BARR: Milley And Biden Together Have Crossed A Dangerous Constitutional Line

Recently disclosed actions by Joint Chiefs of Staff Chairman Gen. Mark Milley highlight a serious fraying of the civilian-military structure at the very core of our constitutional republic and also reveal a deep public misunderstanding of that relationship. Combined, these factors pose a danger the likes of which the country has not witnessed in modern times, if ever.

Our Constitution on this point is crystal clear. There is one commander-in-chief, and that person is the President of the United States. The decision to place the elected civilian leader of our country at the apex of the country’s armed forces was purposeful as a means of protecting the citizenry and the states from an overly-powerful national army that could undermine the constitutional order the Framers had so carefully constructed. Without this safeguard, the Constitution likely would not have been ratified in 1788.

Notwithstanding this constitutional clarity on military matters, inter-service rivalries and bureaucratic shenanigans have cropped up throughout our history. In modern times, these practical problems led Congress to pass two major reorganizations of the military command structure.

The first of these was the National Security Act of 1947, which clarified the chain of command from the president on down by establishing the Department of Defense headed by a cabinet-level Secretary.

Then, in 1986 to address problems that hampered the conduct of the Vietnam conflict, and serious inter-service rivalries thereafter, Congress passed the Goldwater-Nichols Act. This law further clarified the lines of authority for military decision making, and made absolutely clear that the Chairman of the Joint Chiefs of Staff had no operational control or command over any military units or individuals. His responsibility is advisory only — to the president, the secretary of defense and the National Security Council.

Any action by the Chairman of the Joint Chiefs to make or direct operational, military decisions is directly contrary to the law; in a word, unlawful.

Yet, to Milley and those who support him, which apparently includes Democrat leaders on Capitol Hill, many major journalists and even President Biden himself, these legal restrictions are trumped by their partisan hatred of Donald Trump. Thus, in the days immediately preceding the November 3, 2020 election, and continuing through Biden’s inauguration the following January, Milley took it upon himself to brazenly violate Article II of the Constitution, the National Security Act, the Goldwater-Nichols Act and his own oath of office.

Just days before the 2020 election, reflecting his personal concerns that President Trump’s behavior might cause China’s military to respond adversely, Milley apparently called his counterpart at the Chinese People’s Liberation Army to assure him that he – Milley – would make sure no such actions by the United States took place.

Subsequently, according to published accounts that Milley has not denied, in early January he directed that subordinate officers (over who Milley has no lawful command authority) inform him if they became aware of any orders with which Milley might disagree that concerned nuclear weapons decisions by Trump, presumably so he could countermand them.

By thus placing himself directly between the president and the Secretary of Defense, which is the person to whom the president issues operational commands as commander-in-chief, Gen. Milley was acting unlawfully.

Milley has not expanded on these allegations, beyond suggesting they were approved by the Secretary of Defense (which they were not) and that they reflected historical precedent (which they do not). Milley is scheduled to testify on Capitol Hill next week, but severe damage to the constitutional fabric of our country already has resulted.

In the immediate aftermath of these startling revelations, Biden not only declined to fire Milley, but actually expressed “confidence” in him.

A president who exhibits so little regard for the constitutional authority of the office he holds, not only demeans and undercuts his own presidency, but by his actions encourage further and possibly even more dangerous erosion of presidential authority by military leaders who may harbor policy disagreements with Biden’s successors. Journalists who deem such gross insubordination as practiced by Milley to be acceptable because it was predicated on action against Trump, exacerbate the constitutional divide.

Milley and Biden have opened a can of constitutional worms that truly will plague future presidents of both major political parties.