[iwar] Draft May Be Needed To Rein In All-Powerful Military

Chicago Tribune
December 28, 2003

Draft May Be Needed To Rein In All-Powerful Military
Separate society squelches debate on national policy

By Diane H. Mazur

When we lost the draft a generation ago, we lost a lot. We lost the
ability to have a meaningful discussion about anything that involves the
military. The Pentagon has begun significant call-ups for the next
major rotation of troops in Iraq, but it has no realistic plan for
covering our military and domestic security commitments without
exhausting our reserve forces.

Yet we give no serious attention to a bill introduced almost a year ago
by Rep. Charles Rangel (D-N.Y.) to reactivate the draft. Any
suggestion to reconsider the military status quo is met with a charge of
not "supporting the troops." The military has become the new third rail
of politics, scaring off anyone who dares to have an original thought
about our armed forces. Even Democratic presidential candidate Wesley
Clark, a former Army general, tiptoed around the military when he
proposed a new national reserve corps. His volunteers, he assured us,
would be civilians, second-class defenders, even those assigned
overseas.

How did this happen?

The Supreme Court is largely to blame for the decline in our
civil-military relations. In 1974, a year after the draft was ended,
the court discarded a legal tradition going back to the Civil War by
which the military was expected to share the same constitutional values
as the rest of us. Of course, the Supreme Court didn't end the
draft--Congress did. But the court took advantage of the draft's end to
play games with civil-military relations, making changes it couldn't
have gotten away with had the draft remained in place.

In a series of cases from 1974 to 1986, Parker vs. Levy, Rostker vs.
Goldberg and Goldman vs. Weinberger, now-Chief Justice William
Rehnquist designed a new legal doctrine requiring courts to defer to
executive or congressional choices on military matters. Military
decisions no longer needed to be justified, or even explained, Rehnquist
ruled, because the military was "a society apart" from America. The
military was better than America, so it was exempt from the
constitutional strictures that limit abuses of power in every other part
of government.

Thumbing nose to equality

Constitutional immunity is a dangerous intoxicant, particularly in a
time of heated, partisan disagreement over how the Constitution should
be interpreted. That intoxicant is particularly powerful when it gives
the government an opening to disregard constitutional values of
equality. Rostker vs. Goldberg, for example, upheld Congress' power to
bar women from even registering for a future draft, although all young
men are required to register. In any other context, the court would
have demanded that Congress justify why the registration of women would
have hurt military effectiveness.

Under the new doctrine of deference on military issues, however,
Congress got a free pass. It was allowed to exclude women just because
it believed that the military was not the proper place for them.

Goldman vs. Weinberger was much the same. In that case, an Air Force
psychologist who also was an Orthodox Jew was punished for wearing a
yarmulke indoors while in uniform. Just as Congress did not have to
give equal respect and dignity to women in military matters, the
military did not have to give equal respect and dignity to members of
minority religions. The 1st Amendment normally would require the
government to give a good reason why Capt. S. Simcha Goldman's
yarmulke interfered with military effectiveness. Instead, the deference
doctrine allowed the military to ignore the Constitution and assert,
without evidence, that it was a big problem if Air Force personnel did
not all look the same. (This from a military that permits more
different kinds of "uniform" headgear than one can count.)

There is absolutely no basis in the Constitution for the idea that the
military is a constitutionally separate society. But the Supreme Court
drove the military in that direction and caused lasting damage.
Together with the demise of the draft, which ended the natural exchange
of experience between the military and civilian worlds, the court's
rulings increased the distance between civilians and military people.
The military increasingly viewed itself as separate, distant, morally
superior and exempt from constitutional expectations of equality.

That separatist mind-set changed the mix of those who joined the
military. Without the leavening effect of the draft, we lost an
ideologically and politically diverse military. It was no coincidence
that the all-volunteer era saw the military discard its traditional
professional ethic of political neutrality, openly aligning with the
Republican Party.

Convergence of interests

Conveniently, policy positions taken by the GOP dovetailed neatly with a
military that was allowed to operate outside the Constitution. Congress
openly relied on the military's constitutional immunity in 1993 when it
enacted "Don't Ask, Don't Tell," which allowed the armed forces to
continue keeping openly gay citizens from serving in our defense. Just
after the Vietnam War, the Supreme Court wrote in Greer vs. Spock that
civilian control of the military could not be strong unless the military
avoided "both the reality and the appearance of acting as a handmaiden
for partisan political causes." (No one seemed to remember that
admonition during the 2000 presidential campaign and its absentee-ballot
aftermath.) The court once understood that civil-military relations
suffer when the military ties its fortunes to political and ideological
partisanship. It no longer understands that.

Why doesn't anyone ever talk about how much our military has changed? Or
about how weak our civil-military relations have become, preventing
honest discussion of matters important to the military and to national
security? It is because, with the help of the Supreme Court, we have
come to view military concerns as being, for most of us, none of our
business. When military service no longer is seen as a shared
obligation, civilian America is reluctant, and maybe a little
embarrassed, to offer a voice on matters of military concern. We need
to talk about how we choose who serves in our military and who carries
the obligation for our shared defense. An empty patriotism

When we lost the draft, we lost the strong sense of civilian control of
the military that came from citizens who had the knowledge and the
willingness to engage in serious debate on military issues. We admire
the military more than any other public institution, but our admiration
is an empty patriotism.

A true constitutional patriotism is found in a civilian society that has
a connection with military service strong enough to enable its citizens
to contribute to the constitutional responsibility of civilian control.
We need to return to a time in which all parts of society--liberal and
conservative, privileged and unprivileged--feel they have a voice in how
our military is built and how it is used. Civilian control of the
military is weak when political partisanship interferes with that
discussion.

Proposals to reinstitute the draft at least deserve serious discussion.
We will never achieve the patriotism conceived by our Constitution with
an all-volunteer force alienated from civilian society, especially when
the military is the only part of America asked to sacrifice in its
defense. Diane H. Mazur is a professor of law at the University of
Florida and a former aircraft and munitions maintenance officer in the
Air Force.

-- This communication is confidential to the parties it is intended to serve --
Fred Cohen - http://all.net/ - fc@all.net - fc@unhca.com - tel/fax: 925-454-0171
    Fred Cohen & Associates - University of New Haven - Security Posture

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Received on Mon Dec 29 10:40:13 2003