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Dempsey v. McCain: A Spat Over the Interpretation of a Single Word

Provision Says CJCS 'May' Offer Advice to Congress

Jul. 19, 2013 - 03:45AM   |  
By JOHN T. BENNETT   |   Comments
US Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey, left, and Sen. John McCain, right, butted heads on the topic of US intervention in Syria during Dempsey's confirmation hearing July 18.
US Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey, left, and Sen. John McCain, right, butted heads on the topic of US intervention in Syria during Dempsey's confirmation hearing July 18. (AFP photos)
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WASHINGTON — Sen. John McCain believes the Joint Chiefs chairman is obligated to provide his personal and military advice to Congress. The sitting chairman disagrees. And the lone applicable provision is murky.

A public dispute that led McCain to place a hold on Gen. Martin Dempsey’s nomination for a second term as chairman largely boils down to how the parties involved interpret one sentence in a 57-year-old law.

During Dempsey’s Thursday confirmation hearing before the Senate Armed Services Committee, McCain pressed Dempsey hard about the general’s advice to President Barack Obama on whether the U.S. should intervene militarily in Syria’s civil war.

McCain, during a testy eight-minute exchange, wanted Dempsey to disclose his “advice and counsel is to the president of the United States — and your views are very important — because that's your job.”

Dempsey responded by telling McCain he and the other Joint Chiefs have provided Obama with “options” for a Syria mission. The chairman added that it is not the role of uniformed military advisers to the commander in chief to tell the president whether he believes the nation should go to war — just to tell the chief executive how it might be done.

“We've given him options. … We've articulated the risk,” Dempsey said. “The decision on whether to use force is the decision of our elected officials.”

McCain objected, reminding Dempsey that panel Chairman Carl Levin, D-Mich., had only minutes before asked the general a question each military nominee must answer during his or her confirmation hearing: “Do you agree, when asked, to give your personal views, even if those views differ from the administration in power?”

In written answers to policy questions posed before the hearing, Dempsey replied, “Yes.” When asked the question orally by Levin, he said, “I do.”

The chairman’s response to McCain’s mention of that question led him to inform the senator that the issue of intervening in Syria “is under deliberation inside of ... our agencies of government.” To Dempsey, that means “it would be inappropriate for me to try to influence the decision with ... me rendering an opinion in public about what kind of force we should use.”

Dempsey said he would inform the Senate panel about any recommendations he might make “at the appropriate time.”

But that was not good enough for the “Maverick of the Senate.”

“Well, if it is your position that you do not provide your personal views to the committee when asked only under certain circumstances,” McCain roared, “then you have just contradicted what I have known this committee to operate under for the last 30 years.”

McCain and Dempsey seemed to disagree about whether America’s top military official is legally obligated to provide lawmakers his personal and military advice.

A review by Defense News of the 1947 National Security Act, Title 10 of the U.S. Code and the 1986 Goldwater-Nichols Act turned up no clear statutory requirement for the chairman to do so.

In fact, Congress is barely mentioned in the provisions that initially established the chairman’s post. Several parts of that provision clearly spell out it is “the president, the National Security Council, or the secretary of defense” to whom the chairman is required to give his advice when one of those “requests such advice.”

But then there’s Subsection F of Section 151 of the Title 10 of the U.S. Code, first established in August 1956.

Under the heading “Recommendations to Congress,” is this provision: “After first informing the Secretary of Defense, a member of the Joint Chiefs of Staff may make such recommendations to Congress relating to the Department of Defense as he considers appropriate.”

How one interprets that language — particularly the word “may” — likely will determine whether they side with McCain or Dempsey in their very public spat, say several former Pentagon officials familiar with the congressional-Pentagon legal relationship.

“Basically, a chief can, if he informs the [defense] secretary and the president, tell Congress if he has concerns because Congress has the power to declare war and raise an army and a navy and so forth,” Larry Korb, a former Pentagon official now with the Center for American Progress, said Friday. “Who are Congress’ military advisers? It’s the chiefs, of course.

“If asked by a member of Congress, the chiefs, including the chairman, have to answer the question,” said Korb, who authored the 1976 book “The Joint Chiefs of Staff: The First Twenty-five Years.”

The bottom line? “I think McCain is right,” Korb said.

David Berteau, a former Pentagon official who follows Congress closely for his work at the Center for Strategic and International Studies, offered a different interpretation.

“It is not a requirement. And it also is not a requirement of secretary of defense to foster or support it,” Berteau said Friday. “It is more of an unsaid agreement, however. It is assumed by the committee that when they ask a chairman for his opinion, they will get the unvarnished military advice.

“Historically, I think they have gotten that unvarnished military advice,” Berteau said, adding even if Dempsey chose to publicly break with that tradition “this is not a precedent-setting event.”

Defense sources agreed Friday that Dempsey likely will provide McCain his desired information in short order and ultimately be confirmed by the committee and later the full Senate.

But one former Senate aide says the chairman handled the situation clumsily.

“One man still very much matters in the US Senate,” said Mackenzie Eaglen, now an analyst with the American Enterprise Institute, referring to upper chamber rules that allow any senator to place a hold on any nominee for any reason.

“It’s not so much that Gen. Dempsey may have miscalculated, but that his demeanor was borderline hostile to Sen. McCain. He came across as defiant and cocksure — going so far as to turn the tables and ask the Senator a question,” Eaglen said. “This general attitude does not bode well for the long-term relationships the chairman of the Joint Chiefs needs — and should want — to maintain on the SASC and with a leader of the Republican Party on defense and foreign policy matters.”

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