Fiduciary Duty, Honor, Country: Diagnosing the Health of Strategic Civil-Military Relationships With the Law of Agency

Maurer, Daniel D., The Judge Advocate General's School, United States Army

"Theirs not to reason why/ theirs but to do and die."1 Tennyson wrote of the futile charge of a British brigade during the Crimean War, but it speaks just as well of the historical tension between civilian political leadership and the military it commands. This tension between those who "reason why" about the employment of armed force and those that "do and die" creates two complimentary concerns in American politics: when does the military elite become too political or partisan? Or, are the political elites too involved in tactical matters best left to the uniformed experts?2 Surprisingly, there is no way to currently answer either of those questions. Without clear answers to these concerns, this tension creates an unabated source of friction and frustration in American civil-military politics: the inability to distinguish between events that signal symptoms of unhealthy civil-military relationships from those events that are actually remedies for such conflict. This, in turn, means there is no objective way to diagnose the health of a strategic civil-military relationship.

This frustration, at its root, is a legal problem even if infrequently studied or described in such terms. It is a legal problem because it is fundamentally a fight over rights, authorities, and powers shared or divided between two very different kinds of parties. It is a legal problem because of its Constitutional origins, and because laws have attempted in the past to engineer the lanes in which these two parties drive. The animating concern has always been the feared coup d'état.3 However, the effect has been anything but uniform. History is replete with various prescriptions for firm, even if obtrusive, civilian control under a theory that all of war is politics anyway, or prescriptions for leaving the military's hands untied under a theory that a professionally-educated warrior caste must not be micromanaged to death by civilians.4

Because civilian control of the armed forces is largely taken for granted in the United States, historically free from coup d'états, there is an undiagnosed or understudied element to the expected tension between strategic civilian and military policy-makers. These unequal partners tend to interact continuously in ways that leave one or the other directly (or perceived to be) disadvantaged, mistrusted, ignored, or recklessly employed. Such tensions risk unstable and unpredictable policy-making. As one prominent scholar has noted, "[t]he stakes are so high [and] the gaps in mutual understanding so stark [that] these relationships merit close attention . . .[t]hese peculiarities and conditions are unique and extreme, and they produce relationships far more complicated and tense than either citizen or soldier may expect."5 Scholars, pundits, and the actual participants in these relationships, looking only at these harmful aftershocks, however, may misrepresent the underlying concerns and result in misdiagnosing a supposed "civil-military crisis."

Misdiagnosis is as persistent a risk as these recurring aftershocks. It is recognized by the academic field of civil-military relations traditionally dominated by history, sociology, and political science.6 However, these studies reveal an apparent gap. They lack objective criteria or published norms for assessing the relative health of these relationships in context. Despite its fundamental nature as a legal challenge, neither law nor doctrine fills in this gap with practical advice or standards for the parties to these relationships. Therefore, this thesis offers a jurisprudential approach by using a form of legal reasoning to apply a legal concept and propose a legal change in order to suggest that such criteria are both desirable and relatively achievable.

This thesis will, first, investigate the Constitution, statutes, case law, regulations, and military doctrine. Doing so will demonstrate that none of these sources provide current practitioners adequate norms, or the public an objective set of expectations, on which to diagnose the health of American strategic civil-military relationships in context. Second, it will survey the landscape of significant theoretical approaches to American civil-military relations, revealing prospective hints at how such norms and expectations might be uncovered. Third, material evidence from relevant civil-military "choice architects"7 demonstrates that they already behave according to principal-agent norms. Therefore, this thesis suggests that the civilian-as-principal and officer-as-agent relationship might be analogized to that of the client-as-principal and attorney-as-agent relationship. In the latter, a code of professional conduct and fiduciary responsibility sets the key expectations, norms, and responsibilities. These in turn aid in distinguishing the healthy, sound relationships between attorneys and clients from the pathologically unhealthy—those which are undesirable by society and unprofitable to the parties themselves. Adopting this paradigm of expectations, norms, and responsibilities from the law of agency can provide a mutual advantage to the strategic civil-military relationship.

A jurisprudential strategy is a reasonable extension from the current leading scholarly approaches in the study of civil-military relationships. By applying concepts from the law of agency, this strategy returns the contentious subject back to its legal roots, and yields both a way to diagnose apparent ailments and a practical treatment: the Goldwater-Nichols Defense Reorganization Act8 is an appropriate statutory base on which to erect a "code-like" register of relationship norms between the senior strategic elites for whom the Act already imposes a division of labor.9

Note: Abstract extracted from PDF file via OCR.

LLM (Master of Laws)
Civil Supremacy over the Military, United States, Civil-Military Relations

TJAGSA Thesis 2015 Maurer

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