A Politically Neutral Military Is Not Always Obedient

Editor’s Note: In January, a week before the inauguration of President Trump’s second term, the author submitted for Lawfare’s consideration this piece, which argues that political neutrality obligates military resistance to lawful orders in some extraordinary circumstances. In the lead-up to the 2024 presidential election, Lawfare published a series of essays in partnership with Protect Democracy explaining the many limitations, drawbacks, and dangers of deploying the military on U.S. soil. Lawfare’s editorial team felt that the submission complemented that series, and responded to a debate happening at the time referenced in the introduction of the piece, so we accepted the submission.

After a series of edits, the article was almost ready for publication, but the author reached out to withdraw the submission, citing intense pressure from his institution, the United States Military Academy West Point, to do so. This occurred on Jan. 23, three days after the inauguration.

The piece remained unpublished until today. This morning, the New York Times ran an op-ed from the author announcing his plan to resign from West Point at the end of the semester and providing context about the erosion of academic freedom at the military academy. After consulting with the author, Lawfare has decided to publish the initial submission below.

- Tyler McBrien, Managing Editor 

There is a debate unfolding in the U.S. about the military’s obligation to civilian leadership. I and others have argued that military leaders may be ethically obligated to refuse or resist some extraordinary orders even if those orders are not patently illegal. Some experts, including Charles Dunlap, Martin Dempsey, and Peter Feaver, have responded by insisting that, on the contrary, the military’s obligation to obey legal orders is absolute.

There are three interrelated objections critics have offered against views, like mine, that allow for the possibility of disobedience.

The first objection has to do with risk. By design, the military has a unique power: the power to use physical force to achieve political goals. This makes it a distinctive threat to any civilian government. For this reason, it is vital that the military remain obedient to an elected government. Any daylight between the military and civilian authority risks catastrophe.

The second objection, related to the first, argues that the principle of the political neutrality of the military prescribes absolute obedience to lawful orders. This adherence to political neutrality, and consequently obedience, rests on the fact that in democratic societies the authority to decide the policy direction of the government lies in the hands of the elected representatives of the people. Once that authority is legally granted, for the sake of popular sovereignty, the military must fall in line regardless of its or any individual service member’s disagreements with the authority’s policies.

The third objection, related to the second, holds that allowing service members to decide which orders to follow and which to resist necessarily requires the application of personal moral and political beliefs in place of the judgment of lawful political authorities. This corrupts the legitimate political processes that should determine how the military is managed and employed.

These responses repeat a conventional interpretation of political neutrality that I reject. Contrary to these critics, political neutrality obligates military resistance to lawful orders in some extraordinary circumstances. Military political neutrality in a democratic society is, and always has been, more than a promise of obedience. It is also a promise to defend civil society and the neutrality of the military, including when these are threatened by civilian authority.

Recent political events have reminded Americans that civilian authorities can pose clear threats to civil society and the political neutrality of the military. The literature on civil-military relations has largely ignored this possibility. This is a luxury the U.S. can no longer afford. Continuing to portray political neutrality as passive obedience to legal orders does not make the U.S. safer. In fact, it only increases the risk to the constitutional order.

The Real Civil-Military Problematic

Peter Feaver’s canonical article, “The Civil-Military Problematique,” offers a theory of civil-military relations that centers military obedience to civilian authority. According to Feaver, the basis of civilian control of the military is the solution it provides to what he calls the civil-military problematic: While they are created to keep society safe, militaries necessarily pose a risk to society. The unique power of a military can be used to protect the community, but it can also be turned against it. One part of the solution to this problem is the principle of civilian control. To keep it from interfering with proper political authority, the military must remain obedient to that authority.

As Feaver points out, though, this problematic and its solution are not unique to democratic societies. Any society that maintains a military, even the most dictatorial, faces the threat of a military coup. Military obedience helps protect these societies as well. This has been a basic part of political theorizing for millennia. Plato, after all, loathed democracy but devoted a long passage of his Republic to designing a military that would not threaten the city it was intended to preserve. To do this, Plato envisioned the ideal military as a loyal dog: subservient to its master but hostile to others. So, Feaver’s “civil-military” problematic is really a more general political-military problematic.

How does the problematic and its solution change if we narrow the focus to democratic societies only? For Feaver, the duty to obey is even stronger in democratic societies than it is in autocratic ones. This is because in a democratic society ultimate authority over the state and its military lies with the people, not any member of the state. As Feaver says,

Democratic theory is summed in the epigram that the governed should govern. People may choose political agents to act on their behalf, but that should in no way mean that the people have alienated their privileges. Most of democratic theory is concerned with devising ways to ensure that the people can remain in control even as the business of government is conducted by professionals. Civil-military relations are just a special extreme case, involving designated political agents controlling designated military agents.

In other words, the military is no different from any other state organization in a democratic society. Just as the leadership of the Department of Education must yield to the whims of the voters, however wrongheaded, so must the Department of Defense. So political control of the military becomes strictly civilian control in a democracy because the authorities are reconceived, not as the sovereign, but as the agents of the ultimate sovereign—the citizenry.

But this loses sight of the unique danger of a standing military. Of course, one danger of a standing military is that it might unilaterally insert itself into matters that it does not have authority over. But, quite obviously, another danger is the unique power it gives those with authority over it. Whoever controls the military, whether they be a dictator or an elected representative, is necessarily a unique danger to society. The problem of military power that Feaver is concerned with solving is a problem that other government agencies do not pose. There is no analogous civil-education problematic because the kind of power the Department of Education might exert over the public is not as immediately dangerous as the military power. The civil-military problematic is special precisely because the military is especially dangerous.

Feaver’s mistake is to apply to democratic societies the solution to the political-military problematic that works for dictatorships like Plato’s city. He draws no distinction between a monarch’s authority over the military and an elected official’s. If anything, he says that the elected official’s is even more sacrosanct than the monarch’s.

This elides one of the most fundamental distinctions in the history of U.S. civil-military relations. At the founding of the U.S., it was widely understood that a state agent’s loyalty must be to civil society as opposed to a ruler. At the time of the American Revolution, the British Army swore an oath of allegiance to “our Sovereign Lord King George.” In 1789, the first act of the first U.S. Congress established an oath for all public office holders. The oath said, simply, “I … do solemnly swear or affirm … that I will support the Constitution of the United States.”

A few months later, the same Congress passed a law establishing an oath specifically for military enlistment. This oath began with the same swearing of support for the Constitution but then added some details, including a commitment to “observe and obey the orders of the President of the United States of America, and the orders of the Officers appointed over me.” This promise of obedience was abandoned in 1884. To this day, the oath of office for officers is principally an oath of allegiance to the Constitution, not a swearing of obedience to any officeholder.

Regardless of how this is expressed in the legal obligations of the service member, the oath directly aligns the military officer with the Constitution, not the president. Today, this is a vital component of the ethos of the officer corps.

There is good reason for this.

Though its significance can be overstated (more on this in the next section), the alignment of the military officer with the Constitution as opposed to the president or any other officeholder is a big deal. It marks the distinction between democratic and autocratic governance. The agents of autocratic states serve officeholders only. The agents of democratic states serve civil society. Aligning state agents with the Constitution is one important way to ensure, to use Feaver’s language, “that the people can remain in control even as the business of government is conducted by professionals.” By insisting that officeholders put the Constitution and the civil society it enshrines first, we protect, however imperfectly, civil society from officeholders who would use their authority, or allow others to use their authority, to undermine civil society.

So, reconceiving the political-military problematic for democratic societies as opposed to autocratic ones shows that the real civil-military problematic is more complicated than Feaver appreciates. The challenge for democratic societies is not merely to have a military that (1) has the wherewithal to use force to protect the community and (2) does not unilaterally employ that force against the community. Only for autocratic societies can the problem be this simple. For democratic societies, it is also necessary that (3) the military is not employed by authorities against the community.

Feaver shows that there is a tension between (1) and (2). The more a society emphasizes military readiness, the more capable the military becomes of carrying out a coup. And the more a society limits the dangers of a coup, the less the military will be able to protect it.

But by missing the importance of (3), Feaver misses another tension. The more we subordinate the military to political authority, the more easily it can be employed by that authority against the community. Absolute obedience to civilian authority increases the threat of civilian authorities using the military against civil society. So, civilian control of the military does not solve the real civil-military problematic.

Real Political Neutrality

Of course, civilian control of the military is still an important part of the solution to the civil-military problematic. Giving the military complete independence would be entirely inconsistent with civil society. It would be a grave mistake to think of officers as independent constitutional courts who have the authority to personally determine the correct meaning of the Constitution, and which policies violate it, and then use their office to enforce it. That would be the end of the constitutional order, not the support of it.

This is why it is vital that the military remain politically neutral. As the agent of the people and their representatives, the military must exhibit political neutrality, which requires subservience to civilian authority and the procedures of a democratic system. The citizens can elect whomever they wish, and it would be a grave violation of their rights if the military were to interfere with this authority. Thus, the military must stay neutral regarding the persons and political platforms of those who would be their commanders. There must be distance between the military and the government. In a healthy democracy, governments will come and go, and they will have wildly different political agendas. For the sake of popular sovereignty, militaries must be equally subordinate to hawkish or isolationist governments, capitalist or socialist governments, and conservative or liberal governments. In other words, political neutrality requires allegiance to civil society and democratic procedures, not to any individual or party.

Though the oath aligns officers with the Constitution over the president, thankfully, it also commits the officer to obedience to the president and to the law. The Constitution gives the president and Congress vast authorities over the military and thereby over the officer. So, allegiance to the Constitution entails obedience to the president.

Facing up to the real civil-military problematic should not lead us to doubt civilian control as such. But it should lead us to doubt the inviolability of civilian control.

Feaver and most other leaders in civil-military relations theory reduce political neutrality to civilian control. For them, a politically neutral military is simply one that does whatever the civilian commander in chief lawfully orders them to. This is why they see obedience to civilian authority as absolute.

But this view of political neutrality is another mistaken attempt to apply a standard appropriate for autocratic societies to democratic ones. In autocratic societies, the state, including the military, is not neutral. It is the instrument of the ruler. The military is, therefore, a political partisan. Any political opponent of the ruler can be the target of the military. Moreover, there is no civil society to protect. That is why autocratic militaries, as opposed to democratic ones, pledge allegiance to a person or office.

The threat of the military becoming a tool for autocrats is not eliminated if the commander in chief is chosen by a democratic process. Elections are not a perfect tool for ensuring that civil society and the neutrality of the state are protected. Democratic processes can bring to power governments that are hostile to democracy and civil society. Such governments will treat the military as a partisan tool and be willing to employ it in ways that are harmful to civil society.

This is why political neutrality is not simply obedience to civilian authority. A duly elected commander in chief can use the military in ways that violate its neutrality. He might portray the military as his own or his party’s partisan security force, not the defender of the politically impartial constitutional order. Or he might attempt to employ the military in ways that directly threaten civil society, such as by using it to attack protesters or election officials, or by treating criminal suspects as combatants in a war.

In cases like these, it would be backward to hold that the military should obey the commander in chief for the sake of political neutrality. The truth is the other way around. When it is clear that a civilian government, even a duly elected one, is weaponizing the military to protect its political interests, to attack its political opponents, or to undermine civil society, political neutrality demands that military officers not passively obey. This is a part of the basic function of the military in a democratic society.

Politically Neutral Resistance

Resisting a legal order on the grounds that it violates the political neutrality of the military is different from resisting an order because it violates one’s personal political or moral convictions. It is not analogous to a pro-life officer proclaiming a pro-choice administration illegitimate, for instance. To apply personal political or moral positions to legal orders from a duly elected government would be a violation of the civilian authority’s right to be wrong. Service members are bound by the public law and ethics of their profession, and these standards require service members to generally subordinate their personal opinions to the professional standards.

The point I am making here is that the professional standards of military service do not simply prescribe obedience to authorities. It is possible to justifiably resist a legal order on the grounds that the order violates the basic values of the military profession in a democratic society. Putting one’s professional duties above one’s personal moral and political convictions can still lead one to disobedience. If an order clearly threatens civil society, an officer can be obligated to resist it, even if the officer personally supports the order. In these cases, resistance is not in conflict with professional obligations. On the contrary, professional obligations demand resistance.

Resisting a legal order can take many forms—it need not be outright disobedience. It can also involve asking critical questions of or raising objections with one’s superiors; raising awareness of the orders and one’s concerns with them within the military, with civilian political leaders, or with the public; “slow rolling” execution of the order; or offering (publicly or privately) to resign or seeking retirement. How a service member should respond to a legal order that violates the ethical foundations of the military profession is highly context dependent.

Beyond understanding the effectiveness of the various forms of resistance in each situation, service members must also consider their personal circumstances and the effect resistance will have on their careers and livelihoods. Charles Dunlap is right to point out the conflict between my position and the law. Resisting a legal order is dangerous both professionally and legally. I am not in a position to know exactly what a given service member should do in the sorts of painfully difficult situations I am considering. I merely aim to point out that there are, whether we like it or not, tensions between the law and the ethics of the military profession. In doing so, I hope to provide officers with the ethical tools to make thoughtful decisions in extraordinary circumstances.

And, even if the right thing to do is to resist a legal order, it does not follow that service members should attempt to evade punishment for their actions. Officers who do resist should do so civilly by willingly submitting to the punitive reactions, either professional or criminal, that are within the authorities of the military chain of command and abide by established rules of due process. While resistance can be ethical, it may still come at a great price.

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We must disabuse ourselves of the idea that the only danger of a standing military comes from within the military. Surely, we should not understate such dangers. But we also must not be sanguine about the danger of the civilian war power in a democratic society. Recent history shows us that even a commander in chief who is elected might try to use the military against the community that elected him.

For too long the theory of civil-military relations has failed to take this threat seriously. Many commentators have thought that the military has the same obligations to political authority regardless of the form that authority takes (democratic or autocratic). This misses the vital ways that the military’s relationship to authority is different in a democratic society. While it must respect civilian authority, in democratic societies the military cannot simply assume it is the instrument of elected leadership. There are times when, for the sake of civil society and the political neutrality of the state, the military should be insubordinate to civilian authority.