Guest Blogger

A Bad Prescription for Don't Ask, Don't Tell

Filed By Guest Blogger | July 10, 2008 11:00 AM | comments

Filed in: Politics, The Movement
Tags: Dixon Osburn, Don't Ask Don't Tell, gays in the military, Servicemembers Legal Defense Network, SLDN

Editors' Note: Guest blogger Dixon Osburn is Co-founder and former Executive Director of Servicemembers Legal Defense Network.

DixonOsburn.jpgThe Palm Center at the University of California Santa Barbara this week published a new report by a "study group" of four flag officers calling for repeal of Don't Ask, Don't Tell. In issuing the report, the four flag officers have joined five dozen other generals and admirals that have called for repeal. The growing chorus for repeal from the highest ranks of our armed forces should be cause for celebration.

The report's findings are indeed groundbreaking. For the first time ever, four flag officers have reviewed "Don't Ask, Don't Tell" in some depth and, according to the Palm Center, found that the law "prevents some gay troops from performing their duties, that gays already serve openly, that tolerance of homosexuality in the military has grown dramatically, and that lifting the ban is 'unlikely to pose any significant risk to morale, good order, discipline, or cohesion.'"

Despite the significant and good findings, the Palm Center's Study Group report, makes several recommendations, without analysis, that are as bad as the cure, and may significantly undermine efforts to achieve full equality under law. The Palm Center commissioned the report, and the flag officers agreed to participate on the condition that the Palm Center not influence the analysis or recommendations. It just goes to show you have to be careful what you ask for.

The Palm Center Study Group report's first and primary recommendation is that "Congress should repeal [Don't Ask, Don't Tell] and return authority for personnel policy under this law to the Department of Defense."

Aubrey Sarvis of Servicemembers Legal Defense Network (SLDN) rightly told The Washington Blade that Congress should adopt the Military Readiness Enhancement Act which would not only repeal Don't Ask, Don't Tell, but codify a law of nondiscrimination to protect lesbian, gay and bisexual service members.

By returning authority to regulate gays to the Pentagon, the Palm Center Study Group proposal allows the Pentagon to reinstitute a regulatory ban on gays in place of the law, just as it had done from World War II to 1993. The authors prefer that the military regain authority to regulate personnel matters in this area, but there is no guarantee that we would like the result coming out of the Pentagon. Former Joint Chiefs Chairman Peter Pace recently called gays "immoral." I doubt he would be leading the charge for equality. The Palm Center's Study Group report banks on a precarious hope that the military will do the right thing.

The report's recommendation also means that the fate of gays in the military can change at the whim of each new Administration or Secretary of Defense. During one term, gays may be welcomed, only to be banned by the next leader. In the past, we have seen the military send openly gay troops to the Persian Gulf only to discharge them when they returned home. We have seen past gay bans that have given commanders discretion to retain or dismiss gay troops, leading to arbitrary results. Our LGBT service members deserve the peace of mind that law protects them from whim, discomfort and prejudice.

The Palm Center Study Group's second recommendation is that "the Department of Defense should...[maintain] current authority under the Uniform Code of Military Justice and service regulations to preclude misconduct prejudicial to good order and discipline and unit cohesion." The recommendation leaves intact Article 125 of the Uniform Code of Military Justice which criminally punishes service members, regardless of sexual orientation, for consensual sodomy. Returning the authority to the Pentagon to regulate gay service members, leaves open the door that it could impose regulations that would administratively separate gay service members for sexual conduct.

There are other portions of the Study Group's recommendations that are troubling.

One section prohibits acts committed for the purpose of "satisfying sexual desires" which mirrors language in the current regulations implementing Don't Ask, Don't Tell. Yet, today, the Pentagon defines such prohibited conduct to include handholding and pats on the back. Another section recommends prohibiting sexual conduct "prejudicial to good order and discipline and unit cohesion." Some military courts have defined any same gender sexual conduct as "prejudicial to good order and discipline and unit cohesion." One should be very concerned by the use of the same language here.

Another section states that "telling" should be allowed, but considered a "personal and private" matter. It is not clear whether "public telling" is prohibited, or exactly what that means. The current implementing regulations to Don't Ask, Don't Tell use similar language, calling sexual orientation a "personal and private matter." Under current law, however, "personal and private" means "absolute secrecy." A violation of absolute secrecy results in discharge. The use of the words "private and personal" was a sleight of hand used by the drafters of Don't Ask, Don't Tell to make the discrimination sound more palatable. Again, one should be deeply troubled by the use of similar language here.

The Study Group's recommendations are not only problematic in substance, but politically. There are now two recommendations in the public domain for Congress to consider - the Military Readiness Enhancement Act which repeals Don't Ask, Don't Tell and implements a law of nondiscrimination and this, which does not.

I appreciate that the Palm Center avows that it had no say in the final recommendations. It is an academic research institution, even though its research is singularly focused on repeal of Don't Ask, Don't Tell. One can only hope that leading advocates for full equality will be able to argue that the report published under the Center's banner does not reflect the opinion of the experts on the issue.

Some might argue that the Study Group's recommendations reflect a more realistic compromise. More Members of Congress (and military leaders) might be willing to support repeal of Don't Ask, Don't Tell only if there is no further legislation and the issue returns to the Pentagon for further deliberation. We are not at that point, however.

The Military Readiness Enhancement Act has been introduced in Congress only twice, and it has more co-sponsors this session than last. Members on the House Armed Services Committee have promised the first hearings on gays in the military since Don't Ask, Don't Tell - a significant milestone. Political experts predict that the Democrats will substantially increase their majorities in the House and Senate in November, and with that possibly produce a majority solidly in favor of repeal. Senator Obama has stated he supports the Military Readiness Enhancement Act and would sign it into law if Congress passed it and he were President. Why would anyone suggest that we compromise now?

There are good parts to the Palm Center's report. I welcome the fact that four new flag officers support repeal of Don't Ask, Don't Tell. The findings and analysis are compelling. The recommendations flowing from the report, however, have the potential to set fourteen years of progress on Don't Ask, Don't Tell back on its heels. Those who support full equality will have their work cut out to undo the damage.

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It's always good to hear from you. I have a question. When DADT is repealed, do you think we can have the SLDN lawyers focus some effort on helping transgender service members? DADT affects us, but they have other rules and regulation that also are used to "punish" us.

Canada and the UK both allow their transgender people to not only serve openly, but even helps those who need to transition to do so. It would be a lot to ask our bigoted military to go that far, but like how other militaries treat their LGB people, we have models to go by to show the DoD that it can work here.

Dixon - right on with your comments. I think your salient points are quite informative to all in fully understanding the advocacy of repealing 'DADT.' It isn't just about doing away with 'DADT' - but to focus on identifying this miscarriage of justice to where people are discriminated due to their sexual orientation.

The argument no longer holds water today of discriminating against someone's sexual orientation impairs good order and discipline among our servicemembers. This is about civil rights - as well as our country's readiness for national security and defense. If it's okay for those who serve in high level positions of authority such as judges, doctors, lawyers, elected officials, etc without regard to sexual orientation - the same should hold true for the military. If a paramedic for a municipal fire department can be gay without a problem, why can't a combat medic or corpsman in Fallujah? If a police officer who patrols in Southeast Washington DC can be gay, why not a military policeman in Baghdad?

Glad that you're still 'in the fight!'

It also doesn't make sense to throw someone out for their gender identity or expression, especially if other countries have figured out how to deal with it. I know of a person who served 3 years in federal prison for crossdressing in the military. Does that sound fair?

Dixon Osburn | July 10, 2008 1:13 PM

Monica: When I was at SLDN, we always assisted transgender service members and worked to develop a strategy to overturn the transgender regulations. Aubrey Sarvis, the current ED at SLDN, can speak to any recent developments.

Can I repost this on my blog?

Great analysis. Your summary of the report is so much different than what Steve had to say on Wednesday.

Steve Ralls Steve Ralls | July 10, 2008 8:40 PM

You're right, Serena. My post focused on the good news that we had four more officers endorsing a change in the law - always a good thing. But Dixon, of course, is the legal expert on the issue, and his analysis of the recommendations is something important to consider. We should all be onboard with total, unequivocal repeal, and a policy of open service in the armed forces.

Thanks for this wonky guest post, Dixon. I'll keep it in mind as this study gets spread around...

Dixon, glad to see you on the Project! I've been wondering when you'd show up. *grins*

Right after this went up I got a phone call from the Palm Center asking if they could guest post this weekend in response. It should be interesting!