- By Peter FeaverPeter D. Feaver is a professor of political science and public policy and Bass Fellow at Duke University, and director of the Triangle Institute for Security Studies and the Duke Program in American Grand Strategy. He is co-editor of Elephants in the Room.
Retired General Mike Hayden created a stir with his recent appearance on the HBO show, “Real Time with Bill Maher.” In the interview, Hayden told Maher that if Donald Trump wins the election and then attempts to fulfill some of his more outlandish campaign promises, the new Republican president would be blocked by the senior military. Actually what Hayden said was, “the American armed forces would refuse to act” and that the senior military will be correct in doing so because, as he put it, military commanders, “are required not to follow an unlawful order.”
In response to this, Maher offered a typical sardonic response, joking that Hayden had offered, “a good reason not to support Trump” because were he to instruct the military to do those things, “there would be a coup in this country.”
But jokes aside, Maher’s interview with Hayden raises some interesting and important issues here for civil-military relations. And given Trump’s standing as the Republican front-runner, this is also not merely an academic exercise.
Let’s begin by imposing a bit of precision on the analysis.
General Hayden was talking about some very particular campaign promises by Trump, specifically that as president he would a) direct the military to intentionally target the families of terrorists to be killed, and b) direct the national security establishment to do a “hell of a lot worse” than water-boarding to the terrorists and families of terrorists that are captured on Trump’s watch.
Both of these proposed policies are clear violations of the law. Civilian deaths that occur as collateral damage incidental to strikes aimed at legitimate targets are always avoided but sometimes an unfortunate part of lawful warfare; Trump is talking about deliberately targeting the family members as a matter of policy. I do not know of a single law expert who would say this is legal.
On the second one, there was a debate among reasonable lawyers about whether the Enhanced Interrogation Techniques (EIT) program launched by the Bush Administration in the wake of the 9/11 attacks, and then rolled back in the second term in the face of public pressure and adverse court rulings, were legal at the time. But that program was much more narrowly circumscribed than what Trump is talking about –indeed, he explicitly says he wants to do “a hell of a lot worse” than what was done in that program. And note: last October, Congress passed provisions in the 2016 Defense Authorization Act that make waterboarding and other techniques Trump wants to go way past explicitly illegal. There simply would not be much of a debate about Trump’s proposals. The overwhelming consensus would be that it is illegal.
I suppose it would get especially tricky — and this is the thorniest part of the EIT saga — if some the government lawyers disagreed. There is no chance the military lawyers would accept Trump’s line of reasoning, but it is possible he could appoint some civilian lawyers that might back his case. This would provoke a massive legal fight inside the administration, one that makes the Bush administration’s debates over EIT and the NSA’s terrorist surveillance program, and the Obama administration’s debates over drone strikes against American citizens who have joined al Qaeda, pale in comparison. Every expert I have talked to has reached the same conclusion: Trump (and any lawyers he could find) would likely lose the case and the military would rightly see the orders as illegal.
Given that it would be illegal orders, General Hayden is absolutely correct: not only would the senior military leaders refuse to follow those orders, they would be legally and professionally bound to refuse those orders. Democratic civil-military relations theory further requires that they refuse these orders. Refusing these orders would not be a coup. It would be reinforcing the rule of law and healthy civil-military relations.
Refusing the orders would, however, provoke a crisis. It is hard to say what a President Trump would do when faced with an early political/policy crisis like this. When pressed on policy conflicts in the campaign, Trump has carefully avoided making any reasoned arguments in defense of his position and has instead retreated to name-calling and boasts about his popularity in opinion polls. Given that the military is the national institution in which the public has the highest degree of confidence, it is not clear to me that Trump’s polling numbers would survive a crisis sparked by him asking the military to violate their professional ethics and obey his illegal orders. How will Trump behave when his polling numbers drop, as they inevitably will?
If Trump wants to be an effective commander in chief, he should stop boasting about how he will issue illegal orders to the military. The more he boasts, the stronger will be their resolve to honor the requirements of professional ethics and democratic civil-military relations.
But how would and should the military respond to some of the other campaign proposals Trump has made: abandoning our treaty allies, invading Syria to seize the oil for our own use, facilitating Putin’s adventurism, and so on? These would not necessarily be deemed illegal (though seizing the oil might skirt some lines) but most senior military leaders would deem them deeply unwise. How will the U.S. military respond to such unwise orders?
I have discussed this with a range of people and noticed one recurring error that needs to be dealt with quickly. Bush haters have retorted that Bush 43 proposed “unwise” policies such as the invasion of Iraq and the military implemented those. And Obama haters have retorted that Obama proposed “unwise” policies such as the arbitrary withdrawal timelines in Iraq and Afghanistan, the ill-considered and ill-planned war against Libya, and on and on, and yet the military implemented those.
It is true that the military mostly obeyed orders and implemented policies proposed by Bush and Obama (and other presidents) that they deemed unwise at the time. But what Trump is proposing would be seen by the senior military as an order of magnitude worse on the foolishness scale, undoing what most of them worked their entire professional careers to achieve.
So what should and what will the military do when faced with a battery of the most unwise orders they have ever seen?
The textbook answer is the military should obey even unwise orders because civilians have a right to be wrong. To do otherwise — to “correct” the foolish boss — is to shirk and shirking undermines civilian control of the military, which is a bedrock principle of democracy. In my judgment, the textbook answer works well for most of the garden variety of allegedly unwise policies senior U.S. military leaders have encountered over the years. However, one can easily conjure up hypotheticals that are worse than a temporary loss of civilian control — say a direct nuclear attack on the homeland. If all that was needed to stop a nuclear attack on the homeland was for the military to refuse to implement a legal but unwise policy, then in that case I would certainly prefer the temporary interruption in civilian control followed by the rapid reinstatement of the constitutional order.
But do Trump’s campaign promises, as reckless and unwise and ill-considered as they are, reach the level of that proverbial ticking time bomb in which all other considerations can be set aside?
Probably not, which is why I think I would stick with the textbook answer that the military should obey Trump’s unwise but otherwise legal orders.
But they are close enough to that extreme level where shirking is the lesser of two evils that I am quite confident some senior military leaders will think otherwise. So if you ask me what I think will happen, it is this: that the military will shirk, finding ways to avoid carrying out many of Trump’s policies.
The historical record is replete with cases of the military shirking — withholding information and options, slow-rolling, end-runs to Congress and the media, inflating cost estimates, etc. — to thwart civilian policies they deem to be unwise. Those cases all involved civilian-directed policies that were more well considered, more defensible, and enjoyed broader support among experts than Trump’s national security platform.
If the military did these things to Trump’s predecessors on lesser provocations, they will do it to him. And in spades. So more civil-military crises.
Let me be clear. I am not endorsing such behavior, only predicting it — albeit predicting it with high confidence. If Trump is who he says he is, and governs like he campaigns, then expect the worst civil-military relations in modern U.S. history.
There is another possibility, what I would call the rosy scenario: perhaps Trump is just a con man. Perhaps he doesn’t mean anything he says in the campaign and perhaps the persona on display is just that, a marketing gimmick designed to appeal to an angry electorate.
I have heard some people who know Trump better than I do make this case, though I have heard other people who know Trump better than I do insist that what we are seeing is the real man, and thus the best indicator of how he would govern.
I cannot say for certain which view is right, but it is a remarkable commentary on the state of things that the best hope for civil-military relations is that Trump turns out to be pulling a massive fraud on the American people.
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