Congress and Civil-Military Relations

Colton C. Campbell, David P. Auerswald, Colton C. Campbell, David P. Auerswald

• Publisher: Georgetown University Press
• Year: 2015
• Print ISBN:
  9781626161801
  9781626161856
• eBook ISBN:
  9781626161818
• Topic: Politics & International Relations
• Subtopic: National Security
• Index: Politics & International Relations

While the president is the commander in chief, the US Congress plays a critical and underappreciated role in civil-military relations—the relationship between the armed forces and the civilian leadership that commands it. This unique book edited by Colton C. Campbell and David P. Auerswald will help readers better understand the role of Congress in military affairs and national and international security policy. Contributors include the most experienced scholars in the field as well as practitioners and innovative new voices, all delving into the ways Congress attempts to direct the military.

This book explores four tools in particular that play a key role in congressional action: the selection of military officers, delegation of authority to the military, oversight of the military branches, and the establishment of incentives—both positive and negative—to encourage appropriate military behavior. The contributors explore the obstacles and pressures faced by legislators including the necessity of balancing national concerns and local interests, partisan and intraparty differences, budgetary constraints, the military's traditional resistance to change, and an ongoing lack of foreign policy consensus at the national level. Yet, despite the considerable barriers, Congress influences policy on everything from closing bases to drone warfare to acquisitions.

A groundbreaking study, Congress and Civil-Military Relations points the way forward in analyzing an overlooked yet fundamental government relationship.

1
Introduction

Congress and Civil-Military Relations

DAVID P. AUERSWALD AND COLTON C. CAMPBELL

The Constitution make[s] Congress the link between the American people and the military whose mission it is to protect them. And, thus, it helps ensure that there is public support for the military.

—Rep. Ike Skelton (D-MO), Naval Postgraduate School, April 19, 1999

I have always believed that, as painful and frustrating as it can be, that congressional oversight, whether it’s over intelligence or over the military, is absolutely essential to keeping us all on the right track.

—Secretary of Defense Robert M. Gates, Army War College, April 16, 2009

The views expressed in this chapter are those of the authors and not necessarily those of the National Defense University, the Department of Defense, or any other entity of the US government.

Congress plays a significant and underappreciated role in American civil-military relations. Over the past few years it has taken significant steps to change cultural and organizational behavior in the military. Congress has overturned the military ban of gays serving openly and has had a say in lifting the combat exclusion for military women. It has imposed significant budget cuts through the sequestration process, forcing the Department of Defense (DOD) to reexamine military strategy, personnel numbers, and weapon purchases. And most recently, lawmakers from both sides of the aisle have proposed legislation to take the decision for prosecuting sexual assault cases out of the hands of commanding officers—a move that military leaders say would hurt their ability to maintain order and discipline. We cannot understand civil-military relations in the United States without an appreciation of Congress. Indeed, doing so neglects an important element in civil-military relations because, as one student of the subject aptly reminds members of the military, “Congress is the ‘force planner’ of last resort.”¹

Stable civil-military relations in the United States have a long history, dating back to when George Washington symbolically surrendered his sword to the Continental Congress upon resignation of his commission. Yet the relationship between elected officials and the military establishment has gone through significant fluctuations over time and across issues.² Attempts by lawmakers to make significant change within the armed forces have historically been met with strong resistance from the individual services, which are, according to one student of civil-military relations, “conservative and evolutionary by nature and who resent outsiders presuming expertise in their profession.”³ This was especially conspicuous with passage of the Goldwater-Nichols Department of Defense Reorganization Act of 1986, broad-sweeping legislation designed to scale back the power, influence, and prerogatives of the separate services and rework the military’s command structure.⁴

The ebbs and flows in US civil-military relations depend in part on civilian authorities’ use of the four main tools available to provide direction to the military. These are the selection of military officers, determining how much authority is delegated to the military, oversight of the military, and establishing incentives (positive and negative) for appropriate military behavior.

Officer selection is a potentially powerful tool in the civil-military relations toolkit. From a civilian perspective, the goal is to select military leaders who share the same policy preferences as the civilian leader doing the selecting. Such military officers will be more likely to craft war plans or otherwise behave in ways that mirror civilian leaders’ priorities and be less likely to try to circumvent civilian authority, thus requiring less oversight than would otherwise be the case. One could select officers based on particular traits, such as an officer’s ethical code, preferences for specific military doctrines, or even willingness to follow civilian orders.

If Congress alone were doing the selecting, it might be inclined to choose officers who share congressional preferences (assuming that members could reach agreement on those preferences). The Constitution, however, grants the president the authority to select officers through the nomination process and the Senate the authority to confirm or reject those nominations. The most the Senate can do is weed out officers who have acted inappropriately or officers who seem resistant to implementing congressional initiatives or providing “honest” military advice to Congress (which is shorthand for advice that may conflict with presidential policy). Of course the Senate does not have the staff or the expertise to vet the thousands of military officers nominated each year, especially to the military’s junior ranks, but the Senate can and does require that the executive branch itself conduct that vetting and report its results to the Hill. Officers who are flagged for some reason—particularly in the senior ranks—face increased scrutiny by congressional staff, if not outright rejection. And the vetting process itself forces the executive branch to anticipate congressional objections and weed out potentially undesirable officers before they are nominated in the first place. The confirmation process, then, is a useful congressional tool, particularly when applied to senior military officers.

A second tool in the civil-military toolkit is to delegate authority to military officers. Congressional delegation to the military can take many forms. It can encompass authorities related to rules of engagement, specifying when hostilities can be initiated. An example would be the rules of engagement given to US pilots during air patrols in northern and southern Iraq during the 1990s. It can take the form of where and under what circumstances the military can act as a lead government agency and when it must play a supporting role. Think here of the 1878 Posse Comitatus Act, which prohibits the active-duty military from engaging in domestic law enforcement activities. Delegation can take the form of fine-tuning the military chain of command to meet particular circumstances. This is illustrated by the recent congressional debate over whether sexual assaults within military units should be investigated and punishments decided within the normal chain of command. Finally, delegation can specify the missions undertaken by the military. In Iraq and Afghanistan, for example, the US military under President George W. Bush’s administration was given combat missions as well as reconstruction and foreign assistance duties traditionally under the purview of civilian agencies.

To be sure, delegation of day-to-day authority often comes from the president in his role as commander in chief. That said, Congress can play a significant role determining which military units or officials have authority in specific circumstances. It gets its authority through Article I, Section 8 of the Constitution, which grants the legislative branch the authority to regulate the armed forces and provide for their arming and equipment. And Congress exercises that authority on a regular basis through regulations written into the defense authorization and appropriations bills. Congress, however, must reach a careful balance when delegating authority to the military. Delegating too little authority can paralyze the military during crises and war. Too much authority can lead to unpredictable or undesired behavior.

That balancing act raises a final point with regard to delegating authority, and that is that delegated authority and officer selection are related concepts. It is easier and even tempting to delegate significant authority to an officer who shares your perspective. Indeed, there are few reasons not to give such a trusted agent the needed authority to carry out your policies. Conversely, Congress might hesitate to delegate significant authority to an officer (or group of officers) who does not share its preferences or who in some other way may be perceived as untrustworthy or working against congressional wishes. It is important to consider officer selection and delegation together.

Officer selection and delegation are largely irrelevant to civil-military relations without effective congressional oversight, the third tool in the civil-military relations kit bag. After all, there is no way to know if the authority one has delegated to the officers selected for military service is serving the public good absent some way of monitoring what the military is doing. And oversight of the military is not necessarily easy, given the security surrounding military doctrine, capabilities, and operations and the decreasing level of military expertise possessed by most members of Congress since the 1970s.

Figure 1.1 reinforces that last point. It shows that since a peak in the late 1970s, fewer and fewer members of Congress have any military experience.⁵ In 1977, just a few years after the end of the draft and the creation of the all-volunteer professional force, 347 of the 435 members of the House of Representatives had served in the military, or roughly 80 percent. That number was down to eighty-nine members by 2013, representing just 20 percent of the chamber. An identical trend is evident in the hundred-seat Senate, with a peak of seventy-six senators in 1983 having had military service, falling to twenty senators in 2013. Members lacking military experience have to work that much harder to understand military service cultures, know the differences between weapon systems, understand the dislocations of repeated moves from installation to installation every two to three years, and comprehend the toll of combat on members of the military and their families. Despite these difficulties, Congress has come up with formal and informal ways to conduct oversight of the military and gather the information necessary to make relatively informed decisions regarding military policy.

Congress conducts formal oversight of the military through the annual budget cycle. So-called regular order oversight takes place in multiple stages associated with the president’s submission and congressional consideration of the defense budget. Before the defense budget is submitted, the secretary of defense normally meets with the chairs and ranking members of the two defense committees and the appropriations committees. Once the budget is submitted, the Armed Services Committees and their subcommittees will hold hearings on the various elements and programs contained in that budget request. In addition to formal hearings, committee staff will be briefed on specific programs by the relevant military services and combatant commands, and individual committee members will be briefed by senior flag officers. Members can submit formal questions for the record during hearings and requests for information during less structured briefings. Committee members and staff will ask the Office of the Secretary of Defense for its views on proposed legislative language in the annual defense authorization bill. And the relevant committees may even ask affected industry representatives for their views on the defense budget and specific defense acquisition programs. And all this varied and surprisingly thorough oversight occurs before the authorization bill is actually marked up by the Armed Services Committees or considered by each full congressional chamber.

Figure 1.1. Number of Veterans in Congress, 1953–2014

Source: Data derived from Norman J. Ornstein, Thomas E. Mann, Michael J. Malbin, and Andrew Rugg, Vital Statistics on Congress (Washington, DC: Brookings Institution, 2013), www.brookings.edu/research/reports/2013/07/vital-statistics-congress-mann-ornstein.

Congress may also conduct formal oversight through means not associated with the budget cycle. It regularly includes formal reporting requirements in defense-related legislation, which forces the administration to take a new policy position or explain an existing one. The Senate has increasingly linked reporting requirements to the passage of treaty ratification documents.⁶ Members of Congress can also ask any of its three support agencies—the Congressional Research Service (CRS), the Government Accountability Office (GAO), and the Congressional Budget Office (CBO)—to engage in oversight on behalf of individual members or committees. The CRS focuses on policy reviews. The GAO conducts audits of existing programs. The CBO examines the likely budgetary impact of proposed initiatives. Together these agencies and mandated executive reports provide Congress with an additional means of conducting formal oversight.

Then there are the informal means of oversight, which are usually sparked by international crises or specific events, constituency complaints, business concerns, or investigative reports in the press. An international crisis can spark intensive consultations between the White House, the DOD, and the relevant congressional committees. Complaints by constituents or business concerns can lead to individual members asking the DOD for information or for help in resolving them. Press exposés can lead to demands for explanations by the DOD, hearing testimony by senior officials, formal questions for the record, and even legislation.

The fourth and final civil-military tool considered here is the manipulation of positive and negative incentives aimed at the military. Incentives used by Congress tend to focus on the foreign policy powers granted to the legislature by Article I, Section 8 and Article II, Section 2. The former include the congressional power of the purse and the authority to regulate the armed forces, while the latter specifies the requirement that the Senate confirm military appointments. Consider each of these in turn.

Budget Authority

Article I, Section 8 of the Constitution specifies that Congress “shall provide for the common defense” and have the power “to raise and support Armies” and “to provide and maintain a Navy.” These clauses give Congress the authority to use the military budget to nudge the military toward particular types of behavior or away from certain actions. During the Vietnam War, for example, Congress used its budget power to keep the army focused on major ground combat in Europe at the expense of counterinsurgency operations in Vietnam.⁷ Congress tailored army acquisition toward main battle tanks and artillery that were ill-suited for the jungles of Southeast Asia. The army responded, keeping its focus on Europe and failing to innovate in Vietnam. More recent examples include Congress providing the funds to prepare an East Coast missile-defense site, despite the military’s reluctance to build such a facility, and the recent congressional demands to maintain all eleven aircraft carriers in the US arsenal rather than retiring the USS George Washington in 2014. The budget—and specifically defense acquisition and procurement programs—is a powerful incentive.

Regulating the Armed Forces

Article I, Section 8 of the Constitution also provides Congress with the power “to make rules for government and regulation of the land and naval forces,” “to call forth the militia,” and to “provide for the organizing, arming, and disciplining of the militia, and for governing such parts of them as may be employed in the service of the United States.” Setting promotion rates and the requirements for military promotions is an example of this type of incentive. A specific instance is the educational requirements for promotion beyond specific ranks, such as the inability to be considered for flag rank unless one has attended a senior war college or the civilian equivalent. The military services have every incentive to send their promising officers back to school at regular intervals. Individual officers who want to advance up the chain of command have every incentive to demand attendance at approved educational institutions. Another example is the mandated promotion rates for air force unmanned aerial vehicle (UAV) operators, aimed at increasing the positive benefits of choosing that career track instead of becoming a manned aircraft pilot.

Confirmation of Appointees

A final type of incentive involves threatening or placing holds on DOD nominees, often for unrelated issues. Sen. John McCain (R-AZ), for example, placed a hold on all air force nominees—military and civilian—until the air force revisited the contract for tanker aircraft. The longer the holds continued, the greater was the pressure on the air force to settle the issue. More recent examples include the threat of holds on nominees to protect the A-10 aircraft fleet and until the DOD makes the intercontinental ballistic missile fleet immune to base closing and realignment consideration.

In sum, Congress has at least four significant tools at its disposal to affect US civil-military relations, and the legislature has played a vital role in the exercise of each tool. Lawmakers influence the choice of military officers via the Senate confirmation process. They delegate authority to the military through the budget process and regulations in the annual defense authorization bills....

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• List of Illustrations
• Acknowledgments
• 1 Introduction : Congress and Civil-Military Relations
• Part I Congressional Tools And Civil-Military Relations
• Part II Parochial Versus National Interests
• Contributors
• Index