Article II, Section 2, the U.S. Constitution: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States…”
One of the foundations of the American political system is civilian control of the military extending from the president to the Department of Defense. The civilian secretary of defense and service secretaries are in charge. And the law directs that the chairman of the Joint Chiefs of Staff and the five military chiefs are principal advisers to their civilian bosses and are not in the chain of command.
Since 1789, this has worked. With the onset of nuclear and thermonuclear weapons, the commander in chief role of the president became more complicated. Suppose an enemy launched a nuclear strike against the United States. With only minutes to react, if the president gave the order to unleash America’s nuclear weapons, that would be a de facto declaration of war. But only Congress has that authority.
While this scenario was often discussed, only once did a secretary of defense act to ensure that any presidential orders to use force were specifically routed through him as next in the chain of command. During the October 1973 war, James Schlesinger was very concerned that President Nixon, under great duress over Watergate and the threat of Soviet intervention against Israel, would issue a bad or illegal order. Fortunately, that contingency did not occur.
Former Secretary of Defense Mark Esper’s new book, “Sacred Trust,” perhaps inadvertently, raises the question of what happens when or if the commander in chief issues an order that his subordinates feel compelled not to follow or to circumvent. If the order is illegal or deemed to be so, then it need not be carried out. In the book, Esper cites several instances of how he dealt with this.
Told to remove a large number of troops from Germany, Esper found a way to redeploy the forces in Europe so as to keep the total level unchanged. In another case, President Trump wanted to attack drug cartels in Mexico and deny responsibility — portrayed years before in the movie “Clear and Present Danger.”
Last, Trump wanted to use active duty troops to cope with the violence that broke out after the killing of George Floyd in May 2020 in violation of posse comitatus forbidding the military from carrying out any law enforcement duties without invoking the Insurrection Act.
Esper also wrote that he chose not to resign so that he could restrain the impulses and instincts of the commander in chief and because he feared a “yes man” would take his place. Given the disruptive and undisciplined nature of Donald Trump, some of what Esper described was plausible. But people who know Trump countered that often he would present what seemed like a bizarre idea to get a reaction or to make a point, knowing full well he would not demand that this directive be implemented. Still, that a secretary of defense worried about what his boss might order is chilling.
The debate over when or whether to resign or quit in protest is as old as the republic. Esper’s predecessor as secretary of defense, retired Marine General Jim Mattis, resigned over removing troops from Syria without being consulted. However, Mattis had other reasons as well. To his credit, the general has kept his counsel since leaving office.
American military culture has been not to resign. No chairman of the Joint Chiefs has. Over many decades, only one service chief stood down in protest. The judgment was, barring an illegal or immoral order, staying the course as the better choice.
No guidelines exist about when or whether to resign. Barring very unlikely scenarios, it is the sworn duty of the military to respect the orders of seniors. That said, in taking the oath of office, all military personnel swear or affirm to “support and defend the Constitution” not an individual, even the president.
Whether or not Esper made the correct decision in staying as secretary, it did not work. He had little influence on the president. And he was fired. If he had resigned, it would have had no impact on Trump.
To the degree guidance is needed, before assuming high office, each nominee must think through what circumstances might warrant resignation. Then, to honor the oath to the Constitution, each must be prepared to quit if the situation so demands. There is no other option.
Harlan Ullman, Ph.D, is senior adviser at Washington, D.C.’s Atlantic Council and the primary author of “shock and awe.” His latest book is, “The Fifth Horseman and the New MAD: How Massive Attacks of Disruption Became the Looming Existential Danger to a Divided Nation and that World at Large.” Follow him on Twitter @harlankullman.