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Command Indiscretion

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If ever a single week could be said to capture the wide spectrum of challenges confronting women in the military, that week may well have arrived earlier this month. By a notable coincidence, the span of a few days saw not only the passage of Al Franken's much discussed "contractor rape amendment," but also the introduction of a bill to remedy the absence of emergency contraception at military healthcare facilities. Not long afterwards, the commander of U.S. forces in Northern Iraq shed additional, if unexpected, light upon the plight of servicewomen by issuing an order prohibiting his troops from becoming pregnant during deployment.

Though distinct in their details, the recent news accounts of military sexual assault, lack of access to contraception, and punishment for pregnant soldiers are in fact united by a series of common threads. Not only do all of these injustices stem from a lack of uniformity in the military's approach to disciplinary action, they also point collectively to its longstanding power to undermine the civil rights of its personnel.

Whether noble or otherwise, the concept of placing country before self is rarely easy to reconcile with a belief in inalienable human rights. Although public opposition to the pregnancy order centered largely on human rights to bodily integrity and reproductive choice, to assume that military personnel are entitled to such protections in the first place is to apply an inherently individualistic doctrine to an institution that by nature regards its members as a means to an end.

This conflict between the needs of the military and the rights of its personnel has long been a subject of legal dispute, with courts all but reflexively favoring security over liberty. Throughout the years, the U.S. Supreme Court has upheld military orders curtailing the liberty of Japanese-Americans, prohibiting the distribution of literature and the display of religious apparel on bases, and otherwise abridging constitutional rights in the name of military necessity. As Justice Brennan lamented in one such case, "[i]f a branch of the military declares one of its rules sufficiently important to outweigh a service person's constitutional rights, it seems that the Court will accept that conclusion, no matter how absurd or unsupported it may be."

Not only has the civilian justice system vested in the military the authority to regulate the most private and personal acts of those who serve, it has also repeatedly washed its hands of military personnel seeking redress for injuries inflicted by their employer. Perhaps the starkest illustration of this trend is the unwillingness of Congress and the courts to allow servicewomen who are sexually assaulted to sue their employers in federal court. While Jon Stewart may have skewered the senators who voted against Al Franken's "anti-rape amendment" for defense contractors, similar indignation has yet to surface on behalf of enlisted servicewomen, who to this day remain exempt from Title VII coverage and barred from bringing assault claims against their employer.

Not unlike contractors bound by mandatory arbitration clauses, servicewomen who bring sexual assault complaints must submit to the discretion of their unit commanders. Under this system, authority lies not with a disinterested judge but, rather, with someone who has a preexisting relationship with both the victim and the offender. Despite ongoing calls for reform, the armed forces and Congress still grant commanders full disciplinary discretion, effectively treating punishment for assault as a personnel decision instead of a legal matter. As a result, military leaders routinely exercise leniency with offenders they regard as good soldiers, opting for administrative punishments twice as often as criminal prosecution in sexual assault cases.

This type of discretion has too often encouraged military leaders to sacrifice individual rights to institutional goals, a trend only recently illustrated by General Cucolo's pregnancy order. Half a century ago, in fact, another commander invoked similar claims of "military necessity" to mandate the evacuation and internment of thousands of Japanese-Americans. Although the Supreme Court upheld the order, a dissenting opinion eloquently articulated the dangers of civilian indifference to injustice in the armed forces. "A military commander may overstep the bounds of constitutionality, and it is an incident," it warned at the time. "But if we... approve, that passing incident becomes the doctrine of the Constitution."

For every such policy disavowed by history or defeated by bad publicity, there are a great many more that continue to pass unnoticed. If we fail to take the military to task for these isolated incidents, we risk seeing them evolve into a settled doctrine of inequality and oppression.

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