Eric Holder, a well-known civil rights advocate before becoming Attorney General, spoke briefly at the powerful memorial in Tucson for the victims of the Arizona shooting Wednesday night. He had a front row seat to President Obama's inspiring message urging Americans to live up to the expectations of democracy held dear by 9 year old victim Christiana Green.
"I want to live up to her expectations," President Obama said. "I want our democracy to be as good as Christina imagined it. I want America to be as she imagined it. All of us - we should do everything we can to make sure this country lives up to our children's expectations."
At the core of that belief in democracy is the promise of full equality for all Americans. The next test for Obama and Holder, then, is not whether they rise above partisan bickering and exemplify civility in public discourse. Rather, it is whether they carve out an exception to that promise of full equality because, well, democracy is way more complicated than Christina Green imagines and it is incumbent upon them to keep up the delicate balance among promises made to little girls, to a community of second class citizens waiting for equality and to the US military.
We will find out on Tuesday, Jan. 18 - ironically, the day after Martin Luther King Jr. Day - when Holder's Department of Justice (DOJ) must tell the 9th Circuit Court of Appeals what they intend to do regarding the federal challenge to DADT, Log Cabin Republicans v. the United States of America, according to LCR attorney Earle Miller. (See all LCR legal filings here.) After all, how do you defend a law that no longer exists?
Despite the Sept. 9, 2010 ruling by District Court Judge Virginia Phillips that DADT violated the First and Fifth Amendments of the Constitution, despite Obama working with Congress to repeal the DADT statute in the lame duck session, DADT remains in effect as a regulatory policy and the DOJ continues to defend the ban against open service in court. Their main brief appealing Judge Phillips' ruling is due on Jan. 24. The DOJ has asked the 9th Circuit to postpone hearing the LCR case indefinitely - or at least until repeal is implemented. That means - after Obama, Sec. Gates and Admiral Mullens, Chair of the Joints Chiefs of Staff certify the repeal, with 60 days after that at least for full implementation.
The problem is: there is no precise timeline for when the process will be completed and in the meantime, DADT remains in effect with no executive order to stop investigations and discharges under the Pentagon's pre-DADT ban.
And there is also the potential issue faced by the 9th Circuit if it decides to lift the regulatory ban on gays serving openly but not lift the ban on sodomy in the Uniform Code of Military Justice, despite the US Supreme Court finding that laws against sodomy are unconstitutional in Lawrence v. Texas. In March, 2010, Pentagon General Counsel Jeh Johnson said that sodomy rules would be reviewed during the big Pentagon study of the implementation of the DADT repeal. Little has been made of that promise since then. And, as the Washington Blade's Lou Chibbaro Jr. points out, there is little effort underway to repeal the military's sodomy law that criminalizes consensual sodomy, whether gay or straight.
Nonetheless, at a news conference on Jan. 6, Sec. Gates promised to expedite the Pentagon's process preparing the military for open service.
"Our goal here is to move as quickly, but as responsibly, as possible," the American Forces Press Service reported Gates as saying. "I see this as a three-step process. The first is to finalize changes in regulations (and) policies (and) get clearer definition on benefits."
The second phase is preparing training materials (including for chaplains) and the third phase is training servicemembers. "We're trying to get the first two phases of that process done as quickly as possible," Gates said. "My hope is that it can be done within a matter of a very few weeks, so that we can then move on to what is the real challenge, which is providing training to 2.2 million people."
At the news conference, Mullen noted that the ban was still in place. "From my perspective," Mullen said, "now is not the time to 'come out,' if you will....We'll get through this. We'll do it deliberately. We certainly are focused on this, and we won't dawdle."
Right. With all deliberate speed. But who's putting together the materials and is there any LGBT input and oversight? What about input from antigay chaplains? Will that result in a behind-the-scenes debate that will slow and hamper the careful process? And then - how long will it take to train 2.2 million people? Who's doing the training? Is there any oversight and accountability there?
To add to the DADT-specific questions, there is a more substantial problem of trusting the military in the first place.
Admiral Mullen - a charming leader with a clear concern about gays have to transgress their own sense of integrity to serve - has been flying around the country giving speeches to community groups with his wife - such as the one he gave at USC - urging the local community to welcome home soldiers suffering from PTSD - Post Traumatic Stress Disorder. And yet there is the story of Specialist Jeff Hanks, the soldier from Fort Campbell who went AWOL last November seeking treatment for his PTSD, which he claimed the Army refused to acknowledge. And despite the diagnosis from four civilian doctors that Hanks suffers from PTSD and despite public support from anti-war groups such as Iraq Veterans Against the War and Operation Recovery, after he turned himself in, the Army deployed Hanks back to Afghanistan on Sunday, Jan. 9 without treatment. (The Examiner has a good story on Hanks.)
Why didn't Mullen - who says he keeps up with the news and the troops on Twitter and Facebook - intervene if he's telling civilians that PTSD is such a great concern? Incidentally, he still hasn't released a statement about how servicemembers still under DADT can receive treatment for PTSD - especially is part of their PTSD is caused by DADT!
Another area of concern raised at that June 11, 2010 USC meeting with Mullen was the issue of sexual trauma experienced by women in the military. Six months later, on Dec. 15, the Service Women's Action Network, with help from the ACLU, filed a federal complaint alleging that the Pentagon refused to release information showing the scope of sexual trauma in the military. The Court House News reported:
Rape, sexual assault and sexual harassment 'occur nearly twice as often within military ranks as they do within civilian life' and are the leading cause of post-traumatic stress disorder in women veterans, but the Pentagon refuses to release information on it, or on its feeble efforts to help women who suffer from it, the Service Women's Action Network says in a federal FOIA complaint.
Service members still are not adequately protected from MST [military sexual trauma] while they serve, and victims still are not adequately cared for after they leave," the complaint states. "The government has resisted releasing information that might show the true scope of the problem or highlight its own negligence - information that must be known for the problem to be solved."
The complaint alleges that "37 percent of military rape victims experience multiple rapes, and 14 percent experience gang rape....Due to underreporting, the prevalence of MST is likely far greater than current reports suggest. Fear, uncertainty, military dynamics, and military structure prevent victims from reporting approximately 80 percent of the unwanted or threatening sexual acts that they experience.
The MST crisis appears to be growing. DOD reports show that the number of reported sexual assaults increased 73 percent between 2004 and 2006. More recent DOD reports confirm this trend, showing that the number of assaults rose 11 percent between 2008 and 2009. ...
In one recent study, 71 percent of female veterans seeking VA disability benefits for PTSD reported being sexually assaulted during their military service. Female service members have twice the levels of PTSD and depression as their male counterparts.
The complaint also alleges that the government only prosecutes 8 percent of military sex offenders." In civilian life, accused sex offenders are prosecuted 40 percent of the time.
As the Washington Post reported - citing statistics released by the Palm Center -"Women account for 14 percent of Army soldiers but received 48 percent of the Army's "don't ask" discharges in 2009,." Women of color, lesbian or not, tended to account for a high percentage of the women discharged.
Also, though not brought up to Mullen at the USC meeting, Aaron Belkin, Director of the Palm Center, estimates that "in absolute terms, there are about as many male-male as male-female rapes."
There is reason to believe Mullen and Gates are aware that what's happening in the military is not meeting up to their expectations. During an all-day leadership conference on Monday, Jan. 10, at the National Defense University at Fort McNair, Mullen called for self-examination.
According to the American Forces Press Service (AFPS), Mullen said the conference was "an opportunity to begin a conversation and debate about who we are, what we have become, and how that matches up to who we should be.....For something like this, which is at the heart of who we are, we can't do enough self-examination."
AFPS reported that Mullen was "echoing a message" Gates delivered at Duke University last September about a growing chasm between the American people and the military.
"Our underpinning, our authorities, everything we are, everything we do comes from the American people," Mullen said. "And we cannot afford to be out of touch with them. ... To the degree we are out of touch, I think is a very dangerous course."
Though declining to specifically discuss "XO Movie Nights" Owen Honors, the recently fired commanding officer of the USS Enterprise, Mullen apparently alluded to the incident - which detailed videotaped sexist and homophobic skits produced by Honors - as an example of the need for self-examination.
"We have to have a true compass ethically," Mullen said. "We have to have a true compass morally. We have to have a true compass inside our profession."
But surely similar words have been said before - after the Tailhook scandal, for instance, or after the murders of Allen Schindler and Barry Winchell. Why should the public believe anything new or different should happen now - especially after the top military commander tours the country talking about PTSD while new cases of PTSD are being ignored by those under his command?
And what happens with the implementation of the repeal of DADT? As Servicemembers Legal Defense Network boardmember Tom Carpenter pointed out, the repeal law passed by Congress "is a skeleton of the Military Readiness Enhancement Act (MREA), the bill that had been advanced by leaders of repeal of DADT. The repeal statute was stripped of any nondiscrimination provisions and therefore will require the President to issue an executive order in order to provide for real equality."
Will those new military materials explain that the LGBT community considers "faggot" an offensive term and prohibit its use? How will LGBT servicemembers be protected in the new military if many of its leaders think it's just part of tradition to consider LGBT people immoral and therefore perhaps expendable? Without legal or regulatory protections, will openly LGBT people just subject themselves to yet another form of PTSD?
And how long will it take for the military to catch up with the public? How long will it be safe for the military to accept those people fired under DADT who shouted back at President Obama during the repeal signing ceremony when he asked them to re-enlist - "Recruit us now?"
How long will it be before the President, Attorney General Holder, the DOJ and the military live up to the expectations of 9 year old Christiana Green and the rest of us who believe in, have fought and are still waiting for real action to catch up with extraordinary words - let alone full equality?
Last Monday, Jan. 10, the lawyers in the LCR case against the government challenging the constitutionality of DADT case filed a brief with the 9th Circuit on why the court should deny the DOJ it's request for a permanent stay.
"Passage of the 'Don't Ask, Don't Tell' Repeal Act of 2010 was an important step toward open service, but until open service is a reality, our legal battle remains necessary," Log Cabin Republicans Executive Director R. Clarke Cooper said in a press release. "As long as servicemembers are under threat of discharge and there is no clear timeline for certification, Log Cabin will stand for the constitutional rights of our men and women in uniform."
"The White House and its lawyers at the Department of Justice are once again worlds apart," said Dan Woods, Partner at White and Case, and lead attorney for Log Cabin Republicans v. USA. "Despite the President and Vice President's insistence that this policy should be ended in an expedient manner, the Department of Justice has continued to throw up roadblocks. I reached out to my counterparts at the Department of Justice and offered to accept a stay if the government would agree to immediately end all discharges under 'Don't Ask, Don't Tell.' The Obama administration refused, and insists on continuing its enforcement of a policy that has been rejected by Congress, the military, and the American people. We are left with no choice but to continue our challenge to this failed and unconstitutional policy."
"The issue at stake here is whether the administration will continue to fight to keep DADT alive, despite the court, the Congress, the military leadership, and the American people telling them that is the wrong thing to do," LCR attorney Earle Miller told me in an email. "You would have thought the court's injunction in October killed it, and then you would have thought that Congress's 'repeal' in December killed it again - but like Rasputin, DADT just won't die. By asking the 9th Circuit to stay the appeal and rejecting our request that investigations and discharges be halted while the appeal is pending, the administration seems inexplicably to be trying to preserve DADT as long as it can. DOJ has until next [Tuesday] to respond to our filing [Monday, Jan 10], and we will be keenly watching to see if they do the right thing and withdraw their request for a stay."
In the meantime, LGBT servicemembers and their families continue to have to live a harmful lie. What would Christiana Green say about that?
One final point. Much has been made about how among the 13,000 LGBT servicemembers fired under DADT are Arab linguists. They might have been needed. In an exclusive investigative report early last September, ABC News reported that:
More than one quarter of the translators working alongside American soldiers in Afghanistan failed language proficiency exams but were sent onto the battlefield anyway, according to a former employee of the company that holds contracts worth up to $1.4 billion to supply interpreters to the U.S. Army.
Civilian translators have for nearly a decade been playing a crucial if unsung role in the Afghanistan war, embedding with troops as they have moved through the countryside, helping soldiers gather information from local villagers, and attempting to spread the message of security, moderation and peace that undergirds the U.S. presence there. Some Afghan veterans have rated the value of a skilled interpreter as equal to that of a working weapon or sturdy body armor.
But a former top screener of translators heading to Afghanistan tells ABC News in an exclusive interview...that he believes many of the translators currently in the field cannot perform their function.
"There are many cases where soldiers have gone out into the field and have spoken to elders [who] handed messages to the interpreter that a possible ambush three miles up the road would occur. The interpreter cannot read the message and they are attacked," Funk said. "We're talking about soldiers lives here."....
After being asked about the allegations, U.S. Army officials confirmed to ABC News they are investigating the company.
On Aug. 23, 2010, Neil Shea published a piece in Foreign Policy magazine entitled "Failure to Communicate." Shea wrote: "Translation is such an everyday act that it is routinely omitted from most discussion of strategy and success. But, badly done, it is fatally dangerous. And the messages lost through faulty translation in Afghanistan are sabotaging the mission there as badly as any physical enemy ever could."
So the question of how the Obama Administration is going to respond to the LCR filing in the federal lawsuit challenging DADT on Monday is not only one of living up to the expectations of democracy but speaks to how deeply the President, the Commander-in-Chief and his civilian and military subordinates care about saving the military's reputation and ultimately, saving American lives.