We have an update on the story about the Obama DOJ’s outrageous misuse and distortion of the expert testimony of DADT repeal proponents from The Palm Center in its brief in support of a motion for summary judgment in the case of Log Cabin Republicans v. United States. The LCR attorneys now plan to use new depositions by Belkin and Frank in its response to the DOJ brief.

The Blend has obtained these statements from Palm scholars Dr. Aaron Belkin and Dr. Nathaniel Frank:

The lawsuit seeks to overturn the ban on openly gay service. The DOJ brief claims that the testimony of Belkin and Frank “acknowledged that Congress could rationally have considered the privacy and sexual tension rationales in enacting” DADT. The “privacy rationale” claims that service member concerns over the invasion of their privacy by serving with known gays constitutes a rationale basis for the policy, a standard looked at by courts in determining whether the law is constitutional. Yet both Belkin and Frank have long maintained, including in their testimonies, that despite the existence of such concerns, they do not constitute a rational basis for DADT since research shows that such concerns do not translate into impaired cohesion, readiness, or effectiveness. Below are statements by Belkin and Frank responding to this week’s DOJ brief.

Dr. Aaron Belkin, Director of Palm and Associate Professor of Political Science, University of California, Santa Barbara:

The DOJ totally misconstrued what I said about privacy in my deposition. Its lawyers have been utterly disingenuous about my statements in suggesting that I claimed there is a rational basis for the privacy arguments; I claimed no such thing. As I have been arguing for a decade, it is absolutely true that some service members are uncomfortable in the presence of gay troops, but that simply does not constitute a rational basis for DADT. Gays and lesbians are already serving with straight service members, and the conditions in the barracks and the showers are not going to change after the repeal of the ban. If anything, the current policy exacerbates privacy concerns because it allows gays to serve but bars troops from knowing which of their peers are gay. If the Obama administration lawyers think that my remarks in any way constitute an acknowledgement of the rational basis for the privacy rationale, then they need a new legal team.”

Dr. Nathaniel Frank, Senior Research Fellow at Palm and author of Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America:

I’m not sure that any person in good faith hearing what I had to say could conclude what the DOJ concluded in their request for summary judgment. Read the transcript. What I say is that having a concern about privacy is not irrational. But nowhere do I say that such concerns constitute a rational basis to discriminate against gays, anymore than concerns about red-haired troops would rationally justify banning red heads. What I also say is that even Gen. Powell’s now-17-year-old remarks about privacy in the force make no sense as a defense of the gay ban. To the contrary, Powell correctly explains that military service is all about sacrificing privacy. How can you justify banning open gays to preserve privacy that doesn’t exist?

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In my earlier post, “NYT: Secretary of Army says he won’t pursue DADT discharges,” we discussed this statement:

The Secretary of the Army, John M. McHugh, said Wednesday that he was effectively ignoring the “don’t ask, don’t tell” law because he had no intention of pursuing discharges of active-duty service members who have recently told him that they are gay.

As I noted at the time, this was a positive comment, but clearly not a policy change, and if I were in the closet this would in no way signal the ability to come out of the closet. Alex Nicholson, Executive Director, Servicemembers United, said:

“It is my impression from reading Secretary McHugh’s comments that he doesn’t intend there to be an Army-wide moratorium on DADT discharges, but rather he does not plan to pursue the discharge of anyone who has in effect come out to him during the course of his own personal engagement of Army personnel on this policy issue. I think the media needs to make an extra careful effort to get this, and other stories like this, right, since many active duty servicemembers may very likely come across this coverage at some point and since some may get the mistaken impression that it is ok to serve openly in the Army now. I didn’t take McHugh’s comments to be authorizing an Army-wide moratorium, and I think clarification from both the Army and the media is critical.”

And yes, that clarification came out right quick, since McHugh’s apparent softening on enforcement of DADT caused a stir. From Reuters, “U.S. Army backtracks on gay discharges, no moratorium“: The secretary of the U.S. Army publicly corrected himself on Thursday about his assertion that there was a moratorium on discharging gays from the military, saying he had been mistaken.

McHugh said on Wednesday that he felt pursuing disciplinary action against gay soldiers who had spoken to him “openly and honestly” seemed counter-productive, since he had been tasked to get the pulse of troops about potentially ending the ban.

But on Thursday, McHugh said he should have behaved differently given that “don’t ask, don’t tell” is still in force.

I might better have counseled them that statements about their sexual orientation could not be treated as confidential and could result in their separation (from the Army) under the law,” said McHugh, who was appointed by Obama.

With that in mind, The Palm Center released a statement that makes it clear that McHugh’s earlier statement gives no Army service members cover if they outed themselves to him:

“Whatever good intentions senior officials like Secretary McHugh and others may have, the truth is that the way the law currently stands, service members do not have protection from later enforcement of the policy. There are ways to legally make that happen and to give Secretary McHugh and others the ability to stand by their word, but right now, if a service member ‘tells’ during the review process, or if a straight service member ‘outs’ a lesbian or gay colleague, a ‘don’t ask, don’t tell’ discharge can still commence.

“When the issue is a guarantee of immunity to service members who may be ‘outed’ as a result of the study process, one needs to be able to point to something in the law or regulation itself that limits what otherwise would be a commander’s full discretion to enforce. Without it, lawyers would not be comfortable advising service members to speak freely.

“In order to ensure that the Working Group gets full, candid information from its ongoing review, the Secretary should revise the Department’s implementing regulations to expressly reference the ongoing review and prohibit commanders from using information disclosed as a direct or indirect result of the Working Group’s activities to enforce ‘don’t ask, don’t tell.’ This would create the firmest guarantee of protection that DOD itself can make without the involvement of Congress. Anything short of that exposes gay service members to some risk of separation, notwithstanding the good faith of the Working Group.”

Palm has also issued a memorandum, written by Legal Co-Director of the Palm Center, Diane Mazur, describing the risks to all service members in speaking openly to the Pentagon Working Group, and outlining steps the Pentagon could take to mitigate those risks. The memo is below the fold.

Memo for the Pentagon Working Group

Encouraging Candid Communications From Service Members While Mitigating Risk of Separation Under “Don’t Ask, Don’t Tell”

By Diane H. Mazur,

Legal Co-Director, Palm Center, and Professor of Law, University of Florida, Levin College of Law

April 1, 2010

The Pentagon Working Group (PWG) has recognized the dilemma of obtaining candid information from military members about “don’t ask, don’t tell” when communication of that information could lead to investigation and separation under the policy. If service members reveal they are gay during the review process, they have made a statement concerning their sexual orientation that is prohibited by 10 U.S.C. § 654 (b)(2). The impact of “don’t ask, don’t tell” on the accuracy of the review process, however, is even greater than its role in discouraging candid communication from gay service members; straight service members must also consider whether talking about their experience serving with gay colleagues will expose someone to risk of separation by revealing knowledge of prior statements, conduct, or marriages that are also prohibited under § 654 (b). It’s not only the statements that gay service members (whether openly gay or not) may make to researchers that potentially put them at risk of separation. The full range of information shared by any service member concerning their knowledge of prior conversations, events, or relationships may also put persons at risk of separation.

This risk also impacts the usefulness and accuracy of the study process itself. If gay service members believe they cannot speak freely without legal risk, the PWG will be denied information important to the task. If straight service members suspect that their disclosures could be used to identify gay colleagues, they may choose to speak guardedly, vaguely, or not at all. The PWG would receive a false picture of how information about sexual orientation is already being handled within the military. In addition, the more the PWG attempts to address the risk by stripping out information that could possibly be used to identify a gay service member (places, times, units, colleagues, etc.), the less value it will have for purposes of the study.

The PWG does not intend that candid communication with researchers should trigger investigation and separation under “don’t ask, don’t tell,” and it will likely assure persons interviewed that their statements will not be used for that purpose, as Secretary of the Army, John McHugh has recently done. Yet the PWG has no legal authority to grant protection from later enforcement of the policy. This is not a promise the PWG has the power to keep, whatever good intentions they may have. Service members have no legal assurance that researchers will maintain confidentiality of information throughout the review process, and they have no legal assurance that information subsequently coming to the attention of commanders, whether first-, second-, or third-hand, will not be used to enforce the policy. When the issue is a guarantee of immunity to service members who may be “outed” as a result of the study process, one needs to be able to point to something in the law or regulation itself that limits what otherwise would be a commander’s full discretion to enforce. Without it, lawyers would not be comfortable advising service members to speak freely.

The PWG is operating under a statutory and regulatory regime that grants great discretion to military commanders in enforcing “don’t ask, don’t tell.” Many commanders will understand the importance of immunity for candid disclosures and will act accordingly if they learn of those disclosures, but some will not. In order to protect service members from the review process and the information it generates, immunity must be expressly granted under the authority of the statute or its implementing regulations. Anything short of that exposes gay service members to some risk of separation, notwithstanding the good faith of the PWG.

The Secretary of Defense has authority under § 654 to devise implementing regulations for the enforcement of the policy (“under regulations prescribed by the Secretary of Defense”). The Secretary has just completed a review of those regulations in an effort to modify enforcement in a manner that is fairer to service members and more legally defensible under the Constitution. In order to ensure that the PWG gets full, candid information from its ongoing review, the Secretary should also revise the Department’s implementing regulations (DODI 1332.14; DODI 1332.30) to expressly reference the ongoing review and prohibit commanders from using information disclosed as a direct or indirect result of the PWG’s activities to enforce “don’t ask, don’t tell.” He should issue clear regulatory direction prohibiting commanders from relying on same-sex statements, conduct, or marriages that become known as a direct or indirect result of study activities for purposes of either initiating investigation or supporting separation. This is the firmest guarantee of protection that DOD itself can make without the involvement of Congress. Without a change to the regulations that specifically addresses use of this information, the matter is left to an individual commander’s discretion.

The implementing regulations already control the use of information by commanders in “don’t ask, don’t tell” proceedings, and therefore this new regulation would not be novel. The regulations have always prohibited commanders from initiating investigations under § 654 based on information that was not “credible” or was received from sources who were not “reliable,” and the Secretary’s most recent changes further restrict what is considered credible and reliable. These rules would not be of any help, of course, in controlling misuse of PWG disclosures, because it would be difficult to argue in many cases that the information disclosed was not credible or the sources were not reliable. The reason the PWG wants to hear the information is because it is credible and reliable. The clearest authority, of course, to ensure that service members would not be separated from the military as a result of their cooperation with the PWG would be either 1) a suspension/moratorium of the policy approved by Congress or 2) use of the President’s “stop-loss” authority by executive order under 10 U.S.C. § 123 and § 12305.

In conclusion, it will be difficult to determine in advance how much the study itself will affect or change the way service members talk about issues of sexual orientation, suggesting that protections from misuse of information should be written as broadly as possible. This review will generate a substantial level of attention and conversation about “don’t ask, don’t tell” and its effect on the military, inevitably putting people at risk. Given that no one wants study-generated chatter to lead to unintentional witch-hunts, all stakeholders in this process have an obligation to take whatever steps are within their authority to ensure that individual service members are not placed at risk.