Gen. Mark Milley, the chairman of the Joint Chiefs of Staff, has quite the knack for placing himself in the middle of political controversies.
Milley’s latest mess might be the most profound.
Last year, he was forced to publicly apologize after, dressed in full combat fatigues, he accompanied former President Donald Trump on his now-infamous walk across Lafayette Square near the White House grounds, moments after peaceful demonstrators protesting George Floyd’s murder were tear-gassed.
This summer, he got in a spat with Republican Rep. Matt Gaetz, of Florida, at a congressional hearing and then was extensively quoted telling reporters how he allegedly tried to block Trump’s effort to overturn the election on Jan. 6.
But Milley’s latest mess might be the most profound — not because of what it says about him, but in the ways it lays bare the tenuous nature of our democratic institutions.
According to recently released excerpts from the new book “Peril” by Washington Post journalists Bob Woodward and Robert Costa, in fall 2020, Milley became increasingly concerned that Trump was mentally unstable. Milley reportedly sought to prevent Trump from launching a nuclear strike and reached out to a Chinese military leader to reassure him that a U.S. attack against Beijing was not imminent.
His actions have led some prominent Republicans like Sen. Marco Rubio, of Florida, to label his elections as “treasonous” and call on him to resign (in an email to reporters, Trump called Milley a “dumbass.”)
Most of these accusations are hysterical and can be safely ignored. But Milley’s actions raise serious, and in some respects unanswerable, questions about one of the most sacrosanct norms in American democracy — civilian control of the military — and it’s applicability when it comes to an issue like the use of nuclear weapons.
Milley was confronted with a problem that our constitutional system is simply not equipped to handle. He was legitimately concerned that Trump was mentally unstable, in serious decline and might do something incredibly stupid or tragic.
In calling his military counterpart in Beijing, Milley sought to put at ease increasingly anxious Chinese military officials concerned about the possibility of a surprise U.S. military attack. Milley told his counterpart that the “United States was not going to suddenly attack China without any warning — whether it be through diplomatic, administrative or military channels,” according to an Associated Press report on Woodward and Costa’s book.
Milley’s actions raise serious, and in some respects unanswerable, questions about one of the most sacrosanct norms in American democracy.
By all accounts, Milley’s call to the Chinese was not secret, as other key government agencies were informed. Indeed, it appears the impetus for his call in October 2020 came from then-Secretary of Defense Mark Esper. Moreover, Milley was trying to prevent China from miscalculating or overreacting to events in the United States.
Seeking to defuse tensions and avert a dangerous military escalation by Beijing is laudable behavior. It’s on the question of a nuclear strike where things get messy.
Milley reportedly reviewed the procedures for launching nuclear weapons with top military officials, telling them, according to The Washington Post, that “the president alone could give the order — but, crucially, that he, Milley, also had to be involved.”
The problem here is that the president can order a nuclear strike and bypass the chairman of the Joint Chiefs of Staff completely. Milley is not in the chain of command, and by interjecting himself in the process, he risks the appearance that he is putting his judgment above that of the president.
In Milley’s defense, it doesn’t appear that he was actively seeking to overrule the president or telling his staff not to carry out the theoretical order from Trump. Rather, he sought to ensure that any presidential decision to use force would go through proper military procedure. If, for example, a lower-level official concluded that Trump had issued an illegal order — but didn’t have the confidence to disobey — Milley was, in effect, telling all those under his command that he had their back.
It’s also possible that Milley may have inflated the risks of nuclear strike and exaggerated his own role in averting that possibility. As was the case in his supposed efforts to block Trump from overthrowing the election, there’s an argument to be made that Milley was acting as much out of hubris as he was genuine concern.
But then again, when the president has unilateral authority to launch a nuclear strike — and doesn’t need permission from Congress or sign-off from other members of the Cabinet — perhaps an abundance of caution is warranted. This is clearly an area in need of serious reform, either by placing greater restrictions on the ability of the president to launch nuclear missiles or forbidding the first use of U.S. nukes without congressional authorization. Legislation has been introduced by Sen. Ed Markey, D-Mass., and Rep. Ted Lieu, D-Calif., to do just that — and it’s long overdue that Congress gives it full consideration. But while these commonsense measures would lessen the potential for a global tragedy, they don’t completely get to the nub of the issue regarding Milley’s actions. The fact is, Milley acted because he strongly suspected the president had lost his mind. As things stand now, there is literally nothing he could do about that. The 25th Amendment allows the vice president and Cabinet to relieve the president of power if they believe the president is not able to carry out their duties. This is a constitutional tool that is only as strong as the political courage to carry it out. As the Trump presidency showed, this is an attribute upon which the American people cannot rely. even if one believes Milley stepped over the line, what options did he have if he truly believed the president was mentally unwell? As for Congress, it can impeach the president, but only for actions already taken — not those that may potentially happen in the future. As we saw twice during the Trump presidency, impeachment — even in the face of grievous impeachable acts — falls victim to the pull of domestic politics. So even if one believes Milley stepped over the line, what options did he have if he truly believed the president was mentally unwell? It’s not as if Milley is some guy off the street. He is the president’s top uniformed military adviser. His insights into the president’s mental state are relevant. It should almost go without saying that civilian control of the military is a fundamental and essential attribute of representative democracy. But so too is avoiding nuclear holocaust. It’s not realistic or wise to expect a military officer of Milley’s rank and stature to allow a presidential order to be carried out if it’s issued by a president who he believes is not in full possession of their faculties. Most of us would rather Milley refuse a presidential order to use nuclear weapons. But we also shouldn’t want generals making that call. As things currently stand, there is no good way to square the circle. Some commentators argue the onus is on the American people to never again elect a president as unstable and unqualified as Trump. Relying on the judgment of the American electorate is hardly a long-term solution. After all, they elected Trump — and could do it again if he runs in 2024. What we need is for Congress to put a mechanism in place whereby the chairman of the Joint Chiefs of Staff can warn congressional leaders of their concern about the president’s mental state and its potential impact on the use of military force. Indeed, since the military does not — and should not — involve itself in domestic politics, this could have greater impact than current constitutional tools, which rely on the actions of political leaders. Such an effort would be highly fraught and may not even be a real solution — for example, if the congressional leadership is of the same party as the president. But this is a conversation America needs to start having. No general or military officer should ever be placed in the position of deciding between doing their duty and preventing the launch of a war by a mentally unstable president.
Michael A. Cohen is a political writer and a fellow with the Eurasia Group Foundation. 
