Partisan Posturing Creates Presidential Veto-Bait

On July 11, the Democrat-controlled House of Representatives passed a version of the NDAA defense bill that is so bad, not one Republican voted for it.  As reported in The Hill, social issues favored by the LGBT Left were used to “wrangle” enough votes to pass the defense bill without Republican support. [1]

Pork-barrel logrolling is not new, but the practice usually involves only money.  It is even worse to “buy” reluctant votes with harmful social agendas that make military life more difficult and more dangerous.

President Truman and the Transgender Amendment

The most egregious bait for progressive votes was an amendment that Rep. Jackie Speier (D-CA) sponsored to nullify the transgender policy that President Donald Trump established with the advice of Defense Secretary James Mattis in 2018. [2] In a June 27 news release, CMR analyzed and denounced the Speier amendment, which is more extreme than policies previously imposed by President Barack Obama and Defense Secretary Ashton Carter in 2016. [3]

The Speier amendment would accommodate anyone identifying as transgender without steps to change their official “gender marker.”  Some advocates dubbed it the “Truman Amendment,” suggesting similarities with the historic 1948 Executive Order of President Harry Truman, which targeted irrational prejudice in the military with policies mandating non-discrimination and recognition of individual merit.

The gratuitous Truman reference proved too much for Rep. Vicky Hartzler, (R-MO), who rose to denounce the Speier language during floor debate: “Being from Missouri, I think Harry Truman would be shocked that [proponents] would try to name this for him.”

It is unlikely that President Truman would have signed an EO ordering recruitment and retention of persons with physical or psychological conditions known to weaken mission readiness, morale, and combat lethality.  Truman understood warfare and preparation for war to be serious business – not a venue for social experiments and needless burdens that detract from readiness. [4]

LGBT activist groups with different values promoted Speier’s measure as their highest priority goal.  The Democrat-controlled House passed the amendment, 242-187, with the support of ten Republicans.  (Brian Fitzpatrick, PA, Susan Brooks and Trey Hollingsworth of IN, Will Hurd, TX, John Katko, Elise Stefanik, and Tom Reed of NY, Steve Stivers, OH, Fred Upton, MI, and Greg Walden, OR.)

On final passage, however, due to the many unacceptable measures that progressives had loaded into the bill, not a single Republican voted for the NDAA.

Rep. Pramila Jayapal, (D-WA), co-chair of the 90-member Progressive Caucus, voted for the bill, but the four freshman members known as “the squad,” Alexandria Ocasio-Cortez (NY), Rashida Tlaib (MI), Ilhan Omar (MN), and Ayanna Pressley (MA) did not.  The defense bill squeaked by with only 220 votes.

House Republican Whip Steve Scalese (LA) reacted with strong words in a news release:

“It’s really a sad day, as our Leader talked about. We’ve all seen the internal problems within the Democrat conference. But just to appease the far-left socialist radical element, Speaker Pelosi is putting our troops at risk by drafting a bill that breaks with that 58-year tradition of moving a bipartisan NDAA bill that puts our troops first. That should always be the priority. . . Speaker Pelosi needs to heed what the Senate already did [in]. . . passing a [defense] bill with 86 votes. . . .Right now, you look at this NDAA bill on the floor today and it goes in the opposite direction, it goes in a very dangerous direction, not only for our national defense, but undermining the safety and security of our men and women in uniform.” (emphasis added)

Memo to Conference Committee: Fix the NDAA

In the coming weeks, staff and leaders of the House and Senate Armed Services Committees will meet in conference to iron out differences and produce a final defense authorization bill.  If the Speier amendment and several more harmful proposals somehow survive that process, President Trump would be justified in vetoing the entire defense bill, forcing Congress to fix it.

As CMR noted in a pre-vote analysis of problematic proposals, [5]  the Speier amendment:

“Requires that qualifications for eligibility to serve in an armed force account only for the ability of an individual to meet gender-neutral occupational standards and not include any criteria relating to the race, color, national origin, religion, or sex (including gender identity or sexual orientation) of an individual.”

Primary objections center on this section of the amendment, with emphasis on the words in bold: 

‘‘(c) GENDER IDENTITY DEFINED.  -- In this section, the term ‘gender identity’ means the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.’’

Contrary to claims from Rep. Speier and others, the Trump/Mattis Policy regarding transgender personnel is not based on gender identity and it does not bar enlistment or retention of transgenders as a class.

The policy is based on a medical condition, gender dysphoria, which requires compassion and competent medical care.  Because gender dysphoria affects personal readiness to deploy and other factors, it is one of many conditions that disqualify individuals from military service.  (Non-discrimination categories do not include medical conditions that affect personal readiness to deploy and serve in the armed forces.)

The Speier amendment would nullify a key element of the Trump/Mattis policy, which states that after being stable for at least 36 months, military persons identifying as transgender are expected “to adhere to all applicable standards, including the standards associated with their biological sex.” [6]

Aside from the clause’s peculiar stereotyping, approval of this language would put the Congress on record in favor of the unscientific theory that gender is ‘designated’ or ‘assigned’ at birth.  The notion defies scientific reality, since gender is naturally determined long before birth, in human DNA that exists from the moment of conception in every cell of a person’s body.

The Speier amendment also would enforce universal application in all personnel policies:

‘‘(b) EQUALITY OF TREATMENT IN SERVICE.—Any personnel policy developed or implemented by the Department of Defense with respect to members of the armed forces shall ensure equality of treatment and opportunity for all persons in the armed forces, without regard to race, color, national origin, religion, and sex (including gender identity and sexual orientation).”

This open-ended language could reinstate many problems that the Defense Department identified in a 6-month study by a panel of experts. [7]  For example, the legislation would mandate:

• Directives ordering military doctors and nurses to provide expensive, long-term hormone or surgical treatments for persons identifying as transgender, regardless of concerns about medical ethics and deeply held personal convictions.  (Transgender activist groups are demanding coverage for veterans and dependent children as well.)

• “Equal opportunity” for biological men to have access to private sleeping, bathroom, and shower facilities that are currently reserved for women.

• The end of separate-gender athletic teams at all military service academies, colleges, and schools for dependent children.  (Military restrictions on personal freedom would make these controversies worse than they are now in civilian schools and athletic teams.)

• Violations of rights of religious liberty for chaplains and people of faith.

• Forced acceptance of LGBT ideology in all military training and educational programs, including mandatory use of ‘preferred’ gender pronouns that are inconsistent with biological sex. [8]

• Escalating rates of suicide, which the comprehensive Defense Department study (analyzed by CMR) found to be eight to nine times higher among persons with gender dysphoria, compared to other servicemembers.

• Liberalized personal conduct rules to accommodate unusual forms of sexual expression by both men and women while off-duty. [9]

• Higher medical costs for persons undergoing treatments for gender dysphoria, which the Defense Department study found to have increased by nearly three times (300%) with 30,000 mental health visits that affected readiness to deploy.

• Negative effects on recruitment and retention of personnel and families in the All-Volunteer Force.

Unintended Consequences

In addition, the legislation as written would serve as grounds to eliminate virtually all enlistment requirements, provided that a person meets “gender-neutral occupational standards.”  Instead of retaining high, uncompromised standards that strengthen personal readiness in deployable units, the military would face a logistical nightmare.

The Speier amendment would treat the military like any other “equal opportunity employer,” mandating "gender-neutral standards" for every position and evaluations of individual enlistees against the specific job requirements of each person’s desired MOS.

Conceivably, a 15-year-old recruit could enlist if someone decides that he or she can do whatever the desired MOS requires.  If elections were run that way, 12-year-olds claiming to be smarter than 18-year-olds could vote.

Surreptitious Move to Take “EO” to Extremes

Supporters of the Speier amendment have claimed that the proposed statutory change would simply codify language already present in a Defense Department Directive that includes “gender identity” with long-standing non-discrimination categories. [10]

The truth is that on November 29, 2016 – after President Trump won the election – the Obama/Carter Defense Department added the phrase “including gender identity” to the referenced Defense Department Directive.  This move, going beyond the policies imposed by Secretary Carter on June 30, 2016, constituted a “poison pill” problem left behind by the outgoing Obama Administration.

More Veto-Bait in the NDAA

Fourteen defense bill amendments that CMR had analyzed and flagged for opposition were submitted to the House Rules Committee, but most were not cleared for action on the floor. [11] On July 11 and 12, the House voted on more than 400 amendments, many of which were in block packages approved with voice votes.

One of these was an amendment sponsored by LGBT activist and Progressive Caucus Co-Chair Rep. Mark Pocan (D-WI), which would require a review of dishonorable discharges awarded to personnel “because of their sexual orientation,” and to change the discharge characterizations from dishonorable to honorable. [12]

Never mind that no one in the history of our military has ever received a dishonorable discharge “because of their sexual orientation.”  "Being" a homosexual was not a crime under the UCMJ, and personnel who became ineligible due to homosexual conduct received honorable discharges. 

The only people who would benefit from codification of the Pocan language would be persons who received dishonorable discharges after being court-martialed and convicted beyond a reasonable doubt of some punitive offense under the UCMJ. [13]

Senate Bill Not Perfect, But Better

Democrats serving in the Republican-controlled Senate Armed Services Committee, now chaired by James Inhofe (R-OK), also offered several unacceptable amendments that CMR analyzed prior to closed-door votes. [14]  The most contentious of these centered on perennial legislation sponsored by Sen. Kirsten Gillibrand (D-NY), which would remove jurisdiction for cases involving sexual assault from the military chain of command.

The Senate rejected the Gillibrand approach and instead approved most elements of legislation sponsored by Sen. Martha McSally (R-AZ).  The McSally language dealing with sexual assault would enact more protections for persons accused of misconduct as well as for accusers.

CMR remains concerned about “Safe to Report” language that appears in both the House and Senate bills, encouraging adoption of Air Force practices that shield accusers from punishments for their own “minor collateral misconduct.”

Specific examples in the bill include factors that are known to increase misconduct, both voluntary and involuntary: alcohol, consensual intimate behavior, adultery or fraternization, presence in off-limits areas, and other misconduct specified in regulations.

If a person engaging in these behaviors can count on effective immunity, it would seem that deterrence against these behaviors would be weakened.  And in some cases, the lack of accountability for self-serving accusations following consensual misconduct would increase risks of injustice for the accused.  (CMR has asked for more information on how “Safe to Report” policies work in the Air Force.)

CMR’s preliminary analysis also warned of legal consequences that could ensue if the NDAA added a punitive article to the UCMJ punishing “sexual harassment.”  Conduct that is sexually abusive and harassing already is punishable, but there needs to be more precision in the proposed legislative language.

Statutes have been declared unconstitutional under the Due Process clause if they failed to provide “fair notice” of criminalized conduct.  A lawsuit filed by the first person accused of vague “unwelcome” gestures or comments of a sexual nature might be successful, taking everything back to square one.

The Senate bill calls for a study and report to consider ways to improve the legislative effort.  As CMR stated in advance, problems with military sexual assaults are getting worse, so it is important to get this right.

Mr. President: Just Say “No”

James Carafano, Vice President of Foreign and Defense Policy Studies at the Heritage Foundation predicted that partisanship and posturing in the House would make a mess of the NDAA for 2020.  Since the Cold War, wrote Carafano, Congress has hammered out defense authorization bills, year after year, putting aside partisan vitriol to reach agreement on national defense policy. “Now, unfortunately, that record run of achievement may be broken.” [15]

To restore sound priorities and get the job done, President Trump should veto the bill and force Congress to start over.