As part of the 2014 National Defense Authorization Act (NDAA), Congress required the DoD Inspector General to report to Congress on the US military’s promulgation of religious liberty protections. This was presumably due to perceptions the military was being unresponsive to the wording in laws passed by Congress.

As a result of that requirement, the DoD IG released an initial report (3MB PDF) last week more notable for what it did not say than what it did. Despite specific congressional attention on “individual expressions of belief,” the IG report almost completely ignored that topic — though it admitted why [emphasis added]:

Virtually all…events in a service member’s career involve subjective, discretionary decisionmaking on the part of leaders and commanders. Identifying examples of discrimination based on conscience, moral principles, or religious beliefs was unrealistic because those reasons would almost never be cited as the basis for the decision…Further, denials of promotion, schooling, training, and assignment are a subset of adverse personnel actions.

To summarize: 

• Virtually every decision a commander makes has some element of subjectivity to it, meaning “other” motives can be hidden and the IG can’t see them.
• Validating a claim of “discrimination” as a result of any of those decisions was “unrealistic” because the commander would not be foolish enough to cite religion as his justification.
• Denying opportunities like promotion, schooling, etc, are also subject to a commander’s prerogative and would be administrative, not punitive, action.

With that preface, it shouldn’t be surprising that the IG said it didn’t find any bad news with regard to the military’s protection of religious expression:

During our review, we did not discover any instance of an adverse action taken against service members as a direct result of their expressions of belief.

To the educated observer, that sounds reminiscent of General Mark Welsh’s response to Congress about his “single biggest frustration.”

However, there’s a very important phrase in that sentence that explains how the DoD IG (perhaps understandably) made its data set so narrow it eliminated virtually every religious controversy in recent years:

instance of adverse action…

“Adverse action” is a very specific term in the military, in a legal sense. Roughly speaking, courts-martial and reprimands are considered “adverse action.” Things like counseling or admonition, though they may seem “adverse” to the person receiving them, are generally considered administrative actions. Using the stringent military definition, it is highly unlikely that a military commander would take “adverse action” against a subordinate for their religious expression — because such action would likely not withstand either appeal or public scrutiny. Administrative action, however, might enable the commander to achieve what amounts to the same end via different means — means which may be not appealable and could be defensible as “non-punitive.”

The easiest example is that of US Army Chaplain (Capt) Joe Lawhorn, who was given a “letter of concern” that accused him of violating Army regulations when he discussed the role of faith in his personal struggles in the context of suicide prevention training. Members of Congress called the Army’s action “dangerous” and “chilling” — and apparently in conflict with the very law they’d written on religious expression.

However, the incident didn’t fall within the IG’s review for this report because Chaplain Lawhorn’s “letter of concern” wasn’t considered “adverse action” — despite the fact it was an official military document accusing him of violating regulations.  Though it didn’t meet the IG’s strict data filter, the IG did admit knowing about it, and essentially said they ignored it because the chaplain didn’t officially complain [emphasis added]:

While the complaints and documentation supporting this exchange were publicly available, official complaint channels were not engaged and the incident did not appear in our data set. Comprehensive data would raise awareness of problems, but only if issues are captured.

That’s ducking the question. Congress didn’t ask for a report only if troops complained of mistreatment. It’s understandable that the IG can’t evaluate incidents about which it has no knowledge, and searching complaint databases is certainly an understandable methodology. But in this case, the IG chose to ignore an incident it clearly knew about. Rather than assessing whether the military properly followed the law and promulgated protections for religious expression in that incident, the IG claimed that because the chaplain did not initiate a complaint, the IG didn’t even consider it.

By limiting its review to “adverse action” and only to incidents in service members filed an official complaint, the IG essentially mooted its own investigation with regard to religious expression, eliminating from its purview many of the religious freedom “controversies” over the past years.

The only other significant example regarding religious expression mentioned in the report is Michael “Mikey” Weinstein’s infamous cries over “Have a Blessed Day.” Of this, the IG said only

Correcting the initial responses by commanders unnecessarily consumed command time and other resources.

That’s an interesting observation that, while notable in its support for the military against Mikey Weinstein, has nothing to do with what the IG was tasked to evaluate. Why did the IG not evaluate why the military leadership structure took such action at all? Likely, there was no “adverse action,” though many Airman would likely have said the Air Force’s initial response was very “adverse” toward religious liberty.

Further,

• US Navy Chaplain Wes Modder is potentially facing discharge over his statements of religious faith.
• Former US Marine Monifa Sterling was court-martialed for, among other things, refusing to obey an order that pertained to her religious expression.
• SMSgt Philip Monk was fired over an incident that was, at its core, about religious expression.
• Cadet X, a US Air Force Academy cadet, was forced to remove a Bible verse from the white board next to his door.
• More than one chaplain has published an article in their base paper only to have it censored or rescinded by base leadership.

and yet the IG said nothing about those service members and the way the military has reacted to their religious expression with reference to the law. (Though some of those incidents occurred prior to the NDAA, the IG expanded its search to 2011.)  The IG’s overly restrictive search criteria also failed to acknowledge the number of external complaints which the military receives — and to which it responds — which similarly has an effect on religious liberty.

In just one example, the Air Force officially “reviewed” and even added a disclaimer to a public affairs release about SMSgt Larry Gallo, simply because an outside group complained.

The Inspector General almost seemed to go out of its way to avoid discussing issues of religious expression in the military, though it confusingly claimed to do just the opposite:

We looked for instances of negative impacts on members of the Armed Forces that resulted from expression of their conscience, moral principles, or religious beliefs in order to generate our conclusions regarding overall Department compliance with the language of the statute.

That statement doesn’t align with the report itself.

The rest of the 70-page report does have some interesting tidbits on other issues of religion in the military. For example, it reveals that a senior chaplain was apparently fired after an incident in which a subordinate chaplain was being forced to serve against his faith tenets. The report also summarizes a few instances of chaplains having religious liberty issues, but characterizes them all as occurring within the structure of the chaplaincy, and even says military commanders came to the defense of some chaplains against their own senior chaplains.

The report also addressed some issues regarding grooming, diet, and even noted that low-level commanders are technically authorized to permit their troops to use illicit drugs, as a religious accommodation, which could cause “problems.”

Notably, the report noted the DoD “burdened” some troops by requiring them to apply for religious accommodation anew each time they changed duty stations — an issue for those religious groups that essentially require career-long accommodation to serve. This was one of the primary sticking points cited by religious liberty advocates following the DoD’s updated guidance in January of last year. The DoD concurred with the report’s recommendation to make such accommodations indefinite until suspended or revoked.

Groups contacted for the report included the ACLU, Americans United for the Separation of Church and State, the Catholic Archdiocese for the military, the Chaplain Alliance for Religious Liberty, the MRFF, CAIR, MAAF, the Liberty Institute, and the Sikh Coalition, among others.

Did the report meet the intent of Congress, or will it make any difference whatsoever?  More than likely, any activist group will be able to glean from it precisely what they want to see.  It will be interesting to see how Mikey Weinstein and Jason Torpy respond later this week.

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