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Posted on Nov 2, 2007 Print this Article

2008 CMR PRESIDENTIAL CANDIDATE SURVEY (BACKGROUND)

2008 CMR PRESIDENTIAL CANDIDATE SURVEY

Background Information and Definitions

1. Overarching Principles and Standard of Review

Americans are proud of the men and women serving in the All-Volunteer Force, who stand between us and enemies who would do us harm. The success of their mission depends on a complex organization that is more demanding than anything in civilian life. This institution, the American military, is undergoing radical organizational and cultural change at the same time.

Officials in command ask courageous men and women to surrender their individuality and independence, many of their personal rights, and sometimes their very lives. The rest of us should lend support by guarding the strength and integrity of the institution in which they serve. Straightforward questions about personnel policies do not constitute criticism of military men and women, who are not responsible for making personnel policies under which they must live and sometimes die. Americans have the right—indeed, the dutyto question flawed assumptions and social engineering that make military life more difficult or more dangerous.

Differences of opinion on controversial personnel issues, such as women in combat or homosexuals in the military, center on the standard of review applied. Some activists expect the military to pay any price and bear any burden to promote careers, equal opportunity, or “diversity” as a primary goal. The Center for Military Readiness advocates high, uncompromised standards and sound priorities that put the needs of the military first.

2. The 1993 Law Stating That Homosexuals Are Not Eligible to Serve in the Military

The statute Congress passed in 1993, identified by its technical name, “ Section 654, Title 10, P.L. 103-160”, is frequently mislabeled “Don’t Ask, Don’t Tell.” The language and legislative intent of the law, however, are entirely different from that concept.

• On July 19, 1993, President Bill Clinton proposed his “Don’t Ask, Don’t Tell” plan to accommodate gays in the military as long as they do not say they are homosexual. However, following twelve comprehensive hearings and field trips, Congress rejected Clinton’s proposed policy with bipartisan, veto-proof majorities. Members correctly recognized that such a policy would be difficult to explain, enforce, or defend in court. Instead, Congress voted to codify Defense Department regulations in effect since 1981.

• The resulting law (Section 654, Title 10) restated fifteen specific findings that are nearly identical to the 1981 Defense Department regulations, which stated unequivocally, “Homosexuality is incompatible with military service.”

Contemporaneous news accounts, which failed to report the language of the law actually passed, mislabeled the statute with Clinton’s catch phrase. “Don’t Ask, Don’t Tell.” A more accurate name would have been the “ Military Personnel Eligibility Act of 1993.”

• Federal courts have upheld the constitutionality of both the pre-Clinton (1981) Defense Department regulations, and the 1993 law that codified them, several times.

• The only “compromise” involved in the process of writing the 1993 law permitted then-President Bill Clinton to continue suspension of “the question” about homosexuality that used to be on induction forms. However, the law authorizes the Secretary of Defense to restore the routine question about homosexuality at any time.

• The law also requires training materials that accurately reflect statutory language and the intent of Congress. Neither the Clinton nor Bush Administrations have complied with that mandate. The resulting confusion has created the often-repeated but inaccurate impression that homosexuals can serve in the military, as long as they do not say they are gay.

• Congress also decided to avoid the vague phrase “sexual orientation,” which was used in Clinton’s proposal. The law is about conduct. Absent unusual circumstances, service members who say they are gay are presumed to engage in the conduct that defines homosexuality.

The law stresses differences between civilian and military life, and recognizes the normal human desire for modesty in sexual matters. To paraphrase the intent in gender-neutral terms, in living conditions of “forced intimacy,” which offer little or no privacy, persons should not have to reveal themselves to personswho might be sexually attracted to them. The same principle applies in matters of privacy between men and women.

• The clear purpose of the law is to foster discipline, unit cohesion, and morale—qualities that are essential for military effectiveness.

• Homosexuals can serve their country in many ways, but they are among many groups that are not eligible to serve in the military.

• Contrary to alleged “national security” arguments for gays in the military, the number of “discharges for homosexuality” is small compared to personnel losses for other reasons, such as drug offenses, weight standards, and pregnancy. That number could be reduced to near zero if the law were accurately explained and defended, without the inherent confusion caused by “Don’t Ask, Don’t Tell.”

“Don’t Ask. Don’t Tell”

On November 30, 1993, President Bill Clinton signed the law stating that homosexuals are not eligible to serve in the military “ (Section 654, Title 10)” . This law frequently is mislabeled “Don’t’ Ask, Don’t Tell,”but that name is not accurate. The catch phrase describes an expendable administrative policy that was imposed on the military with enforcement regulations announced by the Clinton Administration on December 22, 1993.

• Then-Secretary of Defense Les Aspin claimed that the enforcement regulations would implement the policy announced by Clinton on July 19, 1993. That policy, known as “Don’t Ask, Don’t Tell,” stated, “Sexual orientation is considered a personal and private matter, and homosexual orientation is not a bar to service entry or continued service unless manifested by homosexual conduct.” (News Release No. 605-93, announcing DoD Directive No. 1332.14).

• This concept, which Congress had rejected, contrasted sharply with the long-standing DoD principle that “homosexuality is incompatible with military service.”

• Obvious disparities between current law (Section 654, Title 10), and the inconsistent enforcement regulations that the Clinton administration imposed on the military, have caused confusion and controversy ever since.

In 1996 the U.S. Court of Appeals for the Fourth Circuit contradicted the Clinton Administration’s claims that Defense Department policies enforcing “Don’t Ask, Don’t Tell” were “consistent” with the law. In Thomasson v. Perry, (80 F 3d 915, 1996) one of several court rulings upholding the constitutionality of the law, Judge Michael Luttig wrote, “Like the pre-1993 [policy] it codified, [the statute] unambiguously prohibits all known homosexuals from serving in the military.”

In a September 2007 presidential debate in New Hampshire, Sen. Hillary Clinton described Don’t Ask, Don’t Tell” as a “transitional policy.” Former President Clinton’s ultimate goal was to repeal all restrictions on gays in the military.

Unlike the statute, which would require an act of Congress to repeal, the problematic Defense Department policy known as “Don’t Ask, Don’t Tell” can and should be administratively dropped at any time.

3. Regulations and Law Regarding Women in or Near Land Combat

American women in uniform are serving with courage in Iraq and Afghanistan. All personnel, regardless of their specialty, are serving “in harm’s way.” But even without a “front line” in the current war, the missions of “direct ground combat” (DGC) troops have not changed.

• “Direct ground combat” is defined as engaging or attacking the enemy with deliberate offensive action under fire. It is more than self-defense, or the experience of being in danger or “in harm’s way.”

• Direct ground combat battalions below the brigade level, such as the Army and Marine infantry, armor, artillery, and Special Operations Forces that fought to liberate Baghdad in March of 2003 and Fallujah in November 2004, are required by current Defense Department regulations to be all male.

• The same regulations, adopted in 1994, exempt female soldiers from assignment or physical placement in certain support units that “collocate” or embed with direct ground combat battalions 100% of the time. (When a direct ground combat soldier is wounded under fire, the nearest soldier able to immediately lift and carry him to safety may be a mechanic serving in the collocated forward support company (FSC).

• Most brigade-level positions, which are still “in harms’ way” but do not involve constant collocation, are open to both men and women.

Defense Department regulations affecting women, including the collocation rule, were adopted in January 1994 and remain in effect today. Nevertheless, the Department of the Army has been circumventing these regulations, without authorization by the Secretary of Defense.

• In a plan that an Army briefing admitted could be seen as “subterfuge,” female soldiers are assigned (on paper only) to the brigade level, but physically “employed” in support companies that are “attached” to direct ground combat battalions 100% of the time. This practice clearly violates the still-current DoD collocation regulation.

• If Army leaders want to propose changes in the DoD rules, current law requires approval by the Secretary of Defense, who must provide formal notice of proposed changes to Congress at least 30 legislative days (about three months) in advance.

• Current law also requires a report on the effect of proposed rule changes on women’s exemption from Selective Service registration. The Department of Defense has not complied with either of these legally binding requirements.

• A 2005 House Armed Services Committee debate on this issue was suspended when the Defense Department promised a full report on the situation. That task was handed off to the RAND Corporation, which produced a substandard report in August 2007, 17 months beyond the deadline mandated by law. The RAND Report created needless confusion, which appears to condone ongoing violations of policy and law.

• Precedents being set now could be applied incrementally to all direct ground combat battalions, including Army and Marine infantry and Special Operations Forces.

There is no compelling military reason to order female soldiers into or near direct ground combat units where they do not have an “equal opportunity” to survive, or to help fellow soldiers survive.

• According to the Army’s own surveys, conducted over nine years before they were discontinued in 2001, 85-90 percent of enlisted female soldiers were opposed to involuntary assignments in or near ground combat units on the same basis as men. Female enlisted soldiers outnumber female officers five to one.

• Gender-based recruiting quotas, including pressures to keep the percentage of women at the military service academies unnecessarily high, disregard the military’s more pressing need for men for the infantry, Special Operations Forces, and submarines.

• Young men are required to register with Selective Service at age 18, and can face penalties, such as denial of student loans, if they fail to do so. The Supreme Court upheld women’s exemptions from the same obligations, because female soldiers are not used in land combat on the same basis as men. (Rostker v Goldberg, 1981)

• The ACLU has unsuccessfully challenged women’s exemption several times, on behalf of young men. However, if policies regarding the assignment of women in or near direct ground combat units are changed—deliberately or by the actions of unaccountable military officials—a future legal challenge by the ACLU probably would succeed. As a result, women would be subject to Selective Service and military obligations on the same basis as men, without a vote of Congress.

4. Co-Ed Submarine Assignments

In recent years some Navy officials have suggested that the idea of women on submarines, debated and discredited in 2001, should be revisited. Such proposals, usually discussed in terms of “equal opportunity,” ignore the many operational, health, and quality of life issues involved. A comprehensive report done for the Navy by the Science Applications International Corporation (SAIC) described the extremely cramped living conditions on submarines, which would preclude separate quarters for female sailors and officers.

SAIC also analyzed health hazards for the unborn children of pregnant female submariners. The constantly recycled atmosphere of a submarine, which contains significant quantities of elements such as carbon monoxide and carbon dioxide, is safe for adults but unsafe for unborn infants. Unplanned, deep-sea evacuations of female submariners, to avoid birth defects, would be hazardous for all concerned, and harmful to submarine missions.

5. International Treaties

The issue of national sovereignty is central to the debate about the Convention on the Elimination of All Forms of Discrimination Against Women, or CEDAW. If the controversial treaty were ratified, international tribunals administered by the United Nations could issue mandates forcing the American military to eliminate all regulations that treat women differently. These would likely include women’s exemptions from direct ground combat, Special Operations Forces, and submarines.

6. Feminism in the Pentagon

In recent years a series of sex scandals have occurred in the armed forces and at the military service academies. Following numerous commissions, studies, and reports, professional “victim advocates” have pressed for more Defense Department funding of their services.

• Extensive volunteer and professional services already are available at military installations and the service academies, but “victim advocates” have demanded a special power base at the Pentagon. Such an office would be empowered to interfere in complicated, intensely personal matters that are best handled at the local level.

• Because professional feminists consider all men accused of misconduct to be “guilty until proven innocent,” a high-level ”Office of Victim Advocate” (OVA)in the Pentagon would effectively operate as an “Office of Male Bashing.” Such an office would add nothing to the vast array of resources available to any military woman who experiences sexual harassment or abuse.

• In 2005 the Defense Department awarded a $50,000 contract to Wellesley College to evaluate “prospects” for an OVA in the Office of the Secretary of Defense. The confidential proposal was rejected, however, and several bills offered to establish such an office did not emerge from congressional committees.

Prior to 2002, when its original charter was allowed to expire, the Defense Advisory Committee on Women in the Services (DACOWITS) constantly pushed for a wide range of radical proposals, such as women in combat and assignments to submarines.

• Advocates of homosexuals in the military, who demand repeal of the 1993 law, also expect sensitivity training programs and special advisory committees to promote and require full acceptance of their agenda.

• On September 8, 1994, the Clinton Defense Department co-sponsored a day-long “Diversity Day Training Event,” which promoted presented homosexual activists, panel discussions, and controversial films promoting their cause.

The greatest portions of military service budgets are devoted to personnel and family support services. These expenditures are necessary to support stability in military families.

• However, some overly generous benefits, offered to single parents or single recruits with multiple children seeking to join the National Guard, have had the perverse effect of subsidizing and increasing the numbers of single parents.

• Unintended consequences include poverty in the junior enlisted ranks and more long-term separations of deployed parents from vulnerable dependent children.

• Military family policies should be re-assessed, in order to restore a more sensible balance between the needs of the three parties with an interest: a) Parents; b) Field commanders; and 3) Dependent children, whose basic needs have not changed.

* * * * * *

Extensive information on the above issues, and many more, is available on the website of the Center for Military Readiness, www.cmrlink.org. A comprehensive article by CMR President Elaine Donnelly, published in the Duke University Journal of Gender Law and Policy, titled ”Constructing the Co-Ed Military”also is available on request. For more information, please call Elaine Donnelly at 734/464-9430, or CMR Executive Director Tommy Sears at 202/347-5333.

Posted on Nov 2, 2007 Print this Article