Robert Gates

Defense Secretary Robert Gates sent mixed signals Tuesday, in releasing the Pentagon’s long-awaited study about how to implement repeal of Don’t Ask, Don’t Tell. He said repeal “can and should be done,” but he urged Congress to consider the views of all-male combat units who expressed concern about negative consequences. He said the concerns of those combat units were “not an insurmountable barrier” to repealing the ban on openly gay people in the military, but said the military should be given “sufficient time” to exercise “an abundance of care and preparation” in rolling out that repeal. And neither he nor any other top Pentagon official were willing to give even a vague estimate of how much time would be sufficient.

But in a statement released Tuesday evening, President Obama urged the Senate to act “as soon as possible,” saying he is “absolutely confident” troops “will adapt to this change and remain the best led, best trained, best equipped fighting force the world has ever known.”

The president reportedly spoke to Republican and Democratic leaders about “Don’t Ask, Don’t Tell” during a meeting at the White House yesterday to discuss a number of issues. Details of those discussions were not available.

Gates’ remarks and the report released by the Pentagon Tuesday on how best to implement repeal of Don’t Ask Don’t Tell (DADT) will provide both proponents and opponents of repeal plenty of political ammunition once the Senate takes up the issue sometime this month.

The 256-page study is called the Report of the Comprehensive Review of the Issues Associated with a Repeal of “Don’t Ask, Don’t Tell”. The report includes 20 pages of recommendations, presented in essay form, and 112 pages discussing and illustrating the results of surveys conducted of servicemembers and their families. Most media reports focused on the survey results, but the recommendations have, perhaps, the greatest importance for the LGBT community. The most significant of the recommendations include:

• issuing “an extensive set of new or revised standards of conduct” for servicemembers while in uniform, including for such matters as “public displays of affection,” dress and appearance, and harassment, and that those standards “apply to all Service members, regardless of sexual orientation;”
• that military law not add sexual orientation “alongside race, color, religion, sex, and national origin as a class eligible for various diversity programs or complaint resolution processes. Instead, the report recommends DOD “make clear that sexual orientation may not, in and of itself, be a factor in accession, promotion, or other personnel decision-making.” Complaints regarding discrimination based on sexual orientation would be addressed through “mechanisms” available for complaints other than those involving race, color, sex, religion, or national origin—“ namely, the chain of command…and other means as may be determined by the Services.”
• repeal Article 125 of the Uniform Code of Military Justice to the extent it prohibits consensual sodomy, regardless of whether same-sex or heterosexual;
• amend the code to “ensure sexual orientation-neutral application” with regards to sexual offenses. For instance Article 134, prohibiting adultery, would be rewritten to include a married female servicemember having sex with another woman who was not her spouse;
• no separate housing or bathroom facilities for gay or lesbian servicemembers and no assignments of sleeping or housing facilities based on sexual orientation “except that commanders should retain the authority to alter… assignments on an individualized, case-by-case basis, in the interest of maintaining morale, good order, and discipline, and consistent with performance of mission;
• no revision “at this time” of regulations to add same-sex committed relationships to the current definition of “family members” or “dependents” in regards to military benefits, such as housing, but to revisit the issue at a later date
• review benefits “that may, where justified from a policy, fiscal, and feasibility standpoint,” be revised to enable a servicemember to designate “whomever he or she wants as a beneficiary;”
• evaluate requests for re-entry into the military from those servicemembers discharged under DADT “according to the same criteria as other former Service members seeking re-entry; and
• no release from obligations of service for military personnel who oppose serving alongside gay and lesbian service members.

The survey part of the report indicates:

• 69 percent of servicemembers believed they had already served with someone they knew to be gay;
• 70 percent to 76 percent said repeal would have “a positive, a mixed, or no effect” on task cohesion; and 67 percent to 78 percent said it would have positive, mixed or no effect on “social cohesion;”
• 92 percent of those servicemembers who said they served alongside a gay person said they did not consider the gay servicemember’s presence to have created any problems for unit cohesion; and
• 26 percent said they would take a shower at a different time than a gay servicemember.

The report noted that the responses of Marines Combat Arms units (fighting forces on the ground) were “more negative” than the forces overall concerning how gay servicemembers would affect unit cohesion. Overall, 21 percent said gays in the unit would negatively affect their unit’s readiness, but while 43.5 percent of Marine Combat Arms said so.

Both Gates and Joint Chiefs of Staff Chairman Admiral Mike Mullen also underscored a need to move slowly and carefully to implement repeal, should Congress approve it. In doing so, Gates highlighted a finding that between 40 percent and 60 percent of all-male combat arms and special operations units predicted a negative effect of repeal on unit cohesion. He said this finding was a concern for him and for the Chiefs of the various branches of service. And he urged Congress to consider this in its deliberations.

But Gates said he did not consider that finding to be an “insurmountable barrier” and said he does believe repeal “can and should be done without posing a serious threat to military readiness.”

Even before the report was officially released at 2:15 Tuesday, Servicemembers Legal Defense Network said it expected the report to be “overwhelmingly positive” and “one of the best tools that repeal advocates can use” in the lame duck Congress.

The report will be the subject of two days of hearings before the Senate Armed Services Committee on Thursday and Friday, December 2 and 3. Republican opponents of repeal, led by Senator John McCain (R-Ariz.) are expected to challenge the legitimacy of the study and to tweak out information within it to support their position against repealing the law.

Senator Lindsey Graham (R-SC), who had been considered a potential vote for repeal, surprised many over the weekend when he began to parrot a criticism of the study that McCain raised in recent days—that the Pentagon studied “how” to repeal DADT, not “whether” to repeal it.

Gates rebuffed this criticism previously and again during today’s press conference.

“This report does provide a sound basis for making decisions on this law,” said Gates. “It’s hard for me to imagine you could come up with a more comprehensive approach.” More than 400,000 servicemembers responded to a survey, as did thousands of family members. And Mullen said data “is very compelling.”

But Graham also told Fox News Sunday on November 28 that he doesn’t believe there is “anywhere near the votes” to repeal DADT “on the Republican side.”

Democrats don’t really need Republican votes to repeal DADT; it takes only 51 and, with Independents, they have 58. But many took Graham’s remarks to suggest that Republicans would stand together as a party to block the Senate from even considering the Defense Authorization bill that contains the DADT repeal language.

“I think we’ll be united in the lame duck,” said Graham of Republican senators. “. . . . So I think in a lame duck setting, ‘Don’t Ask, Don’t Tell’ is not going anywhere.

And that’s where the uncertainty lies: Will Democrats have 60 votes to break a Republican filibuster in order to begin deliberation on the FY 2011 Defense Authorization bill?

Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, said he expects McCain and others to try and thwart repeal. He said he was hopeful Senate Majority Leader Harry Reid would be able to reach an agreement with Minority Leader Mitch McConnell on some number of amendments either party could offer on the annual Defense Authorization bill which contains the repeal language. Among those amendments, said Sarvis, will almost certainly be one to strip the repeal language from the bill, but Sarvis said he does not believe there are enough votes to do that.

Sarvis also made clear during a telephone press conference with reporters Tuesday morning that his group is not going to put all its eggs in the lame duck basket.

Sarvis said his organization would—“early next week”—file at least one lawsuit in federal court in San Francisco to continue pressure for eliminating the ban on openly gay people in the military. He said the group would likely file two more lawsuits soon after that. Each lawsuit, he said, would represent the interests of different groups affected by the law—those on active duty, those who have been discharged and seek reinstatement, and those who would like to join the service.

Gates and President Obama have both spoken out against lawsuits currently pending in the 9th Circuit seeking to challenge DADT—one from the Log Cabin Republicans (challenging the law on its face) and one from Air Force nurse Margaret Witt (challenging the law as applied). Both have been successful, thus far.

In an interview with ABC News, released November 9, Gates said he thinks the end of DADT was “inevitable.”

“My hope, frankly,” he said, “is that…if we can make the case that having this struck down by the courts is the worst outcome, because it gives us no flexibility, that people will think I’m called a realist, a pragmatist. I’m looking at this realistically. This thing is gonna go, one way or the other.”

In the end, it may take more than just one showdown vote in the Senate. In addition to needing 60 votes to begin debate on the defense spending bill, SLDN’s Sarvis said Tuesday he expects Senate Democrats will need 60 votes to force a vote an end to debate as well. Then a final version of the bill must be hammered out in a House-Senate conference committee and returned to both chambers for a final vote.