In a memo to President Clinton that same fateful week in July, Attorney General Janet Reno explained the legal purpose of the rebuttable-presumption clause. “First Amendment problems would arise,” wrote Reno, “if the policy proscribed certain speech, in and of itself.” But the “meaningful opportunity to rebut the presumption flowing from statements of homosexuality,” wrote Reno, meant the government would be “better able to argue that the policy is not directed at speech or expressions itself,” only conduct. “Meaningful opportunity”? It was never meaningful to begin with, and whatever opportunity might have existed was just killed by the Miller memo. Now, a declaration (or revelation) of homosexuality would leave a person no way to rebut the presumption that he was likely to engage in gay sex short of some form of unidentifiable, intangible, perhaps miraculous assurance to a discharge board that the definition of a homosexual somehow did not apply to him. Over the next twelve years, lawyers defending gay service members said they could count on one hand the number of times someone had been able to avoid a discharge based on rebutting the presumption, and they theorized that the only thing explaining the success of those few cases was an effort by the military to show the world (and the courts) that the rebuttable presumption was not the total farce that it was.20
If a federal regulation can lie, this one does. While lawyers can argue that “don’t ask, don’t tell” targets only conduct, it clearly targets status. In fact, with the help of the rebuttable presumption and the propensity clause, the policy defines conduct so broadly that it makes a mockery of the distinction between conduct and status. And this was the point. After all, the fundamental rationale for “don’t ask, don’t tell” was that many heterosexuals become uncomfortable once they know that a coworker is gay, as they don’t wish to be the object of homosexual desire. As explained by Charles Moskos and echoed by Colin Powell, it was “the presence of homosexuals in the force” (i.e., not what they did but their very existence) that invaded the privacy of straight troops and thereby impaired unit cohesion.21 Hence it is the presence of same-sex desire itself—not conduct, but the mere possibility of feelings—that military leaders have said is a danger to the armed forces. This is why the law bars “persons who demonstrate a propensity or intent to engage” in homosexual conduct: No matter how the lawyers spin it, at heart “don’t ask, don’t tell” bans gay people for who they are, not what they do.
Given this concern, the only sensible policy response would have been to ban gay people, not just gay conduct. And despite the efforts of Clinton, Powell, Aspin, and innumerable lawyers to suggest otherwise, that’s effectively what the policy has done. As we’ll see in a string of sordid tales of dubious discharges, gay soldiers have routinely been booted not for anything they did but simply because it was impossible, at one time or another, for them to conceal the fact that they were gay—either for deeply personal reasons that prompted a “statement” or because those around them knew, guessed, or suspected their sexuality and threatened them or turned them in. For those eternal optimists who still insisted—or wanted to believe—that the policy only punished conduct, not orientation, the 1995 Miller memo finally squashed the phony distinction between status and conduct.
This sad truth is further revealed by a curious exemption for straight people, known colloquially as “Queen for a Day.” It stipulates that a service member “shall be separated” if he or she engages in homosexual conduct “unless . . . such conduct is a departure from the member’s usual and customary behavior” and it is “unlikely to recur.” This can only be interpreted in one way: On occasion, it is okay for straight people to engage in same-sex behavior. Homosexual “conduct” is not banned for heterosexual people, because when heterosexuals engage in homosexual conduct, it’s not a threat. At the same time, gay people are fired for even mentioning to a psychologist that they’ve experienced same-sex desire, whether or not they’ve ever engaged in actual homosexual conduct. A gay virgin, who’s never had sex with so much as a worm, can be fired merely for saying he is gay; meanwhile the ship’s Romeo who downs a bottle of Jack Daniel’s at sea and stumbles in a one-night “homosexual lapse” can go right on serving.
The tangle of legal maneuvers, memos, and regulations effectively sabotaged what was already a bad policy and worsened the consequences for gay and lesbian service members. Between complaints by watchdog organizations and defenses by the Pentagon, there lies continued uncertainty about whether these invasive techniques are actually violations of the policy or exactly what the policy allows. Legal challenges have, by and large, defended the military’s actions as consistent with the law and have upheld the law as consistent with the Constitution. But by all accounts the witch hunts, seizures of private possessions, security clearance denials and delays, and outings by counselors, doctors, and clergy were not what the politicians promised, and not what a military leader such as Colin Powell publicly supported when he signed onto the policy, saying, “We will not ask, we will not witch hunt, we will not seek to learn orientation.”22 As byzantine as the policy is, some things are quite clear: Commanders are not allowed to ask, and no one is allowed to harass.
Yet hundreds of indisputable violations of the policy’s strictures against asking, pursuing, and harassing have been documented each year since 1994. The Servicemembers Legal Defense Network (SLDN), a watchdog and legal aid organization that has monitored the effects of the policy since its inception, reported 340 command violations (perpetrated by the military) in the first year alone, including 15 actual or attempted witch hunts and 10 death threats to service members for perceived homosexuality. For the first three years, SLDN documented 1,146 violations, with the number increasing each year. The abuses have ranged from the purposeful to the neglectful to the vicious. Examples documented by SLDN include the continued use of outdated documents asking recruits if they were gay (as late as 2002, the air force was found to be using a fifteen-year-old form that asked recruits, “Are you homosexual or bisexual?”); routine flouting of the “don’t ask” principle by simply asking service members, “Are you gay?” or substitute questions such as, for men, “Do you find men attractive?”; violating the prohibition on asking about sexual identity in security clearance inquiries by asking if applicants are in “a physical relationship” with a roommate of the same sex; and mocking “don’t ask” with questions such as, “I’m not going to ask you if you’re homosexual, but if I did ask, how would you respond?”23
Sometimes the questions were hostile. A chief of boat shouted to a sailor, “You [sic] not going to tell me you’re a fucking faggot, are you?” A Marine Corps recruiter said, “Because of President Clinton’s new policy, I can’t ask you if you’re a fag. So I’ll just ask if you suck cock.” Other times the hostility was less overt but with the same effect, as when an officer told a woman under his command, “I know you’re a lesbian,” leaving her tongue-tied and unsure of the consequence of his statement. Still other times, the sheer repetition of infractions wore troops down and out. At Lackland Air Force Base in San Antonio, where some of the worst and highest number of violations took place, unit members asked an airman if he was gay so many times that he simply acknowledged the truth—and lost his job. A sailor was asked if she had “ever told anyone on the ship that you are gay.” Despite the blatant violation the question constituted, her captain threatened her with criminal prosecution if she did not answer the question or if she made false statements. The threat itself was also completely forbidden under the policy, but the pressure was too much for the sailor, who admitted she was a lesbian and was quickly thrown out.24
The limits on pursuits have been even more flagrantly ignored. Investigators have seized letters, diaries, books, magazines, computers, even posters of lesbian singers, including Melissa Etheridge and k.d. lang, in an effort to determine service members’ sexuality and past history. In 1996, an air force major was investigated on criminal charges of sodomy after the clerk at the local MotoPhoto store saw fit to make an extra copy of his pictu
res—nothing sexual, just the major with his arm around another man—and sent them to the Office of Special Investigations. In the navy, a commander read through the medical records of one sailor and started discharge proceedings after noticing treatment of a medical condition associated with gay men. For the discharge investigation of a Marine Corps corporal, inquiry officers counted among admissible evidence attendance at the Dinah Shore golf tournament and buying Anne Rice novels. Such unfounded extrapolations from the slimmest bits of “evidence,” such wild and groundless speculation based on nothing but stereotypes, were clearly violations of “don’t pursue.”25
When Airman Sonya Harden was investigated, the “credible evidence” that began the process was the charge of a third-party accuser who was in an ongoing quarrel with Harden over money. Harden insisted she was straight and brought ex-boyfriends to testify on her behalf. Eventually, her accuser admitted she was lying. Harden was discharged anyway, despite the recanted charge and the testimony of ex-boyfriends.26
The misuse, abuse, and neglect of evidence in discharge proceedings should come as no surprise given the makeup of many of the discharge boards. In reviews of colonels who were up for board of inquiry spots, one said, “I think homosexuals are immoral.” Another said he thought they “have either a physiological or psychological problem as deviant from society.” A third said, “My religious beliefs are against homosexuality.” The three colonels were placed on the board. “I think it would be hard to find three board members that would have an opinion different from those already expressed,” commented the lieutenant colonel responsible for choosing the board.27
With such attitudes rampant throughout the military leadership, suspected and accused service members rarely stood a chance. But if violations of “don’t pursue” referred to overzealous investigations of friends and family on flimsy evidence, full-scale witch hunts were used to describe expanding webs of inquiry that sought to pressure military members to turn one another in by naming names. The notorious witch hunts were rampant in the years prior to the “don’t ask” policy and were a major impetus behind reform, with its promises of a “zone of privacy.” But throughout the 1990s, little changed, and in some ways, things got worse: The venomous rhetoric of the cultural and political debate around gay service, together with the bitterness felt by many in the military who resented what they perceived as the imposition of social change by military outsiders, raised temperatures on this issue and injected a new fear into the situation: Who among us might be gay?
The U.S. Military Academy at West Point is the elite training ground for army officers. Like all military commands, West Point has extensive counseling available to ensure the well-being of service members. So when Cadet Nikki Galvan’s mother died, an academy counselor was available to help her deal with her grief and suggested she keep a journal as part of her mourning process. In it, Galvan confided, or so she thought, about a number of very private emotions she was facing, and one of these was her sexuality. Not long after she started her journal, she was asked by her lieutenant colonel point-blank—in front of four other cadets—if she was a lesbian. Instead of answering, Galvan submitted a complaint. But rather than taking action against the improper questioning of Galvan, the army seized her personal diary and private e-mails under a pretext that officials were investigating a reported “disturbance in the ranks.” An investigation ensued; the report states that Galvan violated regulations “by making various statements in her diary indicating a propensity or intent to engage in homosexual acts or conduct.” Galvan said she felt “violated and humiliated,” and that her friends stopped talking to her out of fear they would be suspected of being gay. “My cadet life became unbearable,” she remembered. Facing a discharge, Galvin resigned. West Point tried to recoup $100,000 in tuition funds, based on failing to honor the service obligation that cadets incur by attending for free. Her departure ended an excruciating ordeal for her, but marked just the beginning for West Point, where officials expanded the investigation into an outright witch hunt that took aim at thirty other women at the academy.28
The West Point witch hunt was more the rule than the exception. In the spring of 1994, military investigators interrogated over twenty Marines about their sexual orientation. One was thrown in a military jail for over a month. Another had his bed turned on its side, his private possessions ransacked, and his personal computer confiscated. The navy admitted the next year that it had engaged in a witch hunt, but—with no punishment for wrongful investigations—no one in the military was held accountable or suffered any consequences, besides the Marine who languished in the brig for a month of his life and the rest of the troops who were terrified into a state of permanent insecurity.29
Later that same year, a young soldier serving in South Korea endured a horrendous ordeal when she was assaulted by a group of male soldiers who also threatened to rape her. Her resistance prompted her attackers to spread lies that she was a lesbian. This lesbian-baiting is one of the most troubling abuses of the gay ban (some men, no doubt, have convinced themselves that any woman who refuses their charms must not be straight). Again and again, female service members who report harassment, even rape, end up the target of threatened and actual investigations into their sexuality. And several of these victims, like the soldier in South Korea, were straight. When she reported the incident, her commanding officer turned on her, accusing her of being gay and threatening her with prison if she did not admit it and identify other service members suspected of being gay. A military judge dismissed the charges for lack of evidence, but her commander would not let up, starting administrative discharge proceedings against her. Only after enormous legal intervention by SLDN and great financial cost to the soldier’s family did the army relent, allowing the harrowing experience to end with a delayed transfer to a new command.30
One of the largest witch hunts unfolded in Sardinia, Italy, early in 1996, aboard the USS Simon Lake. Prompted by questions directed at Seaman Amy Barnes, navy personnel expanded their inquiry to encompass a shocking sixty women on the ship. In sworn affidavits, sailors alleged that the navy intimidated, threatened, and harassed them in an effort to force them to out themselves or others. “If you do not tell the truth, you will go to jail for ten to fifteen years,” one investigator told Heather Hilbun, before she was grilled on her own sexuality and that of six other named women. “Command Investigators threatened and intimidated me into giving involuntary statements,” testified another, “by telling me I would be violating Article 78 of the Uniform Code of Military Justice and would go to jail if I did not answer their questions.” The sailor commented that “being forced into giving statements which had the potential to be used against RMSN Barnes, who is my friend, was extremely upsetting.” Unchastened, the navy argued in court that service members had “no legal basis upon which to challenge” the extraordinary scope of the investigation, as the current rules “create no enforceable rights” for those who get caught in the military’s intrusive net.31
During the same period in early 1996, the air force showed exactly what their priorities were in the age of “don’t ask, don’t tell.” Airman Bryan Harris faced life in prison, accused of rape of another man and other charges. Because Harris was gay, his sex life was seen as an invitation for investigators to catch other gays in the military—even if it meant reducing his punishment for a real crime in exchange for learning the names of men who simply happened to be gay. Late in January, air force lawyers struck a deal with Harris: a twenty-month sentence if he named all the men he had had sex with in the military. Of the seventeen men he named, five were in the air force and each was promptly rounded up and charged with homosexual conduct. (The rest were in other service branches.) Questions in the air force investigations into Harris’s peers included asking coworkers if they would be “surprised to find out that” the airmen were gay, if the airmen ever talked about women, “you know, the way men talk about women,” where and with whom the airmen hung out, and if it would seem �
�unusual” for the airmen not to have girlfriends—all bald violations of guidelines restricting questions about orientation or about events outside the circumstances in question. Four were fired. The fifth was court-martialed in a criminal trial and threatened by officials that he could get thirty years in prison—for consensual sex with another man. Eventually he was allowed to leave the military without serving jail time.32
THE CULTURE OF the military throughout the 1990s—largely unchanged from previous decades—was one that lazily exploited anti-gay and anti-female sentiment to bolster feelings of male vigor and machismo that were, for centuries, felt to be central to warrior success. Yet it is the demeaning behavior encouraged by these beliefs—not the private lives of gays and lesbians—that, in the modern age, is damaging to morale and unit cohesion. Under “don’t ask, don’t tell” such behavior meant not only neglecting promises to end proactive pursuits and harassment of any kind, but avoiding the hard work of properly enforcing a bad policy. Instead a climate of fear was allowed to run rampant, chasing women and gays away or keeping them quiet and compliant.
One chief warrant officer put it this way: “To be the victim of sexual harassment is, in its own right, one of the most degrading and emotionally injurious positions one can be placed in, especially in the military. But to be blackmailed for supposedly being a lesbian so that sexual harassment can continue goes beyond the pale.” Another warrant officer agreed: “The ever-present threat of an investigation into our private lives that is designed to keep us quiet is doing just that. Very few women will publicly address these issues for fear of the repercussions. I regret that I am unable to identity myself, for fear of setting off a new round of rumors and speculations that I am a lesbian,” and facing discharge.33
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