Wednesday, July 08, 2009

What Part of “Eligible” Does Gates Not Understand?   [Elaine Donnelly]

On June 30, Secretary of Defense Robert Gates announced that he had asked the Defense Department general counsel, an Obama administration political appointee, to find a more “humane” way to enforce the 1993 law stating that homosexuals are not eligible to serve in the military.

The 1993 law, Section 654, Title 10, U.S.C., is usually mislabeled “Don’t Ask, Don’t Tell,” even though it codified almost word-for-word long-standing Defense Department regulations affirming that homosexuals are not eligible to serve in uniform. It is unsettling to hear the secretary of defense making comments that betray serious misunderstandings of the law, which he has had more than enough time to review.

It has been suggested that recruits or officers who withhold information relevant to their eligibility, but are “outed” by someone else, should be entitled to accommodation in the military. Secretary Gates should consider whether such a provision would create an incentive for partners of gay servicemembers to help them avoid “adverse action,” i.e., honorable discharge, by disclosing their homosexuality.

Secretary Gates should be mindful that according to four annual Military Times surveys of active-duty subscriber/respondents, the law as passed by Congress enjoys widespread support. Federal courts have upheld it as constitutional several times — as recently as last month. It was enacted by Congress to protect good order, morale, and readiness in our military — matters that should be Secretary Gates’s primary concern.

The problem here is not the law — it is the Clinton-era administrative policy known as “Don’t Ask, Don’t Tell,” which is inconsistent with the statute. For many good reasons, Congress deliberately rejected President Bill Clinton’s proposal to let homosexuals serve in the military as long as they do not say they are homosexual. The Clinton administration imposed the policy on the military anyway, in the form of enforcement regulations that the U.S. Court of Appeals for the Fourth District determined to be inconsistent with the law. President George W. Bush could and should have dropped Clinton’s convoluted administrative policy years ago, but failed to do so.

Gates’s equivocation appears related to the highly publicized stories of Lt. Daniel Choi, a West Point graduate and former Army Arabic-language translator, and Lt. Col. Victor Fehrenbach, an Air Force weapons systems officer (WSO) who is frequently misdescribed as a pilot whose training cost $25 million.  (The number is questionable in any case, since Air Force figures provided to the 1992 Presidential Commission on the Assignment of Women in the Armed Forces indicated that it costs approximately $3.1 million to train a fighter or bomber pilot.)  Both are being discharged because they are homosexual.

Gates should know that although Lt. Col. Fehrenbach did not intend to reveal his homosexuality, he still is not eligible to stay in the Air Force. If he and Lt. Choi were misinformed about their eligibility to serve, that does not change the clear meaning of the law or justify its suspension. Even the Washington Post, which advocates repeal of the law, advised gay activists in a June 27 editorial that they “should not be looking for ways to get around existing policy.”

The only “humane” thing to do is what President George W. Bush should have done years ago: administratively drop the contradictory policy known by the catch-phrase “Don’t Ask, Don’t Tell.” Secretary Gates is authorized by law to rescind the Clinton-era enforcement regulations, and he could also exercise his power to restore “the question” about homosexuality that used to appear on induction forms before President Clinton eliminated it. Current law fully authorizes such action — no additional legislation is required.

During the debate on this year’s defense authorization bill, House Armed Services Committee chairman Ike Skelton (D., Mo.) said he would schedule hearings on gays in the military at an unspecified future date. Gates’s directive to the DoD general counsel appears to be a preliminary step toward “modification” (read, circumvention) of the 1993 law. Gates should not take any action that ignores congressional intent and circumvents, redefines, or violates Section 654, Title 10, U.S.C. Doing so would be an affront to Congress and a violation of the oaths of office taken by the president and the secretary of defense. Emotion and misinformation should not be allowed to stampede Congress into repealing a law that is important to the troops that Gates is charged to lead.

07/08 08:06 AMShare