Forward . . . from Bureaucracy

When troops in conflict zones must use their own money to provide goodwill handouts to locals because legalities in Washington delay release of available funds, it is clear DoD regulations need an overhaul. To maintain flexibility and speed during unconventional conflicts, the military cannot be bogged down in bureaucratic molasses.

You are a planner for a soon to be launched operation with a mission to quell rising violence in the country of Orange. As part of this operation, you seek the following capabilities:

* Riot control agents to disburse crowds surrounding hostile gunmen

* Leaflet drops telling civilians to stay in their houses

* Special nonpenetrating rounds to reduce collateral and friendly fire injuries in close-quarters environments

* Payments to locals for information to help find wanted terrorists

* $5,000 in local currency for each squad or team to help pay for locals' medical costs, basic housing repairs, and the like to encourage cooperation and reduce hostility

Someone unfamiliar with the current state of our military regulatory systems and staffing processes might think the above requests are reasonable in the face of a complicated and dangerous operating environment. However, each of the above capabilities contains a plethora of potentially complicated legal and regulatory considerations. In fact, just explaining the law and permissibility of these would require pages, and obtaining the requisite permissions (some of which would be denied) likely would take weeks or months.¹

Unfortunately, this reflects but a small swipe at the immense and complex body of laws and regulations personnel face. Do you want to exchange gifts with another coalition officer? Want to support the CIA or FBI by giving one of its personnel a lift? Do you want to conduct training and field operations with a partner in the war on terrorism? Or do you simply want to purchase a coffeemaker or refrigerator for the workplace? If so, you better have your judge advocate involved early and be ready to wait for days, weeks, or months. As with the above scenario, each of these seemingly simple and appropriate activities is subject to a huge amount of approval and regulation.

Such bureaucratic requirements may not appear so bad. Our forces still have been able to conduct major combat operations, apparently with little interference. And besides, as some are quick to point out, this situation is self-inflicted: the current legal and regulatory scheme exists mainly because someone did not toe the line. Just watching the news makes that clear. Events such as Abu Ghraib and the multiple ships' commanding officer firings seem to indicate the Department of Defense (DoD) needs more rather than less regulation.²

Although there is some validity to this argument, there is even more to be said against it. Our forces have succeeded not because of the bureaucracy but in spite of it. During ferocious combat operations they often were engaged in a battle on two fronts: one with the enemy, the other with bureaucracy. Anyway, more regulations will not fix Abu Ghraib or the recent command troubles. These represent failures in leadership and training—something that cannot be overcome by simply issuing a directive. Absolute power may corrupt absolutely, but overwhelming oversight creates underwhelming results.

Although U.S. forces have overcome many of these hurdles in the past, the effort was not without cost. In unconventional conflicts, such as those we are now waging in the streets of Iraq, and for the transformational concepts currently emerging, flexibility and speed are key. Unfortunately, our bureaucracy is not structured to support either. The below vignettes will help bring this to life and provide a road map for what we need to do to fix the situation.

No Bullets, Beans, or Butter

After the 11 September 2001 attacks, the President quickly determined that Afghanistan needed to be our first target in the war on terrorism. Within days, U.S. Special Forces personnel were on the ground in that country conducting preparatory work with Northern Alliance forces for an unconventional warfare campaign against the Taliban regime. Because the United States had not conducted full-scale unconventional warfare operations since Vietnam, there was significant confusion within higher headquarters as to how it was going to be funded. Although a number of judge advocates (including myself) argued that, as a congressionally authorized mission approved by the President, the unconventional warfare effort was fully fundable with operations and maintenance funds (which meant we could execute immediately), the request was denied. The reason given was that the Constitution requires Congress to authorize any expenditure from the U.S. Treasury. Because in the DoD staff's view such specific authority had not been given, we could not use this money. In other words, despite the fact that Congress, by law, had assigned Special Operations Forces (SOF) the mission, we had no way to pay for it.

To understand why this situation is intolerable, place yourself in the following scenario. You are a Special Operations Forces soldier in a foreign country, surrounded by thousands of heavily armed, brutal, and potentially hos tile people who have no patience for vagueness or double-talk and are wary of U.S. motives (based on past experience). You and your team have been ordered by the President to convince these people that you are there to help and that they should trust and listen to you. But you have little to offer them. The promised weapons, uniforms, horse food, blankets, medical supplies, and other critical resources-the things they really need and know you have-do not arrive because "the people in D.C." have not been able to figure out how to pay for it. Not that money is in short supply, mind you. There is plenty of that. Rather, the bureaucrats are not sure which color money to use. Needless to say, your newfound friends would not be very understanding.

Such was the environment in the fall of 2001. Despite the fact that we had just been attacked and the President had placed a high priority on taking down the Taliban regime and its terrorist components, weeks passed before we were able to get the funding question cleared up by begging and borrowing from other government agencies. In the interim, our Special Operations Forces, the best in the world, made it work. They used their own money, ordered supplies from home, and worked around (or ignored) the rules, the whole time fighting a war in one of the most inhospitable environments on earth.³

The Joint Ethics Regulation (JER) contains most of the guidance one theoretically needs to determine whether one is overstepping the bounds of ethical decency.⁴ One of the most hideous regulations ever published, the 500-plus page JER (with its accompanying Code of Federal Regulations [CFR] sections) is a highly detailed montage of complex rules, references, guides, and hypothetical examples. From the proper use of government property to gift exchanges and postgovernment employment, the JER provides a baseline of what you can or cannot use, say, accept, or do. And if this proves too complicated, there is a similarly sized deskbook for handy reference.

But that is not the only guidance you have to follow. In addition to the JER and CFR, there also are specific U.S. Code (federal law) provisions, service regulations, and policy letters that affect personal and professional behavior. These regulations cover almost any activity you can imagine, including such things as the use of government vehicles, acceptance of gifts from foreign governments and "outside sources," commercial and military air travel, and paying for doughnuts during a conference. No wonder commanders frequently are heard to say, "I don't go anywhere without my lawyer."

In the military we write orders and tell people what to do because it makes things predictable, maintains a sense of order, and gives us something to hammer them with if they mess up. The drawback, of course, is that the more detailed direction you give them, the less they have to rely on their professional judgment and training and the less flexibility they have to respond to uncertain or unforeseen situations. Although regulations, directives, and laws can help the commander by providing guidance and direction, there is a point at which they become counterproductive.

We have reached that point. The regrettable result of such micromanagement and the attending zero tolerance for error is that we have created a culture of caution and risk aversion that permeates our administrative processes and our operational decision making. In the world of leadership and combat readiness, this has a wholly unforeseen and nefarious impact, that is, because of the real fear of being disciplined or prosecuted, commanders and their staffs, especially their legal advisers, often play it safe by not only following the written rules but also creating comfort zones that take on a life of their own.

We must change this culture by giving our commanders the flexibility to act and trusting them to make the right decisions, to not abuse their public office, and to uphold the highest ethical standards. Where they cross the accepted bounds of professional discretion, they can suffer the appropriate consequences. To ensure this, however, we do not need specific rules telling commanders how much they can accept in gifts from a foreign comrade, whether they can support the spouses' club, or if they can take the government car to the airport. Most of what they need to know can be found in the Uniform Code of Military Justice, professional training, and the Executive Order on Principals of Ethical Conduct; the rest is just overbearing detail.5 Is it really necessary to protect the sanctity of government service by making gift exchanges, which are a fundamental protocol overseas, an embarrassing event?

Helping Them Help Us

In the military context, humanitarian assistance is a tremendously useful tool for achieving our objectives. Providing money and resources to the local populace not only helps people and improves stability, but also builds trust and potentially useful relationships.

Despite the fact that many realize this, humanitarian assistance funding and supplies are very difficult to obtain and rarely arrive quickly, if they arrive at all. While there are significant sums of money available, in various colors, most of it is controlled at the theater commander level or above. On many occasions this has resulted in a lost opportunity as simple as purchasing a leg brace for a tribal chieftain's daughter, digging a well for a desolate village, providing veterinary care for livestock, or giving out school supplies to local children-all gestures that would create untold goodwill and cooperation. To achieve any of these, however frequently, requires weeks, if not months, of waiting, and often the funds are provided only after tremendous persistence. In the meantime, the villagers get tired of waiting, and others-often the enemy-come to the rescue.

What our forces really need is "walking around money" for which they are accountable but over which they have broad discretion. Again and again, we have seen cases in which even the smallest amount of funds (or more often, livestock or other goods) would have made more progress than placing another thousand troops on the ground. But such "loose" accounting processes do not rest well with those who control the funds and fear the ultimate visit by the inspectors. Thus, requests sent from the field rarely are answered in time. This is a lesson we learned (and continue to learn) in Afghanistan, Iraq, and other countries around the world where, without support from the people who live and work in the country, we are doomed to failure.

Fixing It: Training, Leadership, Trust, Simplicity

As with most difficult projects, it is best to treat bureaucracy and overregulation as critical friction points that must be overcome in the course of military operations. Thus, we need to develop a strategy built around commonly accepted principles and execute it with vigor. It is easiest to divide these friction points into two related but distinct parts: regulations and processes internal to DoD and those mandated by some external organization.

DoD is able to influence its own systems and take corrective action quickly. External regulation requires much greater interagency and congressional coordination (and patience)—and can be addressed only once we have tackled the in-house problems and accurately assessed what external rules, laws, and processes must be adjusted. Past experience in dealing with changes that involve other agencies and Congress clearly demonstrates that DoD must have its act together before we try to get someone else to change his.

To begin the process, the secretary of Defense should appoint a special assistant whose sole purpose is to assess current internal DoD regulations and staffing processes, determine which are outdated, duplicative, or unnecessarily restrictive, and develop a plan of action for approval by the secretary. This plan, implementation of which the special assistant would oversee, should be based on the following tenets:

* Training: To provide the necessary professional guidance and military ethos, we must put the onus on training rather than directives. Enlisted and officer personnel alike must understand to the depths of their souls that honor, courage, and commitment are not just words on a page, but are the guide by which they are to live their lives. This never will be obtained through a directive; it must be learned, internalized, observed, and enforced from the first to the last day of every person's military career. In addition, we must train judge advocates and other staff officers to understand that their primary function is not to protect the boss, but to find ways to make the laws and regulations critical enablers rather than fatal friction points.

* Leadership and Trust: As Army General George S. Patton Jr. said, "Never tell people how to do things. Tell them what to do and they will surprise you with their ingenuity."⁶ While this is anathema to any true-blooded bureaucrat or politician, we must adopt this thought process and outlook as a critical part of our culture. Commanders must be given the authority and responsibility to obtain the necessary resources and conduct the activities required to execute the missions given to them. We must change our culture from zero defects to rewarding ingenuity, foresight, and action.

* Simplicity: Simplicity is key in developing regulations, directives, staffing processes, and any other bureaucracy associated with military operations. Greater complexity only begs more confusion and increases motivation to avoid or subvert the rules. If we do not want lawyers to run our wars, we should not expect our leaders to think like them.

Obviously, this is a long-term process that will not obtain results overnight. But by attacking the internal staffing processes, culture, and regulations first, meaningful reform can be achieved in a relatively short time while also building a better understanding of problematic external controls. It will have the added benefit of getting our house in order before asking someone else to fix his.

If you doubt the necessity or viability of this project, consider one thing: The greatest technologies and most ingenious military plans are useless in the face of stifling bureaucracy and overbearing regulation. Regardless of what comes of the current transformation initiative, our speed and flexibility of action will not improve until the commensurate legal and regulatory systems, staffing processes, and culture of caution change as well.