The Operational and Administrative Militaries

• Publication year: 2019

The Operational and Administrative Militaries

Mark P. Nevitt
University of Pennsylvania Law School

THE OPERATIONAL AND ADMINISTRATIVE MILITARIES

Mark Patrick Nevitt^*

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Table of Contents

Introduction.............................................................................907

II. From the Nation's Founding to the Cold War: The Two Militaries' Origins.................................................916

A. THE TWO-MILITARY GLOSSARY AND OVERVIEW OF KEY TERMS...........................................................................917
B. THE EXECUTIVE-OPERATIONAL NEXUS AND CONGRESSIONAL-ADMINISTRATIVE NEXUS...................918
C. THE TWO MILITARIES' STATUTORY ORIGINS: THE NATIONAL SECURITY ACT (1947) AND THE RISE OF STANDING ARMIES AND NAVIES....................................921

III. The Goldwater-Nichols Act of 1986 Accelerates the Operational and Administrative Military Divide .... 925

A. THE LAW OF THE CHAIN OF COMMAND: THE RISE OF THE OPERATIONAL MILITARY AND THE (RELATIVE) FALL OF THE ADMINISTRATIVE MILITARY...................................926
B. HOW THE LAW OF MILITARY "CONTROL" AND THE RISE OF JOINT MILITARY DOCTRINE FURTHER DIVIDE THE TWO MILITARIES...........................................................933

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IV. The Operational And Administrative Military Divide's Four Consequences........................................938

A. THE TWO-MILITARY DIVIDE'S FIRST LEGACY: CENTRALIZATION AND DIMINISHED CIVILIAN CONTROL OF THE OPERATIONAL MILITARY...................................940
B. THE TWO-MILITARY DIVIDE'S SECOND LEGACY: THE MILITARIZATION OF FOREIGN POLICY...........................949
C. THE TWO-MILITARY'S THIRD LEGACY: ADMINISTRATIVE LAW AND THE ADMINISTRATIVE PROCEDURE ACTS'S (APA) UNEVEN APPLICATION TO THE TWO MILITARIES .. 953
D. THE TWO-MILITARY DIVIDE'S FOURTH LEGACY: AN INCREASINGLY DIVIDED MILITARY, UNDERMINING OPERATIONAL EFFECTIVENESS.....................................964

V. Three Key Factors Accelerating and Exacerbating The Two-Military Divide...............................................968

A. THE TWO-MILITARY DIVIDE'S FIRST ACCELERANT: THE RISE OF THE MILITARY-INDUSTRIAL-CONGRESSIONAL COMPLEX......................................................................968
B. THE TWO-MILITARY DIVIDE'S SECOND ACCELERANT: THE DECLINE IN FIRSTHAND CONGRESSIONAL MILITARY EXPERIENCE.................................................................972
C. THE TOOLS OF MODERN WARFARE FURTHER EMPOWER THE OPERATIONAL MILITARY........................................975

VI. Recommendations to Remedy the Two-Military Divide's Effects..............................................................979

A. IMPROVING CIVILIAN CONTROL OF THE MILITARY AND CONGRESSIONAL OVERSIGHT WITH A NEW MODEL FOR NATIONAL SECURITY GOVERNANCE..............................979
B. REFORMING THE ADMINISTRATIVE PROCEDURE ACT TO BETTER REFLECT MILITARY ORGANIZATIONAL REALITIES.....................................................................986

Conclusion................................................................................988

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Introduction

Admiral James Stavridis collapsed in his chair, exhausted. The four-star Navy admiral had just finished a six-month whirlwind tour of over thirty nations, flying on a state-of-the-art military aircraft surrounded by an enormous staff. He met with leaders from every member of the North Atlantic Treaty organization (NATO), the heads of Russia and Israel, and several prospective U.S. and NATO allies. Not surprisingly, he met with each nation's senior military leaders and ministers of defense in an effort to strengthen military-to-military relations and reinforce the bonds of the Atlantic Alliance that date back to General Eisenhower and the end of the Second World War.

Perhaps surprisingly, Admiral Stavridis also met with the presidents of each nation, their foreign ministers, and a host of diplomats. It was easy for his staff to set up meetings with just about anyone in Europe. Indeed, everyone was clamoring to meet Admiral Stavridis, the senior U.S. military officer in Europe who possessed enormous operational authorities central to their own nation's defense. He also brought with him the promise of foreign military sales, future military funding, and easy access to the vast Washington national security apparatus. To many, he was the most important American on the continent, a man worth knowing, and someone possessing not just a military role but also an expanding foreign relations role. When he called, presidents and prime ministers picked up the phone and made time.¹

What position in the vast military bureaucracy did Admiral Stavridis hold? He had just been appointed by the President and confirmed by congress as the leader of the U.S. European command, one of five extraterritorial U.S. geographic combatant commanders.² These positions play an increasingly important but not well-understood role in the largest military (and bureaucracy) in the world. The 1947 National Security Act established these

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roles³ which some commentators have described as "viceroys"⁴ or modern-day Roman "proconsuls."⁵ But their full authorities lay dormant for almost forty years only to be fully actuated in 1986 via the Goldwater-Nichols Act.⁶ These combatant commanders lie at the heart of what I refer to as the operational military, and their authorities and influence are growing, largely unrestrained by congress and the Executive Branch.

Most reasonably well-informed people believe that executive authority over the military has grown at the expense of congressional authority for a variety of reasons, including congressional dysfunction, some version of an "executive unbound," or an "Imperial Presidency" further facilitated by the nature of modern warfare.⁷ That is not untrue, but it is only part of a much larger story. Another part of the story—largely unexplored by existing legal scholarship—is the military's legal architecture and agency design.

This Article offers a new way to think about the military. In doing so, i argue that there are, in fact, two militaries residing within the Department of Defense (DoD): an "operational" and an "administrative" military.⁸ Each military has its own chain of command, of critical importance to a hierarchical federal agency that is backed by the force of criminal law. understanding this dual-military bureaucracy reveals insights into national security

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governance with broad implications for how administrative law interacts with the military and civilian oversight of the military.

The terms "administrative military" and "operational military" are wholly absent from the text of the Constitution, and neither is defined in law, regulation, or existing legal scholarship.⁹ The first military, the operational military, is led by uniformed combatant commanders and receives direction from the Chairman of the Joint Chiefs of Staff (CJCS). Already powerful, these combatant commanders' powers are increasing.¹⁰ They not only plan and fight the nation's wars; they now perform an expanding menu of non-traditional military functions including foreign relations-type functions that have historically been the province of the State Department.¹¹ Today's combatant commanders have a continuous presence abroad with massive staffs, resources, and forces.¹² As State Department personnel is reduced and its funding slashed, combatant commanders fill the foreign policy void as the default American representatives abroad.¹³

The operational military's origins can be found in the Constitution, statute and military doctrine.¹⁴ It is responsible for planning and executing the nation's war fighting, training foreign forces, military-to-military engagement, and an increasing range of

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foreign-relations activities.¹⁵ It receives its forces (personnel, equipment, weapons) from the administrative military.¹⁶ Uniformed combatant commanders and subordinate joint task force commanders lead the operational military.¹⁷ Its day-to-day implementation is governed by the doctrinal terms of combatant command, operational control, and tactical control.¹⁸

The administrative military's origins can be found in the Constitution, statutes, and military doctrine.¹⁹ Its functions include personnel management, staffing, recruiting, testing, training, health care, equipping and hardware acquisition.²⁰ It also provides forces to the operational military.²¹ The civilian Secretaries of the

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military departments and the uniformed heads of each military branch—the service "chiefs"—largely lead the administrative military.²² Its implementation is governed by the doctrinal term administrative control.²³

The administrative military serves the operational military.²⁴ While both militaries ultimately report to the Secretary of Defense and the Commander in Chief, the administrative military remains the outsized focus of congressional oversight.²⁵

The two-military divide creates two main problems: (1) it incentivizes congressional focus on the administrative military at the expense of operational military oversight; and (2) it facilitates an internal bureaucratic misalignment in which the administrative military too often provides the wrong forces (personnel, equipment, weaponry) to the operational military.

Today, the DoD is the world's largest bureaucracy and employer.²⁶ Its organizational set-up is complex, its size vast, and its mission idiosyncratic: the DoD is responsible for the nation's defense including the lawful application of military force to fight and win the nation's wars.²⁷ The very nature of its activities raises

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questions: How is this agency designed? Does the governing agency design strengthen or undermine civilian control of the military? How is the DoD—as a federal agency—subject to the Administrative procedure Act (ApA) and how are its actions subject to judicial review?

The answer lies with a fuller understanding of...