June 1, 2010  

Don’t ask, don’t politicize

Retaining an apolitical stance is the armed forces’ key priority

As part of the law widely known as “don’t ask, don’t tell,” military members are required to be briefed on the homosexual policy “upon entry into the armed forces and periodically thereafter.” The standard briefings on this subject tend to go out of their way to point out that the prohibition on homosexual conduct is ultimately a function of statute, not discretion. In other words, service members are reassured that the policy was not hatched in the bowels of the Pentagon, but rather in the halls of the Capitol.

Indeed, the law proclaims that under the Constitution, “it lies within the discretion of the Congress to establish qualifications for and conditions of service in the armed forces.” Ostensibly, Congress wrote this territorial language into the bill because a majority of its members were displeased with President Clinton’s effort early in his administration to lift the ban via executive order. The legislators strategically imbedded an explicit statement within the statute that Congress’ Article I powers — “to raise and support armies,” “to provide and maintain a Navy” and “to make rules for the government and regulation of the land and naval forces” — trump the president’s Article II powers as commander in chief, at least in the arena of personnel policy. This clause was meant to prevent current and future occupants of the White House from seeking to overturn the prohibition by executive fiat.

It is also likely that the House and Senate Armed Services Committees had contemplated the Supreme Court’s position that judicial deference “is at its apogee” when Congress legislates under its authority to govern the armed forces. That is, there was little chance that the courts would seriously second-guess Congress’ conditions for entry into and discharge from the military, so long as those rules were promulgated under the legislature’s national defense powers.

To be fair, the military’s attempts to dissociate itself from the controversial homosexual-conduct policy — to point the finger at Congress, as it were — have never been entirely accurate. At the very least, this revisionist history downplays the role that senior uniformed leaders, most notably Army Gen. Colin Powell, played in resisting Clinton’s plan to allow homosexuals to serve openly in the armed forces.

But whatever its historical imperfections, the Defense Department stance nonetheless served a purpose, and a valuable one at that. Namely, it enabled individual service members to avoid the misperception that by wearing the uniform, they were tacitly endorsing the “don’t ask, don’t tell” directive (or any other specific policy, for that matter). It reaffirmed the proposition, essential to our democracy, that joining the military is an act of service to country, not advocacy of a political cause. Maintaining that delicate balance was likely what Defense Secretary Robert Gates had in mind when, at a hearing on “don’t ask, don’t tell” earlier this year, he asked Congress to keep the men and women in uniform “out of the political dimension of this issue.”

When a West Point cadet asked Adm. Mike Mullen in 2008 how the presidential election might change the current policy, the response from the chairman of the Joint Chiefs of Staff (JCS) was particularly telling. The rules on homosexual conduct, he noted, are “not just a policy. It’s the law. And one of the things we do in the military is we follow the law. So we’ve followed that policy diligently since it was put in place.” Conversely, “should that policy change and the next president certainly endorse that, then — not unlike the policy that exists right now — we’ll carry that policy out.” The chairman reiterated the importance of maintaining “that very strong apolitical position that is one the American people expect,” as well as dutifully carrying “out the policies of the elected leaders of our country.” His “personal opinion on this, whatever it is, quite frankly, isn’t relevant.”

The apolitical stance that Gates and Mullen have described was crucial to forming a general consensus, not necessarily on the merits of “don’t ask, don’t tell,” but on the armed forces’ duty to implement it. Military unity prevailed in the face of a controversial issue that could have otherwise proved divisive. So, when disheartened universities reacted to the law by banning military recruiters and Reserve Officer Training Corps detachments from their campuses, both the military community and its sympathetic onlookers could legitimately react in dismay: How could the colleges be so ungrateful as to make service members unwelcome on their campuses, simply because they disagreed with a policy? And how could the professoriate be so ignorant as to assume that mistreating the military, as opposed to lobbying Congress, would in any way change the status quo?


This apolitical consensus was never without its challenges. In a much-publicized episode in 2007, Marine Gen. Peter Pace, then JCS chairman, indiscreetly told the Chicago Tribune that he believed “homosexual acts between individuals are immoral and that we should not condone immoral acts.” He went on to liken gay and lesbian sex to adultery, which further ran the risk of reinforcing a widely held misconception that “don’t ask, don’t tell” had criminalized homosexuality under the Uniform Code of Military Justice.

Pace’s comments proved disruptive — not only because they suggested that the armed forces were emotionally, rather than legally, wedded to the policy on homosexuality — but also because they appeared to counter proposed legislation by then-Rep. Martin Meehan, D-Mass., to overturn the ban. This raised the specter of political interference, which is precisely what Powell had been accused of in 1993. Pace later explained that his comments reflected only his “personal moral views,” but the nature of his job and the forum in which he had voiced his opinions made the matter very public indeed.

The consensus may have been shattered once and for all this past February, when Gates and Mullen provided testimony before the Senate Armed Services Committee on the DADT policy. In his prepared remarks, Gates stated that “the question before us is not whether the military prepares to make this change, but how we must — how we best — prepare for it. We have received our orders from the commander in chief, and we are moving out accordingly.”

This remark evidently enraged Sen. John McCain, R-Ariz., who harkened back to the original debate, 17 years earlier, in which Congress had clearly staked its claim to exclusive authority in this area. “Well,” McCain responded, “I’m happy to say that we still have a Congress of the United States that would have to pass a law to repeal ‘don’t ask, don’t tell,’ despite your efforts to repeal it in many respects by fiat.”

Mullen, despite his earlier position that his own opinion was irrelevant, testified to his “personal belief that allowing gays and lesbians to serve openly would be the right thing to do.” Sounding in at least one respect like Pace, Mullen emphasized that he was “speaking for myself and myself only.” But as in the case of his predecessor, Mullen’s official position and chosen forum rendered the private-public distinction effectively meaningless.

The admiral astutely conceded “that this is not an issue for the military leadership to decide,” given that Congress had spoken authoritatively on the issue in 1993, and will need to speak authoritatively again to change the underlying law. Following his statement, Mullen was, predictably, heralded for his “courage and integrity” by those senators (mostly Democrats) who oppose the policy, and questioned skeptically by those senators (mostly Republicans) who support it. Probably the most important development, however, was that by voicing his opinion without being directly asked, the chairman had decided to wade into the partisan thicket at all.


The approach that Gates outlined before Congress was for DoD to take immediate steps to “best prepare” for a repeal of the homosexual policy. Mullen confirmed that the Joint Chiefs were “in complete support” of the secretary’s plan.

However, cracks in this professed unity began to show almost immediately. Testifying before the same Senate committee three weeks later, Marine Corps Commandant Gen. James Conway responded to a question on repeal by asserting “that the current policy works.” He stated that his “best military advice” to the policymakers “would be to keep the law such as it is.” The next month, Conway told a Military.com interviewer that he “would not ask our Marines to live with someone who is homosexual if we can possibly avoid it.”

Perhaps the most remarkable episode in the recent “don’t ask, don’t tell” debate occurred when Lt. Gen. Benjamin Mixon, the Army Pacific commander, wrote a letter to the editor of Stars and Stripes calling repeal of the policy “ill-advised.” Mixon urged the military community “to write your elected officials and chain of command and express your views.”

On the one hand, given his rank and position, Mixon had probably displayed questionable decorum in advocating that service members stir up controversy by voicing opposition to a process endorsed by the president, defense secretary, and JCS chairman. On the other hand, Gates had explicitly promised Congress that the “high-level working group” he had appointed would “reach out to the force to authoritatively understand their views and attitudes about the impact of repeal.” Indeed, he admitted to the senators “that we can’t possibly evaluate the impact on unit cohesion, on morale, on retention, on recruitment and so on unless we encourage people to tell us exactly what they think and exactly what their views are, honestly and as forthrightly as possible.” Viewed in that light, Mixon’s letter was potentially conducive to the ongoing deliberative process.

Clearly, that is not how the Pentagon saw it. In an extraordinary press conference a few weeks after Mixon’s letter was published, Mullen called the general’s comments “inappropriate,” suggested that he would be disciplined by the Army chief of staff, and then recommended that Mixon “vote with [his] feet” by retiring. Whether Mixon needed to resign in protest, the chairman said, is “a decision that would certainly be up to him.” When asked what exactly Mixon had done wrong, Mullen alluded to “very specific direction” Mixon had received and then violated. This directive, uncovered by Stars and Stripes, turned out to be an e-mail message that vaguely referenced the need to handle this “complex and controversial issue” with “professionalism.”


The results of DoD’s initial review of the homosexual-conduct policy became official in March, when Gates approved a series of recommendations to “enforce the existing law in a fairer and more appropriate manner.” These changes were implemented as revisions to DoD instructions governing officer and enlisted separations. The services were given 30 days to bring their individual regulations into conformance with the new rules, but the revisions took effect immediately and applied to proceedings that were pending.

The net effect of the changes is to raise the bar for homosexual conduct inquiries and discharges. The standards have been heightened in terms of the level of officers authorized to initiate actions, approve enlisted separations and conduct fact-finding inquiries. Moreover, the definition of “credible information” and “reliable person” (“upon whose word an inquiry can be initiated”) is now more stringent.

Whatever one’s opinion of “don’t ask, don’t tell,” some of the revisions are clearly salutary. For example, the provision that “information provided to a medical professional in furtherance of medical treatment” cannot be used in support of homosexual conduct discharges relieves military health care providers of the concern that they may have a duty to report such revelations. Given that sexual activity can often be relevant to diagnosis and treatment, the notion that disclosures of noncriminal sexual conduct in a medical context can be routinely used to determine suitability for continued employment is almost certainly counterproductive and unfair.

Yet in a general sense, the revisions to the DoD instructions required Gates to walk a difficult tightrope. He had to reassure Congress that the “ultimate decision” rests with the vote of its members and that “don’t ask, don’t tell” remains the law, one that DoD is obligated to enforce. At the same time, he had to acknowledge the impetus for the internal changes, which (as articulated by the president) is the end goal of repeal.

No less an authority than Army Secretary John McHugh found himself tripped up by these intricacies, telling reporters that it was “a reasonable assumption” that Gates had “placed a moratorium” on homosexual conduct discharges. McHugh even revealed that several service members had approached him to “declare that they were gay,” and that he had not reported those statements to command.

The next day, McHugh was obliged to issue a statement clarifying his remarks. He explained that “don’t ask, don’t tell” “remains the law of land” and that “there is no moratorium of the law.” As for the soldiers who had made homosexual statements to him, the secretary determined that he would be “unable to identify” the individuals due to “the informal and random matter in which these engagements occurred.”


If there is one thing for certain in the long-standing debate over the status of homosexuals in the armed forces, it is that whatever direction the political winds take the current policy, the military will cope and carry on. As Mullen told Congress about the effects of potential repeal, one should “never underestimate” service members’ “ability to adapt.”

But what raises cause for concern is the way that the apparently imminent repeal of “don’t ask, don’t tell” has been approached by DoD. If, as Gates testified, there was always “a degree of latitude within the existing law to change our internal procedures” in a way that renders enforcement both difficult and rare, then is not a gay rights advocate entitled to ask, “Well, why didn’t you do this earlier?”

DoD’s recent actions — from the testimony of Gates and Mullen, to the issuance of highly restrictive regulations, to the public excoriation of Mixon — make it look as if the military was always the driving force behind the homosexual policy. For almost two decades, we have sought shelter behind the common understanding that “don’t ask, don’t tell” was the law and we were required to implement it, whether we liked it or not. Now, as it turns out, we are told that our leaders had the ability to take the teeth out of the policy the whole time.

Apparently, all that we needed was sufficient enlightenment in the Pentagon to turn a discriminatory policy into a humane one, to pave the road for repeal. Were the universities right to ban us from their campuses? Was it really our fault the whole time?

The precious apolitical consensus, which has sustained us through unpopular policies and unpopular wars, appears to be in peril. The next time you try to extricate yourself from a thorny conversation by explaining that the military simply does its job regardless of the political currents, will anyone be listening? AFJ

CAPT. CHARLIE KELS is an Air Force officer and a medical law consultant at the Mike O’Callaghan Federal Hospital, Nellis Air Force Base, Nev. Opinions expressed in this article are the author’s alone and do not necessarily reflect those of the Air Force or Defense Department.