Summary
The requirements and principles of operations other than war call for a new paradigm of military leadership to bridge the gap between the limits of diplomacy and combat: the diplomat warrior.
As the personification of military legitimacy both at home and abroad, the diplomat warrior exemplifies the traits of leadership and professionalism needed in peacetime to complement those of the wartime combat leader.The traditional paradigm or the soldier and the state, with its ideal of an elite officer corps separated from its political environment and exclusively concerned with warfighting, is ill-suited for the new strategic environment. In a world where better civil-military relations are essential to peace and political stability, the diplomat warrior should be the new paradigm for military leadership and professionalism
Leadership and legitimacy are inextricably bound up with the concept of professionalism, and a military code of professional conduct would enhance legitimacy by defining the minimal standards expected of those in the military profession. There is no shortage of standards of conduct or enforcement procedures for such a code; only a need to codify and identify them as what they are: disciplinary, not criminal, standards and enforcement procedures. Lessons learned in legitimacy have confirmed the need for military leadership imbued with a keen sense of professionalism, especially in operations other than war.
Notes
1. The diplomat warrior is described in Barnes, 'Military Legitimacy and the Diplomat Warrior', Small Wars and Insurgencies (Spring/Summer 1993), at pp. 16-19.
2. Student Text, Military Law and Justice (Required Readings in Military Science IV, Military Qualifications Standards I, Precommissioning Requirements, June 1992); joint proponents for the test publication are the Judge Advocate General's School in Charlottesville, VA, and the Department of Law at the US Military Academy.
3. See Peter Maslowski, Army Values and American Values', Military Review (April 1990), p. 10.
4. See John E. Shephard, 'Thomas Becket, Ollie North, and You: The Importance of an Ethical Command Climate', Military Review (May 1991), pp. 21,26.
5. Anthony E. Hartle, 'The Ethical Odyssey of Oliver North', Parameters (Summer 1993), pp. 28, 32-33. The Iran-Contra affair is used as a case study on 'covert war in peacetime' in Chapter 10 of National Security Law, edited by Stephen Dycus et al. (Boston: Little, Brown and Company, 1990).
6. See Barnes, 'Military Legitimacy and the Diplomat Warrior', n. 1 supra, pp. 5,8-11,18-19.
7. As to Eastern Europe, see Jacob W. Kipp, 'Civil-Military Relations in Central and Eastern Europe', Military Review (December 1992), p. 27. As to Latin America, see Gabriel Marcella, 'The Latin American Military, Low Intensity Conflict, and Democracy', Winning the Peace: The Strategic Implications of Military Civic Action, edited by John W. DePauw and George A. Luz (Carlisle, PA: Strategic Studies Institute, US Army War College), Chapter 4.
8. William H. Riley, Jr., 'Challenges of a Military Advisor', Military Review (November 1988), p. 34. General Riley's article preceded Desert Storm so that General Schwarzkopf's style of leadership was not considered.
9. David H. Hackworth, About Face (New York: Simon and Schuster, 1989), p.315.
10. Cecil B. Currey, 'Edward G. Landsdale: LIC and the Ugly American', Military Review (May 1988), p. 50.
11. Ibid, at pp. 50-52.
12. See references at n. 1 to Chapter 2.
13. David Donovan is a pseudonym used by Dr. Terry Turner, the author of Once A Warrior King (New York: Ballantine Books, 1985). Dr. Turner spoke to CA personnel at the John F. Kennedy Center for Special Warfare and School at Fort Bragg, NC in July 1993.
14. Bob Shacochis, 'The Immaculate Invasion', Harper's Magazine (February 1995), pp. 44,59.
15. Samuel P. Huntington, The Soldier and the State (Cambridge, MA: Belknap Press of Harvard University Press, 1957), pp.
64,70-94.16. Ibid, at p. 84.
17. Ibid, at pp. 94 and 457.
18. A. J. Bacevich, 'New Rules: Modern War and Military Professionalism', Parameters (December 1990), pp. 12,18-19.
19. Charles J. Dunlap, Jr., 'The Origins of the American Military Coup of 2012', Parameters (Winter 1992-92), pp. 2,14.
20. Robert L. Maginnis, 'A Chasm of Values', Military Review (February 1993), pp. 2-11. See also n. 6 to Chapter 3, supra.
21. The danger of an emerging warrior class is discussed by Ralph Peters, 'The New Warrior Class', Parameters (Summer 1994), p. 16. In The Transformation of War (New York: The Free Press, 1991), Martin van Creveld extols warriors as those who love to fight: 'they are only too happy to give up their nearest and dearest in favor of - war!' (p. 227).
22. The Citadel Alumni News (Fall 1994), pp. 10-11.
23. Mary J. Frame, Ph.D., 'Columbia College, The Citadel teach different styles of leadership', The State, 8 February 1995, p. A9.
24. Thomas D. Ayers, Lt. Gen., USA Retired, 'Letters to the Editor, The State, 17 February 1995, p. A14.
25. Kenneth H. Blanchard, A Situational Approach to Managing People (BlanchardTraining and Development, Inc., Esonhito, CA, 1985), pp. 2-4.
26. Lloyd J. Matthews, 'Is the Military Profession Legitimate?', Army (January 1994), pp. 15,17.
27. Ibid.,p. 17.
28. Idem.
29. Ibid.,p. 18.
30. Ibid., at p. 22. In the same issue of Army magazine another professional purist, Col (Ret.) Michael D. Mahler, warns officers against 'pondering the diplomatic, political and multilateral fringes of our business' and urges them to refocus on 'basic doctrine and combat skills', Col Mahler cites General MacArthur's 1962 address at West Point: 'Your mission remains fixed, determined, inviolable - it is to win our wars... All other public purposes, all other public projects, all other public needs, great or small, will find others for their accomplishment;... Let civilian voices argue the merits or demerits of our processes of government...
These great national problems are not for your professional participation or military solution.' Such a myopic perspective of the military, focusing on the invincibility of US combat force and ignoring the potential of operations short of war, would ultimately contribute to America's worst defeat.31. Matthews, n. 26 supra, at p. 23. In a subsequent article, 'The Need for an Officer's Code of Professional Ethics', Army (March 1994), at p. 21. Col Matthews proposes a code of ethics which would include these components, but does not distinguish between criminal acts and military standards of conduct as suggested here. Moreover, he does not believe enforcement is necessary, so that his code - unlike those for other professions - would have no enforcement provisions to ensure accountability. And like most other military ethicists (see n. 34, infra) Matthews limits his ethical guidelines to career officers, which ignores the practical reality that ethical issues and responsibilities are not limited to the active component officer corps.
32. See Department of the Army Rules of Professional Conduct for Lawyers, 9 April 1991; also DA PAM 27-26, Rules of Professional Conduct for Lawyers (31 December 1987), and article by Dennis F. Coupe, 'Commanders, Staff Judge Advocates, and the Army Client', The Army Lawyer (November 1989), p. 3. The military lawyer is a member of a profession within a profession, He or she is subject to legal ethical standards as well as those required in the military profession. The format of the Army Rules of Professional Conduct for Lawyers could be used for rules and enforcement procedures applicable to all military personnel.
33. The Professional Army Ethic (the values of duty, loyalty, integrity, and selfless service) is set forth in FM 100—1, The Army (May 1986), Chapter 4. See also n. 56 to Chapter 6, infra.
34. Colonels Malham M. Wakin and Anthony E. Hartle are pre-eminent authorities and prolific writers on the subject of military ethics.
They treat military ethics as a branch of moral philosophy, emphasizing democratic and traditional military values, such as those of the Professional Army Ethic, but avoiding standards. They correctly note the limitations of specific standards and the importance of values to professionalism, but overlook the importance of enforceable ethical standards for professional accountability. See Wakin, War, Morality, and the Military Profession (Boulder, Colorado: Frederick A. Praeger, 1986), Chapters 14 and 15; and Hartle, Moral Issues in Military Decision Making (Lawrence, Kansas: University Press of Kansas), Chapter 4.35. The Merriam-Webster Dictionary (New York: Simon and Schuster Inc., 1974).
36. 5 USC 7351,7353 (1978); Standards of Ethical Conduct For Employees of the Executive Branch, including Part I of Executive Order 12674 and 5 CFR. Part 2635 Regulation, Prepared by the US Office of Government Ethics, Washington, DC, August, 1992, Part I. See also DA PAM 27-21, Administrative and Civil Law Handbook, 1992; Chapter 12 provides an up to date discussion of conflicts between public and private interests that affect service members.
37. A Quest for Excellence, Final report to the President by the President's Blue Ribbon Commission on Defense Management, David Packard, Chairman (June 1986), Chapter 4, pp. 90-101.
38. The six articles of the Code of Conduct and the punitive articles of the UCMJ that relate to them are as follows:
Article I: I am an American fighting in the forces which guard my country and our way of life. I am prepared to give my life in their defense. (No punitive articles.)
Article II: I will never surrender of my own free will. If in command I will never surrender those under my command while they still have the means to resist. (Punitive Article 99: cowardice, disobedience, neglect of duty, or intentional misconduct in the face of the enemy; Punitive Article 100: compelling or attempting to compel surrender.)
Article III: If I am captured I will continue to resist by all means available.
I will make every effort to escape and aid others to escape. I will accept neither parole nor special favors from the enemy. (Punitive Article 90: willfully disobeying a senior commissioned officer; Punitive Article 105: accepting special favors without proper authority to the detriment of other prisoners-of-war, and maltreatment of prisoners-of-war while in authority.) Article IV: If I become a prisoner-of-war I will keep faith with my fellow prisoners. I will give no information nor take part in any action which might be harmful to my comrades. If I am senior I will take command. If not, I will obey the lawful orders of those appointed over me, and will back them up in every way. (Punitive Article 104: giving aid [e.g., information] to the enemy; Punitive Article 90: see above.) Article V: When questioned, should I become a prisoner of war, I am required to give name, rank, service number and date of birth. I will evade answering further questions to the utmost of my ability. I will make no oral or written statements disloyal to my country and its allies or harmful to their cause. (Punitive Article 104: see above.) Article VI: I will never forget that I am an American, fighting for freedom, responsible for my actions, and dedicated to the principles which made my country free. I will trust in my God and in the United States of America. (No punitive articles.)39. See Manual for Courts-Martial, United States, 1984 (as amended), hereinafter MCM, Article 133, p. IV-108.
40. See MCM, Article 134, pp. IV-109 - IV-147.
41. Administrative non-punitive disciplinary measures and non-judicial punishment available to the commander to maintain good order and discipline without resorting to court-martial include counselling, reprimand, admonishment, extra duties, restriction, reduction in rank, forfeiture of pay and allowances, bar to re-enlistment, and ultimately separation from the service under other than honorable conditions. See FM 27-1, Legal Guide for Commanders, 1987, Chapter 1 (Military Justice), Section IV, for a discussion of non-judicial punishment; and Chapter 2 (Administrative Law), Sections I and II, for a discussion of administrative and non-punitive measures. DA Pam 27-21, Administrative and Civil Law Handbook, 1992, Chapter 6, provides more information on administrative personnel actions; AR 27-10, Military Justice, 1989, Chapter 3, and The Manual for Courts-Martial (MCM), 1984 (as amended), part V, provide more information on non-judicial punishment under Article 15, UCMJ. See William Hagan, 'The Officer Corps: Unduly Distant From Military Justice?' Military Review (April 1991), p. 51. Colonel Hagan notes the frustration of commanders with military justice becoming less of a command function and the resulting wider use of administrative disciplinary procedures. He argues that a lack of understanding (of the proper role of command influence) is a large part of the problem and that ROTC cadets and OCS officer candidates should receive military justice training commensurate with that provided at the United States Military Academy at West Point.
42. See AR 600-20, Army Command Policy, 1988, Chapter 4, pp. 9 etseq.
43. See Art House, 'The "F-Word": Fraternization', Army Reserve Magazine, Fourth issue of 1991, p. 22. Colonel House attempts to distinguish fraternization (the military crime under article 134, UCMJ) from improper relationships among military personnel (the military standard of conduct under AR 600-20), but succeeds only in demonstrating that no meaningful distinction exists. Major David A. Jonas provides a comprehensive review of fraternization as an evolving custom of the services and disciplinary standard and critiques the new DOD definition of fraternization in 'Fraternization: Time for a Rational Department of Defense Standard', Military Law Review (Winter 1992), pp. 37,41.
44. AR 380-67, Personnel Security Program (9 September 1988), Appendix I, pp. 46 et seq. The relationship of personnel security issues to national security law is discussed in Chapter 13, 'National Security Law'.
45. AR 635-200, Chapter 15, provides that homosexuality is incompatible with military service and that soldiers who are homosexuals will be separated from the service. Under this regulation, the homosexuality of the soldier can be established by pre-service, prior service, or current service conduct or statements.
46. Richard H. Kohn, 'Women in Combat, Homosexuals in Uniform: The Challenge of Military Leadership', Parameters (Spring 1993), pp. 2-3.
47. Ibid., at p. 4; see n. 7 at Chapter 3 where the quote was used in connection with values. Senator Sam Nunn has explained the constitutional basis for Congress requiring military standards of conduct at variance with those of civilian society in 'The Fundamental Principles of the Supreme Court's Jurisprudence in Military Cases', The Army Lawyer (January 1995), p. 27.
48. The conflict between civilian and military perceptions of justice in the military, especially the pervasive influence of commanders in courts-martial, was the subject of an investigative report by Ed Timms and Steve McGonigle of The Dallas Morning News, later published in The State (Columbia, SC), 5 January 1992, at p. 2-D under the headline: 'A Case of Military Injustice'. The article was the culmination of a three month investigation that purportedly found '... attempts by military commanders to influence courts-martial - a crime if intentional. Yet no commander has ever been prosecuted for such a breach of law.' The article compared civilian criminal justice with military justice and cited arguments both condemning and praising military justice, but offered no new solutions. It reflects a general civilian distrust of a system of justice run by an authoritarian organization in a democratic society.
49. Professor David Schleuter, a noted authority on military justice, has commiserated with military lawyers in acknowledging that the military justice system suffers from'... a lack of respect for the system by the public and legal profession generally'. He attributed this lack of respect primarily to the role of the commander in the court-martial, especially in choosing the panel of officers (the equivalent of a jury), and predicted continuing command influence in military justice until commanders are eliminated from the process. See David A. Schleuter, 'The Twentieth Annual Kenneth J. Hodson Lecture: Military Justice for the 1990s - A Legal System Looking for Respect', Military Law Review (Summer 1991), pp. 2,10-23.
50. United States v. Thomas, 22 M.J. 388,393-394 (CMA 1986).
51. See Article 37(a), UCMJ, and Rule 104, MCM. For examples see n. 49 supra. A practical list of command influence do's and don'ts is provided in Vito A. Clementi, 'Command Influence and Military Justice', Military Review (April 1988), p. 65.
52. Professor Schleuter has noted that the Court of Military Appeal has characterized command influence as the 'mortal enemy' of military justice. See n. 49 supra.
53. The standards of procedural due process of law guaranteed by the Fifth Amendment to the US Constitution differ according to the severity of the action to be taken. The military standards of judicial due process are those required in criminal prosecutions in which liberty and even life are at risk, and are essentially the same as those required for a civilian criminal defendant. But since the most serious punishment resulting from the administrative enforcement of military standards of conduct is separation from the service (loss of professional status), the standards for administrative due process are less than those for judicial due process, minimizing the need for formal hearings, lawyers and judges in the process. Command influence invariably contaminates judicial due process, but the commander has an important role in administrative personnel actions. See Chapter 13, Administrative Due Process, DA PAM 27-21, Administrative and Civil Law Handbook, 1992.
54. Courts-martial, including general (GCM), bad conduct discharge special (BCD/SPCM), and special (SPCM) courts-martial have all decreased in recent years, while there has been little decrease in Article 15 non-judicial punishment: FY88 FY 93 GCM 1,631 915 BCD/SPCM 923 327 SPCM 182 45 Art. 15 50,066 44,207 From The Army Lawyer (October 1994), at p. 15.
55. See article by Colonel William Hagan supra, n. 41.