This month the secretaries of the Army, Navy, and Air Force began a full-court press to malign Senator Tommy Tuberville, a Republican from Alabama, because he is stalling senior flag officer nominations in response to the Defense Department’s recent change in policy to fund abortions. This change violates the Hyde Amendment, as well as the laws of morality and nature.
For the last few months, criticism of Tuberville’s actions had been reserved at the White House level. That task seems now to have been delegated to the service secretaries, who are forcing the military into a state of rhetorical war with a member of the legislative body that is responsible for military oversight. They have gone so far as to paint Tuberville in the light of a traitor, even claiming that he is “aiding and abetting” the nation’s adversaries by defending the Hyde Amendment. That is a dangerous move and should alarm all Americans.
The nation has always struggled with finding an ideal balance of civil-military relations. At its founding, the citizenry had a healthy and historically well-informed suspicion of standing armies in eras of peacetime. James Madison warned that "the means of defense against foreign danger have been always the instruments of tyranny at home.” John Adams counseled that standing military forces were “always dangerous to the liberties of the people” and “should be watched with a jealous eye.” The United States Constitution gives little in the way of specific guidance for how the military is to be governed, saying only that the president is the commander-in-chief. However, it gives Congress alone the authority to raise and fund a military force.
Owing to suspicion over standing peacetime forces, the nation largely disbanded the Army to a minimal state following periods of large-scale conflict. However, following World War II, the realities of a rising Soviet Union and lessons learned from strategic naivety in the years following World War I led Americans to accept a permanent, enlarged global force. President Dwight Eisenhower, a man who was the furthest thing from a pacifist, warned that this “military-industrial complex” would become a danger to free people in our time. In their attempts to turn the American people against Tuberville, the service secretaries seem intent on fulfilling Eisenhower’s prophecy six decades later.
For the last few months, criticism of Tuberville’s actions had been reserved at the White House level. That task seems now to have been delegated to the service secretaries, who are forcing the military into a state of rhetorical war with a member of the legislative body that is responsible for military oversight.
Contrary to the prevailing narrative, the military is not “apolitical.” Those who apply a realist perspective when considering current events and military history know this well. Nevertheless, within the insular ranks of the defense complex, the mythical “apolitical” military is unassailable canon. The service secretaries are appointed from an overtly political class in recognition of their loyalty to the party of the nominating president. Current Defense Secretary Lloyd Austin presents the second of two recent exceptions to that tradition. He was a retired four-star general and a defense industry board member prior to his nomination to run the Pentagon. Thus in some ways it makes sense that he deputized his more politically experienced lieutenants to convey an attack, unprecedented in the context of the past century of civil-military norms, on a member of the legislative branch.
Austin comes from a generation of officers whose promotions were rubber-stamped by a Congress that had long before tired of its administrative responsibilities of military supervision. The officer class became arrogant, believing its own rhetoric of being too virtuous to be judged by the elected class that engages in domestic politics. Its arrogance became matched by an institutional attitude across the Defense Department which sees itself as the unassailable guardians of the nation. That haughtiness is now on unreserved display by the service secretaries.
Doubling down on the secretaries’ rhetoric, the Defense Department is following up on their rebuke with an influence campaign that uses active-duty military officers to press a political case against Tuberville through a rhetorical frame that claims his actions alone hurt the troops. Unsurprisingly, the Pentagon was less enthusiastic about making these senior officers available for interviews about the fall of Kabul in 2021, the human cost to service members and their families through two decades of war that lacked a victory strategy, the negative impact on trust from the military vaccine mandate, the manner in which military leadership failures have hurt recruiting efforts, and the host of other military scandals in recent years.
The bottom line is that by funding abortion travel expenses, the Defense Department is in violation of the Hyde Amendment. It claims otherwise by citing a newly written Justice Department memorandum. That authoring agency, like the Defense Department, is managed by a politically appointed director who ultimately serves the same political will of the nominating president as Austin.
The officer class became arrogant, believing its own rhetoric of being too virtuous to be judged by the elected class that engages in domestic politics. Its arrogance became matched by an institutional attitude across the Defense Department which sees itself as the unassailable guardians of the nation. That haughtiness is now on unreserved display by the service secretaries.
As the nation has seen in recent years, the Justice Department functions according to the same human desire to please superiors, which is the case in any bureaucracy. I remember one day hearing a commander tell the unit attorney that he needed to find a “way to yes” on an issue of legality. When the will is there, a “yes” can be found by those willing to apply wide flexibility in policy interpretation. That is what this memorandum attempts to do.
These efforts from the Justice Department did not arise because there was a sudden ambiguity in the Hyde Amendment, which has been law since 1980. It was written to offer a paper-thin cover for federal officials to violate the letter and spirit of the law. Justice Department memoranda of this sort are opinions and do not share the same force as a signed piece of legislation or a court ruling. The military service secretaries err in building policy on such a document.
The words spoken by the military service secretaries in their media campaign against Tuberville are a political rebuke not only of the legislative branch, but also the judicial branch. They claim that this new interpretation of the Hyde Amendment is required because the Supreme Court supposedly acted inappropriately in the ruling that struck down Roe v. Wade. This political campaign conveyed through the military sets a dangerous precedent that threatens to undermine what remains of discipline in the force.
Because the secretaries launched a salvo on Tuberville, they have sent a message to the entire force that Uniform Code of Military Justice language that restricts contemptible speech toward elected policymakers is now ambiguous and open to selective interpretation. Any military member who expresses speech of contempt toward Tuberville has immediate legal defense if charged with a violation. That is a cat that may prove impossible to put back in the bag, and the risk to military discipline cannot be overstated.
Many among us who recently served in uniform warned of the progressive ideological transformation occurring in the ranks. Now this transformation is on unrestricted public display. A military that will openly defy laws and malign those who exercise the lawful role of civilian oversight is one that loses all grounding to proclaim values, codes, or ethics of military life.
Among the criticisms lobbed at Tuberville is the notion that he does not understand how the legislative process works. The service secretaries challenge him to release the hold on senior officer nominations and instead introduce a bill to address the Defense Department’s funding of abortion. This is a clear red herring: Tuberville’s objection is to the military disobeying long-established policy. Without the leverage provided by the hold on batch nominations, there is no forcing function to make the Pentagon obey a new law any more than they currently adhere to the restrictions outlined in the Hyde Amendment.
Because the secretaries launched a salvo on Tuberville, they have sent a message to the entire force that Uniform Code of Military Justice language that restricts contemptible speech toward elected policymakers is now ambiguous and open to selective interpretation.
Using their own stated logic, if the service secretaries want to legislate, the appropriate action would be to resign and run for Congress. If elected, they could introduce legislation to repeal the Hyde Amendment. Of course, under the precedent set by the current Defense Department, interpretation of that law might be subject to the ideological bent of whoever holds the reins at the Pentagon in the future.
If the nation wants a military that is in any way loyal to the Constitution and the republic over the party of the sitting president, the time to act is now. Congress should make it clear to the Defense Department that attacking legislators for conducting lawful oversight is unacceptable. If this overstepping of authority remains unchecked, we risk watching what had been the world’s finest military over the past two centuries join the other armed forces who serve solely on behalf of strongman interests, rather than for safety of citizens, in the world’s despotic regimes.
As a veteran and fellow citizen, I appeal to the service secretaries to reverse course. It is one thing to violate the spirit of a law meant to insulate the millions of Americans who object to their taxpayer dollars being used to facilitate elective abortions. It is quite another to defame the character of a sitting lawmaker exercising his constitutional authority to provide a legislative check on the executive branch of government. Continuing along this course has the potential to irreparably damage the legitimacy of government by directly undermining the rule of the supreme law of the land.
Chase Spears is a retired Army Major who served for twenty years in military public affairs. He is foremost a husband, father, and educator. Among other pursuits, he is a doctoral candidate at Kansas State University. Chase enjoys writing about topics including civil-military relations and communication ethics.
