You would think that the Pentagon’s top lawyer would intervene—or at least say something—about the Army’s continuing violations of Defense Department regulations exempting female soldiers from assignments in or near direct ground combat. You would also expect the Defense Department to comply with laws requiring advance notice to Congress if the Army wants to change those rules.
Neither expectation has been met on the watch of Pentagon General Counsel William J. Haynes II.
Haynes, nominated to the U.S. Court of Appeals for the 4th Circuit, is one of five nominees re-submitted by President Bush this month. All deserve fair votes without filibuster threats. But senators should still ask Haynes whether he approves of the Army’s practice of placing female soldiers in certain units that are required to be all male.
Female soldiers are serving with distinction, and all troops deployed to Iraq and Afghanistan are “in harm’s way.” But the issue here is direct ground combat. Troops assigned to infantry, armor and Special Operations Forces deliberately attack the enemy with offensive action under fire. Even with a “non-linear battlefield,” offensive land combat missions have not changed.
In 1994, then-Secretary of Defense Les Aspin issued regulations exempting female soldiers from direct ground combat units, and from some support units that physically embed or “collocate” with land combat troops 100% of the time. These support units, governed by the “collocation rule,” are required to be all male.
In the spring of 2004, the Army started redefining the collocation rule without authorization by the secretary of Defense. Making the absurd claim that women in these units will be evacuated (somehow) before a battle, Army officials have administratively “assigned” women to legally open brigade-level units—on paper only—while physically placing them in “attached” support units that are required to be all male.
The semantics and sophistry have worked to circumvent the congressional notification law, which mandates prior notice to Congress if Defense officials want to change the rules regarding women in land combat. The Army is improperly placing women in land combat-collocated units, but Defense Secretary Donald Rumsfeld has not provided notice to Congress.
In May 2005, House Armed Services Chairman Duncan Hunter (R.-Calif.) sponsored and passed legislation in committee to codify current regulations. For reasons unknown, Secretary Rumsfeld insisted that Hunter replace that language with legislation mandating a full report on the subject by March 2006. The bill passed, but the Defense Department has not complied.
General Counsel Haynes’ legal advice may be held confidential, but senators considering his nomination to the 4th Circuit Court should find out where he stands on these important matters. On April 27, Dr. David Chu, undersecretary of Defense for personnel and readiness, claimed in a letter to Sen. Carl Levin (D.-Mich.), “DoD has concluded that the assignment of women complies with policy.” Does Haynes agree? If so, he should provide the following papers to support Chu’s claim:
- 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 our servicemen and women. Haynes shares responsibility because he is charged with providing “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 Haynes serves only his “clients,” and “attorney/client privilege” precludes comment. It is possible that Haynes gave sound advice and was overruled, but the only way to find out is for senators to ask him about his views on this issue. President Bush could help by restoring Army compliance with policy and law. Absent intervention, generals could order women into the infantry without Americans’ having a say.
It is important to confirm good judges, but also to respect and enforce regulations and law affecting our women in the military. Someone has to keep the Defense Department in line on legal matters. If not Haynes, who? And if not now, when?