This essay argues that a complete scrutiny of norm-breaking and “crises” within strategic-level American civil-military relationships ought to consider more than the impact of the breach or the value of the actor’s apparent justification for transgression.
Rather, considering how an actor understood the norm, and whether he or she accepted it before breaching it, uncovers two important factors that have been left under-examined in civil-military norms and relations literature: whether that norm ought to be considered the norm any longer, and whether there is a more nuanced way to determine an actor’s culpability or blameworthiness for the violation.
Exploring the willfulness and mindset of the individual parties, who seem to breach norms or fail to establish a baseline of workable mutual expectations, is a step in the direction of understanding the peculiar character of that choice beyond its effect and the actor’s reasoning.
This essay proposes that we borrow the scalable legal concept of “intent” from criminal law—described as “the degree of informed intentionality” of a civil-military relationship actor. Informing this proposal is a look at some recent norm-busting events “ripped from the headlines.”
- Lieutenant Colonel, Judge Advocate, U.S. Army. Presently serving as Assistant Professor of Law, United States Military Academy at West Point; non-resident Fellow, Modern War Institute; author of Crisis, Agency, and Law in US Civil-Military Relations (Basingstoke, UK: Palgrave Macmillan, 2017), alumnus of Army Chief of Staff’s Strategic Studies Group Fellowship; former combat engineer officer with two tours in Iraq, first as a platoon leader, later as Brigade’s senior legal counsel. The opinions and analysis in this essay do not reflect the official positions of the U.S. Army, the Judge Advocate General’s Corps, or the United States Military Academy.