Abstract
Maurer next turns to the fiduciary duties of loyalty and candor, and explains how these complimentary responsibilities—whether in the field of national security or in legal practice—often work at cross-purposes, undermining the principal–agent relationship between strategic civil-military leader. Maurer summarizes two famous cases where fidelity to one’s principal (and vice versa) seemed to cramp the parallel duty of candor. Both the “Revolt of the Admirals” case in the wake of the Second World War and Lincoln’s use of a journalist to “spy” on General U.S. Grant during the Civil War highlight the ease by which one party can mistakenly label the other as disloyal (or risk of doing so), and the difficulty in determining when candor goes too far, or is directed at the wrong principal.
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Notes
- 1.
William Shakespeare, Henry V, Act IV, scene iii.
- 2.
John Keegan, The Face of Battle 107 (1978).
- 3.
Sebastian Junger, War 155, 234 (2011).
- 4.
Lieutenant Colonel Dave Grossman, On Killing: The Psychological Cost of Learning to Kill in War and Society 90 (1996).
- 5.
This is the same message that Secretary of Defense Ashton Carter imparted to graduates of the U.S. Naval Academy is 2016 (“you not only receive a degree that represents years of studying, striving - you take an oath to a life of service and sacrifice in the finest fighting force the world has ever known. Indeed, you’ve chosen one of the noblest professions there is - a profession in which you’ll be waking up every day to help defend this country and make a better world”), http://www.defense.gov/News/Speeches/Speech-View/Article/783891/remarks-at-us-naval-academy-commencement.
- 6.
Available at http://www.nationalcenter.org/MacArthurFarewell.html.
- 7.
Johns v. Smyth, 176 F. Supp. 949, 952 (E.D. V a. 1959), modified, United States ex rel. Wilkins v. Banmiller, 205 F. Supp. 123, 128 n.5 (E.D. Pa. 1962), aff’d, 325 F.2d 514 (3d Cir. 1963), cert. denied, 379 U.S. 847, 13 L. Ed. 2d 51, 85 S.Ct.87 (1964).
- 8.
Smoot v. Lund, 13 Utah 2d 168, 172, 369 P.2d 933, 936 (1962).
- 9.
American Bar Association (ABA) Model Code of Professional Responsibility (as amended 1980), Canon 5, available at http://www.americanbar.org/content/dam/aba/migrated/cpr/mrpc/mcpr.authcheckdam.pdf.
- 10.
Army Rugulation 27–26 (Rules of Professional Conduct for Lawyers), at R. 1.13 cmt.
- 11.
Id. at R. 1.13(c).
- 12.
Id.
- 13.
Susan Martyn, et al., The Law Governing Lawyers 75 (2014) (quoting ABA Model Rules of Professional Conduct, Rule 4.1).
- 14.
Id. at 75–76.
- 15.
Id. at 11 (quoting Rule 1.0(m)).
- 16.
Id. at 64 (quoting Rule 3.3(b)).
- 17.
Id. at 67.
- 18.
The author wishes to thank Lieutenant General H.R. McMaster for this reference.
- 19.
Keith D. McFarland, The 1949 Revolt of the Admirals, Parameters, June 1981, at 53, 60.
- 20.
Id. at 61.
- 21.
Feaver applied his theory to testimony from General Colin Powell and General Norman Schwarzkopf to the Senate Armed Services Committee in 1993. By recommending what amounted to the “Don’t Ask, Don’t Tell” compromise, they implicitly argued against President Clinton’s proposal to end the ban on allowing “open” homosexuals to serve, they engaged in unhealthy “shirking.” Feaver, Armed Servants, at 202–03; see Eric Schmitt, Compromise on Military Gay Ban Gaining Support Among Senators, N.Y. Times, May 12, 1993, http://www.nytimes.com/1993/05/12/us/compromise-on-military-gay-ban-gaining-support-among-senators.html. The author thanks David E. Johnson for pointing out this example.
- 22.
Eisenhardt, Agency Theory: An Assessment and Review, supra note 425, at 58 (describing the “agency problem”). Feaver addresses this as an example of the “moral hazard problem” in principal–agent dynamics, suggesting that the principal should “shape the relationship so as to ensure that his employees [agents] are carrying out his wishes.” Feaver, Armed Servants, at 55.
- 23.
James Burk, Responsible Obedience by Military Professionals: the Discretion to do What is Wrong, at 151–54.
- 24.
Id.; see also Owens, What Military Officers Need to Know About Civil-Military Relations, at 74 (“officers have an obligation to make their case as strongly as possible but do not have the right to “insist” that their advice be accepted. However, there must be a ‘calculus of dissent’”).
- 25.
Milburn, Breaking Ranks: Dissent and the Military Professional, at 101. But see Paul Yingling, Breaking Ranks?, Small Wars J. (Sept. 30, 2010), http://smallwarsjournal.com/jrnl/art/breaking-ranks (arguing that the officer’s oath precludes a conscience-based dissent to policy that is post-deliberative). In some cases, strategic military officers may believe that obeying quietly actually advances their long-term goals to protect their institution, thereby justifying what amounts to silence and a lack of candor before Congress. See, e.g., McMaster, Dereliction of Duty, at 327–28, 330–31 (discussing his view that the JCS collectively failed to render proper advice or to “challenge the direction of the administration’s military policy” to Congress, leading to short-term benefits for each individual service).
- 26.
Deborah A. DeMott, Relationships of Trust and Confidence in the Workplace, 100 Cornell L. Rev. 1255, 1272 (2015).
- 27.
Restatement of Emp’T law § 8.01(a) (2015).
- 28.
T. Harry Williams, Lincoln and his Generals 23 (1952).
- 29.
James M. McPherson, Battle Cry of Freedom 588–89 (1988).
- 30.
Ulysses S. Grant, Personal Memoirs of U.S. Grant 14 (2001).
- 31.
Id. at 16.
- 32.
Id. at 15.
- 33.
Id. at 106, note 1; see also James M. McPherson, Tried By War: Abraham Lincoln as Commander in Chief 72 (2008).
- 34.
Ulysses S. Grant, Personal Memoirs of U.S. Grant, at 106.
- 35.
J.F.C. Fuller, The Generalship of Ulysses S. Grant 72 (1929).
- 36.
Grant, Personal Memoirs, at 123–24; and see Fuller, The Generalship of Ulysses S. Grant, at 72–73.
- 37.
J.F.C. Fuller, The Generalship of Ulysses S. Grant ix (1929).
- 38.
Doris Kearns-Goodwin, Team of Rivals: the Political Genius of Abraham Lincoln 692 (2005); McPherson, Battle Cry of Freedom, 590.
- 39.
One historian called this the “most effective political-military relationship in American history.” Matthew Moten, Presidents & Their Generals 153 (2014); see also T. Harry Williams, Lincoln and his Generals 11 (1952) (Lincoln “was willing to discard his judgement of what was good strategy and take the opinion of any general whom he considered able. He was willing to yield power to direct strategic operations to any general who could demonstrate that he was competent to frame and execute strategy”).
- 40.
Grant, Personal Memoirs, at 219–20.
- 41.
McPherson, Battle Cry of Freedom, at 588; Grant, Personal Memoirs, at 240.
- 42.
McPherson, Tried By War, at 169.
- 43.
Charles A. Dana, Recollections of the Civil War 20–22 (1898); T. Harry Williams, Lincoln and his Generals, at 222–23; Goodwin, Team of Rivals, at 528–29.
- 44.
Letter to Ulysses S. Grant, July 13, 1863, in Lincoln on War (Harold Holzer ed.) 198 (2011); Goodwin, Team of Rivals, at 528, 534.
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Maurer, D. (2017). Exhibit B: When Fidelity and Frankness Conflict. In: Crisis, Agency, and Law in US Civil-Military Relations. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-53526-5_9
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