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 Over time, a number of limitations on women's full military service have been repealed or otherwise eliminated.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.

Guest Blogger: Laura Dickinson

It's IntLawGrrls' great pleasure to welcome Laura Dickinson (left) as today's guest blogger.
Laura is the Foundation Professor of Law and Faculty Director of the Center for Law and Global Affairs at Arizona State University Sandra Day O'Connor College of Law.
She joined the ASU law faculty in 2008, having taught previously at the University of Connecticut School of Law. She was a Visiting Research Scholar and Visiting Professor in the Law and Public Affairs Program at Princeton University in 2006-2007.
An expert on human rights, national security, foreign affairs privatization, and qualitative empirical approaches to international law, Laura is the author of Outsourcing War and Peace (2011). This just-published book examines the privatization of military, security, and foreign aid functions of government and its impact on core public values.
During the Clinton Administration, Laura served as a senior policy adviser to Harold Hongju Koh when he was Assistant Secretary of State for Democracy, Human Rights, and Labor. Before that, she clerked for U.S. Supreme Court Justices Harry A. Blackmun and Stephen G. Breyer and for Judge Dorothy Nelson of the U.S. Court of Appeals for the Ninth Circuit. A term member of the Council on Foreign Relations and and co-organizer of a Collaborative Research Network on Empirical Approaches to International Human Rights Law, convened under the auspices of the Law & Society Association, Laura is also a member of the Executive Council of the American Society of International Law. Her guest post below sets forth the call for papers for an ASIL initiative, the Research Forum for which she serves as a 2011 co-chair.
Heartfelt welcome!

'Nuff said

(Taking context-optional note of thought-provoking quotes)

To combat insurgents and protect civilians simultaneously, governments could choose to use ground troops, which are arguably better equipped to discriminate between innocent bystanders and insurgents and their accomplices. Although militaries risk significantly higher casualties by deploying their troops rather than dropping precision bombs, this sacrifice is precisely what the logic of just war requires: that civilians not become more expendable than a country's armed forces.

-- Dr. Charli Carpenter (left), Assistant Professor in the Department of Political Science at the University of Massachusetts-Amherst, in "Fighting the Laws of War: Protecting Civilians in Asymmetric Conflict," a review essay appearing in the current edition of Foreign Affairs. Carpenter takes issue with authors who argue, from the left and the right, that extant laws of war are insufficient to meet the challenges of contemporary military engagements.

On February 9

On this day in ...
... 1916 (95 years ago today), Britain began conscripting men between 18 and 41 years of age to fight in the conflict that it had entered nearly 2 years earlier. A million persons already had volunteered, but more were needed due to heavy losses. (The July 1916 Battle of the Somme would claim 20,000 British lives on the 1st day alone.) By the time World War I ended, more than "4.5 million Britons served in arms (in addition to over three million troops from the British Empire)." Many in the latter group arrived only after significant resistance in their home countries, as described, e.g., here (photo credit) and here.

(Prior February 9 posts are here, here, and here.)

On December 30

On this day in ...
... 1990 (20 years ago today), outcry over a decision announced the day before prompted the Greek government to announce that "it would not go ahead with plans to pardon Greece's jailed former military dictators." who had seized power in the 1967 coup d'état commemorated in the poster at right (image credit), until 1974, when the 1st free elections in a decade were held. The dictators were in prison following conviction on charges including treason, torture, and murder of dissidents.

(Prior December 30 posts are here, here, and here.)

DADT no. Child brides yes. DREAM not.

The headline presents one way to read recent doings in Congress. The latest developments:

► Repeal of "don't ask don't tell," the military policy regarding gays and lesbians (prior posts available here). Having cleared the final congressional hurdle yesterday, the repeal legislation's now on the President's desk.
► House blockage Thursday of the International Protecting Girls by Preventing Child Marriage Act of 2010, which, as we posted, earlier had won unanimous approval in the Senate.
► Yesterday's failure to secure Senate as well as House passage of the DREAM Act; that is, the the path to citizenship for some young, undocumented immigrants. Full name: Development, Relief, and Education for Alien Minors Act of 2010.

Still on the Senate's docket, today and until the upper chamber adjourns: New START.

On December 18

On this day in ...
... 2003, Susan Travers (left) died in the Paris area, 94 years after her birth in southern England. The daughter of an admiral, she grew up "a young tennis-playing socialite in the south of France," and eventually "became the first and only woman ever to serve" in the French Foreign Legion. Her sojourn began with the onset of the World War II. Travers joined the French Red Cross, serving 1st as a nurse and later as an ambulance driver. (photo credit) She volunteered as a driver for Free French officers in the North Africa campaign, and took part in a month-long battle with Nazi Germans at Bir Hakeim, Libya. Officially admitted to the Foreign Legion's ranks, Travers, "creating her own uniform," served in Vietnam, then married another legionnaire and retired to Paris. Travers published a memoir shortly before her death.

(Prior December 18 posts are here, here, and here.)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'On the battlefield it does not matter who you love. Only the flag that you serve.'

-- U.S. Rep. John Lewis (D-Georgia), commenting on yesterday's House OK of a bill to repeal "don't ask don't tell," the 1993 statute that bars gays and lesbian from serving openly in the U.S. armed forces. The House vote was 250 to 175. Still unclear whether the Senate will consider this standalone bill during the soon-to-end term.

Wald on WikiLeaks

(Honored to welcome back alumna Patricia M. Wald, former federal and international judge, and former member of Presidential commission on U.S. intelligence, who contributes her thoughts on the unauthorized WikiLeaks release of U.S. diplomatic cables and military documents, some of which have been published in The New York Times, the Guardian, Le Monde, El Pais, and other media)

I think that freelancers do have some duty not to do things that will inevitably result in making any rational course of foreign relations more difficult.
Though it may be difficult to draw a precise line, I do see a difference between publishing the Pentagon Papers (after the fact), which disclosed the perfidy of the Vietnam War, and just dumping all sorts of personal calumny about foreign leaders – though part of these “dumps” may well have been motivated, like the Pentagon Papers, to show the futility of our sojourn in Afghanistan. (It seems almost impossible that the dumps aren’t violative of all sorts of laws.)
The episode also illustrates how our courtship with technology can be ruinous, by making it so easy to gain access to and disseminate so much classified material through young and immature intelligence operators.

On October 22

On this day in ...
... 1957, 13 Americans were wounded when outposts of the Military Assistance Advisory Group (logo at right) and U.S. Information Service were bombed in Saigon, then the capital of South Vietnam (today, Ho Chi Minh City, Vietnam). The event marked the 1st U.S. military casualties in Vietnam -- the 1st in a war that would claim many more over the next decade and a half.

(Prior October 22 posts are here, here, and here.)

Inter-American verdicts against Mexico

Mexico owes compensation to women who suffered sexual abuse at the hands of military personnel, the human rights court for the Americas reportedly has ruled.

According to reports here and here, the 2 judgments came yesterday in the cases of Valentina Rosendo Cantú and Inés Fernández Ortega, Tlapaneca (Me'phaa) indigenous women from the Mexican state of Guerrero. (The website of the Inter-American Court of Human Rights does include judgments in both cases, but they are dated in August and September, respectively.)

Leaders of nongovernmental organizations praised the judgment, which came after 8 years of litigation by the 2 women. The judgment "represents 'a light of hope'" that victims and their families can attain justice, said Alejandra Nuño (left), director of the Mexico and Central America program at CEJIL, the Center for Justice and International Law (prior post), which focuses on the Inter-American Court.

Found responsible for having "failed to guarantee the rights to personal integrity, dignity and legal protection" to Rosendo and Fernández, the Mexican government said it would abide by the court's call for a civilian investigation, for compensation, and for publication of the judgment. The government added that it

reiterates its full commitment to the promotion and protection of human rights, in particular to combat violence against women and girls.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

The Don't Ask, Don't Tell Act infringes the fundamental rights of United States servicemembers in many ways, some described above. The Act denies homosexuals serving in the Armed Forces the right to enjoy "intimate conduct" in their personal relationships. The Act denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality. In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the Government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden. Thus, Plaintiff, on behalf of its members, is entitled to judgment in its favor ... for violation of the substantive due process rights guaranteed under the Fifth Amendment.

-- U.S. District Judge Virginia A. Phillips of the Central of District California, based in Riverside, in the 86-page opinion issued yesterday in Log Cabin Republicans v. United States, in which she ruled that the government's "Don't Ask Don't Tell" law violates the U.S. Constitution. Having so ruled on 5th Amendment due process grounds, Judge Phillips then proceeded to rule that the law, found at 10 U.S.C. § 654, which has been applied to lesbians and gays in the military since 1993, also violates the free speech and petition rights of the 1st amendment.

On June 9

On this day in ...
... 1989, in Cold Lake, Alberta, Capt. Deanna Brasseur (left) and Capt. Jane Foster (below right) completed a course to become the 1st two women fighter pilots available for combat roles in Canada and, possibly, the world. (photo credits here and here) Brasseur, who'd also been 1 of the 1st 3 Canadian military women to earn her pilot's "wings," would retire in 1994, with the rank of major and having logged more than 2,500 in fighter-jet flying. Foster eventually became a flying instructor, a position from which she retired in 2008.

(Prior June posts are here, here, and here.)

In passing

The adage often works in reverse. Many a woman's supported by many a great man.
That thought in mind, I mark the passing this week of my dad, Robert Bernard Amann, shown at left dancing with his only daughter at her midsummer wedding years ago.

Yesterday's rites closed with taps at graveside, followed by an image often marked here: an officer in dress blues hands over a trifolded banner and says,

On behalf of the President of the United States and the Commandant of the Marine Corps, please accept this flag as a symbol of our appreciation for your father's service to Country and Corps.

Remembering women in service

On this Memorial Day, we note a recent discovery:
In a corner of Washington's Arlington National Cemetery stands the Women in Military Service for American Memorial, "the only major national memorial in our nation's history to honor and pay tribute to all servicewomen of the United States Armed Forces — past, present and future." (photo credit)
Dedicated in 1997, the 4-acre monument, including glass tablets and a reflecting pool, lies at the cemetery's Ceremonial Entrance. Inside may be found a computer database about a quarter-million of the 2 million women who've served, as well as multimedia exhibits including photographs (like that at right of Margaret (Zane) Fleming, an Army nurse at a Korean War MASH unit), recordings, and items used by U.S. servicewomen throughout the centuries.

On May 20

On this day in ...
... 1910 (100 years ago today), The New York Times reported that, in order "to protect American interests," artillery-laden U.S. Marines had landed in Nicaragua. The landing at the Caribbrean port city of Bluefields was part of a U.S. intervention that brought down the government in power; there would be a U.S. presence in Nicaragua for decades thereafter.

(Prior May 20 posts are here, here, and here)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'We literally could not run the Navy without women today.'

-- U.S. Secretary of the Navy Ray Mabus, announcing that his department has put an end to the long-standing ban on women serving on submarines. (photo credit) Today 52,446 out of the Navy's 330,700 active-duty personnel, or 15%, are women. Prior IntLawGrrls posts about women servicemembers are available here.

On March 24

On this day in ...
... 1765 (245 years ago today), King George III gave royal assent to the Quartering Act (left), which authorized government officials to order that, "as shall be necessary," British troops be given room, board, and alcoholic beverages in private homes in the American colonies, "without paying any thing for the same." (image credit) The statute was part of a series that colonists called the Intolerable Acts; taken together, the measures became rallying cries for independence. Postcolonial antipathy to this measure is evident in the 3d Amendment to the U.S. Constitution, which states:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

(Prior March 24 posts are here, here, and here)

Gender, equal protection & immigration

(IntLawGrrls is pleased to welcome back Ruthann Robson, who contributes this guest post, cross-posted from Constitutional Law Prof Blog, regarding the U.S. Supreme Court's announcement yesterday that it will review Flores-Villar v. United States. Ruthann further contributes the Go On! post below)

The question is a narrow one:

► Does decision in Nguyen v. INS (2001) permit gender discrimination that has no biological basis?

In Nguyen, the U.S. Supreme Court upheld 8 U.S.C. § 1409, which imposed different requirements for a child’s acquisition of citizenship depending upon whether the citizen parent is the mother or the father. Writing for the Court, Justice Anthony M. Kennedy found that the statutory gender-based distinction – applicable when the parents were unmarried, when only parent was a citizen, and when the child was born outside of the United States – survived a constitutional challenge based on the “equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment.” The majority found that the statute served two important governmental interests:

► The importance of assuring that a biological parent-child relationship exists; and

► The importance of assuring that the child and the citizen parent have a demonstrated opportunity or potential to develop the “real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States.”

The Court in Nguyen relied on biological reasoning -- women give birth and men may not even realize their paternity -- and concluded:

Given the 9-month interval between conception and birth, it is not always certain that a father will know that a child was conceived, nor is it always clear that even the mother will be sure of the father’s identity. This fact takes on particular significance in the case of a child born overseas and out of wedlock. One concern in this context has always been with young people, men for the most part, who are on duty with the Armed Forces in foreign countries.

The Court then provided statistics about the number of military men in foreign countries in 1969, the year Nguyen was born in Viet Nam -- although, as the dissenting opinion noted, after Nguyen's parents split up, he lived with the family of his father’s new girlfriend and in 1975, before his sixth birthday, Nguyen came to the United States, where he was raised by his father. A DNA test showed a 99.98% probability of paternity, and the father obtained an order of parentage from a state court.

The Court's grant of certiorari in Flores-Villar v. United States will involve a reconsideration of Nguyen. Flores-Villar was born in Tijuana, Mexico, in 1974 to a noncitizen mother and a United States citizen father who, importantly, was 16 at the time. His father and grandmother, also a citizen, brought Flores-Villar to the United States for medical treatment when he was two months old. He grew up in San Diego with his grandmother and father, who acknowledged paternity with the Civil Registry in Mexico on June 2, 1985. Apparently, Flores-Villar was not in touch with his mother, who remained in Mexico.

The gendered differential imposed by the statute at issue in Flores-Villar was the requirement that a citizen father must have resided in the United States for at least five years after his 14th birthday to confer citizenship on his child, while a citizen mother had to reside in the United States for a continuous period of only one year prior to the child’s birth to pass on citizenship. Moreover, in the case of Flores-Villar, the INS denied a petition for citizenship on the basis that because the citizen father was 16 years old at the time of the child’s birth, it was “physically impossible” for the father to have the required physical presence after the age of 14 in order to comply with the statute.
In the 2008 appellate decision in Flores-Villar to be reviewed, a panel of the U.S. Court of Appeals for the Ninth Circuit -- comprising Judges Pamela Rymer, Cynthia Holcomb Hall, and Andrew J. Kleinfeld -- upheld the statutory scheme. It held the asserted governmental interests -- avoiding statelessness, as well as assuring a link between an unwed citizen father, and this country, to a child born out of wedlock abroad who is to be a citizen -- to be important. The means chosen, it also held, substantially further the objectives. The Court stated:

Though the fit is not perfect, it is sufficiently persuasive in light of the virtually plenary power that Congress has to legislate in the area of immigration and citizenship.

This “fit” will certainly be at issue before the U.S. Supreme Court.

Then-Justice Sandra Day O’Connor’s dissenting opinion in Nguyen, which was joined by Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer, stressed the heightened scrutiny required by the case involving single-sex education at VMI, the Virginia Military Institute. In that judgment in United States v. Virginia (1996), a closer fit was required between the “discriminatory” means chosen and gender stereotypes. The Nguyen dissenters thus reasoned that the statute at issue in Nguyen was

paradigmatic of a historic regime that left women with responsibility, and freed men from responsibility, for nonmarital children,

and added that it could easily have been rendered sex-neutral.

In Flores-Villar, because the gender differential is a residency requirement -- and not, as in Nguyen, a relationship-with-child requirement -- the “fit” may not be sufficiently tight. If the Court applies VMI, the question will be whether or not there is something unique about men that requires them to have a longer residency than women before men are truly “citizens.” However, the Court will also certainly rely on the plenary power of Congress in the area of citizenship.

Balancing gender equality and citizenship will be the task for the Court -- a task which the newest Justice, Sonia Sotomayor (right), will certainly undertake.

Go On! Women in the military

(Go On! is an occasional item on symposia and other events of interest)

"Women in the Military: Fighting For Their Rights" is the title of a program to be presented from 12 noon to 2 p.m. this Thursday, March 25, at the American University Washington College of Law, 4801 Massachusetts Avenue, Washington, D.C. Sponsors are the National Institute of Military Justice, on whose boards IntLawGrrls Elizabeth Lutes Hillman, Beth Van Schaack, and I proudly serve, as well as the law school's Women’s Law Association and Veterans Law Student Association.

Featured panels:
► Current Issues Affecting Women In The Military. Speaking will be Captain Lory Manning, Director of the Women in the Military Project for the Women's Research and Education Institute; Commander Carol Stundtner, Gender Policy Advisor, U.S. Coast Guard; and Captain Kari Crawford, Attorney, Criminal Law Division, U.S. Army JAG Corps. Michelle M. Lindo McCluer, NIMJ Executive Director, will moderate.
► Addressing Sexual Assault In The Military. Brigadier General (ret.) Thomas R. Cuthbert, Senior Technical Advisor for the Defense Task Force on Sexual Assault in Military Services; and Janet Mansfield, Attorney, Criminal Law Policy Division, Office of the Judge Advocate General, U.S. Army, and Legal Advisor to U.S. Army Sexual Harassment/Sexual Assault Response and Prevention Program.

The event is free. Details and registration here.