Paved With Good Intentions?: Civil-military Norms, Breaches, and Why Mindset Matters

Paved with Good Intentions?: Civil-Military Norms,

Breaches, and Why Mindset Matters

Dan Maurer*

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343

I. QUESTIONS WORTH ASKING WHEN NORMS SLIP AWAY . . . . . . . . . . . . . . . 345

II. THE REINCARNATION OF CIV-MIL NORM BREAKING . . . . . . . . . . . . . . . . . . 351

A. MacArthur, Votel, and Fallon . . . . . . . . . . . . . . . . . . . . . . . . . 351

B. Norm-Sampling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352

C. Appreciating the Actor’s Mindset Enriches, not Displaces, the

Rest of the Story . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354

1. Public Actors Are Not Necessarily Rational Actors . . . . . 354

2. Ask All the Relevant Questions . . . . . . . . . . . . . . . . . . . . 355

3. Motive and Effect, Plus Mindset . . . . . . . . . . . . . . . . . . . 357

D. Mindfulness Matters: Incorporating Mens Rea Into Civil-

Military Breach Analyses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358

1. Character on Intent: “Informed Intentionality” . . . . . . . . . 358

a. From Purposeful to Negligent . . . . . . . . . . . . . . . . . . 359

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364

INTRODUCTION

In a remarkably blunt open letter to President Trump, forty retired f‌lag off‌icers

criticized his decision to withdraw U.S. military forces, then f‌ighting alongside

Kurdish f‌ighters against ISIS, from Syria and called on the commander-in-chief

to adopt and follow the “core values” of the men and women serving in the

Armed Forces.

1

It is this “collective” of values (including loyalty, respect, com-

mitment, integrity, and self‌less service),

2

they argue, that works like a compass to

steer government action and decision-making straight ahead in murky seas.

“Abandoning” our allies and partners, they wrote, especially the weaker partners

who become targets of more powerful neighbors if American forces step out of

the way, is “not consistent with who we are as a military force.”

3

* Lieutenant Colonel, Judge Advocate, U.S. Army. Presently serving as Assistant Professor of Law,

United States Military Academy at West Point; non-resident Fellow, Modern War Institute; author of

Crisis, Agency, and Law in US Civil-Military Relations (Basingstoke, UK: Palgrave Macmillan, 2017),

alumnus of Army Chief of Staff’s Strategic Studies Group Fellowship; former combat engineer off‌icer

with two tours in Iraq, f‌irst as a platoon leader, later as Brigade’s senior legal counsel. The opinions and

analysis in this essay do not ref‌lect the off‌icial positions of the U.S. Army, the Judge Advocate General’s

Corps, or the United States Military Academy. © 2021, Dan Maurer.

1. The American Coll. of Nat’l Sec. Leaders, Retired Generals and Admirals: We Call on Trump to Start

Living up to the Values of the U.S. Armed Forces, NEWSWEEK (Oct. 23, 2019, 12:02 PM), https://perma.cc/

4RC4-BTUW.

2. Id.

3. Id.

343

It is not the f‌irst time that a cohort of retired senior military off‌icers, or a well-

known and highly accomplished retiree, has gone public with substantive dis-

agreements about current national security policy decisions. We can refer to the

2006 “Revolt of the Generals”

4

of course, but less than a week before this open

letter was published, retired Admiral William McRaven, famous for his leader-

ship of special operations forces in Afghanistan and the raid the killed Osama bin

Laden, wrote in a New York Times op-ed, “it is easy to destroy an organization if

you have no appreciation for what makes that organization great,” sharing stories

of an “underlying current of frustration, humiliation, anger and fear” for the

health of the Republic among his fellow retirees.

5

While not novel in their

approach, the forty retirees did go a step farther than previous retired protestors

by acknowledging their intent. They wrote:

We knowingly break the culture of public silence expected of retired Generals

and Admirals to urge you exert national and global leadership . . . For years,

the most senior Generals and Admirals have told military veterans that com-

ments about current policy should be left to others. We understand and respect

that view. We also believe that compliance that leads us to silence makes us

complicit with actions inconsistent with who we are and what we stand for.

6

In other words, they have identif‌ied a rule-of-thumb, a cultural expectation, about

proper civil-military relations that imparts guidance to military leaders to accept pol-

icy decisions of their civilian principals as part of healthy and Constitutionally-

demanded civilian control. And they “knowingly break” it.

7

Whether their cause is

justif‌ied, or whether their belief in the moral authority of martial values is something

we want all citizens to share, is for the purpose of this essay of little relevance.

At the very least, these retired off‌icers (still legally part of the Armed Services

under the Uniform Code of Military Justice

8

), chose to place more weight on revered

martial values (that have accrued or been indoctrinated over ages to make war-

f‌ighting more successful) than on the values associated with healthy civil-military

relations. This is a deliberate, conscious, and calculated rejection of civil-military

relationship norms. That alone ought to give pause to the large community of schol-

ars and practitioners (in and out of uniform) who grow concerned when fractures

appear in what was thought to be a solid edif‌ice of customary standards of conduct

def‌ining what it means to be a “professional” in the profession of arms. It is one

thing for a norm to exist. It is another to know that it exists. It is still another to

4. See Don M. Snider, Opinion, The Army’s Ethic Suffers Under Its Retired Generals, STRATEGIC

STUDIES INST. (Jan. 2009), https://perma.cc/9ATP-3XC2 (calling retired f‌lag off‌icer public opinions an

“unsolved and haunting problem”); see also Mackubin Thomas Owens, Rumsfeld the Generals, and the

State of U.S. Civil-Military Relations, 59 NAV. WAR COLL. REV. 68, 68-80 (2006).

5. William H. McRaven, Opinion, Our Republic is Under Attack From the President, N.Y. TIMES

(Oct. 17, 2019), https://perma.cc/YGE5-HXCQ.

6. The American Coll. of Nat’l Sec. Leaders, supra note 1 (emphasis added).

7. The American Coll. of Nat’l Sec. Leaders, supra note 1.

8. Uniform Code of Military Justice art. 2, 10 U.S.C. § 802(a)(4)) (2006).

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