Diversity in the Military

Women were first allowed to serve (in statutorily limited numbers) in the U.S. military with the passage in 1948 of the Women's Armed Forces Integration Act. Over time, a number of limitations on women's full military service have been repealed or otherwise eliminated. (See here for a short history of women in the military). And yet, women remain underrepresented in national militaries. In the United States, women make up about

• 15% of active-duty service members;


• 18% of National Guard and reserves;


• 10% of Iraq and Afghanistan combat veterans; and


• 10% of those who have served in the Iraq and Afghanistan theaters of war.

Women are vastly under-represented in senior ranks as well. Even in the Israeli military, one of the few that conscripts women, less than 5% of the senior ranks are occupied by women. It was only in 1993 that Sheila Widnall (right) was appointed U.S. Secretary of the Air Force—the first women to lead a branch of the U.S. military.

The military is one sector of society that has remained steadfastly impervious to demands for formal equality. In most national militaries, women are excluded by law from certain combat functions. The United States' 1994 combat exclusion policy states that

Women may not serve in units that engage an enemy on the ground with weapons, are exposed to hostile fire, and have a high probability of direct physical contact with the personnel of a hostile force.

This policy thus precludes women from being “assigned” to ground combat units operating "well forward on the battlefield"—a concept with little basis in the reality of many of today's combat situations. Indeed, women have served in ground combat situations by virtue of being assigned to units deemed “attached” to these ground units. This often artificial distinction keeps women from gaining recognition for their ground combat experience. In light of the evolution of modern warfare and weaponry, and the disappearance of linear battlefield or a clearly defined enemy, de facto battlefield equality is well ahead of de jure battlefield equality.

But, change is afoot... In February 2010, the Navy announced a new policy allowing women to serve on submarines. Then, this month, to little fanfare, the U.S. Department of Defense released a report (see press release here) drafted by a Military Leadership Diversity Commission and entitled, Military Leadership Diversity Final Report, From Representation to Inclusion: Diversity Leadership for the 21st-Century Military. The Commission was established by virtue of the 2009 National Defense Authorization Act (sec. 596) to evaluate and assess policies that provide opportunities for promotion and advancement of women and racial and ethnic minorities in the armed forces. The Commission, chaired by retired Air Force Gen. Lester L. Lyles (left), issued 20 recommendations, one of which will be of particular interest to readers of this blog.

Recommendation 9 states:

DOD and the Services should eliminate the “combat exclusion policies” for women, including the removal of barriers and inconsistencies, to create a level playing field for all qualified servicemembers. The Commission recommends a time-phased approach:

• Women in career fields/specialties currently open to them should be immediately able to be assigned to any unit that requires that career field/specialty, consistent with the current operational environment.


• The DOD and the Services should take deliberate steps in a phased approach to open additional career fields and units involved in “direct ground combat” to qualified women.


• DOD and the Services should report to Congress the process and timeline for removing barriers that inhibit women from achieving senior leadership positions.

The recommendation is based in part on a number of key observations, including

• an acknowledgement of changed battlefield conditions and the disconnect between the reality of women's combat experience and the policy;


• the recognition that the lack of formal combat experience prevents women from achieving promotion to certain officer grades and in certain operational career fields;


• the results of new research that debunks the idea that allowing women to serve in combat would hamper mission readiness, diminish military capabilities, or undermine unit cohesion; and


• the obvious point that armed forces leadership should be able to bring all available talent to bear on the challenges facing our military.

Let's hope that the Department of Defense heeds the report's recommendation so that our military's leadership can better reflect the nation it serves and the forces it leads. It is only when women can make the ultimate sacrifice for our nation and its security (photo credit) that women can achieve true equality with men.

On February 23

On this day in ...

... 2010, Letitia Long (right) was named the next director of the National Geospatial-Intelligence Agency by U.S. Secretary of Defense Robert Gates. At the time she was the deputy director of the Defense Intelligence Agency. She had 3 decades of engineering and intelligence experience, serving in other positions including deputy director of Naval Intelligence and coordinator of intelligence community activities at the Central Intelligence Agency. Upon taking over at National Geospatial last August, Long became the "the first woman to be a leader at a major intelligence agency" in the United States.

(Prior February 23 posts are here, here, here, and here.)

'Nuff said

'Earlier is clearly better.'

-- Dr. James N. "Jim" Miller (right), Principal Deputy Undersecretary of Defense for Policy, quoted in Politico yesterday by Laura Rozen (to whose foreign policy blog we link in our "connections" column at right). Miller was speaking of the Obama Administration's hopes for U.S. ratification of New START, the nuclear weapons treaty that, as we've posted here and here, U.S. President Barack Obama and Russian President Dmitry Medvedev signed last April in Prague, Czech Republic. As Rozen reported, the Foreign Relations Committee of the U.S. Senate is supposed to vote today on the treaty. If the Committee approves, the treaty then will be sent to the full Senate. Miller made clear that the administration would like to see this happen sooner rather than later, even as he allowed:

'But we understand that the Senate has to act according to its own timeline and have its own questions answered and we remain committed to provide those answers as they continue their deliberations.'

On February 9

On this day in ...
... 2009, the Senate confirmed the nomination of Michèle A. Flournoy (right) as the United States' 9th Under Secretary of Defense for Policy. The daughter of a mother who was a performer at New York's Copacabana nightclub and a World War II veteran father who was a TV cinematography director for Paramount Studios, she's now "one of the highest-ranking women in the history of the Pentagon." Flournoy earned degrees at Harvard and at Balliol College, Oxford, England. From 2007 until her DoD appointment, she served as founding President of the Center for a New American Security, a Washington, D.C.-based thinktank.

(Prior February 9 posts are here and here.)

News from Guantánamo, more on detention

This has been a busy period for news related to Guantánamo and other detention sites.
► Yesterday Army Col. Stephen Henley, a military judge, granted a delay of the trial by military commission of 5 detainees charged in the terrorist attacks of September 11, 2001. His decision came after the passing on Thursday of the deadline of the second 120-day postponement of the military commissions, requested by the Obama administration in May of this year. The administration had made its first request for a 120-day delay in January (along with announcing the closure of Guantánamo, on which we posted here and here), when President Obama took office. Rather than resume operations in full, however, the administration announced this past Wednesday that it would request a third delay -- this time for 60 days -- in the 10 pending military commissions cases, which include the so-called "high-value" 9/11 detainees.
The administration continues to maintain the position that it will prosecute detainees for war crimes under the military commissions originally put in place by President George W. Bush and then passed by Congress in the Military Commissions Act of 2006. The Obama administration says, however, that it intends to revamp the commissions, a task for which it plans to enlist the help of Congress.
► In one of dozens of habeas cases before the D.C. district courts, Judge Colleen Kollar-Kotelly (left) recently ordered the release of Fouad al-Rabiah. This brought the tally in the habeas cases to 30 habeas petitions granted versus 7 petitions denied. Though the full opinion is sealed (the unclassified version to be released soon), this IntLawGrrl learned from an inside source that the government's case relied almost entirely on coerced confessions of al-Rabiah, which apparently drew ire from the judge: She questioned why the new administration was relying on statements obtained through torture and abuse.
Good question.
► In the habeas case involving Bagram detainees, Maqaleh v. Obama, the government filed its brief with the D.C. Circuit Court. Recall that on April 2, 2009, D.C. District Court Judge John D. Bates (right, a Bush nominee) ruled that the three individuals who had been "captured" outside of Afghanistan and brought to the U.S. detention center at Bagram were entitled to file habeas petitions based on the Supreme Court's guidelines in Boumediene v. Bush (2008) (prior posts).
The government appealed that ruling, raising the spectre of Johnson v. Eisentrager (1950) for the hundredth time since 2002, and arguing that there was already a military administrative-type process in place to review whether an individual should be detained. (The Department of Defense review process is in the addendum at the end of the brief). These procedures look a lot like the Combat Status Review Tribunals and the Administrative Review Boards used at Guantánamo, which the Boumediene court concluded were not an adequate substitute for habeas.
► Last but not least in detention-related news, the United States closed Camp Bucca, the largest U.S.-run detention center in Iraq, moving the detainees to other camps and back to the custody of Iraq, all in anticipation of its plan under the new U.S.-Iraq Agreement (prior post) to withdraw from Iraq.

Because Ipse Dixit Says So

A reader of the newly declassified "torture memo" finds herself tempted to live-blog it; that is, to offer online real-time notes that otherwise would be scrawled in the margins replete with all manner of punctuation symbols (! and ? and, yes, #*?%!). Examples from the 81-page document issued on March 14, 2003, by John C. Yoo, then Deputy Assistant Attorney General, and entitled Memorandum for William J. Haynes II, General Counsel of the Department of Defense, Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States:

p.4:

obtaining advance information about the identity of al Qaeda operatives and their plans may provide to be the only way to prevent direct attacks on the United States.

Underline's mine, and here's my marginal scrawl: Gov't admits own humint failure

p.4, again:

Interrogation of capture al Qaeda operatives could provide that information; indeed, in may cases interrogation may be the only method to obtain it.

My underline; marginal scrawl: if true, why did gov't use unreliable methods?

A cathartic exercise, perhaps. But it may be better to push back and take a broader look, as I tried to do after the 1st slew of such memos was released. In a 2005 article I wrote (p.2123):

The torrent of documents leaked in the course of the Abu Ghraib scandal revealed that, in point of fact, government lawyers had been well aware of the intricate legal terrain that the executive detention policy was traversing.

I noted (p.2124) that some of the disclosed

legal memoranda, particularly those that established legal sanction for the Executive’s detention and interrogation policies, relied on a legal opinion that the Constitution gives the 'President alone' power to determine 'any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response,' in order to deflect treaty language that might have circumscribed executive action.

This latest memorandum is much in that vein. It oft repeats the 'President alone' mantra, and it casts aside all law, domestic as well as foreign, that would appear to constrain the Executive. What troubles no less now than it did in 2005 is the fact that aspects of international law had evolved in ways that aided (pp.2124-25) U.S. deflection of international obligation:

[I]nternational human rights law ... reflects the universalist tendencies of ancient natural law yet is codified in positive instruments of law. Yet the internal enforceability of those instruments remained subject to the buffer mechanisms that public international law condones. It was on these mechanisms that government lawyers relied in order to insulate the United States from the effect of international obligations assumed when it became a state party to certain treaties. ...

The newly disclosed memo likewise points to mechanisms such as the non-self-execution doctrine and the conditioning of treaty ratification upon reservations as reasons that laws do not constrain executive officials -- military interrogators as an initial matter and, it may be presumed, their superiors, military and civilian.

This March 2003 memorandum goes a step further, turning its analysis inward in a way intended to shield individuals not only from the enforcement of the law of nations, but also from the enforcement of the law of this Nation.

Take as an example the 5th Amendment, which contains the guarantee not only of due process, but also of specific items such as the privilege against self-incrimination. That amendment does not apply to interrogation, it is claimed on pages 6-8,

► for the reason that it "was not designed to restrict the unique war powers of the President as Commander in Chief"; and

► with regard to extraterritorial interrogation, by reason of the 4th Amendment-based opinion by Chief Justice William H. Rehnquist in United States v. Verdugo-Urquidez (1990).

Is a reader to infer from the latter assertion, about interrogation outside the United States, that a President has the "war power" to set aside the 5th Amendment inside the United States? Footnote 10 on page 8 bolsters such an inference. Citing an October 2001 memo that appears not yet to have been disclosed, the footnote states, supplying its emphasis, that

our Office recently concluded that the Fourth Amendment had no application to domestic military operations.

It is the 4th Amendment, of course, that protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Apparently some people were not nearly as secure as they might have thought; indeed, an Associated Press report speculates that the 2001 memo gave a green light to warrantless in-country surveillance.

Is a reader properly to assume, moreover, that Verdugo's discussion of the 4th Amendment's extraterritorial application vel non applies without further ado to post-9/11 matters? I have argued to the contrary (pp.295-99) with regard to the 4th Amendment itself, and most surely with regard to the 5th Amendment, which varies in text and background from the 4th. Counterarguments do not appear within the dense single spaces of this memorandum, however.

Instead, what is found is a steady train of affirming assertions. And more. In 2005 I had found (p.2123) in disclosed memoranda a general lack of resort to "the ipse dixits that had characterized public statements" of the Executive. Not so in this memorandum. Sweeping assertions like those on page 13, of Executive power to the exclusion of other branches, are supported almost solely by past memoranda of the Office of Legal Counsel.

In short, this latest document does nothing to alter my 2005 conclusion (p.2126), one that's at odds with what's been called the "lawyerly" nature of all this:

The disclosed memoranda provided rare and troubling evidence of the deliberate construction of a framework that appeared to be ruled by law, but was not. The framework might better be termed 'legalist' rather than 'legal'; within it, the only laws recognized were those allowing free rein for presidential prerogative dressed in the guise of legal constraints. For more than two years, laws that the Executive chose neither to acknowledge nor to accommodate seemed not to operate as law at all.

(cross-posted at Slate's Convictions blog, which has related posts here)