Comment: Milley’s calls reflect crisis; just not military one

In seeking to reassure China during political turmoil here, Gen. Milley acted to protect democracy.

By Rosa Brooks / Special To The Washington Post

In the waning days of the Trump administration, top U.S. military leaders reportedly worried that an unstable and erratic president might launch a nuclear strike or start an unprovoked war with China.

Gen. Mark Milley, chairman of the Joint Chiefs of Staff, told senior military leaders that he needed to be in the loop if President Trump ordered a nuclear strike; and went so far as to call his Chinese counterpart, Gen. Li Zuocheng, to assure him that the United States was not on the verge of collapse and would not launch a surprise attack on China, according to a new book by The Washington Post’s Bob Woodward and Robert Costa. “He’s crazy, and what he did yesterday is further evidence of his craziness,” House Speaker Nancy Pelosi, D-Calif., told Milley about Trump two days after the Jan. 6 insurrection at the Capitol. “I agree with you on everything,” Milley replied.

Commentators and politicians on both right and left have been quick to view Milley’s reported actions as evidence of a crisis in civil-military relations; some Republicans even see it as treason in the military’s highest ranks. But notwithstanding the overheated reaction, there’s little reason to conclude from this episode that Milley or other senior military officers are no longer committed to democratic principles of civilian control of the armed forces. Woodward and Costa’s new reporting does document a crisis; but it’s primarily a crisis of politics, not of civil-military relations. And as with so much else about the Trump era, that means the power and responsibility to fix it lie squarely with voters and elected officials, not with uniformed officers.

It’s dismaying to learn that the nation’s top general believed that an unstable president might initiate a devastating global conflict on a whim, but there’s no compelling evidence that Milley did anything wrong in laying down a warning about Trump’s possible future conduct. For one thing, while the chairman of the Joint Chiefs of Staff is the president’s senior military adviser and also has a responsibility to make candid recommendations to Congress, he is not formally part of the chain of command. That makes many of Milley’s statements about what other officers should do more or less an exhortation in nature. But more broadly, the legal framework governing military obedience to orders is far murkier than many Americans might assume.

Yes, military officers have a general duty to obey their civilian commander in chief, as well as an obligation to refrain from “contemptuous speech” against the president and behavior likely to bring the military into “disrepute,” among other things. But officers also swear an oath to uphold the Constitution and have a duty to disobey orders to engage in unlawful activity. Depending on the specific circumstances, a presidential nuclear strike order — or an order to launch a conventional attack on another state — might be lawful or unlawful. Trump being Trump, Milley’s concerns about the lawfulness of potential presidential orders hardly seem unfounded.

A spokesman for Milley, Col. Dave Butler, said Wednesday that the general “continues to act and advise within his authority in the lawful tradition of civilian control of the military and his oath to the Constitution.” While some Republicans have suggested that Milley’s statements to his Chinese counterpart constituted a treasonous offer to ​reveal classified military plans to a foreign adversary, Butler has pushed back, noting that Milley’s calls to foreign leaders were coordinated with other national security agencies and were part of his “duties and responsibilities conveying reassurance in order to maintain strategic stability.” In English: They were smart military diplomacy, intended to discourage a jittery China from launching a preemptive strike during a U.S. political crisis. Milley was just doing his job.

The devil is always in the details when it comes to questions of law and ethics. Military leaders may think a presidential command is unwise, but no one would claim they have the legal right to disobey an order solely because of partisan or policy disagreements. At the same time, it’s not difficult to construct hypotheticals in which even the most stalwart defenders of civilian control of the military would urge disobedience.

Explicit presidential orders to commit war crimes would be one easy case. For another, imagine a president who — hypothetically — experienced a sudden and severe psychotic episode. Imagine that this president summoned his military commanders one morning, told them that singing leprechauns had informed him that Australia had been taken over by demons, and then ordered nuclear strikes targeting major Australian cities. It’s a silly example, but it’s hard to imagine anyone insisting that such an order should be blindly obeyed: The use of weapons of mass destruction against a civilian population based on nothing more than presidential delusion would surely violate the laws of war.

Most real-life situations fall into grayer areas, making it difficult to state categorically whether a hypothetical order to attack China — let alone use nuclear force — given by Trump would be lawful or unlawful. That makes it equally hard to say whether military disobedience to such an order would be lawful or unlawful.

In normal circumstances, the many gray areas rarely lead to open disobedience, as senior military officials generally assume that all presidential orders are presumptively lawful. If anything, military leaders tend to err on the side of excessive deference to presidential mandates: In the early post-9/11 years, for instance, when the George W. Bush administration refused to provide Geneva Conventions protections to “war on terror” detainees and developed an “enhanced interrogation” program most military lawyers saw as illegal torture, senior military officials raised powerful internal objections; but none of them disobeyed orders or even resigned in protest.

Under Trump, military leaders, including Milley, began to show significant public signs of discontent; but only after the president repeatedly made clear his blatant contempt for the rule of law and democratic norms. When Trump suggested he might target Iranian cultural sites and strike Iran “perhaps in a disproportionate manner,” for instance, military leaders and Trump’s own defense secretary stated publicly that such actions would be illegal and that the U.S. military would “follow the laws of armed conflict.” In June 2020, after peaceful protesters in Lafayette Square were tear-gassed by federal authorities and Trump pulled Milley into a surprise photo op, the general apologized for his presence, noting that it had inappropriately created “a perception of the military involved in domestic politics.” In the run-up to the November election, Trump refused to commit to a peaceful transfer of power if he lost the election, Milley made a public statement reminding the nation that the military had “no role” to play in domestic elections and would always “obey the lawful orders of our civilian leadership.” The pushback was polite but firm; and entirely appropriate.

Then, on Jan. 6, a violent mob of Trump supporters, inspired by Trump’s repeated false claims that the election had been stolen, and egged on by the president himself, stormed the U.S. Capitol in an effort to prevent Congress from certifying the results of the presidential election. Trump responded by praising the mob (“We love you”). This was the context within which Milley reportedly grew concerned that Trump might seek to launch a nuclear strike or start a war: The nation faced an existential political crisis, with a commander in chief who had repeatedly made manifest his willingness to trample on the Constitution and the norms that support it.

Against this backdrop, Milley’s efforts to ensure stability until the new and legitimately elected president could take office — and avoid an illegal or unethical military action — hardly constitute a refusal to accept civilian control. On the contrary: In an impossible and unprecedented situation, Milley did his best to remain scrupulously out of the realm of politics, and he repeatedly reiterated his loyalty to the nation, its law and its Constitution; all duties higher than that of mindless obedience to a president who had clearly indicated a willingness to ignore the law.

In a democratic society, the notion of civilian control of the military is predicated on the assumption that civilian leadership will be exercised in a lawful manner. If Milley and other military leaders sought to prevent potentially unlawful presidential actions, they weren’t breaking faith with democracy: Our democracy had already been badly broken by the highest civilian official in the land. And that’s a far different — and far bleaker — problem than a general walking the difficult line between obedience and conscience. Trump demonstrated how easily American norms and institutions could be subverted by a lawless president; and unlike Milley, millions of Americans, and scores of GOP elected officials, never even bothered to speak out.

Rosa Brooks is a law professor at Georgetown and former senior Defense Department official under President Obama. Her most recent book is “Tangled Up in Blue: Policing the American City.”

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