Title 10 United States Code § 654, “Policy concerning homosexuality in the armed forces” says in part:
The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.
The Code, colloquially known as “Don’t Ask, Don’t Tell” (DADT), stipulates that a member of the armed forces shall be discharged if “the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings….” This is then immediately followed by a list of such “further findings.”
The Code further stipulates that a member shall be immediately separated if the member “has stated that he or she is a homosexual or bisexual, or words to that effect…” Again, this is immediately followed by an “unless.”
As has been widely reported, enforcement of DADT has come at a tremendous cost in both trained, qualified personnel and in treasure. (More than 15,000 service members have been forced out under DADT).
The Obama administration and top Defense officials hope to repeal DADT. But in the meantime our nation and our military continue to suffer the ludicrous effects of an ill-advised, ill-implemented and ill-enforced policy—of the incongruities and “inefficacies” of DADT. We also continue to flail and flounder through the morass that is the interim period before the repeal of DADT.
As to the incongruities of DADT, take the case of Air Force Lt. Robin Chaurasiya who, after “telling” that she was a lesbian and that she was in a civil union with another woman, is not being let go by the Air Force. The Service is using one of those “unless” exceptions—in this case, the “catch-22” one:
Unless there are further findings…under the particular circumstances of the case, the member’s continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale.
Now, don’t get me wrong; I wish that there were many more such inconsistencies.
However, as pointed out by the Los Angeles Times, it does illustrate the absurdity and capriciousness of DADT:
“If commanders are ignoring or rejecting credible evidence of homosexuality because of the alleged motive of the person who makes the statement, the bottom line is they are keeping gay people in the service,” said Frank, a senior research fellow at UC Santa Barbara’s Palm Center. “That gives the lie that known gay people undercut the military.”
In other words, it belies the claim that “the presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.”
Others interpret this and several other similar actions by the Pentagon, as a sign of willingness to reinterpret or bend the rules while waiting for the repeal of DADT.
Again, the LA Times:
Officially, “don’t ask, don’t tell” remains in place and service members are still being discharged for homosexual conduct. But how to handle such discharges clearly has become a delicate matter inside the Pentagon.
Secretary Gates recently approved new rules designed to make it tougher to discharge gay and lesbian service members.
As reviews and studies continue, and as “implementation plans” are being drawn towards the repeal of DADT, the Obama administration, while intent on repealing the law, finds itself in a very uncomfortable position.
For example, SFGate.com reports:
As the Obama administration calls on Congress to repeal “don’t ask, don’t tell” restrictions on gays and lesbians in the military, it is urging a federal judge in California to uphold the policy and quoting supporting testimony in 1993 from Gen. Colin Powell, who later reversed course.
How is this possible, you ask?
Well, some gay Republicans—the plot thickens—have filed a suit in California challenging the constitutionality of DADT and are using both Obama’s recent statements that DADT “weakens our national security,” and Powell’s turnabout on gays serving in the military as arguments in their challenge.
The Obama administration, determined to repeal the 1993 law based on assertions that such repeal would not negatively affect unit cohesion and military preparedness, argued before the California Court:
Upon its extensive review of the issue, Congress concluded (in 1993) that the policy was necessary to ensure privacy, reduce sexual tension, and ultimately to maintain unit cohesion and military preparedness. (Emphasis mine)
According to SFGate.com:
The brief quoted testimony by Powell, then chairman of the Joint Chiefs of Staff, that homosexual conduct, “if allowed to exist openly in the military, would affect the cohesion and well-being of the force.”
The Justice Department did not mention Powell’s recent reversal, cited in Monday’s filing by the Log Cabin Republicans: “Attitudes and circumstances have changed” since 1993, the now-retired general said in a Feb. 3 statement endorsing the Obama administration’s call for a repeal of the policy.
Of course, this case illustrates the Justice Department’s duty to defend federal laws, even those opposed by the administration.
Still, oh what a tangled web we weave…
