Unfriendly Fire
Page 27
When Clinton and the military brass announced that policy in the summer of 1993, they closed ranks and displayed what was clearly a politically choreographed, united front. At the July 19 press conference, each of the six members of the Joint Chiefs of Staff, as well as the commandant of the Coast Guard, took a turn at the microphone and read from the same script. The policy “is a workable solution,” said Admiral David Jeremiah, and a “good answer” to a “difficult problem.” General Gordon Sullivan was “fully supportive of the policy,” one that he said the troops will understand and the “commanders will be able to handle.” Admiral Frank Kelso: “I fully support this policy. I’m sure we can implement it and it will work.” General Carl Mundy: “This is a good policy. It’s a policy that can be implemented and it is a courageous policy.” General Merrill McPeak: “The Air Force supports the policy,” and “will not have a problem implementing this new policy, so I look forward to no problem whatsoever.” Admiral J. William Kime rounded out the chorus by saying, “This, too, is a policy that the Coast Guard can support.”4
For his part, Colin Powell agreed with Clinton that what they had crafted was “an honorable compromise” that “protects the privacy rights of all of those serving in the force, and yet moves in the direction of those who wanted to have a more liberal policy with respect to homosexuals.” He said he was “very, very pleased with this decisions of the President, and it’s one we can fully support.” Most important, Powell said that the policy meant “We will not ask, we will not witch hunt, we will not seek to learn orientation,” adding, “this is a significant change on the part of the military.” Clinton echoed the promise: “This is an end to witch hunts that spend millions of taxpayer dollars to ferret out individuals who have served their country well.”5
To that end, the policy announced in July stated: “No investigations or inquiries will be conducted solely to determine a service member’s sexual orientation.” It promised that “associational” activities such as going to gay bars, having gay friends, marching in a gay parade, or reading gay books or magazines would not be considered “credible information that would provide a basis” for investigation and discharge. Nor would listing someone of the same sex as a beneficiary or emergency contact. It explicitly protected discussions with priests and lawyers, as well as “husband-wife” communications. Finally, in security clearance interviews, troops would not be asked about their sexual orientation, and if the matter came up, according to a Pentagon press release, “information about homosexual orientation or conduct obtained during a security clearance investigation will not be used by the military departments in separation proceedings.”6
By December, the Pentagon had drafted implementing regulations detailing how to carry out the law and directing the individual service branches how to update their own regulations to be in compliance. In addition to no longer asking recruits about their sexual orientation at induction, the main change, which was announced by Les Aspin on December 21, 1993, updated Department of Defense Directive 1332.14, Enlisted Administrative Separations. The directive now stated that DOD policy was to “judge the suitability of persons to serve in the Armed Forces on the basis of their conduct and their ability to meet required standards of duty performance and discipline.” The attached guidelines for inquiries into sexual conduct assured service members that they could only be investigated if commanders received “credible information that there is a basis for discharge.” These were the details spelling out the most complicated part of the new policy, “don’t pursue.” Unit leaders were not supposed to seek out a member’s orientation. They could ask questions about homosexual conduct, but only if they were first met with “articulable facts, not just a belief or suspicion,” and even then, orientation itself was not to be the target of the investigation or the reason for discharge, only conduct. “Credible information” did not exist if it was based simply on “the opinions of others that a member is homosexual,” or on “rumor, suspicion or capricious claims concerning a member’s sexual orientation.”7
In announcing the directives of the new policy, Les Aspin was joined by the Pentagon’s general counsel, Jamie Gorelick. As the military’s top lawyer, Gorelick had the unenviable task of overseeing the actual implementation of the new policy, and of ensuring that the Clinton policy was consistent with the congressional statute. In explaining what she had come up with, Gorelick said inquiries would be “limited to the facts involved in the allegation.” A service member would not be “interrogated about his or her partners,” she added, saying that was the Pentagon’s effort to “deal with the concern about witch hunts.” Seeking to end the targeting of sexual orientation alone, the new policy eliminated the regulation of “desire.” Instead, statements would only prompt a discharge if they were deemed to indicate “a likelihood” that while you were in the service, you would engage in homosexual acts. In other words, simply being gay would not be cause for losing your job, so long as you refrain from indicating that you were likely to engage in homosexual acts.8
These were the promises. But as the policy stewed and simmered and slowly congealed into law, directives from the different service branches, anemic enforcement throughout the military, and politically motivated interference made a mockery of these carefully laid-out promises. The trouble started with a loud lament from Senators Strom Thurmond and Dan Coats. The two were so angered by a phrase in the new implementing regulations that, in February 1994, they threatened to hold up confirmation of Clinton’s new defense secretary, William Perry. The phrase? “Homosexual orientation is not a bar to service entry or continued service.” For Thurmond and Coats, as with Sam Nunn, the main reason to write the policy into law was to scuttle Clinton’s effort to let gays serve. The senators did not want to acknowledge that gay people would be serving in the military, so they insisted that “homosexual orientation” be deleted, leaving the comically inane phrase: “Sexual orientation is considered a personal and private matter, and is not a bar to continued service.” Which, when you think about it, is a good thing: Since everyone has a sexual orientation, making one’s orientation a barrier to service entry would have resulted in a quick end to the U.S. military.9
The wording change was pure political theater, and effectively meaningless. But not so the implementing documents of the individual services. While the gay troop policy was Pentagon-wide, each service branch had leeway in determining how it carried out and enforced the rules. In June, a navy memo instructed officers and administrators to pursue investigations based on exactly the “associational” activities that the policy expressly permitted. Merely criticizing the policy in public, read the memo, “may be inconsistent with good military character.” It was a chilling threat that has made research on service member opinion extremely difficult. “The wearing of one’s uniform,” it continued, “or identifying oneself as a member of USN while visibly supporting homosexual interests may violate Uniform Regulations and the Standards of Conduct.” Incredibly, the memo also instructed those responsible for enforcing the policy to “be creative” when trying to build a case against suspected gay sailors. “Where the case is premised on a statement alone, the recorder should attempt to find evidence to corroborate the statement and to sustain the presumption flowing logically from the statement,” it said. Seek out “additional evidence,” it urged, that shows the “unequivocal desire of the respondent to commit criminal acts.” The exhortation was a direct violation of “don’t pursue.” Bracing for a defense that appealed baldly to sentiment, the memo ended with its own plea to stay strong in pursuit of rooting out gays: “Do not easily accept the characterization of respondent as a model sailor.”10
Another navy memo brazenly flouted the terms of “don’t pursue,” urging psychologists and other medical professionals to turn in anyone who came to them for counseling if they revealed in the professionals’ offices that they might be gay. The memo suggested that many homosexuals were “over-stimulated by members of the same sex” and said that the on
ly way gays and lesbians could successfully adapt to military life was if they remain “invisible and do not seek to disclose their homosexuality. The nonadapters realize they made a mistake in joining the military, and they need to get out. When a nonadapter goes to the physician, the physician will be most helpful by facilitating the legal process” of separation.11
A 1994 air force JAG memo had a similar effect, directing commanders to interrogate service members’ families, school officials, and friends in an effort to learn if they were gay. It also expanded the sway of intrusive investigations by permitting inquiries into the activities of “other military members” who did not come out but were “discovered” during an investigation of someone else. This was a direct violation of the Pentagon policy, which stated that “inquiries shall be limited to the factual circumstances directly relevant to the specific allegations.” They will be limited, that is, to credible evidence that surfaces about a particular individual, not anyone else whose name might come up when the original accused was investigated.12
The major selling point of “don’t ask, don’t tell” was that it claimed to allow discreet homosexuals to serve as long as they did not engage in homosexual conduct. Yet this value-added part was wiped out by the notorious Miller memo that was issued in 1995 as a response to the Dunning case. Lieutenant Commander Maria Zoe Dunning came out publicly early in 1993 as Bill Clinton was insisting he would keep his promise to lift the ban. Dunning was a supply officer who graduated from the U.S. Naval Academy and had served for twelve years, earning a Navy Commendation Medal for her service during the Persian Gulf War. A week after she came out, the navy initiated discharge proceedings and placed her on unpaid reserve status pending the outcome. But in July 1993, when “don’t ask, don’t tell” was announced, Clinton ordered that anyone whose status was still pending be given a new hearing, using the rules of the new policy—not the pre-1993 rule—as the basis for deciding her fate.
Her second hearing was not held until November 1994. Dunning’s executive officer eagerly testified on her behalf, saying he did not want to lose her and describing her performance as “outstanding.” He was asked about the reaction of the unit to Dunning’s sexual orientation and the effect of her initial removal (pending the hearings) on morale and cohesion. “I think we’ve already suffered a loss in the unit,” he said, “because everybody worked very well with Zoe. Everybody liked her. And we’ve already basically noticed the loss.” He said that while some were surprised by Dunning’s announcement, there were no complaints, no insults, no impairment of unit performance, and no one insisting they be reassigned so they didn’t have to work or live with a lesbian. If she were retained, he concluded, “we’d welcome her back.” Another officer who worked with Dunning agreed, saying Dunning was “getting kind of a raw deal.” The feeling in the unit, he said, “was like, ‘That’s just too bad that they’re having to worry about this, because this is a good officer.’ ”13
Dunning’s lawyers argued that, under the terms of the new policy, Dunning must be retained because her declaration of her identity as a lesbian did not, in fact, reveal a propensity to engage in homosexual conduct; it was merely a statement of fact about who she was.14 Recall what the policy says: Declaring you are gay or lesbian creates a “presumption” that you are likely to engage in homosexual acts, which are grounds for dismissal; however, you are invited to “rebut” this presumption at a military hearing. The question is this: How can you rebut a presumption that you are likely to engage in homosexual acts if you’ve just said you’re a homosexual? It’s an especially tall order given that the policy actually defines a homosexual as someone who is likely to engage in homosexual acts. Ergo, to the Pentagon, if you’ve said you’re a homosexual, you’ve said you’re likely to engage in forbidden conduct.
Dunning’s case was one of the first to be heard under the new rules. In a surprising move, her board recommended she be retained, saying they were convinced that her statement did not indicate a “propensity” to engage in homosexual acts. In the meantime, Dunning—fully out and known to the world as a lesbian officer—was promoted to lieutenant commander. She went on to serve openly for thirteen more years, earning a Navy and Marine Corps Medal before her retirement in 2007.15
The military was not pleased with the Dunning decision. The idea that a service member could reveal that she was a homosexual and continue to serve defeated the purpose of “don’t ask, don’t tell”—which was, after all, to protect heterosexual privacy by shielding them from the knowledge of which coworkers might fancy them. So the general counsel of the Defense Department, Judith Miller, issued a memo on August 18, 1995, directing officials never again to accept as a defense against discharge a simple statement from an avowed homosexual denying he or she was likely to engage in homosexual acts. “A member may not avoid the burden,” said the memo, “of rebutting the presumption” that he or she is likely to engage in homosexual conduct “merely by asserting that his or her statement of homosexuality was intended to convey only a message about sexual orientation.”16 That is, just as saying you’re a drug user is an admission of doing drugs, saying you’re gay is an admission that you had (or would likely have) gay sex, and therefore should be fired. The military was saying, in effect, that a member who just said he was gay (or, for that matter was revealed to be gay by a third party, a vengeful lover, an errant e-mail, or a letter left out on a table) could only avoid discharge if he proved that he was not what he just said he was. And no fair just saying so—he had to prove it.
The Miller memo has bedeviled attempts of service members, journalists, lawyers, and regular people to fully understand the policy: Does “don’t ask, don’t tell” ban gay people based on who they are or based only on what they do? Does it make all gays—if they’re caught—ineligible for service, or only those who engage in prohibited conduct? Which does it target: identity or behavior? Status or conduct?
The confusion stems from both political and legal calculations that shaped the law. Bill Clinton had repeatedly insisted that people should only be booted from the military “based on something they do, not based on who they are.” Meritocracy and equal opportunity were major doctrines of Clinton’s campaign and his governing philosophy. By all accounts he believed in these principles, even though in the end, his efforts to abide by them were watered down by his opponents and he chose to stop spending further political capital to defend meritocracy in the military.17
Legal challenges played perhaps an even more central role. As Clinton and the Pentagon battled to formulate an acceptable compromise throughout 1993, the very notion of a ban on gays looked increasingly like it would not pass constitutional muster, given court decisions in the cases of Joseph Steffan, Keith Meinhold, Margarethe Cammermeyer, Zoe Dunning, and others. Top lawyers responsible for developing the policy were well aware of this, and took into account the prospect of inevitable legal challenges. For these reasons, it was essential for architects of the policy to present the policy as one that targeted only behavior, and didn’t punish people for who they were.
What the lawyers came up with was a legal maneuver that has insulated the Pentagon from constitutional challenges while continuing to oust thousands of gay people from military service, even if they have not engaged in what ordinary Americans—read: nonlawyers—might regard as homosexual conduct. That legal maneuver is the two-pronged clause known as the “propensity clause” and the “rebuttable presumption,” and it is enshrined in both Clinton’s policy and the congressional statute. The clause was not actually new to “don’t ask, don’t tell” but was made, in the words of Pentagon general counsel Jamie Gorelick, more “robust” so that “a court might view this policy differently than the old policy.”18
What the two-part clause says is that service members who state they are gay are “presumed” to have a “propensity” to engage in homosexual acts, but that they would be invited to “rebut” that presumption by showing they do not have such a propensity. Propensity is defi
ned as not just a desire to engage in gay sex but a “likelihood.” This is the section of the policy that turns simple statements or facts about one’s homosexual orientation—who one is—into “proof” of homosexual behavior: conduct that is grounds for discharge. And the supposed option to “rebut” that propensity was a way to allow lawyers to argue that the policy is not targeting a person’s identity or expression, since people have the option to argue that their statement of identity did not indicate behavior.
Yet in reality, despite Dunning’s unprecedented (and rarely repeated) success, it was virtually impossible to rebut the presumption. The law’s authors admitted that the rebuttable-presumption clause was only inserted as a way to ward off legal challenges, and it created a threshold that would be nearly impossible for anyone to actually meet. Speaking in the final days of Nunn’s Senate hearings in July 1993, Secretary of Defense Les Aspin said that it was a “tough standard” to rebut the presumption that a statement of homosexual identity indicated a likelihood of engaging in prohibited conduct, so much so that he thought “it has not been done in the past.” The next day, Jamie Gorelick echoed the point even more forcefully: “I would reiterate what the Secretary said yesterday, that” rebutting the presumption “is a very high burden and no one has ever done it.” It was expected that the only way to show that a service member did not have a propensity was to prove the statement was a joke or that he or she was drunk or had “lost his or her mind.”19