Lawfare Daily: Civ-Mil Relations: Where Are We Now and How Did We Get Here?

Summary

Lawfare Podcast: Civ-Mil Relations—Where Are We Now and How Did We Get Here?

Episode Date: December 23, 2025
Host: Lauren Voss
Guests: Corey Shockey (American Enterprise Institute), Carrie Lee (German Marshall Fund)

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Overview

This episode launches a series on the shifting dynamics of civil-military (civ-mil) relations in the United States, particularly in the context of recent domestic military deployments and executive actions. Host Lauren Voss, joined by experts Corey Shockey and Carrie Lee, explores why the military has become the government's go-to problem solver—not just in foreign wars, but in domestic crises—and the consequences of this trend for democratic institutions, legal frameworks, and public trust.

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Key Discussion Points & Insights

1. Foundations of Civil-Military Relations

• Two Test Frameworks (Shockey):
  • Can the president fire any military officer? “The answer to that is clearly yes…They pack their office and become civilians.” (Corey Shockey, [04:00])
  • Will the military carry out policies they advise against? Despite reservations, “it's their job to take the objectives and the resources they’re given and do the best they can.” ([04:49])
• Three-Principle Model (Lee):
  • Civilian Control: Military’s subordination to democratically elected leaders.
  • Military-Society Legitimacy: Public trust in the military’s role and competence.
  • Military Professionalism: The profession’s internal code of ethics and self-policing.
  • “A legitimate military is most likely to happen in a democracy. Legitimacy is essential for...society to place trust in it.” (Carrie Lee, [05:24])

2. What's Different About Today?

• Conflicting Principles and Successive Crises
  • “You have real conflicts between these principles that are erupting in...crises.” (Lee, [08:07])
  • Public trust in the military is splitting along partisan lines, coupled with eroding trust in expertise and institutions.
• Civilian Political Norm-Breaking
  • “You have a civilian administration that really doesn’t, and sort of openly disrespects a lot of very important civ-mil norms.” (Lee, [10:08])
  • Examples: political rallies at military bases, partisan speeches by civilian leaders, attempts to politicize the military.

3. Historical Parallels & Legislative Context

• Historical Example: 1866-67 Constitutional Crisis
  • “You had a very aggressive President and a very aggressive Congress disputing each other's authorities and trying to pull the military into the middle of it.” (Shockey, [16:57])
• Statutory Restrictions
  • Insurrection Act of 1807 and Posse Comitatus Act of 1878 sharply limit presidential authority for domestic deployments.
  • Recent administrations “have not met” the conditions to satisfy these statutes, yet have undertaken domestic deployments. ([13:33])

4. Who Bears Responsibility for the Current Crisis?

• Not a Civil-Military Crisis, but a Civil-Civil Crisis
  • “It’s a civil-civil crisis where Congress is failing to use the Article 1 authorities...to balance aggressive presidential policy actions.” (Shockey, [13:33])
  • “The military can't fix that...it puts a burden on our military to be the solution to a problem that is neither of their making nor...an acceptable role.” ([14:27])
• Shouldering Responsibility: Both the executive branch and Congress, across parties, are found at fault for politicizing the military and failing to assert checks and balances.

5. Responding to Unlawful or Unethical Orders

• Chain of Legal Advice and Responsibility
  • Military commanders have legal advisors, but must ultimately bear responsibility for their actions:
    • “That advice is not binding...does not supersede the Secretary of Defense’s legal counsel.” (Shockey, [22:51])
    • Refusing an order is a court-martialable offense, with the burden of proof on the officer.
  • The bias in the system is toward compliance: “You do not want the lowly lieutenant or captain going point-counterpoint...on whether the President has the constitutional authority to launch nuclear weapons.” (Lee, [25:32])
• Documenting Dissent
  • Short of disobeying, officers should “write everything down, document everything...so that when people do go looking...there is a written and documented record...” (Lee, [25:32])
  • Options besides disobedience: resignation, retiring early, whistleblowing—each rare and costly.

6. Obeying Lawful but Unethical Orders

• The Gray Zone

  • “There is only an obligation to disobey orders that are patently unlawful.” (Lee, [37:08])
  • When orders are lawful but ethically troubling, options include complying in a way consistent with one’s conscience, resigning, or whistleblowing.

• Memorable Hypothetical:

  • Deploying military domestically under the Insurrection Act and facing orders to use force on protesters could “profoundly damage the legitimacy of the American military.” (Lee, [40:30])

• Corey’s Rebuttal: “It is almost unimaginable to me that an American officer would obey an order to fire on their fellow Americans.” ([43:14])

  • Harder cases involve “cultural” issues—like firing senior female commanders—which may be lawful but violate military values.

7. Norms, Partisanship, and the ‘Unprincipled Principle’

• Destabilizing Effects
  • “The senior civilians are behaving in an unprincipled way, and it destabilizes the system...making the military have to figure out how to deploy to American cities...when Congress is inactive.” (Shockey, [49:06])
• Congressional Oversight as a Solution
  • “Senate Armed Services Committee...chose to dock Secretary Hegseth’s travel budget until he produced evidence on the strikes in the Caribbean.” ([50:32])

8. Signals to Watch Moving Forward

• Key “Canaries in the Coal Mine”:
  • “Who gets hired into the positions [vacated by fired officers]? How openly partisan are these officers?” (Lee, [54:23])
  • Will the president comply with court orders regarding military deployments?
  • Recruitment and retention rates, especially of women and minorities. (Shockey, [57:32])
  • Congress’s willingness to assert its constitutional authority on military policy and budgeting.
• Overall Trend: “The solution here is in the civilian realm...the military can't save us from this problem and we shouldn't want them to.” (Shockey, [59:42])

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Notable Quotes & Memorable Moments

• “It’s a civil-civil crisis where Congress is failing to use the Article 1 authorities that the Constitution expects to balance aggressive presidential policy actions like the ones President Trump is taking.”
  — Corey Shockey, [13:33]

• “You have real conflicts between [civil-military] principles that are erupting in...crises. And so it’s very rare for you to have this kind of succession of issues in civil military relations.”
  — Carrie Lee, [08:07]

• “A legitimate military is most likely to happen in a democracy. Legitimacy is essential for a functioning profession because society has to place trust in it…”
  — Carrie Lee, [05:24]

• “It is almost unimaginable to me that an American officer would obey an order to fire on their fellow Americans.”
  — Corey Shockey, [43:14]

• “The problem of the unprincipled principle seems to me one of the biggest challenges in civil military relations right now. But again, the fix lies in the civilian realm.”
  — Corey Shockey, [50:01]

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Timestamps for Key Segments

• [01:33] – Opening framing of the civ-mil challenge (Shockey)
• [04:00] – ‘Two tests’ for civil-military relations (Shockey)
• [05:24] – Three-principle model (Lee)
• [08:07] – Why the current moment is uniquely fraught (Lee)
• [13:33] – Legal and constitutional underpinnings of domestic military deployment (Shockey)
• [22:51] – What if a military leader is unsure about the legality of an order? (Shockey)
• [25:32] – Systemic bias toward compliance and the costs of noncompliance (Lee)
• [37:08] – The “gray zone” of lawful but unethical orders (Lee)
• [43:14] – Firing on American citizens: Harder questions (Shockey)
• [49:06] – The challenge of the ‘unprincipled principle’ and civilian norm-breaking (Shockey)
• [54:23] – What to watch in the near future: signals and indicators (Lee & Shockey)
• [59:42] – Concluding thoughts: solutions must come from civilians (Shockey)

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Conclusion

This episode provides a serious, nuanced look at civil-military relations in a time of mounting domestic and political crisis. The experts stress that while the military appears to be under strain and its legitimacy and professionalism at risk, the root crisis is one of civilian governance and institutional failure—primarily in Congress’s abdication of oversight and the executive’s norm-breaking. The military, they argue, cannot and should not be expected to fix fundamentally civilian failures, and close attention must be paid to appointments, legal compliance, and the preservation of both legal and normative frameworks guiding American democracy.

Transcript

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[Corey Shockey]

I think the crisis actually isn't a civil military crisis. It's a civil civil crisis where Congress is failing to use the Article 1 authorities that the Constitution expects to balance aggressive presidential policy actions like the ones President Trump is taking.

[Lauren Voss]

It's the Lawfare Podcast. I'm Lauren Voss, Public Service Fellow at Lawfare, with Corey Shockey, Senior Fellow and the Director of Foreign and Defense Policy Studies at the American Enterprise Institute, and Carrie Lee, Senior Fellow with the German Marshall Fund. Strategic Democracy Initiatives.

[Carrie Lee]

You know, as you're making increasingly controversial orders, I would not be surprised, right, if you had senior civilian leaders really trying to pick and choose who in that chain of command is going to be responsible for executing those types of orders and what units they're selecting and what their own cultures are and histories are.

[Lauren Voss]

Today we're talking about civ mill relations. Where are we now and how did we get here? This is the first episode in a series on domestic military power in a democracy. Over the past two decades, the US Military has become the government's most trusted and frequently deployed institution, responding not only to wars abroad but to natural disasters, immigration enforcement, public health crises, domestic unrest, and more. Lawfare is examining the consequences of this shift. Why has the military become America's default problem solver? What legal frameworks enable this trend, and why are they failing? And most importantly, what can be done to restore the balance between civilian governance and military power? The news in the last six months has focused on domestic deployments of the military for primarily the National Guard in cities like Los Angeles, Washington, D.C. portland, Chicago, Memphis, and Louisiana. More recently, the United States stated it was at war with a number of drug cartels. Which ones isn't exactly clear, but it's resulted in 26 military strikes so far on alleged drug smuggling vessels in international waters. Both types of missions have raised significant questions about the appropriate role of the military in the United States. How We Think about civ Mill Relations so Corey, I'm going to turn to you first to help us set up the scene for us. So how would you describe civ mill relations in the United States? Is there a framework you find most helpful for thinking about it?

[Corey Shockey]

So while there's a lot of justification in being worried about civil military relations right now, I actually think the system is working the way it's supposed to. I think there are only two fundamental tests of civil military relations, and the first is can the president fire any military officer he wants? The answer to that is clearly yes. He's fired 18 or so three or four star generals and they have done exactly what we expect our military to do, which is they pack up their office and become civilians. The second test runs the other direction, and it is will the military carry out policies they advise against? Again, I think we see quite a lot of evidence, especially in the last 20 years, that the American military thinks our political leadership of both parties is making bad choices, choices that are sub optimal for the national security of our country. But it's their job to take the objectives and the resources that they're given and do the best they can because that's what civilian control amounts to.

[Lauren Voss]

Kerry, what about you? Is there a framework that you apply when you think about civil relations?

[Carrie Lee]

Yeah, so I tend to think of civil military relations as a little bit broader than just civilian control. I tend to think of it as three overlapping principles that deal with the military's relationship with its political leaders, for sure, which we sort of know as civilian control. And in democracies we think about as the democratic ethos and the subservience of the military to legitimately elected democratic leaders. But there are two other principles that I think are equally important, and that in a healthy society, they all kind of operate. They row in the same direction. Second principle deals with the relationship between the military and society, and it deals with the legitimacy of the military in the eyes of the American public. And so we have a ton of literature that looks at, much of which Cory has contributed, to which I'm super grateful, about how the American public views its military and how the society kind of how much faith and trust the society has in the military's not just ability to do its job, but that it's a legitimate force. And then the third principle is what I think about as the profession of arms or kind of the military's relationship with itself and how it goes about as an institution protecting a code of ethics, and how it thinks about its obligations to its own members and its obligation to society as a profession for the current era. Right. Like as I said, when you have healthy civil military relations, these all kind of flow in the same direction. They're mutually reinforcing. A legitimate military is most likely to happen in a democracy. Legitimacy is essential for a functioning profession because society has to place trust in it in order to see it as an expert and give it faith and trust in the. For the military, at least, the incredible amount of coercive power it wields. So in a healthy relationship, all of these are mutually reinforcing. I think what's unique about the current era, and I know we're going to get to this, is that they're not right now, and you have real conflicts between these principles that are erupting in what, you know, the peanut gallery, like Corey and I call crises.

[Lauren Voss]

Yeah. So on that point, what is unique about what's happening right now, if anything, and is there a historical parallel or some other point in time that you could point to to say, you know, we've been here before?

[Carrie Lee]

So I'm going to leave the historical parallels to Corey, because she just wrote this fabulous book about the history of American civil military relations. And so if I try to tread on that territory, then I'm going to get myself in a lot of trouble. But I think there are two things that are super unique about the current moment. The first is that we do have a lot of conflict between these principles. And in fact, I would say in the current moment, we have conflict between every one of these principles, where you have domestic deployments of the military that are really threatening public trust. And public trust in the military is bifurcating by party in ways that we haven't seen before. And yet none of the orders that they're being given are necessarily kind of patently unlawful. They're working their way through the courts, but they're sort of following in line with this idea of civilian control. But there's even tension in there because it's not clear that the orders they're being given are necessarily good for democracy. So there's tension when this idea of civilian control where the president has a lot of authority over the military and yet he's using it in ways that aren't so great for the way that we think about democratic institutions and in ways that also threaten the legitimacy of the military with at least certain sections of the American public. We're also in an incredibly populist moment right now where society's trust in the military is eroding, and trust and expertise generally is eroding. So this creates conflict between sort of public trust and the profession, which relies a lot on expertise. So you have these kind of big conflicts going on right now, which, again, as I kind of mentioned before, really result in a series of kind of crises. And so it's very rare for you to have this kind of succession of issues in civil military relations. A lot of times you have an event that pops up, everybody comes up and says, oh my gosh, this is norm breaking. And everybody come back to baseline. And then we go back to baseline for a while. But it seems like right now we're in a moment where you just have a succession of crises. And I think it's because these principles are so often in conflict. The other really unique thing right now is that civil military relations is a norm based exercise fundamentally. And it only really works when you have both civilians and military officers. So both sides of this relationship are committed to upholding those norms. Right now you have a civilian government and a civilian administration that really doesn't and sort of openly disrespects a lot of very important civ mill norms that have traditionally held up this relationship. And so you have defiant and sort of gleeful norm breaking going on on the civilian side of the relationship. And the military is left kind of not know what to do. And that's a pretty unusual circumstance, I'll put it that way.

[Lauren Voss]

Before we turn to Corey, if I can just ask a follow up on that. Kerry, you said the civilian leadership is not respecting civil military norms. Can you tell me what you mean by that?

[Carrie Lee]

So when the President gets up in front of a whole bunch of young soldiers at Fort Bragg and treats it like a partisan pep rally. Right. And actively encourages them to clap and cheer for partisan lines, including disparaging the former president, President of the United States, Joe Biden, all Democrats, etc. When the Secretary of Defense gets up in front of war College audiences and effectively does the same thing. Right. When you have civilian leaders in the administration who really don't respect key norms and tenants like the nonpartisan nature of the military and openly try to politicize it in a regular and blatant way, this creates big problems. Just a couple of examples, Corey, if.

[Lauren Voss]

We can turn to you on what you think is unique about the moment now, and especially if you think there's any relevant historical parallels that we can look at.

[Corey Shockey]

So what I think is unique about the moment, I agree with Kerry that the civilian leadership, but not just the president, Congress as well, is putting enormous pressure on of politicization on the military. They are trying to use the military as a cudgel in political and cultural disputes. And that's not good for the military, it's not good for the civilian leadership, and it's not good for the relationship between the public and the military. Just to take one example, Senator Tuberville putting a hold on hundreds of military promotions and assignments over something that he objected to that the Biden administration had done. As policy, the military can't fix that. And so you are punishing the military for complying with legal orders. And that is a dangerous trend. A second thing that I think is that I agree with Kerry that the Trump administration is trying to associate our military with very sharp edged cultural and policy choices like deportations, like policing in American cities. But I think I disagree with Kerry that it's so sweepingly normative because there's actually statutory restrictions on the President and the Secretary giving political speeches in front of military audiences. There are actually statutory restrictions on a lot of things that the administration is doing. Just to take I think the most pressing example, there are two pieces of legislation that govern the domestic deployment of the American military, and they are both limiting pieces of legislation. The first is the 1807 Insurrection act, which says that absent an invasion or insurrection, the President cannot deploy the American military domestically, cannot use it domestically. The President has not invoked the Insurrection act and yet he has deployed the military to American cities. The second piece of restricting legislation which binds the President's hands even more tightly is the 1878 Posse Comitatus Act. And it says there are only three circumstances in which the President can use American military forces for domestic law enforcement. One is if he invokes the Insurrection Act. The second is if Congress writes a law telling him he can. And the third is if a governor requests it. Those are the only three circumstances, and none of those have been met. I think the crisis actually isn't a civil military crisis. It's a civil civil crisis where Congress is failing to use the Article 1 authorities that the Constitution expects to balance aggressive presidential policy actions like the ones President Trump is taking. I think if we characterize it as civil military relations, it puts a burden on our military to be the solution to a problem that is neither of their making nor. Nor is an acceptable role for our military in a free society. In our free society.

[Lauren Voss]

Thanks, Corey. I think that's a really critical point as we're talking through where we are now and what the problems are. Much, if not all of the solutions don't fall on the military. These aren't things we would want the military to address. These are things we would want civilian leadership and the executive branch in Congress to address. Corey, if I can follow up on that really quickly, you talked about the role of Congress. I mean, we've had one hearing on domestic military deployments, a number of closed door briefings on the boat strikes, but you seem to put this at the feet of Congress. Can you just say a little bit on what you would in a healthy society you would expect Congress to be doing at this point?

[Corey Shockey]

Yes, I would expect Congress to threaten the President that without a congressional authorization for the use of military force, he is restricted against striking boats in the Caribbean on whatever basis. I mean, reasonable people can disagree about the extent of presidential authority to take action when the country's in danger, but constitutionally, the President's supposed to have congressional support and, and that Congress doesn't want to take responsibility. I mean, didn't the House vote down an AUMF just in the last day or two? It was a close call, 2011 to 2013, but Congress still denied it. So I think historically, the time that feels most resonant for me is the constitutional crisis of 1866 and 1867. In that case, you had a very aggressive President and a very aggressive Congress disputing each other's authorities and trying to pull the military into the middle of it. What I think we have now is a very aggressive president taking advantage of the fact that his fellow Republicans in Congress are unwilling to exercise their Article 1 authorities. And so again, both the Congress and the President, but also both Parties in Congress are attempting to pull the military in as validators of their positions. And I just think that that's not a useful thing to want our military to be adjudicating the constitutionality of these issues. They're not educated for it, and it will change how we perform as a democracy if we push the military into that role.

[Lauren Voss]

Yeah, I think that's a really critical point. We don't want them to have that role. Even if they were somebody that had the expertise, you don't want them to be the validator of these things. That's not their role in our country.

[Corey Shockey]

The only historical example I can find in which the military is thrust into that role, which is during the 1867 constitutional crisis where the Congress had impeached the President and was threatening to have him arrested, the President was threatening to disband Congress. Congress passed a law saying the President couldn't fire the Secretary of War or General Grant, who was the senior military officer. The President fired the Secretary of War anyway and tried to appoint Grant while on active duty to both roles. Congress threatened General Grant with five years in prison and a $10,000 fine. The president offered to do the time and pay the fine if General Grant would uphold his constitutional authority. And Grant, I think, awkwardly but meaningfully judged that in peacetime, Congress has the superior claim on the military subordination than the President does. But we really shouldn't want our military to be the people making those judgments.

[Carrie Lee]

I can't agree enough with Corey on that. Right. Like as much as I think there's a civil military crisis afoot, I think she's absolutely right in the diagnosis that the greater problem is the civil, civil crisis the country is in, where you have an executive branch that feels highly empowered to do any number of things, not just related to military affairs. Right. But any number of actions. You think about disbanding usaid, you think about the cuts to the Department of Education, you think about the way that they came in and started sort of wholesaling portions of the government, the attacks on courts. There's all kinds of different things that you have a very empowered executive branch attempting to do with effectively no resistance from Congress. And so you have a real mismatch between Article 2 authorities in the executive branch and the Article 1 authorities in Congress. And we will see where Article 3 ends up, although I don't hold a ton of optimism for that. So there's a huge kind of civilian constitutional crisis going on right now, but underlying that, especially as we're dealing with national security, Issues. I would still say it's very important to think about the civil military because you are going to have military leaders who are placed into this position and they're going to have to do something about it. So we might wish that it weren't true and we might agree, like I can wholeheartedly agree that I don't want, Right. General Kane or General George or anyone who is in the Pentagon right now in positions of high leadership to have to make tough calls about whether they obey orders from Congress or a district judge or the Supreme Court versus the President of the United States versus, you know, to what degree do you take any action at all if Congress just lays down? But I worry that that day is coming. And so thinking through why it's approaching and how does one think about these competing obligations, I think is potentially a necessary, if regrettable thought exercise.

[Lauren Voss]

Yeah. Okay, so let's talk about that day. So if a day comes in which a military member, potentially a senior leader, potentially lower down, is unclear on the legality of an order that they're given, what do they do? What should they do? Corey, do you want to take that first?

[Corey Shockey]

Sure. Well, every high ranking operational commander has a Judge Advocate General at their elbow to give them legal advice, but that advice is not binding. Right. So it does not remove responsibility from that military commander from making a choice, nor does it supersede, nor does the legal advice of the Judge Advocate General supersede the Justice Department's Office of Legal Counsel or the Secretary of Defense's legal counsel. So I agree with Kerry that, you know, if the civilian leadership is coloring outside the legal boundaries, that puts the military in a very difficult position. It's also true that refusing to obey an order is a court martialing offense. You will be relieved and court martialed. And the burden of proof is on the military officer to demonstrate that the law was violated. Very few military officers are capable of meeting that standard in a court martial. So what you are asking them to do, just to be clear, I'm not saying they shouldn't do it. You are asking them to say, I am better situated than the lawyers in the Secretary of Defense's office and the Justice Department to determine this, and I am going to destroy my career in order to do it. I think that's what Kerry's talking about, what we are asking, potentially asking them to do. Of course the right answer is for the civilians to color inside the legal lines and for the military, it's a very difficult choice. But they are also, you know, they aren't 10 years old. They are senior policymakers in enormously consequential positions who have had years and in some cases more than a decade of training about what to do in those circumstances, which is if you believe an order is unlawful or you cannot in good conscience carry it out, you have to accept the consequences of being relieved and court martialed for it.

[Lauren Voss]

Carrie, do you have thoughts on that as well?

[Carrie Lee]

Yeah, I think there's, there's the kind of right by the book answer about legality of orders, right? Which is you ask your jag, the JAG is going to give you counsel as commander. You own that decision, right. And so, again, to Corey's point, when the civilians aren't coloring inside the lines and when they're not respecting their obligations and their ethics to do extreme due diligence, right before giving orders that involve the lethal use of force and putting military officers in a situation where they have to take lives, which is an enormously consequential operation. And so when the civilians are not doing their due diligence and they are abusing their ability to produce legal memos that effectively, you know, may make anything legal, then that's a, that's a terrible position to be in. If you are one, the one who is, is commanding the forces and having to, to give that order to execute. And all the jags in the world aren't going to save you from that particular scenario. And so there are, there are other things, though, that you can do, right? Write everything down, document everything you know, acknowledge the advice from the JAG officer and make sure that there is a paper trail so that when people do go looking, because people will eventually go look, that there is a written and documented record of who is responsible for what order and what they said and when and what their intent was and how you understood their intent. I think this is one of the things that could have done Admiral Bradley a lot of good with the recent issue that we got into over the operations in the Caribbean and the so called no quarters order that Hegseth was reported to have given, so short of disobeying, which is an extreme option, and one thing that I wish more Americans understood is that the bias in the system is absolutely towards compliance towards orders, period, lawful or sort of of questionable legality. And that's the way you want the system, right? You do not want the lowly lieutenant or captain going point counterpoint when they're sitting in the missile silo about whether the President has the constitutional authority to launch nuclear weapons unilaterally, right? Like you don't want that conversation happening because that system has to work. And so the bias is towards compliance. And that is why the costs of non compliance, or, you know, colloquially disobeying orders is so steep for leaders. But there are things short of disobedience, right, that that one can do in order to make sure that you are doing your own due diligence and that you can look at yourself in the mirror in the morning and know that made the most responsible command decision that you could.

[Corey Shockey]

We often assume that legal advice is yes or no, and it doesn't very often work that way. Right? A Judge Advocate General can say, I have some concerns about this. Is it possible to alleviate this or that? So they're negotiations in some sense when there's time to negotiate. But they're also very often not a clear yes or no on legality. It's a contingent judgment very often. And so we assume it's easier for military officers in the heat of operations to make sophisticated judgments about legality or constitutionality. And I think that, too, places an undue burden on the military itself.

[Ben Wittes]

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[Lauren Voss]

Yeah, I think that's an important point, that it is frequently not as clear cut as the examples that are in the news or that people talk about. It's a very complicated system. It depends on a number of factors in any decision that's happening. And I think it's frequently not as straightforward. You know, as Kerry said, there's an assumption that the orders are legal and there's reasons for that. And in our current system, there seems to be a number of legal opinions to rely on to say that what you're doing is legal. So it puts people in a situation of, you know, they really have to overcome a lot if they were to challenge that. But I want to, I want to talk about maybe even a more complex situation. So orders that aren't unlawful but are, you know, either for pretextual reasons or. Kerry, I think you describe them as go against military ethics. So I'm kind of curious if you could maybe give us an example or two about those types of orders and what happens in that scenario.

[Carrie Lee]

So this is by far for me the most, dare I say, kind of intellectually interesting question, but also I think the most likely question that a lot of senior leaders are about to encounter, which is that what do you do when you're issued orders that are professionally unethical and yet deemed to be lawful? There is a common saying, and in fact it is, it is often repeated at West Point and other service academies, that there is an obligation to disobey orders that are amoral, unethical or unlawful. Now, that's patently false. There is only an obligation to disobey Orders that are patently unlawful. But it raises this question about the moral and the ethical and ethics. I think, also because so much of the profession relies on having this kind of independent code of ethics, and the ability to function as a profession means that you have to be able to self police according to a higher code of ethics than simply what the law lays out. So you think about any number of kind of classic professions like medicine or law or clergy, and they all hold themselves to a much higher code than what the simple law would prescribe. And they all have protocols for punishing their own members and self policing their own members so that they adhere to that code. So what happens when you're given lawful orders that you are obligated to obey, but that you see to be unethical? And here I think we end up in the gray realm of, well, what are my other options, Right? You can either comply, you can disobey. But those aren't the only two options. There are other actions that one can take, like resigning one's command, like resigning one's commission. In the senior leader context, that oftentimes looks like retiring early, right? And then the way in which you do that is also open to you. You can give the excuse that says, you know, it was just my time, you don't have to say anything at all. Or you can be a whistleblower and say, you know, I fundamentally, deeply disagree with this decision. I think it is compromising to the profession's ethics and their ability to maintain trust with the American public, for example, and therefore I am resigning. And that's probably the strongest signal, right, that a, that a senior leader could send, short of outright disobedience. It's also normatively frowned upon historically and exceedingly rare in historical memory. So there are, there are other options. They are rarely used and they each come with their own costs, but that do present sort of additional choices outside of outright disobedience, for which there could be courts martial and other types of things.

[Lauren Voss]

Can you give us an example, just so we kind of understand, like what, what might be a situation that a leader would find themselves in, like a hypothetical.

[Carrie Lee]

So I think the one that, that's on my most on my mind right now is that, say, the President does declare the Insurrection act, right? And now you have, in response to protests because of, you know, maybe you have a repeat of George Floyd, or maybe there's some other issue or election contestation or, you know, name your sort of domestic issue. ICE raids that kill a small child and bring communities out to finally Protest and, you know, rise up against the, the immigration actions that are happening domestically right now. You know, there's any number of things that I can imagine that might spark a big protest movement and the President declares the Insurrection act so he can get around Posse Comitatus. There's a reasonable case to be made that there's an insurrection. Maybe there's some rioting going on in some of the larger cities and the military comes out and whether it's the National Guard or the active duty, and they're given the order to fire upon protesters in order to disperse them. This is something that could deeply damage the military's relationship with the American public, particularly if the law and order piece is seen as partisan and political rather than truly a law and order issue. Which I think given the National Guard deployments and some of the legal justifications and the very weak evidence that they've been able to provide of law and order problems around the ICE facilities and in the cities that they've deployed the Guard to, is not an unreasonable thing to think that it would be public perception. And so I'm imagining a one star or a two star who is sort of in command of this division or even a colonel or a lieutenant colonel in charge of a battalion who's given this order thinking that, wow, this is going to profoundly damage the legitimacy of the American military if it is seen as firing upon and forcibly repressing the civil liberties of Americans, even though it may technically be a lawful order, because the Insurrection act has been declared, because the President has produced a legal memo that says that the use of force is necessary in order to restore law and order, etc. Etc. And so that is a, that is a disturbing dilemma that a, even a mid level leader may find themselves in where they have to have to make judgments.

[Corey Shockey]

I don't actually think that's a hard one. It is almost unimaginable to me that an American officer would obey an order to fire on their fellow Americans. I think we have actually some recent evidence before when the Marines obeyed what they believed was a lawful deployment order to Los Angeles, they spent two weeks training those Marines to make sure that they weren't going to make any mistakes of that nature. And in Carrie's category of things you can do when given a lawful but awful order, one is obey it in a way consistent with your conscience, right? Which is train your troops about what they will and won't do. Make sure that you don't put them in a situation. So for me, the harder cases are it's Clearly a violation of the values of the United States military to fire the senior female commanders. The American military thrives on integrating women into the force. And yet, I mean, I think that's a harder case because lots of folks thought it was wrong. Lots of folks also thought that that was consistent with the Secretary's authorities and you just have to bite your tongue on it. And in the 1990s there was an enormous amount of friction between the military and the civilian leadership in the Clinton administration over issues like choosing not to serve in Vietnam or adultery, things where there were deep cultural differences and we worried a lot about civil military relations then. I think those kinds of issues are going to be much more what officers have to deal with because I can't imagine an American military officer choosing to use lethal force against fellow Americans.

[Lauren Voss]

Yeah, thanks for that, Corey. I mean I think that's an interesting question. I think I agree with you if the order were just to fire upon protesters. But I think that there is efforts to potentially change the rules for the use of force, potentially redefine, make broader how we talk about self defense so that you could at some point see some troubling circumstances there. I don't think we're there now. You know, as a veteran, I, I, I hope you're right. And I think that you're right that when, if it was an order that broad that troops would know that is not something that you do.

[Carrie Lee]

I'll admit I tend to be very glass half empty these days and so I tend to play the pessimist on these, on, on in these types of scenarios.

[Lauren Voss]

I think that's good. And I also think that we shouldn't talk about the military as a monolith. Right. Like we have active duty forces, we have National Guards from various states, we have different kinds of roles that people play and the training varies, the situations that they'll be put in varies, the leadership that they have varies. So I think it's okay to be pessimistic.

[Carrie Lee]

And I might argue, right that with the strikes in the Caribbean, the President made decisions or the Secretary of Defense made decisions about who was going to be executing those operations. Right. The, the relative balance between Southcom making those judgments, Southern Command versus Special Operations Command, those are two very different cultures, different capabilities as well. But you know, as you're making increasingly controversial orders, I would not be surprised, right. If you had senior civilian leaders really trying to pick and choose who in that chain of command is going to be responsible for executing those types of orders and what units they're selecting and what their own cultures are and histories are. So I hope to God you're right, Corey, and that I sort of live in this terrifying world of, like, catastrophic and, you know, and maybe a little bit very pessimistic.

[Corey Shockey]

One of the things I have been watching closely is whether the officers appointed into senior positions that Secretary Hegseth and the president have fired officers from, whether they are appointing more audibly partisan officers. And so far they are not. And so that I agree with that. That, to me, feels like one of the really important canaries in the coal mine and the reason that I'm not as pessimistic as Carrie. Although I share your point, Lauren, that we need Carrie's pessimism. It's how it helps us navigate.

[Lauren Voss]

We've got a place for you, Carrie, always.

[Carrie Lee]

We all have a role to play, you know.

[Lauren Voss]

Yeah, well, so I. I want to focus on this pessimism a little bit because, Corey, in your new book, the State and the Soldier, you mentioned problems that could arise from. You called it an unprincipled principle. So I'm wondering if you could talk to us a little bit about that and what you see as the problems that could come up.

[Corey Shockey]

Oh, I would love to. The term comes from the military ethicist Pauline Shanks Coren. And it reinforces a point Kerry made earlier, which is that the American civil military system is predicated on the basis that orders are legal, that civilian leaders will behave in a principled way. And what we are seeing now is that that is not holding in the Trump administration. The principals, the senior civilians, are behaving in an unprincipled way, and it destabilizes the system. And that's what's putting so much pressure on the military, because they are having to navigate questions that the civilian leadership ought not to push into military channels. That's the problem of the unprincipled principle. It's, you know, making them, the military, have to figure out how to deploy to American cities and when the Insurrection act hasn't been invoked, when governors are objecting to the deployments and Congress is inactive. So the problem of the unprincipled principle seems to me one of the biggest challenges in civil military relations right now. But again, the fixed lies in the civilian realm. It lies in Congress exercising oversight over choices. It rests in Congress tying the purse strings of policies they don't agree with. I thought it was an extraordinarily positive sign that the Senate Armed Services Committee, on a bipartisan basis, chose to dock Secretary Hegseth's travel budget until he produced evidence on the strikes in the Caribbean. Congress has not been exercising its oversight. And that they begin to is a big part of how we fix this dilemma.

[Lauren Voss]

Kerry, do you want to add anything on this point?

[Carrie Lee]

Just that the current era really brings into sharp relief how much of something civil military relations in the United States is norm based. Corey pointed to a couple of excellent examples of no kidding, legislated behavior and expectations. But those are the exceptions rather than the, pardon my pun, the norm. And instead because so much of modern civil military relations emerges in our kind of modern ideas about civil military relations emerge with the creation of the standing army, you know, in the aftermath of the Korean War. This also coincides with decline from congressional activity and congressional oversight because you have the growth of the national security state. And Arthur Schlesinger then calls it all the way back in the 1970s. He identifies the imperial presidency. And so you have the kind of steady decline of congressional action that reaches all the way back into the 1950s that comes coincides with the creation of a standing army for the first time in American history. And so there's very little legislation that exists in order to try and scope the uses of the military. Again the domestic deployment issue is the one exception and I think is in my mind at least the strongest signal that this is something Congress cares about. Although these pieces of legislation, it should also be noted, were written in the 19th century. So this idea that you have a civilian ethic and you have norms of civilian behavior that Alice Hunt, friend in her excellent book, really touches upon in some of her introduction and again in her conclusion, her book Mightier than the Sword. It's a really under explored idea, but one that we are now really coming to realize that is absolutely necessary in order to make this system function. So this is going to be a growth opportunity for those of us in the civil military space. Really identifying what does the civilian ethic look like? What pieces can you legislate going forward in order to try and give some teeth to this idea and ensure that the unprincipled principle cannot return or at least faces more obvious consequences if it does happen again. But it's really revealed a blind spot in both our study of the field and in our practitioners understanding of the relationship.

[Lauren Voss]

So so far both of you have flagged a number of concerns with things that are ongoing now. But I'm wondering as we look towards the future, what should we be watching going forward? Are there indications that we should be looking at like how should we think about the next couple months or the next couple of years.

[Carrie Lee]

So I'll take this one first and say, I think Corey's point about who gets hired into the positions where folks are being fired from is a canary in the coal mine. How openly partisan are these military officers? You are going to get wholesale turnout. Both or turnover? I should say both, because they'll be fired or they will resign or otherwise shorten their tours of duty. But over the course of a presidency, over four years, there's just a lot of turnover among senior leadership. And so what I'm paying very close attention to is who replaces those people? What kind of backgrounds are they coming from? Do they have overtly partisan backgrounds or different cultural backgrounds? And by culture, I mean sort of like military cultural backgrounds. General Kaine was an anomaly to be a chairman because he's coming from the National Guard rather than the active duty. And so those types of big cultural differences between National Guard and active duty forces can have profound effects on the type of military advice that the President might be getting and the comfort level with politics in general. So I'm going to be watching appointments for sure, going forward and the sort of politicization of the appointment process. This is also a place where Congress has a real opportunity to assert itself. And so as we're looking towards a Congress that may have some life in it after all, you know, that's an area where, where there's hope and where there's. There's opportunity for, for pushback on the civilian side. I am also going to be looking at the President's willingness to comply with orders from district judges, from appeals circuits and from the Supreme Court over the domestic use of the military and these court cases that are ongoing over the use of 12406 as US code 12406 as a mobilization authority and a deployment authority, and all of you know, all that they have bound into this one statute in what appears to be an attempt to get around using the Insurrection act, the degree to which they. They comply with those quarters and respect them versus the way they appear to be doing at the moment versus how far down the slippery slope do we get about. We don't really have to listen to this person or that person, Democrat, or their political enemies, and they're out to get us. And you know, the sort of discrediting of the courts as final arbiters between Article 1 and Article 2 disputes. That's what I'm going to be paying attention to because I think if we end up in trouble there, then we're really off to the races around not just unethical orders, but, you know, orders that might, might really be kind of patently unlawful.

[Lauren Voss]

Yeah. Corey, can I turn to you? What do you think we should be watching going forward?

[Corey Shockey]

I agree with Kerry that senior appointments and compliance with the courts are at the high level. The two most important. I'm also going to be looking at recruitment and retention because it's not just senior officers who say, what are we doing here? This doesn't feel like the military I thought I was joining. And I mean, maybe that trends positive, maybe it turns negative, but I think it's going to be instructive. Also whether women and minorities remain in the force by their own volition, if they feel like senior responsibilities are being denied to them or the system is no longer treating them fairly. I think that's a really important point for the health of the American military. And in some ways it casts an even longer shadow than senior appointments will for the force. I'll also be looking at whether Congress insists that it is the superior source of decision making on military policy. The President's national security strategy has major forced deployment and budgetary consequences, but Congress would have to legislate either of those to be true for it to be true. And so whether Congress is complicit in the President making changes that Congress has not authorized. The most recent example is the President's announcement that service men and women were going to receive $1,776 bonus. It turns out they're trying to move money from housing allowance. I mean, Congress is the branch of government which has authority to do those things and whether they permit the President to do them in violation of their own authorities. I think it's going to be a really important point since I think the military can't save us from this problem and we shouldn't want them to. It's a civilian on civilian problem and the solutions lie in the civilian realm as well to take the pressure off of the military that senior politicians are putting on it.

[Lauren Voss]

Yeah, I think that's an important takeaway from today's conversation that the solution here is in the civilian realm. You've both given us now five things that we should be tracking going forward. So we're going to leave it there for today. Thank you Corey and Carrie for joining me.

[Corey Shockey]

Thank you, my friends.

[Carrie Lee]

Thanks, Lauren, for having me.

[Lauren Voss]

The Lawfare podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website. LawFairMedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts, including Rational Security, Allies, the Aftermath and Escalation. Our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written [e-mail] the podcast is edited by Jen Pacha and our audio engineer. This episode was Goat Rodeo. Our theme song is from Alibi Music. As always, thank you for listening.

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