining a case study of “retired officer activism”

How should public pronouncements by retired general and flag officers (GFOs) on controversial issues be viewed by the citizenry?  A case study is found in Risa Brooks’ and Michael Robinson’s recent essay on War on the Rocks, “Let the Generals Speak? Retired Officer Dissent and the June 2020 George Floyd Protests”.  In it, the authors grapple with the controversial topic they call “retired officer activism” in the context of the George Floyd protests last June.  They use “activism” to describe the media statements some GFOs made about the role (or not) of the military in quelling civil disorders.

Unfortunately, the essay isn’t quite the examination one might have hoped.  As discussed below, the writers try to make the case that the ‘activist’ GFOs faced a “clash between obligations” of speaking out and observing what the authors believe are civil-military norms.  In doing so, however, they do not subject the ‘activist’ GFOs assertions to much objective examination, and they omit several important considerations.  Most frustratingly, they conclude “there are few clear right or wrong answers on the question of retired officer dissent, especially in tough cases.”

Actually, there is a clear answer, and it isn’t really a complex one: subject the retired officer claims to the same sort of scrutiny any other punditry would undergo.  In this post, I’ll draw upon some previous essays to unpack the case study as it illustrative of a few of the areas deserving of inquiry in order to assess the ‘activism’.  Retired GFOs can provide unique and useful insights on certain issues, but simply assuming activist GFOs are always impartial, informed, and accurate as Brooks and Robinson seem to do is a mistake.

The importance of the George Floyd protests for the analysis of civil-military relations

Brooks and Robinson insist that the “George Floyd protests represent an important case for examining retired officer activism” because of what they believe is the “unique nature of events and the stakes involved.”  No one debates that the horrific death of Mr. Floyd is—or should be—an important case for all Americans.  And, yes, the resulting protests are also important to civil-military relations given the media attention the involvement of the activist GFOs garnered.

But that’s not the rationale the authors cite.  Instead, they say it’s because of what they hypothesize as the “unique nature of events and the stakes involved.”  Unique?  While the potential use of the military to suppress domestic disorders is not—fortunately—common, it isn’t, as I discuss here, necessarily “unique” in American history.

To be clear, I’ve always been quite unenthusiastic about using the military–and especially the active duty military–for domestic law enforcement purposes (see e.g., here and here),  And there is certainly room for criticism for the tactics, techniques, and procedures the National Guard used (or, really, failed to use) during the disorders in the District last June.

Yet I also realize there are times when troops are needed.  For example, President Eisenhower was certainly justified in sending paratroopers to Little Rock in 1957 to help desegregate the schools.  While their use of fixed-bayonets to prod protesters is not what we hope would be needed to help to ensure the rule of law was observed, the show of force did succeed in restoring order and protecting the rights of Black Americans.

Thus, there can be reasonable differences of opinion about the domestic use (or not) of the military in given circumstances.  Still, when “retired officer activism” takes the form of a personal and even contemptuous criticism of the commander-in-chief in the midst of an effort to deal with what the Washington Post concedes was “mayhem” in the city, it is always unique.

Timing

I’ve always believed that timing matters—a lot—in public discussions of military matters.  Decide for yourself: can the activist GFO commentary in this case be troubling because of the timing?  Can it undermine the troop discipline needed by military leaders with real-world responsibilities (that the retirees don’t have) in trying to deal with a super-sensitive, ongoing operation?

Can’t timing affect civilians as well?  Particularly those public officials trying to deal with an explosive situation?  Consider what Mackubin Owens wrote last June:

[GFOs] should take into account the public impact of their statements. They need to realize how such public statements undermine trust between the military and civilian authorities. And finally, they must answer this question: Is it proper for unelected military officers to undermine duly elected officials, especially when they use the sort of contemptuous language that would be impermissible were they still active-duty?

Legality

Let’s be clear: even if one considers the mission was ill-considered and unwise, the fact remains that neither the authors nor any of the activist GFOs established that it was actually illegal in any material way.  Even law professor Steve Vladeck, an extremely harsh critic of the Trump administration, refrained from declaring the National Guard deployment illegal in his analysis, and instead settled for characterizing the legal explanation as merely “troubling.”

Furthermore, no one has seriously questioned the lawfulness of simply staging active duty troops for possible use in the event of civil disorders (they were never actually used).  The retired GFOs certainly thought it was a bad idea, and they may have thought it inconsistent with their notion of the “spirit” of the Constitution—opinions they are certainly entitled to hold—but that is not the same thing as establishing illegality.

Nevertheless, doing something that could muddle the minds of troops in the process of trying to execute a delicate, controversial yet lawful mission is not something retired generals and admirals ought to be doing.  As the Supreme Court observed in Chappell v. Wallace (1983), the “inescapable demands of military discipline” require “the habit of immediate compliance with military procedures and orders must be virtually reflex, with no time for debate or reflection.”  After all, the Court counseled in other cases that the:

[The] army is not a deliberative body.  It is an executive arm.  Its law is that of obedience.  No question can be left open as to the right of command in the officer, or the duty of obedience in the soldier.

In the armed forces, troops do not have the option of rejecting otherwise lawful orders merely because they disagree with them.  In fact, the Manual for Courts-Martial (itself authorized by 10 U.S.C. § 836) warned in ¶14 b(2)(a)(iv) that: “the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.”  Consequently, the purely legal analysis obliges obedience of even unwise orders, without exception.

“Partisan advantage”?

What the authors seem to embrace to support their contention of ‘uniqueness’, however, is what they say “some observers” think, to wit, that the demonstrations involved “potentially using the military’s coercive power against American citizens for partisan advantage.” (Emphasis added; for that debatable proposition the authors rely only on a link to the decidedly left-wing publication Slate).

Was the possible use of the military really just for “partisan advantage”? The Post described the situation in the District this way: “[v]andals and looters roamed throughout the city, scrawling graffiti and targeting dozens of businesses.” Additionally, it said eleven police officers were injured on just one evening, and it reported that “hundreds” of people “tried, again and again, to break through the police barricades set up around President Trump’s home.”

Decide for yourself, but to my way of thinking, stemming that kind of civil disorder is not a matter of “partisan advantage.”  No matter what your politics, no one should endorse the idea of the White House being overrun, let alone the damage to businesses and the injury to police officers.

In judging “partisan advantage,” shouldn’t we consider that the generals levelling the criticism knew or reasonably should have known that their words would be weaponized in a highly-partisan political campaign to undermine Trump’s re-election prospects?  Indeed, some have endorsed former Vice President Joe Biden as they are free to do.  The key here, however, is that the safety and security of the seat of government is not and should not be, a partisan matter. 

Ask the hard questions of retired activist generals and flag officers (GFOs)

Inexplicably, Brooks and Robinson do not even raise the possibility that at least some of the retired generals and admirals were using their status to advance the “partisan advantage” of Trump’s opponent.

Some obvious queries are these: do the activist GFOs owe their three or four star promotions to another administration?  Do they have interests that have been disadvantaged by Trump?  Do they anticipate advantages in the event of a change in administrations?  What connections do they have to another party?  In evaluating a civil-military relations issue–whether under a Republican or Democratic administration–these kinds of hard questions are among those that should be asked.

Regrettably, they seldom are.  We’ve seen this movie before.  For example, in 2018, about 150 retired three and four-star general and admirals signed a letter urging congressional leaders not to make cuts in the International Affairs Budget, otherwise known as foreign aid.

In the letter, the retired generals and admirals listed their top military positions, but none provided their current affiliations that might be relevant to the stance they were taking (e.g., any connection with companies that profit from foreign aid).  They also didn’t disclose who organized the letter-writing effort and what their interests might be.  As I explained here, the retired GFOs certainly should have disclosed that information as there are ample indications that at least some of the signatories could be personally impacted by the foreign aid budget.

What the voters wanted

Curiously, Brooks and Robinson also make no mention of the fact that in the midst of the George Floyd protests “58% Of Voters Support Using Military To Help Police Control Protests.”  Sure, the retired generals are entitled to their own opinions, but the fact is that in a democracy the views of the voters matter.  It is notable that the retired GFOs were so out of step with what the majority of American people wanted.  Isn’t that of interest to the civil-military relations analysis in this case?

Did the retired GFOs have the requisite expertise?

As I say above, despite Brooks’ and Robinson’s equivocation, there is a clear answer as to questions of retired GFOs expressing dissent: scrutinize their views as you would that of any other pundit.  In this regard, it’s puzzling that Brooks and Robinson did not point out that literally none of the retired officers expressing dissent had any actual experience or expertise in addressing serious civil disorders – on U.S. soil. 

Oddly, the authors do not acknowledge the one officer who did have real experience with the use of active duty troops on U.S. soil in reaction to civil strife ( “the only senior commander that has done this in the past 50 years”) had a very different view than the generals who were critics.

As I’ve discussed not long ago, retired Army lieutenant general Marvin L. Covault, a decorated combat leader, commanded the active-duty Marine and Army troops ordered by President George H.W. Bush to deploy to Los Angeles in 1991.  His mission was to help restore order after deadly riots exploded in the wake of the acquittal of four police officers on charges of beating Rodney King, an African-American, nearly to death.

General Covault recently penned an essay Should Federal Military Forces Be Engaged in a National Civil Disturbance Crisis?  After providing some detail as to how he handled the Los Angeles crisis—and some lessons-earned—General Covault concludes:

My answer to the title question, is yes, federal military forces should be engaged in national civil disturbances crises.

Was Task Force LA perfect? Not by a long shot but then dealing with crisis rarely is.  Did we make mistakes? Certainly.  But the bottom line is, once our forces deployed and got on the scene no one lost their life and the rioting, looting and burning quickly stopped. (Emphasis added.)

The effectiveness of a show of force, and the energizing of peaceful protests

The last point in General Covault’s essay is especially important because it is what happened at the George Floyd protests.  Despite the retired GFOs excoriating the President for staging active duty troops near Washington and allowing about a company of National Guardsmen to reinforce police in Lafayette Park, the show of force did work.

In a USA Today op-ed, small business owner Roy Rodman insisted that the “looters who broke into [his] store weren’t protesting Floyd death.”  Rodman says that his “heart goes out to all those who haven’t had a fair shake and are victims of violence,” but adds this:

I’m delighted the National Guard is in Washington.  Since they arrived the nights have been comparatively calm and serene and thankfully there hasn’t been any more trouble. 

In seeking to explain why the violence in the District suddenly petered out, even the Washington Post admitted that “[s]ome credited the evolving actions of law enforcement, most notably the enormous show of force by military and federal forces on the city’s streets on June 1 and June 2.”

The Post reports that some who disagreed with that conclusion pointed instead to the “changing internal dynamics of the protests themselves.”  To support that proposition, the Post says:

D.C. Mayor Muriel E. Bowser (D) said federal law enforcement’s aggression at Lafayette Square on June 1 energized peaceful demonstrators to turn out in greater numbers, marginalizing troublemakers.

“After Monday, when we saw federal forces move on American people, there was a critical mass of people bent on making sure that would never happen again,” Bowser said in an interview this week.  And the people bent on destruction were probably outnumbered and left.

Ironically, even if you accept Mayor Bowser’s rationalization about the so-called “aggression,” it is nevertheless evident that although she may be loath to admit it, her account demonstrates that a) the “federal forces” prompted the end to the violence that the Post says damaged 200 businesses; and b) not only were peaceful protesters facilitated by the presence of “federal forces,” the protesters were actually “energized” to “turn out in greater numbers” and become a “critical mass.”

In a free society, isn’t energizing peaceful protesters the kind of triumph over those “bent on destruction” we all should want?  If Bowser is to be believed, it would not have happened but for the “federal forces” inspiring peaceful activists to outnumber those “bent of destruction” to the point where, as she insists, the latter “left.”  Unconventional?  Sure, but obviously the mere show of force got the results—mostly peacefully—everyone should want.

The illusory “clash of obligations”

Instead of pointing out how mistaken the critics turned out to be in their judgement of the utility of a show of force in this instance, Brooks and Robinson intone about some supposed “clash between obligations.”  In the authors’ minds this arose because there allegedly was an “obligation to uphold the spirit of the Constitution and prevent the unwarranted use of force against civilians” [which clashed with] “the erosion of fundamental civil-military norms.”

That claim is mistaken on several levels.  If there really was an action that violated the Constitution there is no “clash” with any “norm” worthy of excusing the breach.  If something is clearly illegal, then all Americans—not just retired generals—ought to speak up.

However, as discussed in more detail below, the retired GFOs seem to have had a surprisingly shallow and blinkered understanding of the lawThe armed forces needs to be guided by the authorities the Constitution establishes to determine what is or is not lawfully “warranted” in terms of the use of force in a given situation, not by retired generals espousing what they think is the Constitution’s “spirit” (as opposed to the actual law).

An officer’s oath

Brooks and Robinson reference, as several of the retired GFOs do, the oath all officers take to “support and defend the Constitution against all enemies, foreign and domestic” to rationalize their activism. This is not, however, a carte blanche to interpret that Constitution idiosyncratically as some seem to think it is.  As Professor James Joyner wrote last August:

Most Constitutional scholars would side with Berkeley law professor Orin Kerr in reading the provision much more narrowly.  Wrote Kerr: “The oath is probably best understood” not as an invitation for millions of Americans to independently enforce their own view of the Constitution, rooting out domestic enemies as they see fit, but “in its historical context as a promise to oppose political reforms outside the Constitution. You have to stay loyal to the government that is based on the Constitution, and you can’t support a rebellion or overthrow of that government.” (Emphasis added.)

An officer’s commission

Furthermore, somewhat inexplicably, Brooks and Robinson do not point out that all of the retired generals accepted a Presidential commission, and none have even attempted to tender their resignation from it.  In their book. The Armed Forces Officer, Richard M. Swain and Albert C. Pierce explain that in America’s military commissions:

The officer is admonished to “observe and follow such orders and directions . . . as may be given by” the President or the President’s successors, “or other Superior Officers acting in accordance with the laws of the United States of America [emphasis added].”  No grant of professional discretion exempts any Armed Forces officer from the obligation to act within the confines of the law.

It should also be remembered that retired officers—–so long as they retain their commission—remain subject to the Uniform Code of Military Justice (10 U.S.C. § 801, et seq.).  The UCMJ subjects individuals to what the Supreme Court described in 2018 as “a vast swath of offenses,” including some uniquely applicable to officers.

These can limit the First Amendment rights that others enjoy.  (As the Supreme Court puts it, “the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty …”).

Despite causing them to remain subject to the UCMJ, the retired officers evidently want to retain their commission (otherwise they would lose their retired pay).  However doing so may impose limits as to what speech is permissible (see e.g. here), and the way they express it (see e.g., here).

Some suggest the retired GFOs ought to be held accountable under the UCMJ.  In my view, it is debatable as to degree to which a retired officer ought to be—or could be—subject to discipline for otherwise protected First Amendment activity.

The point is, however, that Brooks’ and Robinson’s discussion of norms needs to involve a fuller evaluation of the legal impact of an officer’s commission–as well as other relevant aspects of the law, including in this instance, the Posse Comitatus Act, the statute that is oft-cited as a bar to the use of the active-duty military or federalized National Guardsmen to enforce that law.

Posse Comitatus Act

Of course, it’s certainly true that the armed forces cannot use unlawful force against anyone, but it isn’t clear that Brooks and Robinson—let alone the activist GFOs—really comprehend what is or is not legally prohibited.  Again, we’ve seen this previously.  For example, as I explain here, former Chairman of the Joint Chiefs General Marty Dempsey badly bungled a tweet about the legality of the rules of engagement.

Brooks and Robinson reference the Insurrection Act, an exception to Posse Comitatus Act that many pundits seem to think is the only legal authority to use the military in a law enforcement capacity.  In reality, there are numerous other statutory exceptions.  Several of these do not—as some seem to believe—necessarily require an in extremis situation.  For example, Federal law permits the use of the military to enforce the rights of owners in guano islands.

Let’s also not forget that the Posse Comitatus Act does not, in any event, have a sainted origin.  Rather, it was sourced in racism: during Reconstruction, Federal troops remained in South to protect the rights of freed slaves, something that infuriated southern Democrats since it enabled Black voters to be instrumental in keeping Republicans in power throughout the former Confederacy.  (You’ll recall that President Lincoln was a Republican.)

The issue came to a head as a result of the hotly-contested election of 1876 between Democrat Samuel Tilden and Republican Rutherford B. Hayes.  Eventually, a deal was struck where Hayes got the presidency, and the Democrats got the troops withdrawn from the South as well as the Posse Comitatus Act.  A scholar recently described the disturbing result:

Not only did the Act virtually end the Reconstruction era, but it promoted Jim Crow Laws while foreclosing the progression towards racial tolerance the 13th, 14th and 15th Amendments encouraged within the Southern States.

Could it be that Brooks and Robinson—along with the retired activist generals who spoke out in the instance they cover—are unaware of the “sense of Congress” found in the 2002 legislation establishing the Department of Homeland Security?  Now codified 6 U.S.C. § 466, Congress reaffirmed the importance of the Posse Comitatus Act, but also said:

Posse Comitatus Act is not a complete barrier to the use of the Armed Forces for a range of domestic purposes, including law enforcement functions, when the use of the Armed Forces is authorized by Act of Congress or the President determines that the use of the Armed Forces is required to fulfill the President’s obligations under the Constitution to respond promptly in time of war, insurrection, or other serious emergency. (Emphasis added.)

Accordingly, it is pretty clear that the President, beyond the many statutory authorizations, also has independent power, indeed, “obligations,” under the Constitution which may necessitate the use of the armed forces in a “serious emergency.”  Brooks and Robinson, as well as the retired GFOs they reference, may believe that damage to 200 businesses and injuries to a dozen police officers isn’t “serious,” or question the wisdom of using a show-of-force to suppress it, but that does not make the president’s strategy unlawful.

The ‘crisis school’ of civil-military relations 

In my view, Brooks’ and Robinson’s essay is the latest iteration of the “crisis school” of civil-military relations that emerges from time to time in American history.  Its current manifestation is traceable to the mid-1990s, and is something of a cottage industry among academics, especially political scientists and sociologists (and some others).  Many graduate school theses have been devoted to the subject.

That’s not to say that discussion of military-related concerns have no place in the public forum. Rather, it is the how, when and why that matter.

In 1992, as an active-duty officer in a professional military school, I wrote a fictional essay with the alarming (to some) title “The Origins of the American Military Coup of 2012.”  It won an award presented by General Colin Powell and received a lot of notoriety.  (After 28 years, it’s still downloaded more than four times a day from the Duke Law scholarship repository alone.)

Still,  I certainly did not intend to foment a “crisis” mindset then nor do I now.  At that time, I used a fictional technique to point out some areas that could have damaging snowball effects for the future (and sadly many have). As the essay reflects, I said:

It goes without saying (I hope) that the coup scenario above is purely a literary device intended to dramatize my concern over certain contemporary developments affecting the armed forces, and is emphatically not a prediction.

Of course, Brooks and Robinson are also not predicting a coup, but they still suggest rather darkly that American civil-military relations norms are in the grip of a unique “dilemma.”  While not alleging a crisis, per se, their essay is still in what I call the “sky-is-falling” subset of the “crisis school.”

In fact, these periodic histrionics about civil-military relations never evolve into the calamities the alarmists forecast.  Quite often those fostering the “crisis school” drama underestimate the professionalism of America’s military with its deeply-ingrained tradition of civilian control of the armed forces.  This complemented by the military’s staunch adherence to the principle of obedience to lawful orders (despite have received orders throughout history which later were found to be unlawful, though not patently so).

Notwithstanding what academics (and some others) may suppose, the machinations of partisan politics are of distinctly less important to military members than the accomplishment of the mission they are assigned.

A personal anecdote: President Bill Clinton, for example, was commander-in-chief during my Desert Fox deployment for bombing operations against Iraq.  As unpopular as he seemed to be to many who served in uniform, that dislike did not manifest itself in duty performance even though Clinton was in the process of being impeached.  In fact, although I was casually asked in passing if Clinton was still President after the House voted articles of impeachment, I heard no one express even a thought of questioning the orders he had given to send Americans in harms’ way.

Too often the over-heated laments we periodically hear are more based on imagined fears than on any actual crisis.  Though the public’s confidence in the military ticked down slightly in the aftermath of the retired GFOs’ statements in June, it still remains in an elite category that is above virtually any other institution in American society.

Concluding observations

In late September, my friend Lt Colonel Matt Cavanaugh penned an eloquent call in the Los Angeles Times to rebuild the norm against the overt endorsement of a partisan political candidate by retired generals.  He noted hopefully that despite the proliferation of such testimonials, it remains true that 6,000 of the 7,000 retired GFOs still not done so.

I wish Matt well with his effort, but as to the supposed “norm” that Brooks and Robinson discuss in their article, that is, retired officers not speaking publicly about controversial matters having political overtones, it’s dead.

In truth, it had been on life-support for some time, but since some of the most-reported retired ‘activist’ GFOs voicing the loudest criticisms last June were once among the most powerful proponents of that now passé “norm,” I don’t see it being revived.  In short, to paraphrase Yeats, the ‘center did not hold’.

Moreover, while last June’s critiques were aimed at Trump, I fully expect that no future president, irrespective of party, will be immune from similar public attacks from retired GFOs.

This doesn’t mean the sky is falling.  True, military professionalism in the active and retired ranks certainly should not be taken for granted. This is why I strongly recommend that the “answer” to “retired officer activism” is to suggest that their punditry be subject to the same kind of scrutiny as would be applied to commentary from a civilian.  There mere fact that they once wore a uniform does not mean their ideas are exempt from cross-examination.

Allow me to reiterate: we need to respectfully ask the tough questions, including:

What are the speakers qualifications as to this specific topic? 

Are they missing or overlooking key facts? 

Is there any reason to question their impartiality? 

These and other such queries, posed in a civil manner, are entirely proper, and necessary for the public to make a reasoned judgement.

The vast majority of America’s active and retired cadre of military officers have a professional ethic that is rich and deep.  Maintaining that professionalism is a sacred task, but approaching it from a sky-is-falling perspective is wrong.  At this difficult moment in our history, let’s avoid unnecessarily exacerbating tensions in an already polarized citizenry with suggestions that the Nation’s armed forces are anything other than an impartial and fully reliable instrument of our democracy.

Still, remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

 

 

 

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