U.S. Military Officers Are Governed by Laws that Reflect the Collective Purpose, Intention, and Legitimacy of The Nation
By Monte Erfourth – June 12, 2024
“Nor ought we believe that there is much difference between man and man, but think
the superiority lies with him who is reared in the severest school.” - Thucydides
HONOR & MILITARY CULTURE ARE DISTINCT FROM GENERAL SOCIETY
The military is necessarily a subset of the broader American society. At each level of scale within the military community, expectations are reinforced through reward, shame, tradition, training, shared understanding, and shared physical danger. For a citizen in a democratic society, the defense of individual rights and dignity is paramount. It is not, however, a priority within the community of defenders if they are to remain effective as a military force. The group must take its place as fundamentally more important than the individual, and the group must be hierarchical to some degree to be most effective. There is no shortage of irony that a free and democratic people would need a hierarchical and autocratic institution to ensure freedom for the larger society.[1]
When combined with the law, the honor, culture, and ethics triad form a standard that defines and enforces military leadership. Leadership is the most valued art of officership and relates intrinsically to military effectiveness. Thousands of officers, leading tens of thousands of enlisted, must coordinate and apply violence collectively. Officers often exercise leadership over great distances, in harsh conditions, and with the threat of death or killing other human beings imminent.
Officership demands that each officer understand the extent of power and responsibility and wield this power judiciously, conscientiously, and well. No other profession demands so much with so much at stake. No other profession demands that its members destroy other peoples, their homes, their equipment, and potentially their way of life in the defense of our own. With such savage intent at its core, officership must balance effectiveness while retaining a sense of humanity. The tie to humanity has not always been adhered to, but this has become increasingly important in the American military.
There is a sacred relationship between officers and the enlisted Americans who make up the community. The officers must develop achievable objectives and strategies and ensure the enlisted have everything they need to accomplish mission objectives. Mission first, people always is the common refrain that captures this bedrock principle. Enlisted leadership is equally as valuable, but the officer corps is the subject of this discussion because of the relationship between Constitutional requirements and the position of authority commissioned officers alone can attain.
Virtuous, humane, honorable, and skilled officers in leadership positions often fail. These qualities are necessary but not enough to win the day. Dishonorable men lacking virtue have won battles and wars. The telos of war is not simply to express honor; all militaries strive for victory. The argument here is not that honor alone carries the day. Rather, defending the U.S. Constitution requires honorable and virtuous leadership to remain legitimate in the eyes of the American people and have the “right stuff” to defend the nation effectively.
FIGHT & WIN OUR NATION’S WARS
Effectiveness remains the goal of the American military, but the military may not always achieve what it sets out to achieve. A definition of effectiveness in the broadest sense will help understand the relationship to leadership. Military effectiveness means you can defend your nation in all probable scenarios. The best leadership (General Officers) properly prepares, employs, sustains, and leads the military to the best outcome through judgment, discipline, and vigor.
As stated, even the most ethical, virtuous, and honorable military may fail. Effectiveness related to excellent leadership that is born of an honor culture, a virtuous character, and ethical codes simply gives the American military an elevated probability of success in defending its homeland. The logic is ancient: he is best who is best prepared, most able to exploit the opportunity, and most able to lead his force through the “fog of war” to the desired outcomes. Probability and the enemy will always get a vote, but excellence in officership can overcome both.
Arguably, the ability to accurately assess any situation and provide the best course of action is the pinnacle of military leadership and the key to success. However, once committed, it is the unified and empowered team of warriors that good leadership has prepared and utilized that ultimately takes advantage of the opportunity created by leadership. Great leadership at every level creates a cascading effect of martial excellence from the strategic to the tactical.
Officers' responsibility lies in fulfilling their role to create effective conditions for the group. Individual leadership is crucial; enabling teams, units, and formations to be effective is their calling. This involves caring for institutions, providing for forces, and finding thoughtful solutions. Ultimately, the focus is on the group's success. When officers fulfill their duty, the enlisted personnel will prevail.
FORGED IN LAW, GUIDED BY LAW
Officership embodies the practice of commissioned military leadership. Commissioned officers form a distinct group, separate from other categories of uniformed service members. This distinction is established through tradition, outward symbols, responsibilities, and law. Each branch of the service expects its officers to exhibit excellence in skill, knowledge, competence, and commitment. The Constitution and Title 10 of the United States Code (U.S.C.) Sections 3583, 5947, and 8583 set forth the expectations for American officership. Despite minor variations between branches, these sections mandate exemplary conduct for officers in the Army, Air Force, Navy, and Marine Corps. For detailed Title 10 expectations by service, see the endnote.[i]
Title 10 allows for a separate punitive article for unbecoming conduct,[2] as well as distinctions in legal authority expressed in penalties for disobedience or assault on a commissioned officer executing duties of their office.[3] Furthermore, court-martial can punish officers for contempt toward government officials.[4] The function of officers, as distinct from enlisted members, has also been declared by decisions of the U.S. Supreme Court.[5] Beyond the law, the officer’s “Oath of Office” is commissioned by the President and approved by Congress, which further details expectations for officers.
Commissioned officers are a category of military leader defined and empowered by law within a government structure. This legal foundation often leads to the perception of a punitive or forbidden conduct, or more simply a list of “thou shalt nots.” However, in the U.S. system, the military and its officers are governed by laws that reflect the Nation's collective purpose, intention, and legitimacy, expressed through the democratic process. These laws delineate expected virtues and character traits, setting explicit expectations for conduct and commitment. These comprehensive guidelines enable officers to serve honorably throughout their tenure approved by Congress and under the President’s commission.
Officers are “bound by Oath” to support the Constitution and obey the law and ratified treaties. They also swear to respect the authority of the President as Commander in Chief, the powers and authority of Congress as prescribed, and the authority of the established judicial system to interpret the law.
Title 5, U.S.C., Government Organization and Employees, details the oath that binds officers in executing their duties. The “Title 5 Oath” is simple and makes only three positive moral commitments as to future conduct:
I will support and defend the Constitution of the United States against all enemies, foreign and domestic; I will bear true faith and allegiance to the same; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.[6]
As per Title 10, § 626, no officer must reaffirm the oath upon promotion, but most do as a matter of personal choice to indicate loyalty and devotion to the Constitution, tradition, and duty.[7]
The basis in law is arguably most grounded in Article II, Section 3 of the Constitution, which grants the President the authority to “Commission all the Officers of the United States.”[8] The commission is an announcement of appointment to office for each officer. This appointment is a grant of authority and an instruction for the appointee from the Commander in Chief regarding his expectations and the obligations placed on the commissioned officer. Once selected, one must swear the oath before becoming entitled to the authority and responsibilities of the office.
The commission is granted based upon the President’s confidence in the officer’s patriotism, valor, fidelity, and abilities, four virtues, and sets out what the President expects to see modeled in the appointee’s conduct.[9] The new officer is additionally instructed to “carefully and diligently discharge the duties of the office to which appointed by doing and performing all manner of things thereunto belonging.”[10] The President further empowers the officer to give orders and to be obeyed by subordinate officers and lesser ranks. Lastly, the commission enjoins the officer’s obedience to orders from the President and other superior officers in accordance with the laws of the United States of America.
Law imbued with legal authority in the Constitution, the President, and Congress describe the expectations and entitlements of officers. The practice of being an officer is the art of living out these legal expectations as a way of life within the military profession. Simply defined:
Officership is the commissioned officer employing leadership in the practice of their technical skill, both for and with the larger organization they serve.
Officership demands setting the best example, leading well in the best and most horrific circumstances, putting the mission first but in such a way as to respect and conserve the lives of those in their charge, and remaining loyal to the Constitution and elected officials. It requires the cultivation of the good judgment necessary to consistently make the best decisions about the mission, the people, and the institution regardless of the outcome for the officer. Military officers are distinctly oriented to preparing for and conducting war, existing solely for this purpose.[11] In this sense, they must be the living expression of martial excellence. Officership is honed between the interplay of the individual aspiring to virtuous characteristics, the culture demanding particular behaviors of excellence, and the law and code of ethics that bound expectations.
BOUND BY AN OATH TO THE CONSTITUTION
U.S. military officers take an oath to the Constitution upon commissioning, pledging loyalty to the country and subordination to its laws. This oath underscores their commitment to follow lawful orders from civilian officials who interpret the Constitution—the President, Congress, and the courts. These branches of government, formed by the Constitution, have the authority to determine what is constitutional, and the military must adhere to their directives to defend it.
The recent open letter signed by all living former Secretaries of Defense and former Chairmen of the Joint Chiefs of Staff highlights the importance of civilian control over the military.[12] This letter reinforces the military’s commitment to following the decisions of elected and appointed civilian leaders, who have the right to make mistakes as long as they act with integrity and are accountable to the Constitution.
However, the practical execution of civilian control is complex, as it relies on the chain of command leading to the President. Congress and the courts shape defense policy, and effective implementation depends on the Secretary of Defense and the Joint Chiefs of Staff. Thus, Congress must legislate safeguards to address potential presidential erraticism rather than rely on military intervention and seeing what develops afterward. Examples of this Congressional check on the executive are the 1973 “War Powers Act” and the 2001 “Authorized Use of Military Force.” These examples are the checks and balances between the three parts of government outlined by the Constitution.
Officers are to act constitutionally by adhering to the lawful orders of the civilian officials the Constitution empowered. Each branch of government offers the military opportunities to interpret the constitutionality of its edicts. Determining constitutional acts requires the Secretary’s constant attention and interpretation. As the civilian leader, the Secretary must provide advice and good-faith judgments to the President, Congress, and courts. The Secretary must also provide the correct Constitutional interpretation to the commissioned officers who will carry out what the Secretary considers lawful orders.
This can be challenging when a president acts erratically, or members of Congress act in ways that may be inconsistent with the Constitution. Officers have to balance between the executive, the legislature, and the courts to act within the bounds of the law. In these situations, repeating that an officer’s duty is to the Constitution provides little guidance. The military's oath is crucial, but it cannot maintain the constitutional order amidst increasing partisanship.
Officers must understand how the law defines their role and apply the honorable officership demanded by law, culture, and tradition as both defenders and a possible threat to the constitutional order. Fortunately, civilian policymakers, not military officers, are the proper authorities for making constitutional judgments. Generals don’t get to choose which wars the country fights. Nor do they have the right to refuse to follow legal orders that they find morally distasteful. Generals and all commissioned officers exercise duty in a democracy by living and acting in accordance with the law.
CONCLUSION: UPHOLDING DEMOCRACY THROUGH OFFICERSHIP
The essence of defending a democracy lies in the unwavering adherence to the law, a principle that forms the bedrock of the U.S. military officer’s role. Governed by laws that reflect the collective purpose and legitimacy of the nation, U.S. military officers pledge their loyalty to the Constitution upon commissioning, underscoring their commitment to follow lawful orders from civilian officials. This commitment ensures that the military remains subordinate to civilian control, a fundamental tenet of democratic governance. It is not up to each officer to determine the extent of constitutionality in every edict. Civilian oversight by elected and appointed officials is responsible for maintaining the constitutional order, even amid growing partisanship and potential presidential irregularities. But there are rare circumstances where the officer can and should reject unlawful orders. Understanding the law and exercising good judgment must prevail to act lawfully, but the officer should be prepared to reject orders that clearly violate the law.
The role of a U.S. military officer extends beyond mere obedience to lawful orders; it embodies the practice of commissioned military leadership forged and guided by law. Title 10 of the United States Code outlines the expectations for exemplary conduct among officers, mandating virtues such as patriotism, valor, fidelity, and competence. These laws provide a comprehensive framework that empowers officers to serve with honor and integrity throughout their tenure.
An ethical code for officership involves setting the highest example, leading effectively, prioritizing the mission while respecting those under command, and remaining loyal to the Constitution and elected officials. Officership in a democracy demands characteristics such as good judgment and balancing martial excellence with humanity. Military culture and tradition support the officer's role, emphasizing the importance of the group over the individual and the necessity of hierarchy. The separation of the military from society is necessary to preserve democratic values. Virtuous conduct, reinforced by culture and tradition, shapes excellence in officership, thereby ensuring legitimacy and enhancing the probability of success in defending the nation.
Bibliography
[1] Richard A. Gabriel. To Serve With Honor (Westport, CN. Greenwood Press, 1982). 86.
[2] 10 U.S.C. § 933 (2012)
[3] 10 U.S.C. § 890 (2012)
[4] 10 U.S.C. § 888 (2012)
[5] Justice Rehnquist, in Parker, Warden, et al. v. Levy, Supreme Court of the United States, 417 U.S. 733 (1974) writes, “An Army is not a deliberative body. It is an executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer, or the duty of obedience in the soldier,” http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=417&invol=733.
[6] 5 U.S.C. § 3331 (1966)
[7] 10 U.S.C. § 626 (2012)
[9] Richard Swain. “Reflections on an Ethic of Officership” (Parameters) 7.
[10] Richard Swain. Reflections on an Ethic of Officership” (Parameters) 7.
[11] Don M. Snider, "A Uninformed Debate on Military Culture," Orbis 43, no. 1 (Winter 1999): 1 1-26
[12] https://thehill.com/policy/defense/3630544-former-defense-secretaries-retired-generals-warn-of-threats-of-political-polarization/
END NOTE
[i] For the Army:
§ 3583. Requirement of exemplary conduct
All commanding officers and others in authority in the Army are required—
(1) to show in themselves a good example of virtue, honor, patriotism, and subordination;
(2) to be vigilant in inspecting the conduct of all persons who are placed under their command;
(3) to guard against and suppress all dissolute and immoral practices, and to correct, ac- cording to the laws and regulations of the Army, all persons who are guilty of them; and
(4) to take all necessary and proper measures, under the laws, regulations, and customs of the Army, to promote and safeguard the morale, the physical well-being, and the general welfare of the officers and enlisted persons under their command or charge.[i]
For the Naval Service:
§ 5947. Requirement of exemplary conduct
All commanding officers and others in authority in the naval service are required to show in themselves a good example of virtue, honor, patriotism, and subordination; to be vigilant in inspecting the conduct of all persons who are placed under their command; to guard against and suppress all dissolute and immoral practices, and to correct, according to the laws and regulations of the Navy, all persons who are guilty of them; and to take all necessary and proper measures, under the laws, regulations, and customs of the naval service, to promote and safeguard the morale, the physical well-being, and the general welfare of the officers and enlisted persons under their command or charge.[i]
For the Air Force:
§ 8583. Requirement of exemplary conduct
All commanding officers and others in authority in the Air Force are required—
(1) to show in themselves a good example of virtue, honor, patriotism, and subordination;
(2) to be vigilant in inspecting the conduct of all persons who are placed under their command;
(3) to guard against and suppress all disso- lute and immoral practices, and to correct, ac- cording to the laws and regulations of the Air Force, all persons who are guilty of them; and
(4) to take all necessary and proper measures, under the laws, regulations, and customs of the Air Force, to promote and safeguard the morale, the physical well-being, and the general welfare of the officers and enlisted per- sons under their command or charge. [i]
The commission of a newly commissioned officer reads:
The President of the United States of America
To all who shall see these presents, greeting:
Know Ye that, reposing special trust and confidence in the patriotism, valor, fidelity and abilities of .................., I do appoint ["him" or "her"] a ["Second Lieutenant" or "Ensign"] in the [name of service] to rank as such from the .... day of ........ ...... This Officer will therefore carefully and diligently discharge the duties of the office to which appointed by doing and performing all manner of things thereunto belonging.
And I do strictly charge and require those Officers and other personnel of lesser rank to render such obedience as is due an officer of this grade and position. And this Officer is to observe and follow such orders and directives, from time to time, as may be given by me, or the future President of the United States of America, or other Superior Officers acting in accordance with the laws of the United States of America.
This commission is to continue in force during the pleasure of the President of the United States of America for the time being, under the provisions of those Public Laws relating to Officers of the Armed Forces of the United States of America and the component thereof in which this appointment is made.
Done at the City of Washington, this .... day of ........ in the year of our Lord ................ and of the Independence of the United States of America the ..........
By the President:
