Dan Maurer*
[This essay is available in PDF at this link]
Abstract
This article describes the legal confusion that surfaces when a senior military commander dissents from, disobeys, or more offensively defies an apparently lawful order from the commander-in-chief to use force in ways that might check, curb, frustrate, or violate the constitutional liberties of the domestic public. Relying on both hypothetical and historical examples in which the constitutional values of civilian control of the armed forces and domestic civil rights collide, this article suggests that routine reliance on traditional civil-military relations theory and the military’s own criminal law only sets the stage for the potential conflict and fails to provide a map that detours around hazards or would soften a future collision. I locate the cause of the collision’s damage to be weakly-secured intersection of military professionalism norms, ambiguous constitutional text, and federal statutes that say more about the roles of the senior military elites than about the working dynamics of the relationship they live in with their civilian political superiors (and nothing relevant at all about those civilian superiors). The article presents novel, if broad, interpretations of some of those statutes (like the Uniform Code of Military Justice) to conclude that only a legislated safe harbor provision (properly tuned to accommodate professional norms, relevant military criminal law, and the values of civilian control over the military and values protected by the Bill of Rights) can serve the necessary two functions. It must act simultaneously as, first, a sufficient check on presidential discretion and, second, offer sufficient guidance and norm-reinforcing protocols to the professional military in ways that deter or moderate such confrontational constitutional collisions of values.
* Associate Professor, Ohio Northern University Pettit College of Law. For their discussion and comments on earlier drafts, special thanks to Joshua Braver, Lindsay Cohn, Ashley Deeks, John Dehn, Peter Feaver, Dakota Rudesill, and Heidi Urben; the participants in the AALS Early Works in National Security Law workshop, especially to Stephen Cody, Cody Corliss, Brenner Fissell, Amy Gaudion, and Rachel VanLandingham, and the editors of the Harvard National Security Journal who improved this article in every way. The author is a retired U.S. Army lieutenant colonel and judge advocate, a veteran of two combat tours and whose service included typical judge advocate assignments, a fellowship as a strategist for the Army’s Chief of Staff, and as professor at both the U.S. Military Academy and The Judge Advocate General’s Legal Center & School. The analysis and conclusions do not reflect the policy or positions of any part of the U.S. government.