Dr. Don Snider (Col, US Army, Retired), a Political Science instructor at the US Military Academy at West Point, responded to USAFA law instructor David Fitzkee’s (Maj, US Army, Retired) prior Parameters article on religious freedom with a commentary criticizing the analysis of command involvement.  Regarding the memorandum on religious neutrality issued last year, Snider said

It seems fair to say that the Chief of Staff of the US Air Force does not trust some of his Commanders to correctly fulfill their responsibilities to “support individual Airman’s needs and provide opportunities for the free exercise of religion.” So, he has withdrawn autonomy from all of his Commanders to do so, turning it over to their Chaplains.

Snider accurately notes that this singles out issues of religion for separation from command guidance: 

Commanders can notify their subordinates about all sorts of voluntary programs, but now must be silent about any “vital” programs of a religious nature.

Snider then, again accurately, analyzes the reason the Air Force took this “drastic measure:”

Fitzkee…gives specific insight when he notes that, “failure to understand the rights and limits concerning religious speech can adversely affect the mission…in internal investigations into allegations of violations or even lawsuits against the military, both of which entail substantial time, effort, and distraction from the mission.”

I interpret this to mean that the Chief of Staff of the Air Force succumbed to years of harassment by self-appointed, watchdog legalists seeking to redefine what the free exercise of religion is to be within entities of the federal government. In the process, he was willing to restrict the autonomy of commanders as if they were mere bureaucrats…

Given the recent public confessions of Michael Weinstein, in which he admitted his unique access to the Chief of Staff of the Air Force, it would seem he is the “legalist” to which Snider may have been referring.  Snider basically says the Air Force passed a wide-reaching regulation on a focused topic to silence a critic — and then contrasts that with the Army approach:

Effective mission accomplishment results from subordinate leaders at all echelons exercising disciplined initiative within the commander’s intent. This requires an environment of trust and mutual understanding, a professional institutional culture rather than a highly centralized, micromanaging bureaucratic environment.

In other words, Soldiers are trusted by their leaders to command appropriately; centralized command, decentralized execution, as it were.  Snider then makes a rather interesting suggestion on the “next” article on the topic:

I suggest that the next article in Parameters on the vital topic of the leader’s role in the moral development of his or her troops, including how to support their free exercise of religion, be authored by an Army commander.

Touché.

Given a chance to respond, Fitzkee appears to have unintentionally dug a deeper hole for himself.

First, he said “we must be careful” in having military leaders guide their subordinates’ moral development — apparently ignoring the fact military leaders are ultimately responsible for their subordinates’ moral conduct.  He then cites the “prohibited blending” of religion and the military, using the example of LtGen Ronnie Hawkins.  For a lawyer, it is disconcerting to see Fitzkee — again — cite something as substantiated fact when it is not.  While LtGen Hawkins made the statements attributed to him, there has been no statement by the military that his statements were prohibited.  In other words, Fitzkee is insinuating something is impermissible when the military has not even said that.

Then, responding to Snider’s comment the Air Force seemed to be responding to a “few” instances (one guy [craps] his pants, everybody wears a diaper), Fitzkee again cites the same source for his original paper — a collection of commentary, biased, at that — as evidence of a widespread problem.  As noted in the original discussion, it is inappropriate to cite opinions as though they were adjudicated facts, and it is surprising that a college professor would find such a citation acceptable.

Finally, Fitzkee ends with this, addressing Snider’s proposal that an Army commander pen the next piece:

This, too, presents a danger that the commander…may be perceived as using his or her official position impermissibly to advance religion. Chaplains have special training and expertise in how to minister to servicemembers’ free exercise rights. Moreover, because chaplains are outside the chain of command, they are less likely than commanders to be perceived as coercively advancing religion.

Again, that fails to acknowledge chaplains have neither authority nor responsibility.  Their duty is simply to advise the commander.  The commander bears the responsibility — and the authority — to ensure the conduct of his unit guarantees subordinates’ religious freedom.  Again, Fitzkee suggests preemptive restrictions to avoid the possibility of a perception — a hypersensitive course of action nowhere required by policy, law, or regulation.  That Fitzkee thinks it virtually impossible a commander could address the topic without being “perceived as…advanc[ing] religion” goes more to the hypersensitive culture than the commanders’ potential conduct.  Ceasing to advocate preemptive self-censorship might help reverse the problem — which is the overly sensitive attitude toward religion, not attempts at conversion from the desk of the commander.

Fitzkee seems to think military leaders should avoid religion like the plague, despite the fact that is a self-imposed restriction nowhere required.  While that overly sensitive approach might “solve” one set of problems, it potentially creates a plethora of new ones.  It would be far better to support the right answer, in which the chain of command appropriately uses its authority to carry out its responsibility to its subordinates, the mission, and the American people.

Might some people get offended, or someone step over a line?  Possibly.  But it is far better to practice freedom and educate those who do not understand it than it is to restrict freedom to avoid all risk.

In short, Fitzkee’s response to Snider’s critique is

• Commanders may slip and violate the Establishment Clause, a hypothetical he supports with speculation;
• The “scope of the problem” is bigger than Snider acknowledges, an assertion he supports with a collection of unsubstantiated anecdotes; and
• A commander writing an article in Parameters, as Fitzkee did, on supporting free exercise might be “perceived” as violating the Constitution, a ridiculous assertion that, even if true, does not mean a commander shouldn’t write the article.

Rather than acknowledge any validity in Snider’s remarks, Fitzkee doubled-down, calling Snider’s “failure” to recognize the scope of the problem or the “perils” in involving commanders “evidence” to support his claims:

This failure is evidence of how…well-meaning leaders…can unwittingly create Establishment Clause issues that can adversely affect the organization.

Fitzkee thinks the mere possibility a commander may make a perceived mistake demands their authority over the subject be removed?  His concept of leadership contrasts so greatly from the Army’s that he’s strengthened Dr. Snider’s suggestion that an Army commander would make an excellent choice for a future author on a related topic.

In the end, Fitzkee reiterates the proposed solution from his original article:

This is precisely why a motif of my article was that leaders should seek advice from their judge advocate general where appropriate in this extraordinarily difficult, important, and sensitive area.

Contrary to Fitzkee’s insinuations, military commanders are not imbeciles protected from jail solely by the gracious oversight of hand-holding JAGs.  This backwards concept of “leadership by lawyer” was likely the “motif” Snider sensed and to which he responded.

It is true that JAGs are valuable tools in the military mission.  For example, important commanders in Iraq and Afghanistan have had their JAG within arm’s reach.  But those JAGs knew their role as advisors to the commander, not as overseers or dictators of policy.

Within the military, if a matter of official military policy is to be discussed, a commander is the perfect person to do it, contrary to Fitzkee’s assertion.

It is perhaps the greatest of ironies that Fitkee’s sole official military reference for supporting restrictions on commanders’ ability to speak on religious freedom came from…a commander speaking on religious freedom.