Thinking about conscription: what NATO’s Jens Stoltenberg told me (and more!)

The Aspen Security Forum gathers many of the top leaders in the national security realm.  NBC News correspondent Courtney Kube opened this year’s conference with an interview of NATO’s General Secretary Jens Stoltenberg. I asked the Secretary a question about conscription and I’ll share his response and more in this post.

Some news reports have focused on Stoltenberg’s remarks about the $116 billion increase in defense spending by NATO partners since President Trump took office.

Stoltenberg noted that “Trump has been very clear on the importance of increased defense spending” and “that very clear message is having an impact.”  Others noted Stoltenberg’s confidence in the strength of NATO, notwithstanding periodic disputes such as the recent one with Turkey about its acquisition of the Russian S-400 missiles.

INF Treaty and NATO’s deterrence

Kube pressed him on a number of issues, including the soon-to-expire Intermediate-Range Nuclear Forces (INF) Treaty. Kube asked Stoltenberg “if there was any indication that Russia might be moving towards compliance or there might be some hope” for the treaty?”

Stoltenberg’s blunt “no” indicated Russia’s current status, but he added that NATO will continue to call for compliance as the treaty was “extremely important,” and a “cornerstone for arms control in Europe.”

Stoltenberg dismissed Russian claims the new missiles did not violate the treaty, noting that “they’ve been in violation of the treaty for years.  Kube then asked him how, in light of this new Russian threat, NATO would deter Russian aggression.  Stoltenberg’s answer reflected a theme which he would reiterate in different ways throughout the discussion:

[T]he most important deterrent NATO provides is “one for all and all for one.” And as long as that’s credible, that if you attack one small ally or a big ally, the whole alliance will respond. Then we are by far the strongest alliance in the world. We are 50% of the [world’s military power], so we are strong and stronger than any other potential adversary as long as we are together.

Conscription

I wanted to ask Secretary Stoltenberg about conscription in European countries.  As recently as 2010, most European countries were phasing out conscription.  However, in 2018 the Washington Post reported “with Russia resurgent and tensions on the rise, mandatory military service is making a comeback across the continent.”

Here’s an unofficial transcript of my question and Secretary Stoltenberg’s answer. (This is a lightly-edited version of the transcript found here.  Keep in mind that the “authoritative record of Aspen Institute programming is the video” which is found here):

Dunlap: Charlie Dunlap from Duke Law School.  Mr. Secretary, we’re seeing conscription is being looked at by European countries.  Do you think that trend will continue, especially if you get the high tech and cyber talent that modern militaries need?

Secretary Stoltenberg:  “To be honest, I don’t know.  As in my own country, I’m sorry to use Norway, but I know it the best, we have conscription, actually we conscript men and women.  It was introduced when I was prime minister.  I was very skeptical in the beginning, but I ended up campaigning for a female or women conscription because then I understood because if you have not half of the population but 100% of the population, you get really even better people.”

“And the advantage of having conscription is that you can recruit really the best.  The problem, to be honest, is that I think…[that] very few [countries] are able to afford to have so many people in the armed forces.”

“So again, to use my own country, we have conscription.  But the reality is that I think it’s [15%] or something of the cohort – is that what they call it?  – do [military] service because we can’t afford to have a bigger army.  So therefore I’m a bit reluctant – or careful – to [give] clear advice to other allies.”

“But the important thing is that we need the best and the brightest and we need more and more skilled people because we are now in the midst of a big transformation or armed forces, artificial intelligence, autonomous weapon systems, big data, all that will change the nature of warfare more fundamentally than the industrial revolution did.”

“So therefore, we need really the best people in our armed forces to maintain the technological edge, which has always been so important for NATO. But again, I’m a strong optimist.  Also, we have proven again, again, that we are able to change when the world is changing.”

Stoltenberg is correct in that Norway brings in about 60,000 young people for medical examination (but only about 10,000 actually serve).  His larger point about really needing “the best people in our armed forces to maintain the technological edge” is a genuine issue.

Is the U.S. getting enough of the “best people” to maintain what Stoltenberg’s says in the necessary “technological edge”?  News articles tell us that “[d]espite some recent improvements in its incentive systems, the Department of Defense is still scrambling to recruit and retain skilled cybersecurity personnel.”  Few would disagree with this report:

[M[ilitary experts say the need for recruits is acute as the military looks for young people with high-tech skills to combat growing cyber threats from other countries. Without fresh talent entering the military’s ranks, the nation could be vulnerable for decades to come, they say.

So is conscription the answer?  In the U.S., males between the ages of 18 and 25 are required to register for the draft.   What about women?  As I discussed here, in the 1981 case of Rostker v. Goldberg the Supreme Court case upheld the Constitutionality of the male-only draft.

The Court concluded that men and women were “simply not similarly situated for purposes of a draft” because there were then existing “combat restrictions” on women’s military service.

Consequently, the Court said that as the “purpose of [draft] registration is to develop a pool of potential combat troops,” Congress could reasonably conclude it was necessary to draft only men since they were the only ones who could serve as combat troops at that time.

However, earlier this year, Federal district court Judge Gray H. Miller held in a Texas case brought by the National Coalition for Men that since women were no longer barred from combat positions, Rostker no longer controlled.  He found that registration was, therefore, unconstitutional on equal protection grounds because only men were subject to it.

Similarly, in a New Jersey case also earlier this year Judge Esther Salas denied a government motion to dismiss a lawsuit brought by a woman claiming that her equal-protection and substantive due-process rights were being violated because she was not able to register for the draft.

My own view is that as a matter of sound military policy, all combat specialties are rightly open to women.  But that is a different question than whether the Constitution mandates the conscription of women if the need in the armed forces is not for warfighters generally, but for ground combat troops in specific.

To be clear, the question is not whether women can or should be allowed to serve in combat – that issue has already been decided, and the answer is clearly “yes.”  Rather, the issue is whether or not the Constitution requires that they be conscripted to involuntarily serve as ground combat troops if men are drafted for that specific purpose.

Do the physical demands of ground combat matter?  Last December Popular Mechanics said that an “average Marine Corps infantry officer should to be physically able to carry 152 lbs. for nine miles.”  Consider as well that other experts say:

“Today the average US soldier carries at least 60 pounds of gear, with an extended patrol often doubling that weight. Specialized warfighters, such as Automatic Riflemen, Combat Medics, and Special Operations can see totals much higher. For example, US Army Spc. Craig Brown carries 90 pounds of gear as a SAW gunner, not including a ruck.”

(A SAW is a “Squad Automatic Weapon” and usually refers to the M249 light machine gun which weighs 22 pounds. A “ruck” refers to a soldier’s rucksack which “can come in many different shapes and sizes, from a large pack that holds 100+ pounds of gear to a more modestly-sized patrol pack that holds filled with 20 to 30 pounds of gear.”)

Obviously, not everyone can carry these loads.  It would appear then that one reason conscription is currently limited to those 25 and under is because, as a group, that cohort would most efficiently yield those able to handle the physical demands of ground combat service.

Does the Constitution require that older (or younger) people be drafted simply because there may be some individuals – even in their eighties – who might qualify?  Does a due process or equal protection argument justify imposing upon the military, particularly in times of crisis, the burden of sorting through the octogenarian population to find the few who might meet the standards?  Not in my opinion.

In the Texas case, Judge Miller maintained that “concerns about female physical ability do not appear to have been a significant factor in Congress’s decision-making process regarding the [Military Selective Service Act].”  However, he conceded that “[h]ad Congress compared male and female rates of physical eligibility, for example, and concluded that it was not administratively wise to draft women, the court may have been bound to defer to Congress’s judgment.”

There is evidence that women, as a group, have difficulty meeting the physical requirements for ground combat.  (Indeed, some critics charge that standards are being improperly lowered  just to have more women qualify.) To be sure, however, some women can meet the requirements for even the most demanding ground combat roles. For example, it was recently reported that:

In the nearly four years since the Pentagon announced it was opening all combat jobs to women, at least 30 have earned the Army Ranger tab, two have graduated Marine infantry school and three have passed the grueling initial assessment phase for Green Beret training.

Another source says that “170 women have graduated from the Army’s basic infantry and advanced individual training, with 150 more in the pipeline.”  Their accomplishments amply demonstrate the wisdom of allowing women to volunteer for combat positions, but do they make a case for conscripting women for those duties? 

Consider that these numbers are but a tiny percentage of the hundreds of thousands of ground combat troops the U.S. military currently requires.  Writing in USA Today last March, Marine veteran Jude Eden says:

“Having equal rights doesn’t mean we are required to do the same things in the nation’s defense. If it did, only those who could fight would have rights. The purpose of the draft is military need in a large-scale crisis, so the real question is: Would drafting women improve our military readiness and lethality in a world war? The answer is: Absolutely not.”

Eden argues that “[q]ualifying equal numbers would create a huge and expensive bureaucratic nightmare just when we need to mobilize quickly — all for very little return.”  She adds: “Imagine sifting through millions of women to find the few who qualify by minimal standards, yet still have six to 10 times the injury rates.”

In any event, what do the troops think about things as they are now?  In a poll released in January by Smithsonian Magazine, fully 70% of active duty servicemembers and veterans supported the deployment of female troops in ground combat situations (including 88% of women).

However, a recently updated (June 5, 2019) Congressional Research Service report noted:

“Some have questioned whether the opening of direct combat roles to women would have an effect on female propensity to serve. DOD surveys have found that 35% of new recruits reported that this policy change made them more likely to serve; however only 2% of female recruits wanted a combat specialty in Armor, Artillery, or Infantry.“ (Emphasis added.)

What does the public think?  Overall, in a poll conducted in February of this year 50% of “likely voters” believed that women should register for the draft (39% disagreed; 11% undecided).  However, when broken down by gender, 60% of men “think women should have to register for the draft just like they do, [but] only 40% of women agree.”

Can women be forced to serve in the infantry?  It seems so: in Jacobson v. Massachusetts, the Supreme Court said (in dicta) that someone “may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense.”

What does the world think?  Of the 195 recognized countries, the Pew Research Center says that only 60 have active conscription, and only 11 draft women.  About 17 countries (with or without conscription) do, however, permit women to serve on combat roles if they volunteer, but the numbers seem to be small.

Even in the Israeli Defense Force only about 7 percent of the women serve in combat positions.  It appears that very few, if any, countries require women to serve in combat specialties.

Will science change the analysis?  

One key thing to remember is that the Rostker Court identified the current draft design in the U.S. as being for the purpose of the “recruitment of combat troops.”  Such troops were typically then conceived of as being those involved in close combat – infantrymen and the like.

Still, even within that narrow focus, science could have a dramatic impact on how this plays out.  For example, the Army is studying hyper-fit women who have qualified for combat billets in order to “identify the attributes — whether mental, physical or psychological — helping the women succeed.”  According to news reports, the Army hopes that by “unlocking those secrets, maybe they could help other women compete for the same jobs.”

Additionally, advances in the sciences of “human enhancement” might make it possible to create “super soldiers” without respect to gender.

Either circumstance might obviate the concerns about the physical ability currently required for combat positions, and therefore make the legal arguments for gender-neutral draft registration and conscription vastly more compelling.

Concluding thoughts 

Regardless, let’s ask ourselves this: what kind of conflict is most likely for the future?   One requiring masses of infantry with robust physical attributes along with mental savvy, or one demanding people with perhaps less physical strength but nevertheless equipped with sophisticated cerebral abilities that can help achieve the “technological edge” Secretary Stoltenberg spoke about?

Think, for example, of hard-to-recruit (and retain) fighter pilots, drone operators, cyber warriors, AI-experts or, for that matter, lawyers, and the many more specialties which don’t typically involve the same kind of physical demands that ground combat occasions.  Women can certainly fill those billets on the same basis as men.

This matters because if Congress concludes that military specialties that don’t demand the kind of physical qualities ground combat currently requires are actually the ones America most needs for 21st century warfighting, and the military can’t get sufficient numbers of them through volunteers, then it would seem conscription on a gender-neutral basis would be militarily necessary to obtain the quantity of talent needed to meet the challenges of modern warfare.

Consequently, my bet is that within the foreseeable future, we’ll see women being required to register for the draft, and – if necessary – conscripted for the nation’s defense.

Why?  I’m convinced that while we will still need – especially in the near-term – highly-capable and physically-dominant infantrymen, people with high-tech skills will be the ones most urgently needed to keep the “technological edge” Stoltenberg references – and those qualities are not gender-specific.

Indeed, we may well need to conscript both kinds of people for our military in order to prevail in tomorrow’s battlespaces.  In other words, I believe that change will more likely be driven by purely military requirements as opposed to some Constitutional mandate or an abstract notion of gender equity.

And I believe it ought to be that way.

Still, as we like to say on Lawfire^®, check the facts, assess the law and arguments, and decide for yourself!