What Private Life Is When You're In Uniform

A U.S. commander in northern Iraq has backed off of a threat to court-martial soldiers who get pregnant, or cause a pregnancy.

But the issue raises larger issues about military life, and the rules of fraternization in the armed forces.

GUESTS:

Tom Bowman, Pentagon correspondent, NPR

Sen. Barbara Boxer (D-Calif.), one of four Senators who signed a letter asking the Secretary of the Army to rescind the pregnancy policy

Eugene Fidell, senior research scholar in law at Yale Law School Of Counsel

Capt. Rosemary Mariner, retired Navy captain and aviator

Copyright © 2009 NPR. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan in Washington.

In early November, Major General Anthony Cucolo, the U.S. commander in northern Iraq, issued new rules for the 22,000 soldiers based there. The one you've probably heard about involves pregnancy. Thus far, four women and three men have been punished on that count. At one point, General Cuculo threatened courts martial but issued reprimands instead. More on this in a moment but the entire set of orders illustrates limitations placed on men and women in uniform that simply do not apply in the civilian world.

One big example, members of the armed forces lose the right to free speech. There are things they cannot say. So, we want to hear from current and former members of the military today - how private is private life when you're in uniform? Our phone number is 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our Web site, that's at npr.org. And click on TALK OF THE NATION.

Later in the program, an excerpt from an interview earlier today that President Obama granted to Robert Siegel and Julie Rovner from NPR News. And science correspondent Richard Harris back from Copenhagen on what didn't happen at the climate summit and why.

But first, private life in uniform. We begin with NPR Pentagon correspondent Tom Bowman, who is with us here in Studio 3A. And Tom, thanks very much for coming in today.

TOM BOWMAN: Good to be with you, Neal.

CONAN: And there are a lot of things on General Cuculo's list besides pregnancy. We'll get to those in a second but what's the idea for punishment for pregnancy even for married couples?

BOWMAN: Well, this all comes down to what the military calls readiness. They want to make sure the soldiers are ready to deploy and also stay in that deployment for 12 months, in this case in Iraq. And he doesn't want to lose anybody. He's in one of the most dangerous parts of Iraq, and that's northern Iraq that includes the cities of Mosul and Kirkuk, where there's been a lot of fighting up there. So, he basically added pregnancy to a list of conditions, behaviors that are prohibited and you could receive disciplinary action. And besides pregnancy it could be drug or alcohol use, viewing pornography, having a personal firearm. And so far, as you say, he has punished seven soldiers: four women and three men.

CONAN: Why the disparity?

BOWMAN: Well, because one of the women wouldn't say who the father was.

CONAN: Okay.

BOWMAN: But what's interesting here is that we have two couples among those who were punished. And they got the lightest amount of punishment here. It's called the local letter of reprimand. It does not go in their permanent files and it basically therefore wouldn't affect any promotions and so forth. And the four women were sent back for Fort Stewart, Georgia, where their division, the 3rd Infantry Division, is based. The men will remain in northern Iraq and they also got these letters of reprimand.

CONAN: A letter of reprimand, if it goes into your permanent file, it basically means you're not getting promoted again.

BOWMAN: Exactly. And I should add, one of the male soldiers got an official letter of reprimand because he was a senior to the woman soldier he slept with. So, it's fraternization, which is prohibited. Also, he was married, not to this particular woman. So, it was also adultery.

CONAN: So, adultery, which can often be a private problem in civilian life, in military life?

BOWMAN: It's illegal.

CONAN: It's illegal. And that has to do, as you're looking down this set of orders, with so many things. Private firearm, for example. You would think in the United States military that wouldn't be a problem. Of course, it is.

Mr. BOWMAN: Exactly, because you're issued a weapon in the military and you can't bring your own weapon with you.

CONAN: There are also things about behavior outside of the base. You're not allowed to step inside a mosque without permission.

Mr. BOWMAN: Exactly. And also, things as simple as criticizing the president of United States. You or I could do that but a soldier is prohibited from what they call disparaging comments about the commander in chief, also the secretary of defense, as well.

CONAN: And these are regulations where people in the field, people who have been deployed, people who are on what we would call the frontlines, yet a lot of these restrictions apply even when you're back home on pay.

Mr. BOWMAN: Oh, absolutely. All these do.

CONAN: And there are also restrictions about financial affairs for officers. You're not allowed to bounce a check, are you?

Mr. BOWMAN: No, you're not.

CONAN: And this is something again that could get you into trouble in civilian life, it is not illegal. It is not a violation of orders.

Mr. BOWMAN: Exactly, right.

CONAN: Now these can - there's a range of punishments here that can be imposed from these local letters of reprimand that you talked about on up to courts martial?

Mr. BOWMAN: Well, what he has said, General Cucolo has said is that he would not court martial any woman here, but there are a number of tools that he can use. A local letter of reprimand, which is the lightest punishment. The official letter, which would go in the permanent file. He can do what's called non-judicial punishment in article 15 which could result in reduction in rank, reduction in pay. But here's - the other thing, a soldier could request a court martial in lieu of taking, let's say, an article 15.

CONAN: Can request a court martial?

Mr. BOWMAN: Right.

CONAN: So there are legal procedures, uniform code of military justice, all of that. So there are - there is recourse in many respects for all of this.

Mr. BOWMAN: Exactly.

CONAN: Now, is there any reason to believe that these orders are unusual? I mean, this one on pregnancy has gotten a lot of attention.

Mr. BOWMAN: Well, it is unusual. As far as we know, no other commander in either Iraq or Afghanistan has said that pregnancy is something that they could face disciplinary action. He's the first.

CONAN: And is there any understanding as to why now? The United States has been in Iraq since 2003.

Mr. BOWMAN: Well, we don't know why. I talked to General Cuculo about that and he said, I thought about these issues since I was a battalion commander in 1995. But he never really said exactly why the pregnancy issue, you know, came to the forum, why he decided to put that in the list of, you know, of areas that there could be discipline for. But, you know, clearly he sees this as an issue.

And again, so far, you know, of the 22,000 soldiers under his command, more than a thousand women, roughly 1600 women are under that 22,000 and only four so far have become pregnant - clearly it's a small issue, but he sees it as just one more readiness problem.

CONAN: One more readiness problem. And I should point out, under military regulations if a soldier does become pregnant she is - he is required to send her back to the United States.

Mr. BOWMAN: Absolutely, that's right.

CONAN: So that her pregnancy can than proceed. Well, joining us here in the studio is Eugene Fidell. He teaches military law at Yale Law School and an expert on military law. Eugene Fidell, nice to have back on the program with us.

Mr. EUGENE FIDELL (Senior Research Scholar, Yale Law School): Good to be back.

CONAN: And where - is this an unusual order for a general to issue? Is this within his rights to do this?

Mr. FIDELL: Those are two different questions. It is unusual and it is within his rights in my judgment. I think if this were ever tested, which I rather doubt it ever will be in a court martial, it would be upheld.

CONAN: It would be upheld? This is something that - in other words, the situation created by the pregnancy is so onerous that it justifies this kind of procedure?

Mr. FIDELL: Really the question is, is there a military purpose served by such an order? You can't have an order that doesn't advance some military purpose. That's sort of black letter military justice. And this, I think, does. I don't think the name of the game here is, how many courts martial can we try for violations of this regulation? The real question is, is it going to have a deterrent effect on behavior? And I have to assume around the edges it probably will.

CONAN: Around - so, the deterrent affect is what's - that's the military affect here?

Mr. FIDELL: Yes.

CONAN: And, well, if you would stay with us for just a moment, there were four United States senators who sent a letter today to Secretary of the Army John McHugh to request that this order be rescinded. They're all members of the Democratic Party and joining us now on the phone from Capitol Hill is Senator Barbara Boxer, Democrat of California. I know it's a busy day up there. We appreciate you taking the time to be with us.

Senator BARBARA BOXER (Democrat, California): Sure.

CONAN: And why did you ask that this order be rescinded?

Sen. BOXER: It just sounded just so - let me just put it this way - mean and wrong and misguided to kick someone out of the military, throw them in jail. Really? That's what a court-martial could result in, for becoming pregnant? And it just seemed so wrong to us, and we could have gotten probably many more people on the letter, but we rushed it out because we wanted to see the general back off.

He backed off to a degree, but he still can punish people for becoming pregnant, including married couples.

CONAN: These local letters of reprimand are what the punishment has been thus far.

Sen. BOXER: Well, yeah, but there are other - local letters of reprimand aren't that - first of all, it sounds wrong to me, reprimanding someone for getting pregnant. Married couples do live together there. But there are other penalties that go along which could ruin the careers of these people.

There's not - there's the non-judicial, there's the local letter, but then there's a whole array of non-judicial steps which could result in cuts in pay and demotions and all the rest, and that could end a career.

CONAN: Can you understand the general's point of view, that if a female soldier becomes pregnant, he then has to send her home, and of course then somebody has to come out to replace her?

Sen. BOXER: Yes, I do.

CONAN: And this is not a problem?

Sen. BOXER: Well, this happens when somebody gets ill or has to deal with any change in their health.

CONAN: So that - any change in their health, a soldier gets pregnant, would have to be sent home anyway.

Sen. BOXER: Yes, they are currently sent home.

CONAN: And what's interesting, the same punishment is being levied on the male soldiers responsible.

U Sen. BOXER: Yes, assuming they come forward. He already said that in one case a man went unpunished because the woman didn't name him. A woman can't hide the pregnancy.

CONAN: A woman can't hide the pregnancy. So do you think that this is unfair on that basis?

Sen. BOXER: I just think it doesn't make sense, and I'm glad that General Cucolo has said that women under his command, I'm quoting him, are absolutely invaluable, and he decided he wouldn't jail a soldier. But the policy is on the books, and I just - I just find it pretty heartless that - I mean, there's something that - it's hard to put it into words. You could see him having trouble. Just - it doesn't make sense to me.

CONAN: Have you had any response from the secretary of the Army, John McHugh?

Sen. BOXER: Well, not at this point. We just sent the letter. And you know (unintelligible) we sent it yesterday. So we're hoping to have a response, and we're glad that the general has backtracked. But again, this is on the books, and it's - I know it's a complicated problem for our military, but there's a lot of problems that they face with personnel, and I don't know why this one would rise to the level of a court-martial.

CONAN: Again, I should mention your co-sponsors. We're talking with Senator Barbara Boxer of California. Barbara Mikulski of Maryland, Jeanne Shaheen of New Hampshire, and Kirsten Gillibrand of New York were the others who signed this letter to the secretary of the Army. And Senator Boxer, thank you very much for your time today. We appreciate it.

Sen. BOXER: Well, thank you so very much.

CONAN: And Happy Holidays to you.

Sen. BOXER: You too. Bye.

CONAN: All right. Senator Barbara Boxer of California, a Democrat, on a very busy day on Capitol Hill. As you know, the health reform overhaul is, well, proceeding, and it's supposed to go to a final vote there tomorrow morning. More on that a little bit later in the program.

In any case, we're talking about private life in uniform and how military regulations shift that. It might be a surprise to a lot of civilians. Stay with us. Our guests are Tom Bowman, NPR Pentagon correspondent; and Eugene Fidell, senior research scholar in law; and Florence Rogatz, lecturer in law at Yale Law School of Counsel, and of course, he's an expert on military law so he's with us here in the studio. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington. A little later this hour, we'll get a full report from NPR science correspondent Richard Harris. He's just back from the U.N. Climate Summit in Copenhagen. If you have questions for him, you can send an email now. The address is talk@npr.org.

Right now we continue our conversation on military life. Becoming pregnant or impregnating a soldier are now prohibited activities for certain soldiers in the military. Private life, if you're in uniform, isn't so private.

We're talking about it with NPR Pentagon correspondent Tom Bowman this hour, and of course we're also with Eugene Fidell of Yale University Law School. In a minute, we'll hear from a retired Navy captain, and of course we want to hear from you. If you're a current or a former member of the military, tell us about your experience, 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our Web site. That's at npr.org. Click on TALK OF THE NATION.

Let's go to Jerry, Jerry with us from Jackson in Louisiana.

JERRY (Caller): Hey, thanks for having me, I appreciate the time. First of all, I've got to say hooray to the general for taking a stance. When you join the military, you have a special contract with your country, and you don't give up rights, but you also have responsibilities, and part of that is to support the mission.

As a retired Navy guy, I can tell you this - there are a number females would get pregnant seven months prior to deployment, and then they're non-deployable. There's no one to take up the slack for that. They can't go out to sea, they can't do their job. Everybody else has to take up their slack.

You can have pregnancy in the military. You just have to time it to when you're not deployed. It's a very easy thing to do in this day and age. It's technologically very simple to do.

CONAN: Tom Bowman, there would be...

JERRY: I've worked with women in the military, and they're great. They are invaluable, and there are many, many, many, many, many women who just, I'd rather have them working for me than men, but...

CONAN: Well, let me put this to Tom Bowman, the sense that by allowing herself to become pregnant, a female soldier is somehow letting down her unit.

BOWMAN: That's precisely what General Cucolo said when he put this into effect, that if I send someone home, others - her teammates, as he put it, would have to pick up the slack, do the job over there. Sometimes you get a replacement, but sometimes you don't.

CONAN: But sometimes you can get typhoid fever and have to do that too.

BOWMAN: True, right.

CONAN: So as Senator Boxer was saying, illness can cause the same kind of problem.

BOWMAN: True, but what the general would say is, you know, you made a personal choice to become pregnant as opposed to a personal choice to become sick. That would be his argument.

CONAN: All right, Jerry. Jerry, thanks very much for the call.

Let's go now to - joining us from member station WUOT in Knoxville is retired Captain Rosemary Mariner. She's a former naval aviator, a resident scholar at the Center for the Study of War and Society at the University of Tennessee at Knoxville. She was the first woman to command an aviation squadron, and thanks very much for being with us today.

Captain ROSEMARY MARINER (Retired Navy Aviator): Thank you, Neal, for having me.

CONAN: And I wonder, from a woman's point of view, what you think of this regulation in northern Iraq.

Capt. MARINER: Well, it's not so much from a woman's viewpoint as it is from a former commander and someone who has studied these issues for many years. And my first reaction when I heard it was this isn't going to last very long because there are much better ways to deal with the issue of unplanned pregnancies than to include it in a general order.

And while you may not end up court-martialing someone, that threat always hangs over their head, or as was mentioned previously, someone could demand a court-martial to challenge if not the legality of the order, the judgment of the commander in applying it in that fashion.

It also possibly could induce career-minded women to get abortions.

CONAN: And that might be not a desirable outcome either.

Capt. MARINER: I think - I'm sure that's not what the commander had in mind, but that's part of what he gets paid for as a division commander, is his judgment, and he has to think about the unintended consequences as well.

CONAN: In the letter the senator sent to the secretary of the Army, they also worried about the possibility that women might not get the medical care they needed. In other words, if they thought they were pregnant, they might go see a doctor for fear that they would be punished for it.

Capt. MARINER: In fact, that has been the case over the years, where women who are serious about careers and accidentally get pregnant will in fact do things like that to avoid these kinds of career repercussions.

And even if you put a letter in your local jacket, you still have annual evaluations from your commanders. So any woman who had a letter like that in her record probably does not have an Army career in front of her.

CONAN: So even the local letter, you're saying, would impact her career down the road.

Capt. MARINER: Because she is going to have a competitive fitness report or evaluation, and that would not be ignored in those kinds of reports.

CONAN: Did these situations come up in your unit when you were the commander?

Capt. MARINER: Yes, we had unplanned pregnancies. We also had men who had hardship discharges because of dependents. We have a lot of issues that result in what the real readiness issue is, the unplanned loss, and I can sympathize with the general for being concerned about that. That is, in fact, a readiness issue, but it is not unique to women and certainly not only pregnancy.

I think the other thing that concerns me about it is reading through the transcripts of the interviews he gave, this is a policy that he planned before he ever got into theater. So it's not in response to any particular problem. It's something that he decided beforehand he was going to take, I think, rather unusual measures of including it in his general orders to prevent.

CONAN: Tom Bowman, these orders were issued in November. Was that when General Cucolo took over in northern Iraq?

BOWMAN: That's absolutely right. He issued these just as he took over, but he had been thinking about it obviously prior to going over to northern Iraq. And then he told me he'd been thinking about this from the time he was a battalion commander back in 1995. So this has been something that's been brewing in his mind for many, many years.

CONAN: Let's see if we can get another caller on the line. Let's go to Mike. Mike's calling us from Charlotte.

MIKE (Caller): Hi, how are you doing?

CONAN: I'm well, thanks.

MIKE: Speaking with the lady on the phone during the screening process, I have to commend the general, and I think the senator is dead wrong with, you know, trying to compare sickness and illness to pregnancy. Sickness and illness, injuries, are something that you can't control. You know, pregnancy is something you can control.

Men and women, you know, they make the choice to engage in sexual activities, and if pregnancy happens, then that was a repercussion of it, you know. But being sick, you can't control that. It just happens.

CONAN: And these days, as a previous caller mentioned, men and women do have a choice about various methods of birth control. Again, that's -some people, that's not a choice for them. But nevertheless, Rosemary Mariner, doesn't it seem the general was talking about, you know, we're all here, we've dedicated ourselves to the mission, there are certain things that we've agreed not to do.

Capt. MARINER: Yes, in the large scheme of things. However, we get back to the application of this, and there are women who get pregnant who did not do something reckless to get pregnant or made a conscious decision that if I do this I'm going to get pregnant or get pregnant to get out a deployment.

So things happen like that. So if you treat it in a punitive fashion, that is where you're going to have problems with particularly career-minded women, and I say that again because the consequences of what he is doing I think ultimately will ruin anybody who has serious career ambitions. They're the people...

CONAN: Eugene Fidell, can we bring you in on that point? Is she right about that?

Mr. FIDELL: If it's made a matter of record, or if the incident is permitted to influence a fitness report or efficiency report, that is something that could clip your wings if you're career-oriented.

CONAN: And do you think Rosemary Mariner is also correct that if this went to court-martial, it would not last very long?

Mr. FIDELL: It might not last very long politically, but it would survive legal review.

CONAN: And that's a distinction that - is that the distinction you're making, Rosemary Mariner?

Capt. MARINER: Well, I'm saying this now from the perspective of someone who's taught military history for a long time. This gets back to the issue civilian control of the military. A division commander has a lot of responsibility, but the Constitution is very clear about civilian control, and that means Congress as well as the executive.

Congress writes the UCMJ. It was actually passed by Congress as a protection against service members as a result of many complaints after World War II that the regular Army, the professional, the careerists, were not particularly fair with how they invoked(ph) discipline.

CONAN: Let's see if we can get another caller on the line. Let's go to David calling from San Francisco.

DAVID (Caller): Hello there.

CONAN: Hi, David.

DAVID: I don't have as much a question as a statement. I want to give my background first. I am a retired Naval aviator, and I met my partner, we were both in the Navy, and we decided to leave rather than get into trouble with the, you know, current status of the UCMJ.

We were definitely willing to serve, and it seems like the argument on this show is that in regards to pregnancy, a law against that has a purposeful military effect, and violating this is a personal choice, and also that due to sickness or illness it wouldn't fall under that because that is something you can't control.

It seems like the Navy or the military in general is really picking and choosing their arguments as they choose because there are a lot of members who leave or are forced out who are very, very willing to serve and are capable of serving their country.

CONAN: Are you talking about...

DAVID: And I will take your comments...

CONAN: David, I just want to be clear on what you're talking about. Are you talking about Don't Ask Don't Tell?

DAVID: Correct.

CONAN: Okay.

DAVID: But I guess what I'm saying is the argument they use for that totally contradicts what they're saying for this law, which is that it's a personal choice and it has the military effect and that these people are violating their terms of service, whereas homosexuals (unintelligible) who are very willing to serve their country. I'll take any comment offline.

CONAN: All right. Eugene Fidell, do you have an argument there?

Mr. FIDELL: Well, there certainly is a tension between the two policies. There's no doubt about that. I think they - that said, the issues implicate different interests. What they have in common is the question of personal autonomy. And the probably major theme in modern military administration, personnel administration is there is, even in a democratic society, a serious compromise of personal autonomy when you put the uniform on. And certainly, since the early 1970s, we've had it all-volunteer force.

CONAN: So everybody there is there voluntarily and, therefore, has accepted that these rules are in effect.

Mr. FIDELL: Yes. But I hasten to add, that doesn't mean the conversation is over and, you know, we don't continue to push and pull in a democratic society as to where the line should be drawn. That's what's playing out right now. Senator Boxer and her colleagues are entirely within their rights to speak up on this issue. Other people are going to have a different take on this.

But where you have an operation - a government operation, government activity that has a particular objective - namely, take the hill, make peace in Iraq, fight in Afghanistan, whatever the military mission is -there are certain things that come with that. Examples include: How do you wear your hair? You have a beard. I don't. Curiously, when I was on active duty many years ago, I did have a beard. It was permissible then.

(Soundbite of laughter)

Mr. FIDELL: So, it's a sign of how things change. That kind of thing changes, attitudes towards gender or sexual orientation change, attitudes towards gender change. There are many, many more women on active duty now than they were when I left active duty in 1972.

CONAN: Military law expert Eugene Fidell. Also with us, retired Navy Captain Rosemary Mariner and Tom Bowman, NPR Pentagon correspondent. You're listening to TALK OF THE NATION, which is coming to you from NPR News.

And let's go to Melissa, Melissa with us from Reno in Nevada.

MELISSA (Caller): Hi. I'm an ex-military wife, and we were told when you went into the military, the military owns your body. I know somebody who was threatened with court martial for getting a sunburn on leave. When he returned...

CONAN: For getting a sunburn?

MELISSA: Getting a sunburn. When he reported back to his commander, the - he had a sunburn, and it was, like, a third - really bad one. He couldn't work. And the commander said, you were not given permission to get a sunburn and take you out of active duty. And, of course, they just gave him a letter of reprimand, but they said, we own your body.

And I agree with the Navy guy that with the levels of control today, if you are deployed, you're making a commitment that your body is owned by the service, so you have to maintain it for the deployment. The only objection I would have to the rule is that the woman and the man would have to get the equal and the same punishment.

CONAN: And thus far, Eugene Fidell, that's what's happened here.

Mr. FIDELL: So far, that's what's happened. And...

CONAN: Except for the woman who would not name the father.

Mr. FIDELL: Right. But, of course, you know, the government really lent off the edge on this...

(Soundbite of laughter)

Mr. FIDELL: ...you could imagine DNA testing, that, you know, if you were really, really committed and you were willing to throw aside all sense of proportion and privacy and autonomy interests, you'd say fine. Everybody's going to have to give a DNA sample. That would raise yet other issues.

CONAN: Are soldiers required to give DNA samples, Tom Bowman?

BOWMAN: I believe these days, you know, soldiers do have a DNA sample. But General Cucolo did say, though, he's not going in any witch haunts here.

CONAN: Okay.

BOWMAN: He told me that when I spoke with him.

CONAN: Melissa, thanks. Eugene?

Mr. FIDELL: Yeah, just a footnote. There are a variety of situations that come up that bump into the kind of values that in our quite robust, messy democratic society people feel strongly about. A recent illustration had to do with anthrax. Could the military compel GIs to take an anthrax shot, even if they...

CONAN: Vaccine, yeah.

Mr. FIDELL: Yes, the vaccine - even if they were personally resisting to it. And the military won that skirmish. It was a long, nasty fight or -I shouldn't say nasty. It was a long fight, hard-fought on both sides, and the government prevailed. There are also issues about skin illustrations, tattoos...

CONAN: Mm-hmm.

Mr. FIDELL: ...body jewelry, earrings, all - there's a range of autonomy issues. This is one.

CONAN: Email from Stone(ph): Please, please, please tell me there are provisions in place when the pregnancy is not the result of a woman's consent. Rape happens. Rosemary Mariner?

Capt. MARINER: Well, I think the general was very clear that he did not consider that under the same status. But I would go back to - you know, let's step back here, a little larger picture. He is a division commander. In the overall scheme of things, that is important level of command, but is by no means the ultimate level.

What are the larger readiness issues here? Is he being too focused on the division level and where his superiors on the, say, all the way up to the unified command level like John Petraeus(ph) would step back and say, you know, it's better in the long run not to treat it this way. He could have brought the attention of his command to his concern on these issues with a personal message. He did not have to include it in a general order.

CONAN: And Tom Bowman, he - it did come to the attention of higher authority, and they were rather mum on whether this was approved.

BOWMAN: Well, he did get approval, he said, from his superior, the corps commander, Lieutenant General Charles Jacoby. And he also said we've had some visitors through here, including General George Casey, the chief of staff of the Army, the top Army officer. And I asked General Cucolo, I said, well, did General Casey approve of this? And all he would tell me was, well, he counseled me on command leadership and being a general. And I said, did he approve or disapprove? He said, well, I'd rather not say.

CONAN: Rather not say, all right. Well, quickly, Eugene Fidell.

Mr. FIDELL: Right. But why did he put it in a general order? That's a question. It's obviously kicked up a firestorm, which probably wouldn't have happened had he not put it in black and white. And the answer is: It's actually doing people a favor because it's putting them on notice. It's fair warning.

CONAN: Eugene Fidell teaches military law at Yale. He's also a senior partner at Feldesman Tucker Leifer. That's here in Washington. His name is on that law firm too, Fidell. And he joined us here today in Studio 3A. Tom Bowman is NPR's Pentagon correspondent. Captain Mariner, as always, thank you very much for your time today. Rosemary Mariner, a retired Navy captain and a resident scholar at the Center for the Study of War and Society at the University of Tennessee at Knoxville. When we come back...

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