The Center for Military Readiness supports efforts to stop Senate filibusters against qualified nominees to the federal courts. And we wish we could join conservative friends in supporting the nomination of William J. Haynes II to the 4th Circuit Court of Appeals.
We cannot do so at this time, however, for the same reasons that we questioned the nomination of White House Counsel Harriet Miers to the Supreme Court.
Both Miers and Haynes are top legal authorities in the Bush Administration. Part of their job is to warn President Bush and Secretary Donald Rumsfeld about potential violations of policy and law. Mr. Haynes’ responsibility is even greater than Miers’ because he is general counsel of the Department of Defense.
Haynes’ critics keep questioning Iraqi prisoner investigations, but CMR is more concerned about our own female soldiers. The Army is ordering women into certain units that are required to be all male. Why did Mr. Haynes allow this to happen?
In 1994 then-Secretary of Defense Les Aspin issued regulations that exempt female soldiers from direct ground combat units, such as the infantry, armor, and Special Operations Forces. All deployed soldiers are “in harms’ way,” but “tip of the spear” combat forces deliberately engage the enemy with offensive action under fire.
Female soldiers also are exempt from support units that “physically collocate and remain with direct ground combat troops, [such as the infantry] that are closed to women.” This is the DoD “collocation rule,” affecting only units that “collocate” or embed with all-male units 100% if the time.
Problems began in the spring of 2004, when the Army started redefining the collocation rule without approval by the Secretary of Defense. Making the absurd claim that women will be evacuated (how?) before a battle begins, Army officials have administratively “assigned” women to legally open brigade-level units on paper only. In reality, women are physically placed in “attached” support units that are required to be all male. Even President Clinton did not dare to try anything like this.
In addition to violating Defense Department policy, the practice flouts the long-standing congressional notification law. If the Army wants to change the rules regarding women in combat, the Secretary of Defense must approve and provide advance notice to Congress at least 30 legislative days (approximately three months) in advance.
In January 2005 President Bush stated his position clearly: “No women in [land] combat.” When CMR presented evidence that the Army was ignoring Bush and circumventing regulations, Chairman Duncan Hunter (R.-Calif.) led the House Armed Services Committee in passing legislation to codify current DoD rules. For reasons unknown, Rumsfeld diverted final passage by promising a full report on the situation by March 2006. That promise was inscribed in law, but Rumsfeld’s office reneged.
No one has intervened or stopped the Pentagon’s lawlessness toward women in combat. Mr. Haynes, the watchdog, apparently did not bark.
The general counsel is charged by law to provide legal advice to the Secretary of Defense and to all senior DoD officials. This includes Dr. David Chu, undersecretary of Defense for Personnel and Readiness. Dr. Chu is responsible for policies affecting male and female personnel, but he does not get to write the rules on his own.
In April, Michigan Sen. Carl Levin filed an inquiry on my behalf about women in combat. Dr. Chu responded with a single-page letter making this unprecedented and unsupported claim:
“DoD has concluded that the assignment of women complies with policy and that the Army is vigilant in ensuring that assignments of women are accomplished within existing guidelines.”
Really? On June 7, I wrote to Haynes, asking for an explanation. Who made this momentous decision, and when?
The Pentagon is one of the world’s largest bureaucracies — change of any kind does not happen accidentally. Change requires a paper trail. If officials wanted to revise Defense Department rules on women in combat, Army Secretary Francis Harvey should have made the case openly and secured Mr. Rumsfeld’s approval and formal notice to Congress. CMR has raised this issue many times since 2004, but nothing has been done.
My most recent letter to Haynes requested three official papers that would demonstrate compliance with policy and law:
- Document(s) signed by Secretary Rumsfeld that redefine, revise, or repeal the 1994 DoD regulations on women in combat, including the collocation rule.
- Document(s) signed by Secretary Rumsfeld providing advance notice of proposed rule changes to Congress, as required by law.
- The legally required analysis of the effect of proposed rule changes on women’s exemption from Selective Service registration.
If this paper trail does not exist, Dr. Chu has misled Congress on a serious matter affecting all women and men in the military. William Haynes shares responsibility because he is charged to provide “oversight, guidance, and direction regarding legal advice on all matters arising within the DoD, including the Office of the Secretary of Defense.”
Some supporters claim that Mr. Haynes serves only his “clients,” Rumsfeld and Chu, and “attorney/client privilege” precludes comment. It is possible that Haynes gave sound advice and was overruled, but the closest we can get to finding out is for members of the Senate to ask legitimate questions about his views on policy and law themselves.
At today’s hearing on the Haynes nomination, members of Congress should inquire about the general counsel’s views on the Army’s policy of coloring outside of the lines on women in combat. Someone has to keep the Defense Department in line with official policy and law. If not Haynes, then who? And if not now, when?