Recent news stories suggesting that Chairman of the Joint Chiefs of Staff Gen. Mark Milley might be reticent to testify before Congress sent shivers down the spines of many civil-military affairs analysts. The U.S. military by design has two masters – the executive branch and Congress. It must heed both.
Following several days of controversy about the military’s role in the response to protests following the death of George Floyd, the Democratic chair of the House Armed Services Committee – Rep. Adam SmithDavid (Adam) Adam SmithHouse passes sweeping defense policy bill Stumbling plutonium pit project reveals DOE's uphill climb of nuclear modernization Congress should control its appetite for legacy programs when increasing defense budget MORE (Wash.) – has requested both Milley and Secretary of Defense Mark EsperMark EsperJan. 6 panel subpoenas four ex-Trump aides Bannon, Meadows Milley and China — what the Senate really needs to know Biden, Trump battle over who's to blame for Afghanistan MORE testify before his committee. Chief Pentagon spokesman Jonathan Hoffman has denied that Esper and Milley have refused to testify, but their intention to do so is unclear.
As Smith put it, the committee requested the leaders appear before Congress to clarify controversies over the potential use of regular active-duty forces to quell protests this past week. He emphasized, "the fate of our democracy depends on how we navigate this time of crisis."
Under the Constitution, civilian control is not presidential control. Congress has tools to shape military policy, but it cannot do so effectively without access to information from the military.
The U.S. Constitution is set up to ensure shared authority. Although the president is Commander in Chief of the armed forces – a role that in practice has given presidents broad authority to deploy troops both overseas and at home, Congress retains the ability to pass laws, provide or withhold funding, and regulate the U.S. military. As Article I, Section 8 of the Constitution puts it, Congress has the power to “raise and support Armies.” It also has the power to declare war.
In practice, these tasks are undertaken by congressional committees of jurisdiction – the House and Senate Armed Services Committees handle regulating and the Appropriations Committees handle funding. Congressional oversight ensures that U.S. taxpayers know how their money is being spent and that the military is operating in their interests.
While the Constitution does not explicitly state that military leaders must testify before Congress, by tradition that has been the case. If Gen. Milley refuses to testify, it could be seen as an act of military insubordination to legitimate civilian authority, potentially undermining the ability of members of Congress to carry out their Constitutional responsibilities to oversee the executive branch, in general, and the military, in particular.
President TrumpDonald TrumpTexas announces election audit in four counties after Trump demand Schumer sets Monday showdown on debt ceiling-government funding bill Pennsylvania AG sues to block GOP subpoenas in election probe MORE, or Secretary Esper, may oppose Gen. Milley’s decision to testify. Should either try and prevent military leaders from testifying, as Trump has with other officials in his administration, it could lead to an impossible quandary. If Gen. Milley were to do his Constitutional duty and testify, he would be defying an order from the president. To our knowledge, no president in contemporary times has ever ordered the military not to testify before Congress. Order or not, even the possibility that Esper or Milley would decline to avoid drawing Trump’s ire would be an alarming development.
Some might worry counter that having Gen. Milley testify would further the politicization of the military. True, politicians might ask Milley critical questions about President Trump’s actions. But the chairman is on safe grounds if he answers truthfully and candidly about matters for which he has direct knowledge. In fact, he might welcome the opportunity to set the record straight. It is a chance to tell the American people that the regular military was not deployed to the streets and to reassure them that the military would not follow illegal orders or treat citizens peacefully protesting as enemies.
As one of us argued last week, moreover, attempts by political leaders to co-opt the military for political gain may matter far less than the military’s own response to those attempts. How Milley reacts will have a greater effect on whether Americans view the military as politicized than partisan commentary by politicians in hearings. More than anything he might say in testimony, his refusal to comply with a congressional request would make the military look like President Trump’s partisan ally.
If Milley declines, the real loser would be the American people. Keeping the military out of domestic politics is essential to the country’s democratic traditions. American citizens also have a right to know what occurred this past week in regard to the U.S. military.
To be sure, it’s sometimes tough to have two masters. But it is incumbent on Chairman Milley and all military leaders to respect both. This means testifying in private or public if called upon.
After all, Congress controls the military, too.
Risa Brooks, Ph.D., is Alice Chalmers Associate Professor of Political Science at Marquette University and a non-resident senior associate in the International Security Program at CSIS. Her most recent scholarly article on civil-military relations, “Paradoxes of Professionalism: Rethinking Civil-Military Relations in the United States,” appears in the spring 2020 issue of the journal International Security. Jim Golby, Ph.D., will join the Clements Center for National Security as a senior fellow in July and he is currently the co-host of the Center for Strategic and International Studies’ ‘Thank You for Your Service’ podcast. These views are the authors’ and do not represent the Department of Defense or the United States Army.