Military Justice

How the Rules Changed on Women in Combat---A Legislative and Executive History Primer

By Susan Hennessey
Saturday, January 26, 2013, 9:17 AM

To considerable fanfare, departing Defense Secretary Leon Panetta and Joint Chiefs Chairman Gen. Martin Dempsey announced this week the decision to lift the ban on woman serving in combat units. Panetta stated: "General Dempsey and I are pleased to announce that we are eliminating the Direct Ground Combat Exclusion rule for women and we are moving forward with a plan to eliminate all unnecessary gender-based barriers to service."

Panetta and Dempsey have signed a memorandum effectively repealing a 1994 policy. Careful observers note that this order does not, in itself, allow women to serve in combat. Pursuant to § 541 of the National Defense Authorization Act of 2006, when the Secretary of Defense makes any change to ground combat policies---namely, allowing women to serve---he must give Congress 30 days to respond. The Direct Ground Combat Exclusion rule became a political hot potato back in November when the ACLU sued Panetta on behalf of four servicewomen to challenge the policy as discriminatory. Responding to mounting criticism, Panetta and Dempsey have effectively passed the ball to Congress, which can now ratify the rule through inaction or respond with legislation. The Navy has previously tested the waters of congressional inclination to act by publishing its intent to station women on submarines. There, Congress did nothing and female naval officers currently serve aboard submarines.

A Congressional Research Service Report on Women in Combat from December 2012 gives a comprehensive legislative history of the law and policy specific to female service members in combat. One important nuance: No current law prohibits women from serving in any military unit. The last such law---precluding women from serving on aircraft or ships assigned to combat---was repealed in the early 1990s. Therefore, any restriction on female military roles are a matter of DOD policy. Congress, however, is still not irrelevant because it ultimately has the constitutional authority “to make Rules for the Government and Regulation of the land and naval Forces.” This means that the executive branch has wide flexibility in this space, provided that it does nothing to which a majority in the legislature objects sufficiently to motivate congressional action.

Here is a timeline of the legislation of women in combat. (For those of you who prefer pictures, NPR has a fun slideshow history.) Setting aside policy, the landmark legislation is the Women’s Armed Services Act of 1948 that made women a permanent part of military service. The Act limited women to two percent of enlisted forces and ten percent of officers, a provision which was not repealed until 1967. Legislation on women and combat has developed piecemeal as female service members have grown in number and risen in rank. In 1988, DOD adopted the “Risk Rule” policy that extended women’s combat exclusion to bar their participation in any non-combat unit where the risks of exposure to combat were equal to or greater than the combat units they supported.

The now-repealed and much discussed policy enacted in 1994 under then-Secretary of Defense Les Aspin aimed to open more positions to women. The memorandum lifted the Risk Rule but dictated that women could not be assigned to units, below the brigade level, whose primary mission was to engage in direct combat on the ground.

The nonlinear battlefield at play in Iraq and Afghanistan have all but obliterated the distinctions between forward and rear operating areas, and this further muddied what serving in direct combat means under the 1994 policy. Panetta acknowledged this in his statement, saying: "[M]en and women alike, everyone is committed to doing the job. They’re fighting and they’re dying together. And the time has come for our policies to recognize that reality."

Dexter Filkins offers some thoughts on the blurry distinction between combat and non-combat roles in this week’s New Yorker: "Who’s in greater danger? A male Marine on a foot patrol in Helmand Province, or a female Marine driving a fuel truck on a highway to Kandahar? Technically speaking, the former is a combat job, and the latter is not. But the distinction, in both of our recent wars and in any we are likely to fight in the foreseeable future, is meaningless."

Additionally, the New York Times offers insight into the take of military women---namely that it’s about time. In their view, the decision merely recognizes women who perform competently, even heroically, in what most of us would recognize as combat. But there are critics who cling to the distinction. California Rep. Duncan Hunter, for example, notes a difference between the “incidental combat” of female service members in the wrong place at the wrong time as opposed to “direct combat duties” of targeting and engaging the enemy.

The Lawfare banner doesn’t read “Easy National Security Choices.” And unfortunately, even for those heralding this as a step forward both for gender equality and for the national defense, hard questions remain. Doing away with the “combat and non-combat” distinction may only lead to another definitional hurdle; what are the “gender-neutral standards” for combat stressed by Pentagon officials following the announcement. Plain language might suggest identical standards for both men and women, but the Armed Services in the past have interpreted similar language to mean that men and women must exert the same amount of energy in a given task, regardless of the actual result. The Women in Combat CRS report referenced above offers a hypothetical illustration that a gender-neutral standard might demand that a female soldier carry 70 pounds the same distance as a male soldier carries 100 pounds, where each soldier expends the same energy. Query whether that distinction is one the phrase "gender-neutral" will really bear.

Furthermore, what happens to women and the draft? The 1981 Supreme Court decision, Rostker v. Goldberg, upholding the male-only registration requirement noted that the “purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft.” As the New York Times notes, Israel may provide clues---good and bad--- to both questions. The I.D.F. employs a universal draft, and while 92 percent of jobs are open to both genders, only 3 percent of women actually serve in combat roles.