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New Congress’ ‘Don’t Ask’ Options

The military, gays and a different drummer.

The outgoing Democrat Senate majority failed twice to repeal the military’s homosexual exclusion law and yet it may pitch one last Hail-Mary, stand-alone repeal bill just as the lame duck session expires this week. Whether that effort succeeds or fails, the new Republican-controlled House and the larger Republican Senate minority should take up the issue in 2011.

If the Democrats succeed in repealing the homosexual exclusion law (10 U.S. Code, Section 654, which is often confused with the Pentagon’s “Don’t Ask, Don’t Tell” implementing regulations), the new Congress could block implementation by not funding or specifically prohibiting funding in the fiscal 2011 Department of Defense Appropriations Act and maintaining current legal sanctions.

Alternatively, Congress could oversee the integration of homosexuals to protect our all-volunteer force and their combat effectiveness by making the process consistent with federal statutes and policies (e.g., Defense of Marriage Act — DOMA) but only after conducting studies that may require additional stipulations and caveats.

Keep in mind the Pentagon’s post-repeal implementation plan is based on questionable assessments and flawed data, which are part of the report Defense Secretary Robert Gates delivered to Congress Nov. 30. See my Human Events article, “10 Problems with Obama’s ‘Don’t Ask’ Report,” for details.

At the very least, Congress should require additional studies and hearings. Remember, Congress, not the executive branch, has the constitutional responsibility under Article 1, Section 8 to establish rules for the military. Congress is under no obligation to accept the Pentagon plan to facilitate implementation by changing laws such as the Uniform Code of Military Justice and should consider additional rules, policies and laws to guide that process.

But should the Democrats fail to repeal the law, the Republicans have many options. Here are two:

(1) The new Congress can ignore the issue with two caveats; closely monitor Obama’s Justice Department’s defense of the law and the Pentagon’s enforcement of the law.

Congress can justify ignoring the issue for now because, as the chiefs of the military services recently testified, our armed forces are fully engaged in two wars and don’t want this distraction.  But ignoring the homosexual issue won’t slow the gay lobby from pressing for relief in the courts. And the Obama administration, which loudly opposes the law, will undermine the law by slowing the discharge process for homosexuals found to be serving in the armed forces.

We already saw the damage done by one liberal judge supported by Obama’s lackluster Justice Department team. This summer a Riverside, Calif., district court judge declared the homosexual ban unconstitutional and then enjoined the Pentagon from enforcing the law.

Through a series of what appear to be deliberate moves by the Obama Justice Department, the injunction came dangerously close to lifting the ban across the entire military by judicial fiat.  

To counter future judicial malpractice Congress should hold the Justice Department accountable to vigorously defend the law and when in doubt Congress should file briefs in federal homosexual cases offering time-proven arguments.

President Obama has also essentially lifted the ban by centralizing Pentagon decisions regarding homosexual discharges. The number of discharges for homosexuality is drastically down because the administration created very high hurdles to launch investigations. Besides, very public support for repeal from Obama, Secretary Gates and Adm. Mike Mullen, chairman of the Joint Chiefs, discourages commanders from enforcing the law. 

To counter future efforts to bureaucratically lift the ban, Congress must demand Pentagon appointees enforce the homosexual exclusion law. It should closely monitor discharge rates and look for indications officials are creating a command climate that discouraged enforcement. Congress could restrict funding of the  Defense Department and the services if they refuse to enforce the law.

(2) A superior option would be to monitor the administration’s support of the law as outlined above and then sponsor several studies that scientifically examine the issue, followed by hearings. The studies won’t reverse the public’s growing naivete regarding homosexuality’s threat for the military but might blunt a future Congress’ or some courts’ reckless disregard for the military’s unique culture.

The studies are also needed to marginalize the Pentagon’s new repeal-only report before it is cited as an authoritative source in future homosexual court cases. Congressional studies must consider all policy options, the associated risks for each and thoroughly document the exclusion law’s findings.

The law’s findings reflect the military’s unique and vulnerable culture. Three of the 15 findings are: “There is no constitutional right to serve in the military.” “Military life is fundamentally different from civilian life.” And “The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.”

The studies must also address the critical issue of manning the force, Congress’ primary constitutional responsibility. The Pentagon’s report dismisses the view that open homosexuality threatens recruitment and retention but offers little or no empirical support for that conclusion.

Hearings should follow the studies’ publication to thoroughly review the results. This approach will demonstrate Congress takes its oversight responsibilities seriously. And only then should Congress entertain readiness for enhancing changes to the exclusion law.

Repealing the ban based solely on the Democrats’ political whim and a cursory reading of the Pentagon’s one-option, flawed report is dangerous to national security and could be the opening salvo of a new culture war. But if repeal happens, the new Congress must take actions to preserve national security from radical social engineering while hosting hearings on the potential damage to our all-volunteer force.

If the law survives the new Congress must be proactive to avert Obama’s subversion. It must play defense by monitoring the Obama administration’s support of the law and take the offense through stronger policies and by leveraging the appropriations process. It must prepare for future challenges with comprehensive scientific studies and hearings that bolster the record.

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Written By

Robert Maginnis is a retired Army lieutenant colonel, and a national security and foreign affairs analyst for radio and television.

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