USA — Military Can Manage ‘Don’t Ask’ Repeal

WASHINGTON, Dec. 2, 2010 — The mil­i­tary can deal effec­tive­ly with allow­ing open­ly gay ser­vice­mem­bers in its ranks, lead­ers of a work­ing group that stud­ied the issue for the Defense Depart­ment told the Sen­ate Armed Ser­vices Com­mit­tee today.
Group co-chairs Gen. Carter F. Ham, com­man­der of U.S. Army Europe, and Jeh C. John­son, DOD gen­er­al coun­sel, tes­ti­fied along with Defense Sec­re­tary Robert M. Gates and Navy Adm. Mike Mullen, chair­man of the Joint Chiefs of Staff, in a hear­ing about pos­si­ble repeal of the so-called “Don’t Ask, Don’t Tell” law.

“After nine months of study, I am con­vinced that if the law changes, the Unit­ed States mil­i­tary can do this, even in a time of war,” Ham said. The depart­ment released the report on effects of pos­si­ble repeal and an accom­pa­ny­ing imple­men­ta­tion plan Nov. 30.

Ham said he doesn’t under­es­ti­mate the chal­lenges that would come with imple­ment­ing a change in the law, but added that ser­vice­mem­bers can adapt to such change while accom­plish­ing the nation’s mil­i­tary mis­sions.

“I came to this con­clu­sion not only as a co-chair of the Depart­ment of Defense review, but per­haps more impor­tant­ly, as the com­man­der of U.S. Army forces in Europe,” Ham said. “I was cog­nizant every day of this review that I might actu­al­ly have to lead the changes includ­ed in our report. As a serv­ing com­man­der, I am con­fi­dent that if this law changes, I and the lead­ers with whom I serve can do just that.”

John­son said the work­ing group’s basic assess­ment was that “our mil­i­tary can make this change, pro­vid­ed we do so in an order­ly and rea­son­able man­ner, in accord with the rec­om­men­da­tions for imple­men­ta­tion we offer in our report.” He cau­tioned com­mit­tee mem­bers that leav­ing the repeal deci­sion in the hands of the courts could dam­age the military’s capa­bil­i­ty to man­age the change.

“From where I sit as the lawyer for the Depart­ment of Defense, the virtue of the leg­is­la­tion pend­ing before the Sen­ate is that, if passed, repeal of Don’t Ask, Don’t Tell will be done on our terms and our timetable, upon the advice of our mil­i­tary lead­er­ship,” he said.

John­son said the report makes clear that the mil­i­tary must address many issues with regard to a repeal of the “Don’t Ask” law, such as “edu­ca­tion and train­ing, the core mes­sages to be deliv­ered as part of edu­ca­tion and train­ing, same-sex part­ner ben­e­fits, berthing and bil­let­ing, a pol­i­cy on re-acces­sion, relat­ed changes to the [Uni­form Code of Mil­i­tary Jus­tice], and so forth.”

The fact that lit­i­ga­tion on gay rights mat­ters has increased is unde­ni­able, John­son told the Sen­ate pan­el.

“Since 2003, when the Supreme Court decid­ed Lawrence vs. Texas, the courts have become increas­ing­ly recep­tive to gay rights claims,” he said. “With­in the last year alone, fed­er­al dis­trict courts have for the first time declared California’s gay mar­riage ban, the fed­er­al Defense of Mar­riage Act, and ‘Don’t Ask Don’t Tell’ all uncon­sti­tu­tion­al.” The Defense Depart­ment must face the pos­si­bil­i­ty of imple­ment­ing the change “on the terms and timetable of a court and a plain­tiff” if a court strikes down the law, John­son said. A flur­ry of court actions on the law in Octo­ber and Novem­ber demon­strat­ed pos­si­ble con­se­quences of repeal through court rul­ings, he not­ed. A fed­er­al dis­trict judge ordered sus­pen­sion of the law Oct. 12, the appel­late court issued a tem­po­rary stay of that injunc­tion Oct. 20, the 9th Cir­cuit Court agreed to keep the stay in place Nov. 1, and the Supreme Court denied a request to over­turn the stay Nov. 12.

“In the space of eight days, we had to shift course on the world­wide enforce­ment of the law twice, and in the space of a month faced the pos­si­bil­i­ty of shift­ing course four dif­fer­ent times,” John­son said. “Our plea to the Con­gress is to not leave the fate of this law to the courts.”

Gates and Mullen both have said they would not cer­ti­fy the mil­i­tary as ready to imple­ment a change in law until the depart­ment can pre­pare post-repeal poli­cies and reg­u­la­tions and has begun to edu­cate and train the force, John­son said. Leg­is­la­tion passed by the House of Rep­re­sen­ta­tives and now before the Sen­ate requires that the pres­i­dent, the defense sec­re­tary and the Joint Chiefs chair­man must cer­ti­fy the military’s readi­ness to make the change before repeal would take effect.

“In all like­li­hood, this will not be pos­si­ble if repeal is imposed upon us by judi­cial fiat,” John­son said. “For these rea­sons, we urge that the Sen­ate act now on the pend­ing leg­is­la­tion.”

U.S. Depart­ment of Defense
Office of the Assis­tant Sec­re­tary of Defense (Pub­lic Affairs)

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