Abstract
This chapter begins by recounting President Kennedy’s disappointment with his Joint Chiefs of Staff during and after the failed Bay of Pigs invasion and the steps he took to reinvigorate their scope of responsibility. Maurer uses this anecdotally to introduce the legal, jurisprudential, meaning of Agency and its associated fiduciary-like duties, including that of candor, loyalty, confidentiality, and authority. These duties, Maurer suggests, offer the parties and the public objectively defined means, like the so-called Agency Problem, by which to diagnose the interactions between these strategic elites.
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Notes
- 1.
National Security Action Memorandum 55 from President John F. Kennedy, to The Chairman, Joint Chiefs of Staff, subject: Relations of the Joint Chiefs of Staff to the President in Cold War Operations (28 June 1961), http://www.ratical.org/ratville/JFK/USO/appE.html#NSAM55 (emphasis added). According to historian and Kennedy advisor Arthur Schlesinger, J.r., Kennedy was deeply “disappointed” in his senior military advisors for what he viewed as a “cursory review” of the CIA’s plan leading the Bay of Pigs debacle. Arthur M. Schlesinger, Jr., A Thousand Days xvi, 295 (2002) (“after the Bay of Pigs, Kennedy had little regard for the JCS and their recommendations”). According to historian Matthew Moten, General Maxwell Taylor was the primary author of this memorandum, as a recommendation to President Kennedy following Taylor’s personal investigation of the Bay of Pigs debacle. Moten, Presidents & Their Generals, at 279–80.
- 2.
McMaster, Dereliction of Duty, at 24–29.
- 3.
Id.
- 4.
See Craig, The Political Leader as Strategist, at 482 (“inability or unwillingness on [the part of civilian leaders] to exercise critical control over such plans and decisions runs the risk of placing in military hands powers that can jeopardize the national security for which the political leadership has ultimate responsibility”).
- 5.
Moten, Presidents & Their Generals, at 292–93 (as an exmaple, Moten notes that President Lyndon Johnson’s first meeting as President on the subject of Vietnam did not include any member of the JCS).
- 6.
McMaster, Dereliction of Duty, at 332–33.
- 7.
Deborah A. DeMott, The Lawyer as Agent, 67 Fordham L. Rev. 301, 301–02 (1995) (distinguishing the common law of agency from the “agency” employed in other fields, such as economics, based in part on the assertion that lawyers are also officers of the court and members of a self-regulating profession).
- 8.
Agency Restatement, at § 1.01.
- 9.
See DeMott, The Lawyer as Agent, supra note 409, at 302–03 (“the defining elements of the relationship are mutual manifestation of consent, the agent’s undertaking to act on behalf of the principal, and the principal’s right to control the agent…[where ‘control’ means] prescribing on an ongoing basis what the agent shall or shall not do”).
- 10.
Black’s, at 67 (definition of “fiduciary duty”).
- 11.
Agency Restatement at 1230 (definition of “principal”).
- 12.
Black’s at 68 (definition of “agent”).
- 13.
Roger Gresely Woodyatt, The Law of Agency 3 (1900).
- 14.
Agency Restatement at 1315 (definition of “fiduciary relationship”).
- 15.
Id. at 1315 (definition of “fiduciary relationship”). In this sense, the agent is an “instrument” or “technology” that “enhances a person’s ability to act.” Paula J. Dalley, A Theory of Agency, 72 U. Pitt. L. Rev. 495, 498 (2011).
- 16.
Tamar Frankel, Fiduciary Law, 71 Calif. L. Rev. 795, 800 (1983).
- 17.
Dalley, A Theory of Agency, at 497 (“[t]he foundational principle of agency law is that the principal, who has chosen to conduct her business through an agent, must bear the foreseeable consequences created by that choice. Conversely, as the bearer of the risks, the principal is entitled to receive the benefits created by the agency relationship”). See also Frankel, Fiduciary Law, at 798 (“our society is evolving into one based predominantly on fiduciary relations”).
- 18.
Black’s, at 1315 (definition of “fiduciary relationship”). See Restatement (Third) of the Law Governing Lawyers § 26 cmt. b (2000) (“[l]egal representation saves the client’s time and effort and enables legal work to be delegated to an expert. Lawyers therefore are recognized as agents for their clients in litigation and other legal matters.”) See also James A. Cohen, Lawyer Role, Agency Law, and the Characterization “Officer of the Court,” 48 Buff. L. Rev. 349 (2000);
- 19.
Black’s, at 545 (definition of “fiduciary duty”).
- 20.
Id., at 544.
- 21.
Id., at 544–45. See also Agency Restatement, at § 8.15 (“Principal’s Duty To Deal Fairly And In Good Faith”).
- 22.
Black’s, at 545. See also Agency Restatement, at § 8.01 (“General Fiduciary Principle”). See also Grace M. Geisel, Client Responsibility for Lawyer Conduct: Examining the Agency Nature of the Lawyer-Client Relationship, 86 Neb. L. Rev. 346, 351–52 (2007) (suggesting that independent contractors are sometimes agents when they work on behalf of a principal’s interests, as—for example—an attorney, and distinguishing them from a “master-servant” form of agency (now called “employer-employee” in common law) in which the principal retains the right to positively control the physical “attributes” of the agent’s conduct).
- 23.
Agency Restatement, at § 8.08.
- 24.
Id. at § 8.09 (“Duty to Act Only Within Scope of Actual Authority…”).
- 25.
Id. at § 8.10 (“Duty of Good Conduct”). But see W. Bradley Wendel, Public Values and Professional Responsibility, 75 Notre Dame L. Rev. 1, 53 (1999) (discussing the challenge of applying pure agency theory to the attorney-client relationship in light of situations in which the attorney—holding to their role as an independent professional with a code of responsibility and as officer of the court system—must depart from or confront an illegal or morally disagreeable choice of the client).
- 26.
Kathleen M. Eisenhardt, Agency Theory: An Assessment and Review, 14 Acad. Mgmt. Rev. 57, 58 (1989).
- 27.
See generally James Burk, Responsible Obedience by Military Professionals: the Discretion to do What is Wrong, in American Civil-Military Relations: the Soldier and the State in a New Era 149, 151–54 (Suzanne C. Nielson, Don M. Snider eds.) (2009) (arguing that the “discretionary application of professional knowledge cannot depend on unthinking obedience” and that there is a “protected space” of decision-making afforded to military professionals that, in effect, gives them the moral authority or legitimate grounds on which to disobey or question an order—that is, an execution of “responsible obedience” based on a duty to serve the nation’s best interests during some of their interaction with and work for their civilian principals). Thanks to Dr. Don M. Snider for suggesting that aspect of the agency subject was worth noting here.
- 28.
See, e.g., Geisel, Client Responsibility for Lawyer Conduct: Examining the Agency Nature of the Lawyer-Client Relationship, at 353–55 (describing various forms of authority under agency law, and citing to numerous jurisdictions for cases defining the legal characteristics of these forms of authority).
- 29.
Agency Restatement, at § 2.01 (“Actual Authority”).
- 30.
Id. at § 2.02 (“Scope Of Actual Authority”).
- 31.
Id. at § 2.03 (“Apparent Authority”).
- 32.
Black’s, at 142 (definition of “Apparent Authority”).
- 33.
Id. at 143 (definition of “Implied Authority”).
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Maurer, D. (2017). The Rebuttal Witnesses: From Agency to Norms to Diagnosis. In: Crisis, Agency, and Law in US Civil-Military Relations. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-53526-5_6
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