Here’s How Trump’s Ban on Transgender Service Members Can Serve as a Teaching Moment

Here’s How Trump’s Ban on Transgender Service Members Can Serve as a Teaching Moment

President Donald Trump’s surprise announcement of a change in policy on how transgendered members of the armed forces will be treated is a teaching moment in American civil-military relations. Set aside the question of the merits of the policy change — a civil-military topic worthy of consideration itself, subject to the proviso that in democracies civilians have the right to be wrong. Instead, let us focus narrowly on the how.

The way Trump rolled out this decision is almost a textbook example of how not to make difficult decisions on military policy. It is discouraging that an administration that began its tenure with some botched national security policy rollouts is still struggling to establish a regular order of policy development and implementation more than six months into governing. If this is how non-time-sensitive policy gets done, how will the Trump team handle actual national security crises, when the pace is dictated by circumstance and there is a high likelihood that, as President John F. Kennedy put it, “There’s always some son of a bitch who doesn’t get the word.”

By my count, there are at least a baker’s dozen lessons to be learned.

1. Whether the commander-in-chief has the authority to change policy in this area is debatable. What is not debatable is that such policy changes rarely work or endure if Congress does not support them. The president is the commander-in-chief, and so has the upper hand in determining military operational policy (for example, whether and how to respond to Syria’s use of chemical weapons). Even here, he would be wise to consult with Congress, but as the actual practice of the War Powers Resolution makes clear, Congress usually defers to the president. Not so on policies related to the raising, maintaining, and equipping of the armed forces, the large basket in which the policy on transgender issues falls. As President Bill Clinton discovered 25 years ago when he tried to lift the ban on gays serving openly in the military, Congress has the upper hand in this area, which is all the more reason to involve Congress in policy development. Reportedly, Trump rushed the decision as a gambit to avoid unwelcome congressional challenges that would put at risk funding for his border wall. That political calculation is understandable, but announcing the policy change without consulting with the congressional leaders who hold the most power on military policy was a mistake.

2. Any policy change in this area will be litigated in the courts — so before deciding and announcing a proposed policy, the administration should subject it to extensive legal review. So far as I can tell, there are no reports that the new policy was vetted in this way. Given the heartache that the administration has suffered on its various travel ban policies, it is mind-boggling that the White House would make the same mistake again. I am not a lawyer, but good lawyers have raised serious questions about whether the new policy would withstand legal challenge (see, for example, here). At a minimum, the administration needs to reassure itself that the legal foundation for this policy change is stronger than “the president wants it to be so.”

3. Any policy change in this area should also be backed up by careful policy review. In fact, the administration was in the first month of a six-month review designed to get the information needed to make sound policy on this matter. If the president wants to short-circuit his own review, he can do so, but he should have a compelling explanation for why.

4. If circumstances dictate accelerating the process, at a minimum the president should consult with his secretary of defense and chairman of the Joint Chiefs of Staff (his principal military advisor) before making the change. While the president’s tweets hinted that he had acted “after consultation with … generals and military experts,” the evidence points to a different conclusion. He may have consulted with generals (active or retired) and with other military experts (inside or outside his administration), but apparently he only informed his secretary of defense in advance of what he was going to do, and he didn’t even inform the chairman. Let me be clear: It is a myth that good civil-military relations require that the president rely exclusively on his line advisors in setting policy. On the contrary, good policy usually comes from a process that brings more voices into the room. The chairman is the president’s principal military advisor, not the only military advisor. So it is not a civil-military foul for the president to rely on advice he heard from other people in making a final decision. But especially when the president is going to overrule his line advisors, he should do so only after working closely with them in reaching this decision so that they are not caught flat-footed.

5. The president should expect his subordinates, including the military, to follow orders and to implement the new policy, even if they disagree with it, but with two big caveats. First and foremost, the orders/policies have to be legal. The military is repeatedly trained that it has a professional duty to refuse to implement illegal orders. Military lawyers review all such policy changes to ensure that they are legal. Even fast-moving operational orders are subject to legal review. This caveat has its own additional caveats: There is a presumption of legality for presidential decisions reached through the normal governing process, and where lawyers disagree, the civilian Office of Legal Counsel in the Justice Department trump the military lawyers — until the courts intervene and decide the matter. So the military is not under an obligation to disobey an order that it bets future courts might overrule, if there has been a legal review within the administration that convinces the president to bet the other way. On the contrary, the military is obliged to obey even controversial orders. The matter of illegal orders is precisely why there should be a careful legal review before a major policy change is announced (see point two, above).

6. The second big caveat is that if the president is ordering the military to make a change that it recommended against, the president should expect some leaking and grumbling about it. The United States has a proud record of civilian control without even a hint of a coup. But that record is replete with military foot-dragging and leaking — what I call shirking — and while shirking is a civil-military relations foul, it is one that a wise administration anticipates and is prepared to address. The way to address such leaking is to arm your supporters with arguments explaining the wisdom of your policy change and addressing every possible objection. These are called talking points. It is hard to pinpoint just one thing to be gob-smacked about in this rollout, but the fact that the White House had no such talking points surely ranks up at the top. Everyone in Washington is talking about how new White House Communications Director Anthony Scaramucci is in a feud with Chief of Staff Reince Priebus. Somehow lost in all of the profanity is the fact that the actual job of White House communications involves providing explanations and talking points whenever the president announces a major policy change.

7. If you are going to make such a change, you should not do so while your secretary of defense is on vacation. In fact, the secretary of defense should be in the frame when the president is announcing the policy change, and he or she should speak immediately afterward to explain how the policy will be implemented. Two days into the rollout and Secretary of Defense James Mattis still has not spoken on the issue. This is a compelling clue that Trump’s most respected Cabinet member does not support the policy change and is angered by the way it was rolled out. This will have repercussions.

8. A tweet is not an order. A tweet can be an excellent window into the president’s thinking and can be a useful tool in a well-designed rollout. I can understand why Trump is loath to give up this tool, which makes him much more powerful than his immediate predecessors were in speaking directly to the American people and driving media coverage. However, the president did not make a policy change in his tweets, regardless of the wording. Instead, he announced his intention to make a policy change. Ideally, the tweet would link to formal documents that outlined the change and covered the complexities. More realistically, the tweet would link to a formal document that directs the secretary of defense to report within a short time period how the department will implement the change. But the secretary of defense would not act on the basis of the tweet; instead, he would be acting on the basis of the formal notification. Note: This applies as well to tweets that the military likes. Someday, Trump may tweet out a notion that the Department of Defense finds welcome. It cannot then pretend that the tweet constitutes an order and move out sharply to implement.

9. A tweet is not an order, but that does not mean it is without political effect. As with any public statement by the president, the rest of the administration reads a tweet very carefully in order to figure out what the boss is thinking and where he is heading. That is why it is foolish of Trump to tweet about national security matters, particularly when policies or operations are in flux. Every military professional knows about the Clausewitzian dictum about friction — “Everything is very simple in war, but the simplest thing is difficult.” Trying to make difficult things fit into 140-character soundbites is a fool’s errand. And dangerous. It is worth noting that “Will no one rid me of this meddlesome priest” works nicely as a tweet, but disastrously as a presidential command.

10. Since the tweet caused so much confusion about the eighth point, the Department of Defense was correct to issue an all hands notification that, until further notice, everyone should continue to operate under prevailing policy. This should not be seen as an act of insubordination. This is merely a clarifying reminder of the eighth point above: A tweet is not an order.

11. That said, I think it would have been preferable for Mattis to issue the all hands (perhaps with accompanying language from General Joseph Dunford, chairman of the Joint Chiefs of Staff). I am quite confident that Dunford acted in close consultation with Mattis — if not, that would be a serious civil-military relations foul. But in normal circumstances, it should have been the secretary who did this. Reading the tea leaves, I infer that Mattis did not in order to give himself some political leeway with the White House, and perhaps also to give himself some leeway to overrule Dunford and issue a countermanding order to begin implementation (assuming he receives formal notification of a policy change with instructions on how to implement). Given how dysfunctional White House operations are, this minor process foul can be forgiven. (I am also confident Dunford vetted the language with department lawyers, as any professional would do; if not, that is another big foul.)

12. More troubling is that the text of Dunford’s letter was incomplete. Here is what it should have said, with my additions IN CAPs:

I know there are questions about yesterday’s announcement on the transgender policy by the President. THE DEPARTMENT OF DEFENSE HAS NOT RECEIVED FORMAL NOTICE OF ANY CHANGE IN POLICY THROUGH ESTABLISHED LEGAL CHANNELS. UNTIL WE DO, ALL OF THE FORCE IS DIRECTED TO IMPLEMENT THE PREVAILING CURRENT POLICY WITHOUT MODIFICATION until the President’s direction has been received by the Secretary of Defense and the Secretary has issued implementation guidance. WHEN WE DO RECEIVE FORMAL IMPLEMENTATION GUIDANCE, ALL OF THE FORCE WILL BE DIRECTED TO IMPLEMENT IT TO THE FULL EXTENT, AS IT WOULD ANY LEGAL ORDER. In the meantime, we will continue to treat all of our personnel with respect. As importantly, given the current fight and the challenges we face, we will all remain focused on accomplishing our assigned missions.

Adding these bits would have pre-butted the meme of military insubordination and would have reminded the force that it does not get to set policy.

13. As explained in the fourth point above, the president was wrong to create ambiguity about the extent to which the military was consulted on the policy change. He risks an even bigger civil-military relations foul: misrepresenting the content of military advice to the public. The president has the right to make a decision that his military advisors oppose. But he must take care in his public statements not to misrepresent what they advise. This, by the way, is precisely the issue at the heart of Dereliction of Duty, the book by H.R. McMaster, Trump’s national security advisor. McMaster argues that Vietnam-era generals were derelict in their duty in not correcting the public record when President Lyndon Johnson and Secretary of Defense Robert McNamara misled Congress about the content of military advice. If Trump gets careless on this point, he will be needlessly provoking McMaster and other senior military leaders who have been steeped in this norm. If that happens, expect them to speak out more forcefully. The president is not obligated to debate his military advisors in public whenever he overrules them. He just must not pretend that he is not overruling them when he is. Wise presidents are wary about overruling their military commanders, which is why they go to such lengths in the policy development process to forge consensus if possible. But if the president decides to overrule the military, he must take care not to misrepresent its counsel — especially when the national security advisor literally wrote the book on this technicality.

Given the competition for airtime, the civil-military lessons may not get the attention they deserve. But given the stakes, not just with this policy but with national security more generally, I hope everyone in the administration with responsibilities in this area — up to and especially including the commander-in-chief — will take full advantage of this teaching moment.

Photo credit: MANDEL NGAN/AFP/Getty Images