The Soldier, the State, and the Separation of Powers
Pearlstein, Deborah N., Texas Law Review
As U.S. counterterrorism activities continue to engage the armed forces in profound legal and policy debates over detention, interrogation, targeting, and the use of force, recent legal scholarship has painted a grim picture of the effective vitality of civilian control over the U.S. military. Prominent generals leverage their outsized political influence to manipulate the civilian political branches into pursuing their preferred course of action. Bureaucratically sophisticated officers secure the adoption of their policy judgments in the Executive Branch and Congress contrary to civilian preferences. And misplaced judicial deference to military expertise on what is necessary to regulate the special community of the armed forces exacerbates the growing social separation between the military and the society it serves. The question of how to distinguish expert advice from undemocratic influence that has long surrounded the work of administrative agencies is made especially complex by the unique constitutional role of the military. But before one can tell whether civilian control is threatened, one must first have some understanding of what it is. For all the intense focus in recent years on the legality of what the military does, where the modern military fits in our constitutional democracy has remained remarkably undertheorized in legal scholarship. Moreover, prevailing theories of civilian control in the more developed social- and political-theory literature of civil-military affairs view the Constitution's separation of powers-in particular, the allocation of authority over the military to more than one branch of government-as a fundamental impediment to the maintenance of civilian control as the theories take it to be defined. As a result, there remains a significant gap in the development of a constitutional understanding of the meaning of civilian control. This Article is an effort to begin filling that gap, by examining whether and how the constraining advice of military professionals may be consistent with our modern separation-of-powers scheme.
As American counterterrorism activities continue to engage the armed forces in profound legal and policy debates over detention, interrogation, targeting, and the use of force, recent works by legal scholars from Bruce Ackerman and Diane Mazur to Glenn Sulmasy and John Yoo paint a remarkably grim picture of the vitality of civilian control over the U.S. military. Prominent, even "celebrity," general officers leverage their outsized political influence to manipulate the civilian political branches into pursuing their preferred course of action.1 Bureaucratically sophisticated mid-level officers inside the Pentagon are able to effect the adoption of their policy judgments in the Executive Branch and Congress "against the wishes of civilian leaders to the contrary."2 And misplaced judicial deference to military expertise has exacerbated the growing separation between the military and the society it serves.3 In these ways and more, such authors suggest, the modern military has come to threaten core notions of civilian control by exerting undue influence on democratic processes of governance.
Particularly given the scope of contemporary U.S. military activity in counterterrorism efforts worldwide, the notion that the military is in some important sense exerting undue influence over political decision making should seem troubling. Our constitutional democracy was, after all, founded on the complaint that the King had "affected to render the Military independent of and superior to the Civil power."4 It should be troubling also for those familiar with a separation-of-powers scheme that allocates significant structural authority to more than one branch of the federal government for the purpose of ensuring that the military remains subordinate.5
Yet, high profile accounts of charismatic military leaders like Colin Powell effectively campaigning against a presidential initiative to lift the ban on gays in the military,6 or of a group of generals revolting against civilian Defense Secretary Donald Rumsfeld by criticizing his leadership during the Iraq War,7 tend to obscure more complex illustrations of military engagement in legal and policy-making decisions. …