We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.The most recent book on the side panel -- by a vet / law professor -- suggests that treating the military more like everyone else, particularly in respect to constitutional restraints, will "make our military stronger."
She argues that a key problem was a post-Vietnam policy, led by Justice Rehnquist to provide judicial discretion at the "apogee" in military matters. The irony being in that very case (involving draft of women) that Congress went against military desire (as it did in the FAIR case*), so the discretion often is more political or an ill advised trust of the military hierarchy as shown in the DADT context. Other times, the military wasn't even the main problem, torture being against traditional military rules and not asking to head combatant status tribunals making decisions as political as they are military in various respects.
The "otherness" of the military, the problem already growing with the end of the draft, which also leads to a noticeably more conservative (politically speaking) military, is promoted as their due. Consider the 2000 elections, when oversea "military" votes (in fact, the rules applied to oversea votes generally) were thought to be miscounted. The author argues in fact, if anything, some unknown numbers of members of the military gamed the system to affect the election by voting late. But, this one group was given special dispensation, bending the rules because their votes apparently were more important. George III was deemed a tyrant for deigning "to render the Military independent of and superior to the Civil Power." We are to think it par for the course.
The book is well argued by someone passionate about the subject, but did not really talk enough about the pre-Vietnam period to give a complete sense of how things truly changed. What of the Japanese Internment Cases where the military received a bit too much discretion? She even undersold the possible dissent possible in a few cases, including a case that Justice Stewart -- not exactly known to be a passionate dissenter -- singled out to read a strong dissent from the bench. This might be a matter of space, the book coming out to two hundred pages plus notes, but it is a bit problematic. But, she makes her case of the problems with the current situation either way and it is well worth reading.
Her three recommendations: (1) excessive judicial deference can undermine the military by denying it an important check (2) military advice should be taken carefully with a grain of salt but not ignored when correct but politically incorrect and (3) a diverse military must be our goal, a national civil service plan ideal, but if not, some other sort of flexibility (such as short term tours by various types of individuals) must be used for it truly to thrive.
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* She thinks, the at times snide 8-0 loss (overturning the lower court, no not the Ninth Circuit) notwithstanding, the law schools had a good case, but its strong position was still ill-advised. Nor would the JAG corps or the military effort as a whole fall apart if the law schools that joined the protest would be allowed to go their own way. Each could bend a little.
I agree -- it is better to welcome the recruiters in, voicing opposition to their policy, but trying to change things all the same. A misguided military group amicus brief notwithstanding, the military as a whole realized the "all or nothing" policy was counterproductive, the law schools sentiments not stopping the schools as a whole providing services to the military.