Recommendation: change the Close Combat Badge criteria to reflect who actually sees "close combat" — not what kind of unit they serve in.

Defense Secretary Donald Rumsfeld ought to know better. After being excoriated for his dreadful performance at a Dec. 2004 townhall meeting in Kuwait ["As you know, you go to war with the Army you have. They’re not the Army you might want or wish to have at a later time."], the Secretary has decided to hold a few more with troops around the world. But instead of improving his glib style and offering soldiers more information about the big picture, he continues to offer non-answers which leave the soldiers shaking their heads and wondering why they ever bothered to ask a question in the first place.

Case in point: a 14 April 2005 townhall meeting with the troops in Kandahar, Afghanistan. If you read the whole transcript, you'll see a lot of tap-dancing from the SecDef, a man known for his physical fitness (especially for a man in his 70s), who typically works most of the day standing up. A townhall meeting the next day in Kyrgyzstan shows basically the same style of leadership — a very confident (almost arrogant) performance from the Secretary, but one that probably left the soldiers wondering why they were pulled out of their duties to attend.

One question in particular caught my eye — a question from a female MP soldier regarding the Close Combat Badge the Army plans to unveil at some point in the near future. Despite interest on Capitol Hill into this very issue, Secretary Rumsfeld deflected the question to Lt. Gen. David Barno, the senior U.S. commander and senior Army officer in Afghanistan. Here's the transcript:

QUESTION: Specialist Imael [sp.] from 133rd Airborne.

I’m wondering why our MPs aren't considered for the close-combat patch?

RUMSFELD: You're wondering what?

QUESTION: Why MPs aren't considered for the close-combat patch.

RUMSFELD: What's the answer?

BARNO: Our Army leadership's decision was that the close combat badge would only be for those units that were designated to fight as infantry, in other words they were retrained to be full-time infantrymen instead of being artillerymen or engineers.

BARNO: So that initially has not been extended any beyond field artillery, armor, engineers, the general combat arms. That's the current set of the decision at least.

RUMSFELD: But General Barno, she didn't ask what the decision was. She asked why that was the decision. [Laughter].

BARNO: You guys have got to realize that I get to do this with the Secretary every two weeks and we get lots of tough questions like that. [Laughter].

RUMSFELD: Last question. Make it an easy one. I've had a long day. I started in Baku.

Comments: There is much here to criticize. I think the Secretary's closing comment to SPC Imael (sic) was a bit disrespectful for someone who sits atop the chain of command. I'll bet she had a long day too — and probably a long deployment to Afghanistan generally. I'm sure her senior NCOs and commanders have all had long days. But they don't ask for "easy one[s]" because of that, and they don't get 'em either. I know my soldiers would've thought I was a putz (or worse) if I said to them "take it easy on me fella's... I've had a long day." I don't think I ever would've lived that down. Granted, the SecDef is 50 years older than I was as a platoon leader. But he is The Man at the top of the chain of command. A little more humility and service-oriented leadership would be a good thing.

Second, I think the Secretary should take this note back with him to Washington. Clearly, the Army does not have a good explanation for this rule, as indicated by the Secretary's follow-up comment that the MP asked why the rule was what it was, not what the rule was. Obviously, he's not going to overrule the Army on the spot, but I think he should have thanked the soldier for raising a good question and told her that he will ask the Army about it when he gets back to Washington. After all, that's the whole point of these townhall meetings, right? It's to enable the senior Pentagon leadership to hear feedback from the men and women with their boots on the ground. Ideally, this feedback should go somewhere, not just into the echo chamber.

Third, I'm disappointed in Lt. Gen. Barno's response. He should know better than to simply parrot the party line. Given his background, he knows a lot more about combat than I do. And he knows a lot about current operations in Afghanistan — enough to know that non-infantry units are engaging in "close combat", and that the female MP raises a valid question. I would expect a better answer here that compares this new badge to the Combat Infantryman's Badge, or which explains the value in having a badge for combat arms units only. I don't buy such an explanation, but I think that Lt. Gen. Barno could have at least answered the soldier's question. His closing remark about "tough questions" also struck me as inappropriate. I mean, that's part of being a general, right? Having to answer the tough questions?

Fourth, I'd like to comment on the state of the rule for the badge itself. Here's the rule as announced by the Army in February 2005:

The Army will award the CCB to Armor, Cavalry, Combat Engineer, and Field Artillery Soldiers in Military Occupational Specialties or corresponding officer branch/specialties recognized as having a high probability to routinely engage in direct combat, and they must be assigned or attached to an Army unit of brigade or below that is purposefully organized to routinely conduct close combat operations and engage in direct combat in accordance with existing rules and policy.

The CCB will be presented only to eligible Soldiers who are personally present and under fire while engaged in active ground combat, to close with and destroy the enemy with direct fires.

Simply, I think this is bunk. The occupational field requirement strikes me as incredibly anachronistic, given the nature of today's non-linear, non-contiguous battlefield where units of many stripes engage in close combat. Infantry units aren't the only ones fighting as infantry these days; neither are armor, artillery and combat engineer units that are tasked to fight as infantry. In Iraq and Afghanistan, MP units "hav[e] a high probability to routinely engage in direct combat" and are "purposefully organized to routinely conduct close combat operations and engage in direct combat" — notwithstanding the fact that Army regs and MTOEs say otherwise. Other combat support units, such as air defense artillery and non-combat engineer units, have been reorganized and retasked with combat missions. And many combat service support units have found themselves accidentally involved in direct combat, or purposefully engaged in direct combat as part of their base security or convoy operations missions. If the standard is "close combat", then I think this badge's criteria must be changed to reflect the ground truth in Iraq and Afghanistan.

There is, however, another issue here. Note the gender of the soldier asking the question of Secretary Rumsfeld. Next, note the fact that the units and occupational specialties listed for the CCB are all-male units. I imagine that quite a few female soldiers in MP, ADA and EN units see this rule as not-too-subtle sex discrimination. I think that the subtext of the soldier's question is a more pointed question: "Why not me?" To that, I see no good answer. As I wrote in December 2002 in "War Dames" for the Washington Monthly, women today fight on the front lines in myriad roles from flying Apache helicopters to engaging in direct ground combat as military police. They deserve the same recognition and respect as men for doing so.

Within the muddy boots ranks of the Army, I believe that they get it. Soldiers, NCOs and junior officers know what their brothers and sisters do for a living downrange, and informally, I think they accord female combat vets the respect they deserve. I think the Army, as an institution, needs to catch up to reality. The Close Combat Badge, as currently designed, is flawed. It does not match reality on the ground in Iraq and Afghanistan. The Army should change the criteria for this award to reflect its title — it should measure a soldiers' participation in "close combat". This should not be done on an automatic basis, but perhaps on a certification basis, i.e. where a Colonel or 2-star general awards the badge to those soldiers who actually meet certain functional criteria. Reshaping the award in this fashion will give it more meaning, and enable those who have really earned the badge to wear the badge, regardless of their unit designator or MOS.

New RAND study suggests several ways to fix the Army's first-term soldier attrition problems

Lots of people don't agree with my article "The Case for the Draft", where Paul Glastris and I argue for the advent of a 21st Century national service program which would provide manpower for both the military and federal agencies engaged in a wide variety of public functions. Fair enough. Reasonable people can disagree on the means we choose to procure federal military and civilian manpower.

However, no matter how you feel about national service per se, you really ought to be concerned about the recruiting and retention problems facing the U.S. military today. Suffice to say, our military is stuck between Iraq and a hard place. I believe there will be secondary and tertiary consequences flowing from this war for at least the next generation. Those consequences will affect every aspect of the force, from manpower to materiel to ideas about how we fight.


The RAND Corporation has an incredibly important new study out titled "Success of First-Term Soldiers: The Effects of Recruiting Practices and Recruit Characteristics" by Richard Buddin. Like most RAND products, this one is available free online. The report discusses the sticky issue of first-term soldier attrition, a problem which claims an alarmingly high number of troops before they even complete initial entry training. According to the summary:

Recruiting is expensive. On average, it costs the U.S. Army about $15,000 to recruit one soldier,1 and it must recruit 80,000 to 90,000 each year. If a soldier fails to complete his or her first term, the Army must spend a like amount for a replacement. Thus, it is very much in the Army’s interest to minimize losses at every phase of the first term. This has become more important in recent years because the Army, during the lean recruiting years in the late 1990s, vigorously expanded its recruiting effort by adding and expanding enlistment incentives, by increasing recruiting resources, and by modifying recruiting practices.

This monograph focuses on the implications of these decisions for the manning and success of first-term soldiers. It also examines how the Army manages first-term soldiers. Training losses and retention problems drive up the demand for new recruits. Given the expense of recruiting and training losses, the Army should assess whether different management strategies could improve the success rates for first-term soldiers. It may be possible to cut attrition without compromising Army standards.

Very important stuff! If it's truly possible to cut attrition without compromising standards, then we should do it. Moreover, we should cull this report for "lessons learned" that might be applicable more broadly to the recruiting and retention contexts. Mr. Buddin makes a number of extremely interesting findings in his study:

* "The data show that the longer an individual spends in the DEP, the higher the DEP attrition rate. A long time in the DEP means that the new recruit has substantial time to change his or her mind about enlistment.

* "[A]ctual time in DEP has little bearing on how well recruits do in BCT or in Advanced Individual Training (AIT)."

* "Women and recruits with GEDs (General Educational Development certification) drop out at higher rates than do men and recruits with high school diplomas."

* "Individuals who enter the Army in poor physical condition are unlikely to complete their initial training."

* "A key question is whether Fitness Training Unit participants are able to meet fitness standards and do well in training. The evidence suggests that they do not."

* "All other things equal, combat arms soldiers have higher attrition and lower reenlistment rates than do soldiers in other occupations. The reasons are unclear. These different attrition and reenlistment rates may reflect cultural differences in how problems are handled in combat units. Or they may reflect the nature of the duty. Combat soldiers may be frustrated by frequent arduous field exercises that entail considerable time away from comforts and families. Combat jobs have no civilian counterparts, so first-term soldiers may see little payoff to successfully completing their terms. At the end of their terms, combat soldiers might be anxious to leave the Army and acquire civilian job skills."

* "Early promotions have a strong effect on first-term reenlistment and help the Army retain a leadership core for the enlisted force."

* Army College Fund (ACF), bonuses, and term length: "These characteristics of enlistment contract have little bearing on first-term attrition rates. While these programs might help attract new recruits, the evidence shows that recruits attracted in this way do not have significantly different first-term attrition. Moreover, after controlling for recruit characteristics, occupation, and promotion speed, ACF participants are neither more nor less likely to reenlist at the end of the first term."

* "The results show little evidence that some types of recruiters are better at identifying good matches for the Army than are others. Recent policies emphasize younger recruiters or return recruiters to their home states. Our evidence shows that these types of policies have little downstream effect on how well recruits do during the first term."

All of these data points lead Mr. Buddin to make the following recommendations to the Army in his study:

1. Shorten DEP for high school seniors.

2. Consider alternatives for fitness screening and subsequent handling of recruits.

3. Monitor effectiveness of training standards and policies.

4. Investigate policies to help at-risk demographic groups.

5. Monitor whether the promotion system rewards the most able.

6. Get better data — Build an integrated, automated system to track recruit problems, remediation efforts, and results; Implement new programs with an eye to evaluation; Collect detailed information about working conditions in Army occupations.

Comments: All of these issues and recommendations should be taken very seriously. If the Army could fix its first-term attrition problem, it could likely ease some of the strain felt by its units both in the active and reserve components. Such improvements could also exert a positive ripple effect on recruiting and retention efforts down the road, especially on the mid-term retention efforts which are so critical for retaining the NCO backbone of the force. I think it's clear that America needs a larger military to accomplish the tasks we have given to it. This RAND study suggests several ways we might smartly go about that task while improving the overall health of the military personnel system. Let's get to it.

Jess Bravin had a remarkable article in last Thurday's Wall Street Journal (available for free to the public) on a set of war crimes decisions issued shortly after World War II which contain striking resemblances to the cases pending today — both cases involving alleged Al Qaeda members, and cases involving U.S. servicemembers accused of abuse. According to Mr. Bravin:

For decades, records of the Kikuchi case and hundreds of other postwar tribunals lay forgotten in archives and government offices around the world. But now they could assume new significance for one of the most contentious aspects of the war on terrorism: the U.S.'s treatment of prisoners.

Hundreds of suspected terrorists and enemy fighters have been captured since the fall of 2001 and housed at Guantanamo Bay, Cuba, and elsewhere. The Bush administration has determined these captives aren't protected by the Geneva Conventions. But the administration has faced a wave of legal challenges to that view, and suffered several defeats so far. Today, government lawyers will ask a federal appeals court in Washington to reverse a November ruling that found the Geneva Convention protects prisoners held at Guantanamo and ordered an immediate halt to military commission proceedings against detainees because they didn't comply with the treaty.

The legal battle is likely to end up at the Supreme Court, and, depending on its outcome, could compel the U.S. to devise a new road map for prisoner treatment. The rulings from the years immediately after World War II lay out the most complete picture available of the way the U.S. viewed treatment of prisoners of war back then, when modern international humanitarian law was laid down. The question is, do these cases apply today?

Critics of the Bush administration's policy on terror-related prisoners argue they do. "These are the foundational cases," the first to apply international law to questions of prisoner treatment during armed conflict, says David Cohen, a 56-year-old professor of classics and rhetoric at the University of California, Berkeley, who also teaches classes on war crimes. He has spent the last 10 years collecting the documents from archives and government offices, adding millions of pages to existing records and unearthing the case of Mr. Kikuchi.

The records make it clear that after World War II, U.S. military prosecutors and judges set out to establish a precedent barring any prisoner mistreatment, by aggressively pursuing and punishing even comparatively small offenses.

What the records make clear are some unbelievable similarities between the policy positions and defenses of the Japanese during World War II, and the U.S. government today. Then, the U.S. prosecuted such abuses, aggressively using the "command responsibility" doctrine to go after senior officers who knew or should have known about their subordinates' misconduct. Now, a year after Abu Ghraib, we have yet to see a single court-martial for a soldier over the rank of staff sergeant. Instead, today's generals remain free to hold panel discussions where they blame everyone else but themselves. According to BG Janis Karpinski at a recent talk in San Francisco:

"I find it hard to believe that I did not know," she said. "If I had known, I would've raised the issue. I would've shouted about it."

Wrong! That's not the standard. A general officer is not just responsible for what she knew, but what she should have known. The same goes for the colonels and captains under her. As a nation, we have sent enemy generals to the gallows for the actions of their subordinates. See Application of Yamashita, 327 US 1 (1946). There is some irony in the fact that we now let our own generals off for similar misconduct.

But wait — there's more irony where that came from. Mr. Bravin's article (and its online supplement -- also available for free from the Wall Street Journal) draws an even more interesting parallel between the kind of legal process afforded U.S. personnel by the Japanese during WWII, and the kind of legal process we are now giving alleged Al Qaeda members at Gitmo and elsewhere. After WWII, we prosecuted the Japanese for war crimes stemming from their deprivation of due process in violation of international law, so the point is a very important one. According ot Mr. Bravin and the records from the WWII archives:

Japan saw the bombing of its cities as the deliberate targeting of civilians--and employed summary proceedings to punish captured American flyers as war criminals. Following the war, American military authorities concluded that treating Americans as war criminals was itself a war crime, because the Japanese procedures didn't meet the due-process standards of international law. At U.S. military commissions convened at Yokohama, Japan, in the late 1940s, U.S. Army officers carefully reviewed the level of due process the enemy had afforded American prisoners, and harshly punished them for falling short of what the U.S. decided was required.

That history may now come back to haunt the Bush administration, as advocates for prisoners held at Guantanamo Bay, Cuba, argue that, like Japan in World War II, the U.S. today is punishing prisoners without affording them sufficient due process.

* * *
The current military commission is unlawful, [Georgetown law professor Neal] Katyal argues, because it affords defendants fewer rights than American soldiers receive before courts-martial, in particular by denying defendants the right to confront all witnesses or see all evidence against them.

The government's primary claim is that courts have no authority to second-guess the treatment of enemy prisoners. But the administration also contends its military commission will offer a fair trial. President Bush's November 2001 order authorizing the commission called for "full and fair" trials, and officials say they have been reviewing the procedures with an eye to making them resemble courts-martial more closely. Nonetheless, the administration maintains that special courts are needed to try international terrorism suspects because of the grave threat they pose to the U.S. Under current rules, commissions can sentence convicts to any term or, on vote of a unanimous seven-member panel, death.

According to the U.S. military's World War II records, Japanese officials also devised special procedures to deal with what they considered an extraordinary threat. American flyers "who do not violate international law will be treated as prisoners of war," but those "suspected of being felonious war criminals" would face Japanese military tribunals. Offenses "subject to military punishment" included "bombing, strafing and other acts of attack aimed at threatening and inflicting casualties on civilians," "damaging and destroying private property which has no military significance" and "any atrocious brutal acts that disregard humanity." The maximum penalty was death by firing squad.

Like the Bush administration's military commissions, the Japanese courts could consider evidence extracted through coercive interrogations. But laws passed by the Japanese Diet and regulations issued by the Imperial Army spelled out procedures intended to ensure that prisoners weren't punished arbitrarily.

As the war wore on, however, the Japanese deviated from their regulations, using samurai swords to behead convicted flyers because ammunition was too scarce to waste on firing squads. Dozens of Americans were executed after summary hearings with no right of appeal.

Prosecuted by the U.S. after the war, Japanese officials said their harsh acts were dictated by military necessity.

Col. Hajime Onishi, charged with presiding over the execution of U.S. flyers in June, 1945, argued that "the indiscriminate bombings had killed 20,000 people and wounded 30,000 in his territory, most of whom were noncombatants, and, therefore, the thought of the disposition of 27 airmen was a small incident compared with these facts," records say. "The criminal code and international law were secondary matters when compared with military operations of the supreme command."

Defense lawyers argued that offering full-blown trials for American flyers was impossible in the war's waning months, as Japan suffered under relentless U.S. attacks. Besides, such procedures "would not have given the crew members any greater rights or protections than they received under the abridged procedure, and that it constituted a trial under international law." In any event, defense lawyers argued, the "crew members had no rights as they were not prisoners of war."

Perhaps surprisingly, U.S. Army reviewers concluded in 1949 that "a Japanese tribunal could have reasonably found there was indiscriminate bombing" and that "in the course of a legal trial might well have found the [American] crew members guilty." Moreover, they acknowledged that Japanese legal procedures, although based on inquisitorial judges rather than the adversarial system used in the U.S., cannot be considered "automatically illegal."

But the abridged procedures employed as the war wore down violated the flyers rights, the U.S. found. "These men were not informed they were being charged with indiscriminate bombing and, except in the intelligence investigation, where they might reasonably be expected to give as little information as possible, they were not given a chance to make a statement." The flyers weren't permitted to attend the hearings where they were convicted and sentenced, the Army reviewers found.

Then, as now, the argument was the same for the departure from legal process: necessity. In a nutshell, the argument was made then by the Japanese and now by the U.S. that a full and fair trial for the defendants might somehow damage national security, and therefore it was necessary to convene some kind of summary proceeding (usually in secret) which would safeguard the state. The similarities between the Japanese military commissions and today's U.S. military commissions are striking. Indeed, the procedure to hold such commissions without the accused in the room is at the heart of Hamdan v. Rumsfeld, the current case pending before the DC Circuit challenging the lawfulness of the commissions. (Full disclosure: I drafted a friend-of-the-court brief opposing the government in that case.) Depriving today's military commission defendants of the right to be present for all important phases of their trial, such as voir dire, runs against both U.S. statute (10 U.S.C. 839, 849, 850) and international law.

The president's order and other supporting statements make it clear that we are implementing these commission rules because we deem it necessary to do so — that it would be "impracticable" to try such individuals in federal court or a conventional military court. However, in devising these commissions, the administration has developed a set of rules which are fatally inconsistent with both U.S. law and international law. Sixty years ago, the Japanese deployed similar arguments in support of their own military commissions — and soon found themselves in the defendant's chair for war crimes based on those unlawful legal proceedings. We should be wary of following the example set by the Japanese.

If the administration wants to try enemy combatants by military commission, there is ample precedent for doing so. However, such commissions must be legislatively authorized, and constituted in accordance with U.S. law and international law. It may well be easier to simply try such defendants in a general court-martial, since the UCMJ grants military courts jurisdiction over enemy combatants for war crimes, and the military justice system is a far more mature and respected institution. Or, the current commission system can be legislatively authorized, and then amended to conform more closely to the UCMJ and past commissions procedures. The New York Times reported two weeks ago that the Pentagon was considering a proposal to do just that, but my sources agree that the proposal was dead-on-arrival when it got to the Office of the Secretary of Defense and the Vice President's office.

I suppose there is a final irony in all of this, which I alluded two in last week's Slate column on lawfare. As a nation, we have now committed ourselves to the spread of freedom and democracy throughout the world. Establishing the rule of law, and building democratic institutions, come part and parcel with this charter to spread freedom. We cannot embrace such things on the one hand, as we are in Iraq, while flouting the rule of law on the other, as we are in Gitmo. The world sees our inconsistency, and criticizes our policies as a naked, unprincipled grab for power. It's not enough to talk the freedom talk; you must also walk the freedom walk. And that means adhering to the rule of law in all contexts, such as treating captured enemy fighters according to established U.S. and international law. There is no evidence that giving these men a proper trial would somehow hurt national security; all the evidence suggests our political and moral standing would be enhanced if we treated these men according to the law. So why haven't we done so?