Military Can Manage ‘Don’t Ask’ Repeal

By Karen Parrish
American Forces Press Service

WASHINGTON, Dec. 2, 2010 – The military can deal effectively with allowing openly gay servicemembers in its ranks, leaders of a working group that studied the issue for the Defense Department told the Senate Armed Services Committee today.

Group co-chairs Gen. Carter F. Ham, commander of U.S. Army Europe, and Jeh C. Johnson, DOD general counsel, testified along with Defense Secretary Robert M. Gates and Navy Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, in a hearing about possible repeal of the so-called “Don’t Ask, Don’t Tell” law.

“After nine months of study, I am convinced that if the law changes, the United States military can do this, even in a time of war,” Ham said.

The department released the report on effects of possible repeal and an accompanying implementation plan Nov. 30.

Ham said he doesn’t underestimate the challenges that would come with implementing a change in the law, but added that servicemembers can adapt to such change while accomplishing the nation’s military missions.

“I came to this conclusion not only as a co-chair of the Department of Defense review, but perhaps more importantly, as the commander of U.S. Army forces in Europe,” Ham said. “I was cognizant every day of this review that I might actually have to lead the changes included in our report. As a serving commander, I am confident that if this law changes, I and the leaders with whom I serve can do just that.”

Johnson said the working group’s basic assessment was that “our military can make this change, provided we do so in an orderly and reasonable manner, in accord with the recommendations for implementation we offer in our report.” He cautioned committee members that leaving the repeal decision in the hands of the courts could damage the military’s capability to manage the change.

“From where I sit as the lawyer for the Department of Defense, the virtue of the legislation pending before the Senate is that, if passed, repeal of Don't Ask, Don't Tell will be done on our terms and our timetable, upon the advice of our military leadership,” he said.

Johnson said the report makes clear that the military must address many issues with regard to a repeal of the “Don’t Ask” law, such as “education and training, the core messages to be delivered as part of education and training, same-sex partner benefits, berthing and billeting, a policy on re-accession, related changes to the [Uniform Code of Military Justice], and so forth.”

The fact that litigation on gay rights matters has increased is undeniable, Johnson told the Senate panel.

“Since 2003, when the Supreme Court decided Lawrence vs. Texas, the courts have become increasingly receptive to gay rights claims,” he said. “Within the last year alone, federal district courts have for the first time declared California’s gay marriage ban, the federal Defense of Marriage Act, and ‘Don’t Ask Don’t Tell’ all unconstitutional.”

The Defense Department must face the possibility of implementing the change “on the terms and timetable of a court and a plaintiff” if a court strikes down the law, Johnson said. A flurry of court actions on the law in October and November demonstrated possible consequences of repeal through court rulings, he noted. A federal district judge ordered suspension of the law Oct. 12, the appellate court issued a temporary stay of that injunction Oct. 20, the 9th Circuit Court agreed to keep the stay in place Nov. 1, and the Supreme Court denied a request to overturn the stay Nov. 12.

“In the space of eight days, we had to shift course on the worldwide enforcement of the law twice, and in the space of a month faced the possibility of shifting course four different times,” Johnson said. “Our plea to the Congress is to not leave the fate of this law to the courts.”

Gates and Mullen both have said they would not certify the military as ready to implement a change in law until the department can prepare post-repeal policies and regulations and has begun to educate and train the force, Johnson said. Legislation passed by the House of Representatives and now before the Senate requires that the president, the defense secretary and the Joint Chiefs chairman must certify the military’s readiness to make the change before repeal would take effect.

“In all likelihood, this will not be possible if repeal is imposed upon us by judicial fiat,” Johnson said. “For these reasons, we urge that the Senate act now on the pending legislation.”