Two new questions for Hagel’s confirmation hearing

The weekend’s reading in the Washington Post turned up two intriguing bits that could profitably be explored in Senator Hagel’s forthcoming confirmation hearings. Neither is a game-changer or a show-stopper. I continue to believe he will be confirmed and I expect he will have plausible answers to both of these questions. But it would be revealing to hear those answers and the process of thinking them through might even help him be a better secretary of defense.

First, what does the Obama administration consider to be the necessary legal conditions for the use of force abroad? The question arises out of an interesting bit in Saturday’s story about internal deliberations over whether and how much to assist the French in the Mali operation. There are numerous legal hurdles, including some domestic ones related to assisting governments after a coup (among its myriad troubles, Mali suffered a coup last year). But the part that interested me was this brief reference to other international legal hurdles:

"At the same time, U.S. officials were unsure whether they could legally aid France’s military operations without a United Nations or other international mandate."

Now, I well understand the political desirability of international mandates, and I also know what the UN Charter stipulates. Since the Mali government asked for aid — no, begged for aid — the self-defense exception of the UN charter would seem to be easily met. Perhaps there was some legal confusion regarding whether a post-coup Mali regime was more legitimate than the militant islamists attacking the government from the north? Or perhaps there was something else at work, with the Obama administration entertaining a more stringent standard than U.S. governments had hitherto required for military action? If the latter, that would seem to be quite newsworthy with profound implications for coercive diplomacy in other settings: does the Obama administration believe it has the requisite legal predicate for military action in Iran (setting aside the policy wisdom of such action), or would it require a new and specific UNSCR or NATO authorization? What are legal options if we have neither a new UNSCR nor NATO authorization?

Second, what specifically did Senator Hagel find lacking about civilian control of the military during the past 6 years? This question arises out of a quote attributed to Hagel from today’s opinion piece by Bob Woodward: "’The president has not had commander-in-chief control of the Pentagon since Bush senior was president,’ Hagel said privately in 2011."

Now Hagel’s quote covers a lot of history, including the stormy 1990s when serious questions were raised about the quality of civilian control. While an historical disquisition on the evolution of civilian control since 1992 from the secretary-nominee would be fascinating, for the sake of time and focus I would encourage the Senators to ask Hagel to answer just with respect to the last several years, covering the tenure of Secretaries Gates and Panetta. In what ways does Hagel consider the Pentagon to have been out of "commander-in-chief control" during that period?

This second question might be the more important one. After all, Hagel is not the lawyer who will be deciding the Obama administration’s interpretation of international law. His hearings do provide an important opportunity for Congress to ask such questions to key officials under oath, however, so it is worth asking.

But the second question goes to the very heart of Hagel’s job. As secretary of defense, he will be the interface between the political White House and the uniformed military — something like the ball-bearings or even the grease in the ball-bearings of civil-military relations. He will be the single most important civilian working 24-7 on the civilian control issue. Understanding his theory of civil-military relations is crucial for helping the Pentagon (both civilian and military tribes therein) prepare for his arrival. And I can think of few better ways to clarify his expectations than for him to explain how he believes Gates and Panetta failed to bring the Pentagon under "commander-in-chief control."