Stumped By A Balloon
In short, there’s no sign of a civil-military crisis here. But these aren’t normal times, either.
First, I hope you all will excuse the recent radio silence on my part. I was on a well-deserved vacation overseas (something I may talk about in a future post) and had no time for writing, as you might imagine. That said, it was no vacation from history and what a week last week was, wasn’t it?
If you guessed that I’m referring to the Chinese balloon incident, you’d be correct. 2023 has been nothing short of eventful thus far and this undoubtedly takes the cake. It’s likely the most serious crisis between the United States and China since the 2001 Hainan Island incident, though maybe a considerable step down in terms of severity. Nonetheless, the balloon incident is a reminder all isn’t well between the world’s two largest economies and geopolitical players. I doubt this constitutes a dramatic escalation in tensions since nobody died, but relations are certainly not going to improve over this.
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I want to address a peripheral, yet critical, issue that came up during the crisis. I’ve written at length about the all-important relationship between the president and military leadership in these spaces. I’ve also stated my belief that it’s not the president who’s ever really in charge, but a vast managerial state run by un-elected bureaucrats and official running the show. The president’s ability to get his way is contingent upon his relationship with the managerial state, which explains why Donald Trump had a difficult time accomplishing anything the few times he actually tried, while Joe Biden has had a much easier go of it. The ease with which the decision to withdraw from Afghanistan after 20 years of war is the best example of this.
My own conventional wisdom states that Biden’s 50 years in politics and his relationship with the key players in Washington means his orders will always be followed, whereas someone like Trump will be hindered by the bureaucracy or even outright disobeyed, as he’s not in a member of the power elite. However, last week’s events suggest Biden’s relationship with the managerial state may not be as tranquil as I’ve made it out to be:
What seems to have happened is that military leadership was concerned about the risk posed to American lives and property had they destroyed the balloon over U.S. territory. It’s a valid concern, though it suggests the balloon posed no threat, meaning the decision to destroy it once it was over water is a hollow gesture. It remains to be seen what kind of intelligence we can get out of the remains, but if it wasn’t worth prosecuting a blatant airspace violation when it occurred, it’s likely not worth doing so once it leaves your airspace, since China likely considered the U.S. might shoot the balloon down, anyway.
Again, the bigger story, in my view, is what this episode says about the relationship between Biden and military leadership:
Popular Twitter account “Enoch Powell” explained the significance of this event in a brief thread:
I disagree with his claim that Biden “clearly is not” in charge. I don’t think that’s evident here. More important, the decision-making process is never as straight-forward as one might think. The president may issue an order, but the military leadership might come back and advise the president on factors he may not have considered, such as collateral damage. In some ways, this is how the relationship is supposed to be. The less information he has, the less likely the president is to make a prudent decision. Therefore, the military suggesting Biden wait until it’s safer isn’t an ominous sign in it of itself. I’d be more concerned if the military reflexively followed Biden’s orders without attempting to better inform him, since the president isn’t a military expert, but is still ultimately in charge.
In short, there’s no sign of a civil-military crisis here. But these aren’t normal times, either. If this was during the Clinton or even Bush administration, this would be nobody’s cause for concern beyond those who study civil-military relations for a living. In the context of how the military dealt with Trump, any push-back from the military takes on a different light than it once did:
It’s a good question. Personally, I don’t think there’s any ambiguity to the chain-of-command. In a nuclear crisis, the commander-in-chief is the only person who can authorize a launch and our enemies know it. Until the president issues the order, nobody would dare fire off a single nuke and the suggestion is that the military would actually prefer not to participate in the ending of the world unless restraint served no purpose.
In fact, I’m old enough to remember when everyone was concerned about Trump launching a nuclear strike because he felt like it. The question of the day was whether the military could disobey the president. Here’s a BBC article from 2017 discussing the circumstances under which the military could lawfully disobey the president in a nuclear crisis:
Ordinarily, nobody is allowed to over-rule the president's decision - it's part of his role as Commander-in-Chief.
In theory, the vice-president could oust the president if a majority of the cabinet agreed that the president was unfit to serve.
In practice, that would be difficult to organise in time to stop the president launching nuclear weapons.
But Peter Feaver, professor of political science at Duke University in North Carolina, says it's not true that President Trump could launch a nuclear strike as easily as he could fire off a tweet.
"The president is giving an order which is transmitted down a chain of command. Someone further down that chain of command turns the key or presses the button."
Prof Feaver says that if the president went to the military to order a strike, this would trigger a "consultation process" - generals wanting to know what the president was trying to achieve, why the president wanted to use nuclear weapons and so on.
President Trump would have the legal authority to order the strike all the same, against any advice he receives.
But he'd still need to persuade the military to carry that order out.
Again, nothing ominous here. The military is in the business of following orders, a point I’ve made many times on this blog. At higher echelons of leadership, however, things are a little different. Not only do they possess more authority, they’re also expected to exercise greater judgment by virtue of holding greater responsibility as opposed to a private who just graduated from boot camp and knows nothing else besides following orders:
Gen Hyten argued that if a nuclear order was illegal, he wouldn't carry it out.
"If you execute an unlawful order, you will go to jail. You could go to jail for the rest of your life."
What would make a nuclear order unlawful?
Some argue that all uses of nuclear weapons would be unlawful.
But even if you dispute that, there may be certain circumstances where it would be illegal to fire nuclear weapons.
Anthony Colangelo, professor of law at the Southern Methodist University in Dallas, argues that certain kinds of nuclear strikes could break international humanitarian law.
International humanitarian law governs how countries must behave when at war. It comes from treaties the US has signed, such as the Geneva Conventions, but also from custom and case law, too.
You might break the law by using nuclear weapons when conventional weapons could achieve the same objective or by using nuclear weapons somewhere where they would kill combatants and civilians indiscriminately.
This isn't just Prof Colangelo's opinion. The US Department of Defense acknowledges in its law manual that "the law of war governs the use of nuclear weapons".
Prof Colangelo says the responsibility to obey the law "runs from the top down - right down to the crew member on the submarine".
If the president orders an illegal strike, anyone who carries out that order is potentially liable for war crimes.
They'd have a duty to say "no".
This is all neither here nor there, since nobody in their right mind would carry out a blatantly illegal order. The problem is, aside from blatantly illegal ones, all orders carry the presumption of legality. Unless military leadership can point to something cut-and-dried like the law manual referenced by Anthony Colangelo in the BBC article, military leaders will have a hard time explaining why they shouldn’t follow an order from the commander-in-chief. “This doesn’t feel right” isn’t an excuse for disobedience.
I’m not sure I’m crafting a coherent argument for you readers to follow. A lot of this is just a thought-dump on my part. I guess my concern is if this was how they handled a provocative, yet relatively low-threat scenario involving one slow-moving balloon, it makes me wonder how they’d handle a more serious crisis. The chain-of-command may be clear and illegal orders are obviously not to be obeyed. But if the president gives a command that may be imprudent, but not illegal, will the military follow it? Most important, is it a good thing the military has such wide latitude to shape the decision-making on the part of the president? This is a big reason why we spent 20 years in Afghanistan - the military was able to make it difficult for the president to issue and sustain the order to withdraw.
My overall view remains unchanged, however. I think civil-military relations were poor under Trump and are much better under Biden. All relationships move bidirectionally and I don’t think Secretary of Defense Lloyd Austin nor Chairman of the Joint Chiefs of Staff General Mark Milley, politically compromised as they are, want to end up on the wrong side of someone like Biden. Likewise, Biden needs the military and the whole managerial state on his side and would prefer to not cultivate a dysfunctional relationship with the people charged with carrying out his orders. It’s just a question of who ultimately holds the most cards.
I think the answer to that is clear. Dispense with politics for the moment and remember that information is power. Officials like the Defense Secretary and Joint Chiefs Chairman are responsible for advising the country’s top decision-maker. The president doesn’t come into office knowing everything. He needs to be counseled by people who specialize in a given field and is often under pressure to defer to their judgment. Deference has often come to be used as a way of outsourcing accountability, but the buck still stops in the Oval Office.
The problem is that even the bureaucrats aren’t always aware of everything that goes on. The Biden administration attempted to deflect criticism by citing the fact Chinese balloons flew over the U.S. during the Trump administration, but there’s more to the story:
John Bolton, former Trump White House national security adviser, told Fox News Digital that he never heard of anything like this under his tenure.
"I don’t know of any balloon flights by any power over the United States during my tenure, and I’d never heard of any of that occurring before I joined in 2018," Bolton said. "I haven’t heard of anything that occurred after I left either."
Bolton said that if the Biden administration has "specific examples, they need to tell Congress."
He added, "I can say with 100% certainty, not during my tenure."
Former Trump Defense Secretary Mark Esper also said he was never told about Chinese surveillance balloons above the United States during his time at the Pentagon.
"I don't ever recall somebody coming into my office or reading anything that the Chinese had a surveillance balloon above the United States," Esper said during an appearance on CNN. "I would remember that for sure."
The statements by Bolton and Esper are especially significant, as both have clashed with Trump during his presidency and remain critical of him post-presidency.
What happened, then? In an otherwise hyper-partisan piece, even ultra-leftist MSNBC confesses similar incidents occurred during Trump’s time, but word didn’t make it up the chain of command because nobody knew what the objects were:
In other words, if the reporting is accurate, U.S. officials were aware of some Trump-era incidents involving aerial intrusions, but they didn’t know what they were at the time. More recently, officials were able to review those incidents in new ways, applying improved techniques, and they determined that they were Chinese balloons.
Of course, the Biden administration deserves no benefit of the doubt, as they were aware of the object’s presence in U.S. airspace as far back as late January and we likely would’ve never known about it had it not been for local residents and media in Montana:
As it turns out, US authorities were well aware of the unidentified object that had entered American airspace on Jan. 28, that had then left and re-entered over North Idaho on Tuesday. But with such a high-profile trip at stake, keeping it on the down-low was key.
The high-profile trip being referred to here is Secretary of State Antony Blinken’s trip to China. I’m a big fan of diplomacy, but the idea we’re going to keep a blatant violation of our sovereignty on the down low because we don’t want to piss off China makes me wonder who our leaders are really working for.
Like I said, this is all just a thought-dump on my part. I’ll end by saying this whole episode has drastically lowered my confidence in our country’s leadership. A few weeks ago, I believed our homeland to be in bad hands. Now, I know it to be fact. I hope our leaders don’t face a major crisis on the scale of 9/11, but I also know, with the way things are going, it’s virtually inevitable.
What about you? What was your reaction to #balloongate?
Max Remington is a defense, military, and foreign policy writer. Follow him on Twitter at @AgentLoyalist.
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