Fiduciary Duty, Honor, Country: Legislating a Theory of Agency into Strategic Civil-Military Relations

Dissent, annoyance, mutual frustration, misplaced trust, breaches of confidentiality, unwelcome candor, and differing senses of obligation, loyalty, and service are all recurring themes in the day-to-day theater that is civil-military relationships among American political and military strategic elites. Though in no real danger of a coup, the health of these relationships nevertheless matters significantly for the fitness of the outcomes for which these parties are accountable. Wars (whether and how to fight them), budgets (how much to spend, on what, and for whom), force structure (how to organize the means of national defense), personnel (who to recruit and retain, and who — if anyone — should be excluded from service) are the critical issues, and these parties often disagree over these fundamental questions. The efficiency, prioritization, thoughtfulness, and public explanations of these issues will also be turbulent in the wake of unsteady, rocky strategic civil-military relationships. Congress, no less than the Executive Branch and military leaders, has a stake and a say in these relationships. Regrettably, there is a noticeable weakness in how we — the public and the parties themselves — diagnose the health of these strategic civil-military relationships that stretch across two branches of government, implicate time-tested traditions of honor, loyalty, and professionalism, and provide tests of the American rule of law. Congress, in particular, has no objective means to do so because there is no generally-agreed upon, and accurate, method for characterizing this relationship. Instead, as Philip Carter recently wrote, we look at senior, flag officers’ behavior but only “see what we want to see, based on our own biases and ideologies.” The same can be said for senior civilian policy makers. Taken as true, this means that individual episodes of dissent, annoyance, or frustration may not actually signal a stressed or pathological relationship — a “crisis” to use an over-wrought phrase — but rather a well-ordered and mutually-accepted dynamic that is suited to the personalities involved, and their shared understanding of one another’s respective competencies, authorities, and the outcomes they seek. The inverse holds as well. One way to such a diagnostic tool is to first recognize such relationships as principal-agent associations, based on three central factors: (a) their relative positions of authority; (b) differing degrees of national security/military affairs expertise that these parties exhibit; and (c) what each party expects of the other. It is, fundamentally, just like that of a doctor-patient or lawyer-client relationship. Such principal-agent dynamics (what this article will call jurisprudential agency) are usually defined by codes of conduct and professionalism that guide the parties as to what their respective duties are and how to fulfill them and provide expectation management for the public. These establish a consensus for objective norms, standards, and diagnostic criteria. The Goldwater-Nichols Act provides a useful legislative avenue of approach for providing just such criteria, expanding Congress’s inventory of tools it may use to regulate the military and influence the Executive’s use of it.