Legitimacy and the Rule of Law Under Donald Trump

Many writers on this site have highlighted why they are concerned about President-Elect Donald Trump’s becoming the Commander in Chief of our armed forces. I share almost all these concerns. But in this post, I will try to explain the concern I consider most significant: Trump’s campaign statements consistently indicate a complete failure to appreciate the importance of legitimacy in U.S. operations.

Most voters obviously shared my view that we faced a choice of two less-than-ideal presidential candidates, ultimately manifested in an extremely balanced split in popular vote but a decisive electoral vote victory for Mr. Trump. I remain, however, deeply concerned that Mr. Trump’s “ends justify the means” rhetoric about wartime conduct will corrode U.S. commitment to the rule of law. Instead, I sincerely hope that Mr. Trump, or perhaps those he surrounds himself with, will recognize the vital national security imperative of legitimacy.

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The importance of legitimacy has arguably always been an aspect of national security policy, but few would contest the assertion that it has never been more important than today. This importance is manifested both explicitly and implicitly in U.S. military operations. The explicit manifestation takes the form of the inclusion of legitimacy as a principle of war in U.S. military doctrine, alongside traditional principles such as objective, offensive, and economy of force. According to Joint Publication 3-0, Joint Operations, “Legitimacy is based on the legality, morality, and rightness of the actions undertaken. Legitimacy is frequently a decisive element . . .” That’s right: U.S. military doctrine currently acknowledges that legitimacy will often be a decisive element in military operations.

The implicit manifestation is the unprecedented role of legal advice in support of military operations. When I began my Army career as a tactical intelligence officer in 1984, JAGs were rarely, if ever, involved in the planning and execution of military operations. Today, they are integral, advising commanders at the strategic, operational, and tactical levels of command, and contributing to the development of legally and morally grounded warriors. It is not the JAGs that have created this imperative; it is the commanders who understand that law, legitimacy, and mission accomplishment are inextricably intertwined.

These commanders and the forces they command understand that respect for law—and most importantly respect for and implementation of legal obligations related to the regulation of hostilities—is the sine qua non of legitimacy. Indeed, it is perhaps unsurprising that the elevation of legitimacy to the status of a principle of war occurred in the aftermath of the post September 11^th efforts to unchain U.S. national security operatives from the rule of law. That episode in our history needs no review; suffice to say that the backlash to the perceived U.S. disregard for core principles of international (and to some extent domestic) law provided a powerful reminder of the imperative of legitimacy, especially when engaged in a contest against an inherently illegitimate enemy.

Unfortunately, Mr. Trump has, at least to date, indicated a quite different conception of the relationship between law and military operations. These campaign statements indicate that he is likely to treat legitimacy, and the law upon which it is based, as a qualified principle, yielding we know not how often to assertions of necessity. These indications of disdain for the rule of law, most notably when it collides with his vision of what is in the nation’s best national security interests, risks profound negative strategic and moral consequences. Lawfare readers need no recitation of the many explicit and implicit indications by Mr. Trump that he disdains rules that limit the exercise of power. Whether threatening to order indiscriminate attacks, torture, or illegal confiscation of property, he has shown virtually no interest in either learning or embracing core principles of the bodies of law that regulate the formation and execution of national security policy. Indeed, his consistent tendency has been to dismiss law as invalid whenever it produces outcomes contrary to his interests.

No national security leader will be effective if he approaches his task with such a dismissive attitude towards the rule of law. While there may be interpretive differences around the edges of existing law—differences that are routinely debated on this site—there is almost complete unanimity among serious thinkers about the imperative of respect for core principles of international law: never deliberately attacking civilians; constantly endeavoring to mitigate risk to civilians and their property; treating all who fall within your power and control humanely at all times; respecting and protecting victims of war and those who courageously endeavor to come to their aid. And the list goes on. Even if the reality does not always match the rhetoric, Trump’s type of dismissiveness risks infecting the force, encouraging excesses in operational execution on the assumption that such excesses are consistent with the vision of the nation’s leadership.

Responsible command is an essential component of implementing international legal obligations related to the conduct of war. Our commander in chief must embrace the relationship between such rules, legitimacy, and responsible leadership. In contrast, disdain for the rule of law and legitimacy will present a genuine danger to our national security and corrode the moral integrity of our armed forces.

Legitimacy matters, because it is central to who we are and why we leverage the immense combat power of this nation in the name of the American people. Political leaders should always remember that the people who sally forth to execute their policies do so because they believe in the greatness of our nation, and the values our nation represents. And it is precisely because we face illicit enemies that we must constantly emphasize this principle of effective joint operations. And that must always start at the very top.

So much was obvious to President Teddy Roosevelt when he approved the General Court-Martial conviction of Brigadier General Smith for allowing subordinates to use the practice of the, “water cure”—the precursor to waterboarding—during the Philippine insurrection. Roosevelt’s rejection of Smith’s flawed leadership, and the brutal practice it condoned, remains timely to this day:

I am well aware of the danger and great difficulty of the task our Army has had in the Philippine Islands and of the well-nigh intolerable provocations it has received from the cruelty, treachery, and total disregard of the rules and customs of civilized warfare on the part of its foes. I also heartily approve the employment of the sternest measures necessary to put a stop to such atrocities, and to bring the war to a close . . . But the very fact that warfare is of such character as to afford infinite provocation for the commission of acts of cruelty by junior officers and the enlisted men, must make the officers in high and responsible positions peculiarly careful in their bearing and conduct so as to keep a moral check over any acts of an improper character by their subordinates.

I seriously question whether Mr. Trump understands Roosevelt’s logic. I sincerely hope that the humbling effect of his new high office enables him to realize that respect for law is the essence of legitimacy, and that legitimacy is a great force multiplier for the armed forces who serve this great nation.