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Posted on Jul 4, 2007 Print this Article

CONGRESS REJECTED “DON’T ASK, DON’T TELL”

Legislation dealing with intensely controversial issues does not become law by accident. In the matter of homosexuals in the military, Congress codified the policy in place long before then-President Bill Clinton took office.  Members did not vote to approve Clinton’s controversial “Don’t Ask, Don’t Tell” proposal, because they recognized that it would be difficult to enforce or defend in the federal courts.

Contrary to frequent misstatements of the law then and now, there is no way that bipartisan, veto-proof majorities would have passed a law making it “easier” for homosexuals to serve. Rep. Steve Buyer (R-Ind.), then-Chairman of the House Armed Services (HASC) Personnel Subcommittee, underscored the point in a December 16, 1999, memorandum to his colleagues

“Although some would assert that Section 654 of Title 10, US Code . . embodied the compromise now referred to as “Don’t Ask, Don’t Tell,” there is no evidence to suggest that the Congress believed the new law to be anything other than a continuation of a firm prohibition against military service for homosexuals that had been the historical policy.

“The law, as well as accompanying legislative findings and explanatory report language, makes absolutely clear that known homosexuals, identified based on acts or self admission, must be separated from the military. After extensive testimony and debate, the Congress made a calculated judgment to confirm the continued bar to the service of homosexuals in the military. The case supporting the Congressional position is well documented and compelling.. . . .

“Those that claim that the Don’t Ask, Don’t Tell policy has failed simply do not understand the underlying law. The prospect of a homosexual openly serving in the military was never contemplated by the Congress and any policy that suggests that the military should be receptive to the service of homosexuals is in direct violation of the law.” 1

Judicial Recognition of the Difference”

In 1996, the U.S. Court of Appeals for the Fourth Circuit looked beyond the “Don’t Ask, Don’t Tell” catch-phrase and recognized the difference between Clinton’s policy and the law.2  In a 9-4 decision that denied the appeal of Navy Lt. Paul G. Thomasson, a professed homosexual who wanted to stay in the Navy, U.S. Circuit Judge Michael Luttig wrote about the exclusion law: “Like the pre-1993 [policy] it codifies, [the statute] unambiguously prohibits all known homosexuals from serving in the military . . . .”  

Judge Luttig added that the Clinton Administration “fully understands” that the law and DoD enforcement regulations are inconsistent and has engaged in “repeated mischaracterization of the statute itself . . . .”

Actually overruling the DoD enforcement regulations was not within the purview of the Court.  Still, the Fourth Circuit’s decision in Thomasson, affirming the constitutionality of the law, should have prodded the Administration to correct inconsistencies in its administrative policy.  But this was the Clinton Administration, which was fully committed to accommodating homosexuals in the military, one way or another.

Confusion Caused by “Don’t Ask, Don’t Tell”

The difference between what should be called the “Military Personnel Eligibility Act” and the Clinton enforcement policy explains why factions on both sides of the issue are critical of “Don’t Ask, Don’t Tell.”  Even though Congress rejected, with good reason, the “Don’t Ask, Don’t Tell” concept in 1993, the Clinton Administration inscribed it in enforcement regulations that remain in effect today.

Activists keep complaining that “Don’t Ask, Don’t Tell” does not work.  The most relevant question is, “Work to do what?”  If the goal is to allow homosexuals to serve, Clinton’s permissive “Don’t Ask, Don’t Tell” regulations do not go far enough.  But if the goal is to preserve military morale, discipline, and readiness for combat (and it is), then the Clinton policy goes too far—in the wrong direction.

Describing the law as “Don’t Ask, Don’t Tell” effectively slanders the statute.  The result is widespread confusion and inconsistent enforcement.  When President George W. Bush took his oath of office in 2001, he assumed the obligation to enforce all laws, including the 1993 law regarding homosexual conduct.  President Bush is not obligated to retain the enforcement regulations of his predecessor.  

Because the “Don’t Ask, Don’t Tell” regulations are inconsistent with the law, President Bush should have directed the Secretary of Defense, early in his administration, to eliminate and replace them with enforcement regulations that include the language and truly reflect the intent of the statute.

The Bush Administration also should comply with the section of the 1993 law mandating documents and briefings that accurately describe the statute.  This would help to clear up widespread confusion about potential enlistees’ eligibility to serve, and be a significant improvement over the convoluted instructional materials prepared by the Department of Defense to explain Bill Clinton’s inexplicable “Don’t Ask, Don’t Tell” Policy. 

Activist groups and the Department of Defense should stop misleading young people about their eligibility to serve in the military.  Practicing homosexuals are among many groups of people who may serve their country in many ways but who remain ineligible to serve in uniform.

 

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       [1].    Memorandum from Rep. Steve Buyer to Members of the Republican Conference (Dec. 16, 1999), available here.  

 

       [2].    Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996).

Posted on Jul 4, 2007 Print this Article