Diplomatic Analysis: A new framework for addressing potentially corrosive, yet lawful, military orders is needed to safeguard constitutional principles.
The US military operates under a clear doctrine regarding manifestly unlawful orders: they must be refused. However, the situation becomes significantly more complex when faced with lawful actions that cumulatively pose a threat to the constitutional structure the military is sworn to defend. This analysis examines a recent proposal – termed “deliberative friction” – for how US military officers should navigate such grey areas, and its potential implications for civil-military relations, domestic political stability, and the broader application of constitutional principles within a powerful institution. The proposal, detailed by Kurt Shulkitas, argues for a formalised process allowing officers to document and escalate concerns about potentially damaging, albeit lawful, orders without insubordination, placing the onus of resolution on higher authority and Congress. This is increasingly relevant as concerns grow about the potential for erosion of democratic norms and the militarisation of domestic politics.
Historical Context
The tension between obedience to lawful orders and upholding constitutional principles is not new. The My Lai Massacre during the Vietnam War highlighted the dangers of unquestioning obedience, establishing the principle that even following orders is not a defence against unlawful acts. However, this primarily addresses illegal orders. The more subtle danger lies in “constitutional corrosion” – the incremental erosion of institutional independence through a series of seemingly legitimate actions, a concept articulated by Kim Lane Scheppele. This parallels historical concerns about the potential for the military to be used for domestic political purposes, a fear explicitly addressed by the Founding Fathers who enshrined civilian control of the armed forces. Recent events, including the contested 2020 US presidential election and the role of the National Guard, have reignited these anxieties. Furthermore, the expansion of executive power in areas of national security, particularly post-9/11, has raised questions about the balance between necessary authority and potential overreach. The historical backdrop underscores that safeguarding constitutional principles requires more than simply rejecting illegal orders; it demands a mechanism for addressing lawful actions with potentially damaging consequences.
Key Actors & Positions
Several actors are central to this discussion. US Military Officers, particularly those in command positions, are the primary subjects of Shulkitas’ proposal. They currently operate with clear guidance on unlawful orders but lack a defined protocol for navigating potentially corrosive, lawful actions. Civilian Leadership (the President, Secretary of Defence, and Congressional committees) hold ultimate authority and are responsible for setting policy. Their willingness to accept and address concerns raised through “deliberative friction” is crucial to its success. Inspectors General play an internal oversight role, investigating misconduct and ensuring accountability, but have limited authority to address broad constitutional concerns. Congress, as the representative of the people, is identified as the key external oversight body, possessing the authority to investigate recurring practices and revise delegated authority. Finally, Legal Counsel (Judge Advocates) are responsible for assessing legality but not necessarily for evaluating potential constitutional damage. The proposed system relies on a carefully defined interplay between these actors, creating a process of documented concern and institutional review.
Analysis
Shulkitas’ proposed “deliberative friction” offers a pragmatic approach to a complex problem. It acknowledges the necessity of civilian control while providing a mechanism for officers to voice legitimate concerns without immediately resorting to insubordination or resignation. The strength of the proposal lies in its emphasis on documentation and attribution. By requiring officers to submit concerns in writing, copying both the commander and the Inspector General, and preserving the officer’s right to communicate with Congress, it creates a verifiable record. This transparency discourages politically motivated obstruction while providing Congress with the information needed to identify potentially concerning patterns of behaviour.
However, the system is not without risks. The potential for abuse exists – officers could invoke constitutional concerns to delay or obstruct policies they simply disagree with. The success of the system hinges on clear standards for defining a “credible constitutional concern” and ensuring that frivolous or politically motivated claims are not entertained. The proposed safeguards, such as requiring a causal link between the action and a potential constitutional harm, attempt to mitigate this risk. Furthermore, the proposal rightly acknowledges that the system’s effectiveness relies heavily on a supportive institutional culture, one that values candour and protects officers from reprisal. Without such a culture, officers will likely remain silent, rendering the system ineffective. The proposal’s success is also contingent on Congressional willingness to exercise its oversight role actively, a willingness that has been demonstrably lacking at times.
Outlook
The adoption of a formal “deliberative friction” process within the US military is unlikely to be swift. It would require significant changes to military regulations and a shift in institutional culture. However, the increasing awareness of potential threats to democratic norms and the growing scrutiny of civil-military relations make it a conversation worth pursuing. Initial steps could include incorporating the principles of deliberative friction into professional military education, particularly at war colleges. A pilot program within a specific branch of the military could also provide valuable insights into the practical challenges and benefits of the system.
The implementation of such a system would likely be gradual, and its effectiveness will be judged over time. Crucially, the proposal offers a constructive path forward – a means of proactively addressing potential constitutional concerns rather than reacting to crises after they occur. The imperative to safeguard the constitutional foundations of US governance will likely ensure this debate continues, and similar frameworks may be explored to prevent the erosion of constitutional principles through lawful, yet potentially corrosive, actions.
Sources:
* Shulkitas, Kurt. “The Discipline of Refusal: Constitutional Concerns About Lawful Orders in the U.S. Military.” War on the Rocks, 29 September 2026, [https://warontherocks.com/2026/09/the-discipline-of-refusal-constitutional-concerns-about-lawful-orders-in-the-u-s-military/](https://warontherocks.com/2026/09/the-discipline-of-refusal-constitutional-concerns-about-lawful-orders-in-the-u-s-military/).
