The Best Defense

Time to regulate military speech and conduct offensive to gays and women

By Rachel Natelson
Best Defense guest columnist

Over two years after the repeal of the Don't Ask, Don't Tell policy, a confluence of federal legislation promises to test the military's commitment to upholding the rights of LGBT servicemembers. In highlighting a growing tension between the obligation of employers to accommodate religious needs and a parallel mandate to prevent discrimination based on sexual orientation, the Employment Non-Discrimination Act (ENDA) and the 2014 National Defense Authorization Act (NDAA) together present a useful capsule of the emerging debate around how to balance competing civil rights visions.

Currently headed for the Senate after a series of committee reviews in the House, ENDA would prohibit employment discrimination based on sexual orientation and gender identity in most American workplaces. The bill is modeled after Title VII of the Civil Rights Act of 1964, and, as such, contains parallel language regarding the distinct needs of religiously affiliated organizations. However, while Title VII simply permits religious organizations to give employment preference to members of their own religion, ENDA would exempt these organizations altogether from its purview, allowing religiously affiliated hospitals and universities to discriminate against employees based on sexual orientation and gender identity. Proponents of the exemption argue that in its absence, they would be required to violate their religious beliefs by condoning homosexuality.

In addition to animating policy debate, this tension between identity groups has also given rise to disputes on the ground. At Hewlett Packard, for example, an employee alleged that he was improperly terminated for failing to comply with the company's anti-harassment policy when he refused to remove from his cubicle a series of posters condemning homosexuality. The case reached a federal appeals court, which found that he was not discharged due to his religious beliefs but, rather, because he created a hostile and intolerant work environment for his colleagues.

This distinction between belief and conduct also informed a lower court decision concerning an AT&T employee's refusal to sign an agreement obligating all personnel to "recognize, respect and value" the differences among them. While the employee in question was willing to certify that he would not discriminate against or harass anyone, he maintained he could not "value" certain behavior without compromising his own religious beliefs. The court agreed with his premise, finding that the company could regulate the conduct, but not the beliefs, of its employees.

A similar tone has characterized discussions about how to reconcile the religious beliefs and equality rights of military personnel. Following the repeal of Don't Ask, Don't Tell, the Department of Defense issued a memorandum outlining the impact of this development on specific policies within the military. In addressing anti-discrimination policy, the Pentagon indicated that, unlike race and gender, sexual orientation would not be deemed a protected class for purposes of diversity programming, tracking initiatives, and the Military Equal Opportunity program complaint resolution process. Instead, grievances would be processed through individual commanders or inspector general channels.

Almost three years later, this informal approach to addressing discrimination may well be further eroded by an NDAA amendment on religious accommodation for military personnel. A provision in the House-passed act, authored by Rep. John Fleming (R-LA), would amend an existing requirement to accommodate "the beliefs of a member of the armed forces reflecting ... conscience, moral principles, or religious beliefs," and instead mandate the accommodation of "beliefs, actions, and speech." In prohibiting commanders from regulating even offensive speech or conduct purportedly rooted in religious convictions, this provision is at odds with the repeal memo's assertions that "[h]arassment or abuse based on sexual orientation is unacceptable" and that servicemembers must "respect and serve with others who may hold different views and beliefs."

Apart from potentially sanctioning abusive conduct towards lesbian, gay, and bisexual servicemembers, the Fleming amendment could also provide cover for discrimination against other minorities in the military, including women seeking access to reproductive care. At a moment when the Pentagon promises to ease access to abortion care for rape victims, not to mention curtail the underlying sexual violence giving rise to this need, the military can ill afford to foster discrimination within its ranks. By regulating offensive speech and conduct, as other employers have done, it can balance the rights of religious members to maintain their beliefs with an equally compelling interest in respecting the dignity of others.

Rachel Natelson is an attorney specializing in the rights of military women. She has provided legal service to military personnel for several years. She formerly served as the legal director of the Service Women's Action Network (SWAN), where she managed the legal service helpline. She is an active member of the National Lawyers Guild's Military Law Task Force. 

Sgt. Anthony Cruz/DVIDS

The Best Defense

Curb your enthusiasm!: Special Operations Forces should be niche units, not our foundational military assets

By Richard L. Russell
Best Defense guest columnist

We need to take a breath and see Special Operations Forces in context with the history and uses and limitations of the threat, use, and management of force in American national security. Lest we forget, Special Operations Forces are just that -- special. They provide unique, niche military capabilities that place a premium on stealth and clandestine operations. Yet many, if not most, demands for the threat and use of American military might require that they be used openly and publicly. As former head of Joint Special Operations Command Gen. Stanley McChrystal warned, "That's the danger of special operating forces. You get this sense that it is satisfying, it's clean, it's low risk, it's the cure for most ills. That's the way many new presidents are initially enamored with the Central Intelligence Agency, because they are offered a covert fix for a complex problem. But if you go back in history, I can't find a covert fix that solved a problem long term."

These traditional military capabilities, moreover, often are the foundations upon which clandestine Special Operations Forces must launch their high-risk assaults. Delta or SEAL teams might be dispatched into a building, for example, to kill or capture a high value target. But the building's neighborhood would be secured by larger, more traditional forces such as the Army Rangers. A SEAL team might be dispatched across an international border to capture or kill a high value target, but the base the team might be launched from and supported with communications, command, control, and intelligence would come from more traditional military forces. 

The United States must guard against gutting its traditional and foundational military capabilities out of love of the glamour for Special Operations Forces. The world today has a fair share of countries with very capable niche or boutique-type military forces for special operations. The Germans, for example, are known to have very capable hostage rescue forces, while the Australians and the British have impressive special operations forces that have been put to hard work in the Afghanistan and Iraq military theaters. Yet the United States, with its global security interests, could hardly afford to have its military mirror that of Germany, Australia, or Britain. 

The United States, moreover, will have to avoid the pitfall of growing its Special Operations Forces too large. The Special Operations Forces community prides itself on taking the most physically fit and intellectually nimble of the military duty pool. But the faster and larger it grows, the lower the physical and intellectual standards will go to bring down the overall quality of Special Operations Forces. 

Above all, Americans must remember that our chief enemy -- al Qaeda -- for the past decade has been one uniquely teed-up to be attacked by Special Operations Forces, whether in Iraq, Afghanistan, Yemen, or the Horn of Africa. Al Qaeda in Iraq and Afghanistan or the Taliban, like most terrorist organizations and insurgent groups, generally recruit, train, organize, and plan operations in tight-knit cells and small groups making them attractive targets for small Special Operations Forces. One would prefer to dispatch a SEAL or Delta team against al Qaeda or Taliban cells to try to capture individuals and to gather intelligence rather than to drop payloads on them from a B-52 to destroy both individuals and documentation and computers.

Notwithstanding common wisdom today, our enemies of the future are likely to be nation-states as well as traditional ideological insurgent movements like al Qaeda. For all of the grave threats that al Qaeda has posed to the United States, we have to remember that while its Islamic ideology has powerful appeal in the world today, especially in the Middle East and South Asia, it still lacks the power of a nation-state. Nation-states in contemporary international security remain the pinnacle of power, and that's why al Qaeda has off and on wanted to gain control in a nation-state -- whether Egypt in the 1990s or Saudi Arabia after 2003 and arguably Pakistan today. The United States needs to prudently guard against al Qaeda remnants and successors, all the while mindful of the ebbing and flowing of the international distribution of power among nation-states. 

Because Special Operations Forces typically are small and lightly armed and protected they require stealth and clandestine operations for their protection. If they are behind enemy lines and detected by regular forces they will be in a "world of hurt." Special Operations Forces have ably gone behind enemy lines in Iraq to knock-out critical Iraqi radars to create blind spots for the Army invasion of Kuwait in the 1990-91 war. But Kuwait was liberated by traditional military forces, not Special Operations Forces in 1991, just as Saddam Hussein's regime was ousted by the 3rd Infantry Division in 2003, not by a SEAL or Delta team.

In sharp contrast, a great many types of operations require that forces be seen and heard. Overt military capabilities of traditional air, land, and sea power are required to deter nation-states from launching open warfare. The United States, for example, to deter any future Chinese military moves against Taiwan, has to have its air, naval, and land forces seen in and around the Taiwan Strait and Asian theater to have any deterrent effect. Should Chinese forces one day not be deterred by American forces in Asia from taking Taiwan, Special Operations Forces certainly would not be able all by [themselves] to dislodge Peoples' Liberation Army forces from occupation of the island. For that type of mission, the United States would have to call in the Marines for amphibious operations, whether against Taiwan directly or elsewhere in Asia as diversionary or retaliatory operations against the Chinese, or call on the Army Rangers to retake and secure Taiwanese airbases in order to hustle in larger army forces on board U.S. Air Force combat flights.

Special Operations Forces wonderfully augment naval capabilities for protecting sea lanes of communications. They have performed admirably, for example, over decades battling Iran's irregular Revolutionary Guard Forces harassing maritime traffic in the Persian Gulf or with sniper operations to kill Somalia-based pirates before they could execute their civilian captives on the high seas. But these Special Operations Forces in and of themselves could not protect and keep open the sea lines of communication in critical choke-points, whether in the Middle East at the Red Sea or the Strait of Hormuz, or in Asia at the Strait of Malacca. 

Traditional naval forces will carry out the lion's share of the burden for these critically important defense missions. If, one future day, the Chinese tap their growing submarine capabilities to wage a campaign to cut American sea lanes of communication with security partners in Japan, Australia, South Korea, and Taiwan, U.S. Special Operations Forces would be no substitute for American attack submarine capabilities to escort shipping convoys -- much like was done in the Atlantic during both the world wars -- as well as for hunting Chinese predatory submarines.

The United States, too, will need an overt and modern nuclear triad of aircraft, ballistic missiles, and submarine based nuclear weapons to maintain a deterrent posture against growing Chinese strategic nuclear forces. A robust American nuclear posture will be needed to deter China's growing nuclear forces. The United States reluctantly will be sliding toward a mutual-assured-destruction posture with China reminiscent of the one it had and still has, even if not as pronounced with the Soviet Union during the Cold War and with Russia today. China could be deterred by American nuclear forces from using its own nuclear forces, but not from the threat of Special Operations Forces retaliatory strikes against Chinese assets.

Likewise, to compel or coerce a nation-state adversary to change his behavior requires the overt threat or application of military power. That military power is to be exerted until the enemy changes the offending behavior or he will risk receiving additional military strikes. The United States and allies applied coercive military power to Serbia in 1999, for example. The United States applied airpower to Serbia and Serb forces in Kosovo and, with the pushing of the British, was on the cusp of escalating to the insertion of ground forces to compel Slobodan Milosevic to stand down his ruthless military and paramilitary campaign in Kosovo.

The bottom line is that Special Operations Forces in the American military arsenal have been and will continue to be unique and niche "force multipliers." But as we enter an era of increasing budgetary demands to make trade-offs and make ends and means match in our defense strategy, we have to remember that Special Operations Forces, as important as they are, are often more akin to dessert than to a main course. If we load up too much on the dessert in our future defense posture, we will wind up fat in the wrong places, and without the military muscle needed to wage future war.

Richard L. Russell is a professor of national security affairs at the National Defense University's Near East and South Asia Center for Strategic Studies. He received his doctorate in foreign affairs from the University of Virginia, and previously served as a political-military analyst at the Central Intelligence Agency. The views expressed are those of the author alone and do not reflect the policy or position of the U.S. government, the Department of Defense, or the National Defense University.