Don't Tell Me about DADT — I Was There

Thursday, October 14, 2010 - 10:34 AM

I have an opinion about Don't Ask, Don't Tell.

But first, full disclosure: I was part of the Administration that devised and developed DADT into law. As a White House Fellow with a law degree in the Clinton Administration, I was assigned to the Vice President’s Office. I was often asked to advise Vice President Al Gore on legal issues – the Brady Bill, the Crime Bill, Welfare Reform and, yes, Don’t Ask, Don’t Tell.  I would attend the relevant policy briefings, furiously take notes, stay up all night doing research and then write legal memos for the VP’s briefing book. Not infrequently, I would personally brief the VP in advance of an event, speech or meeting with the President. Occasionally, I would brief him together with the President or other members of the cabinet in advance of a joint appearance.  

It was heady stuff for a kid a few years out of law school; but Berkeley Law had been good training for the White House. Back at Berkeley I had learned to care passionately about justice but to remain dispassionate when advocating for a position.

I specifically remember the meetings related to gays in the military like they were yesterday. Unlike most other policy briefings (the Crime Bill, for example, or Welfare Reform, which were gatherings in large conference rooms, filled to capacity), these were very small, high-level meetings—twenty people, no more. At the head of the table: then-Chairman of the Joint Chiefs, Colin Powell.

It wasn't long before the subject turned from lifting the ban on gays in the military to some sort of compromise. It's worth remembering that, at first, we weren't talking DADT. Not yet. Before DADT, gay Americans were not permitted to serve in the armed forces, at all. Period.  

Going back to at least World War II, service members found to be gay, but who had not committed any sexual acts while in service, would receive an undesirable discharge. Those found guilty of engaging in sexual conduct were dishonorably discharged. This was actually a DOD Directive which also stated that homosexuality was incompatible with military service.

In those early meetings, I asked, “Why?”  Respectfully, but pointedly, I suggested that the ban on gay service members was akin to the segregation of African Americans during World War II—unrelated to military service, not rooted in any sound public policy and a violation of due process. It was an argument I thought General Powell would find persuasive. He did not.

President Clinton had come to office with a promise to end the ban on gays in the military. After Clinton won the presidency, however, Congress rushed to enact the existing ban into federal law, outflanking Clinton's planned repeal effort. We introduced congressional legislation to overturn the ban, but it encountered intense resistance by the Joint Chiefs, members of Congress, and some sectors of the public.

Therefore, DADT was a compromise—a weak effort to find some middle ground. As a young lawyer, I believed this political compromise, however well-meaning, to be constitutionally flawed. I said so in my briefs and at other opportunities. But as I would soon learn in Washington, political strategy often trumps the rule of law.

Fast-forward seventeen years to this week's ruling by a federal judge in California. Many on the left are cheering the ruling by U.S. District Judge Virginia Phillips ordering an immediate halt to DADT policy. I am not.

Don't get me wrong: I haven't changed my views about the policy. If anything, nearly two decades of real-world application have only underscored its failure in theory and in practice. DADT is an inane policy, one in which we compel people to lie to their superiors about who and what they are as people. When I discussed the ruling on The Brian Lehrer show, Brian pointed out the discriminatory absurdity of the policy: Nearly 14,000 service men and women have been discharged under DADT because they, or somebody else "told" superiors about their homosexual status.  Yet, how many have been discharged for violating the “Don’t Ask” portion of the rule? Zero.

I also continue to believe that DADT is a bad law, unconstitutional through and through. Judge Phillips is correct: The policy "infringes the fundamental rights of United States service members and prospective service members."

Phillips ruled as I believe she should have. It is what the Constitution requires and what Congress should have done a long time ago: Put an end to DADT.  But that gets us to the better result: a political fix.

DADT was wrong from the day it was passed 17 years ago. The best solution by far would be for Congress to repeal it, because it would reflect political consensus. After 17 years of DADT, we finally have the political will at the executive level to get rid of it, once and for all.  We have a President who wants to see it repealed. He has the support of the Secretary of Defense and the Joint Chiefs who have expressed a desire to dismantle the policy.   Secretary Gates has ordered a sweeping review, due in December, to include a survey of troops and their families. The purpose is not to determine whether to change the law but rather how to lift the ban.  

Judge Phillips' decision, therefore, could not come at a worse time. It puts the Obama Administration in the awkward position of defending a policy in the courts that it is actively working to repeal. This unfortunate situation is not the fault of the judge. Responsibility lies with Congress. A majority of House members voted to repeal DADT. There is enough bi-partisan support in the Senate to pass similar legislation, but not the 60 votes needed to overcome the threat of a Republican filibuster. As a result, the issue has never been allowed to come up for a vote. And the climate is likely to get worse after the elections.
If all else fails, then we return to the courts. The administration likely will appeal Judge Phillips’ ruling. Litigation on the constitutionality of the law could go on for years, which is not the best result for a policy that is nearly two decades too old already. Those who want to see this policy undone would do to make peace with the political process.

Jami Floyd is a broadcast journalist and legal analyst for cable and network news, and is a frequent contributor to WNYC Radio. She is former advisor in the Clinton administration and served as a surrogate for the Obama campaign on legal and domestic policy issues.


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Comments [10]

Paulb from NYC

Uhm, sorry. Re-reading comment below I seemed to have missed the point.
"no-one has been discharged for the don't ask part" wasn't really meant to imply that if no-one told no-one would be discharged.

It was meant to show the disparity of the way the policy is enforced and the general underlying insanity of the whole thing!

My Bad.

Oct. 15 2010 02:20 PM
Paulb from NYC

": Nearly 14,000 service men and women have been discharged under DADT because they, or somebody else "told" superiors about their homosexual status. Yet, how many have been discharged for violating the “Don’t Ask” portion of the rule? Zero."

I just have to say Jami, That is such a load of crap in it's implication that if gay people would just keep their mouths closed NONE of them would be discharged. No-one is that simple minded. It was an idiotic point raised by Brian, showing no clue at all. Frankly I'm disappointed to see you inject it into this blog as though it had any merit whatsoever.

Oct. 15 2010 01:40 PM
Chicagotist from Chicago, IL

Dear Ms. Floyd,

President Obama has had almost 2 years of large Democratic majorities in both chambers of Congress. First, there was this bill, and then there was another. The LGBT community repeatedly heard that it should wait. The government would get to our problems when they're done with everything else (you know, when they solve the white straight people's problems).

The decision by Judge Phillips did not put the Obama Administration in the awkward position. The Obama Administration did. We're not waiting until President Obama and Congress decide we deserve some crumbs from the majority's table. We are already in the courts. Maybe it will take years. But I know it will be years of actual efforts, not years of empty words, however, nice they may be.

"Those who want to see this policy undone would do to make peace with the political process." What political process? The one you yourself describe as "likely to get worse after the elections." I wonder if you reread your columns before you submit them.

Oct. 15 2010 07:48 AM
Chicagotist from Chicago, IL

Dear Lou from Washington,

The US is by far not the most gay-friendly country. For example, there's complete equality (including marriage and military service) in Netherlands, Belgium, Spain, South Africa, Canada, Sweden, and Norway. Being straight is not the same as having your facts straight, so next time do some research before posting.

Oct. 15 2010 07:25 AM
Lou from Washington, DC

Mike, why dont you leave this country then. There are more rights for gays here than nearly anywhere in the world. There are many countries, especially within the muslim world where you could go to prison for crimes against nature for homosexual acts. Go live there and see how you like it. Boo hoo you can't be in the military, who cares, they didn't want you there so they kicked out. Nothing wrong with that. Its your choice to live your life as a gay man.

Oct. 14 2010 08:37 PM
Ryan from USA

"Everybody says the Justice Department appealing this ruling is an inevitablity. It does not have to be. It is not inevitable. If the administration believes the law is unconstitutional, there is precedent that supports the administration not appealing it and letting the law die.

An orderly timeframe for the death of a law can be arranged with the court.

A plan that has no chance of becoming reality is not a real plan, no matter how much you say it is. You can either end it, or you can stop saying you will."

- Rachel Maddow, last night.

Oct. 14 2010 04:29 PM
Dino from Washington, DC

Earlier this year at the Washington, DC Brookings Institution, there was a panel discussion on gays and lesbians serving openly in foreign militaries. A Military Officer from the UK said that in late 1999 the British Military was forced to lift their ban on gays and lesbians openly serving effective January of the following year. Hysteria followed and this officer compared it to the Y2K issue of the day where people feared a cyber meltdown on January 1, 2000 and it did not happen. When the new policy took effect in January 2000 it was a complete non issue. All these dire predictions that people made turned out to be unfounded. There was no and continues to be no adverse effect on morale, unit cohesion and discipline and the UK Military remained in tact. The only difference between before and after was that gay and lesbian servicemembers in the Armed Forces of Great Britian were not hounded for discharge anymore. The same thing will undoubtably happen in this country.

Oct. 14 2010 02:19 PM
Mike from Albuquerque

I am gay, was kicked out under DADT, and am sick of having to live in this bigoted country.

Oct. 14 2010 02:16 PM
Leo from Los Angeles, CA

I think DADT should remain. Yes, homosexuals are behaving themselves for the most part, but it's because of the policy that they are doing so. I have seen many people "play gay" and this is becoming annoying at the least and is sexual harassment because I am getting offended by it. I am now considering turning in everyone who does this, gay or not. I don't want to serve with people who do it and I know that it will occur more often if the policy is repealed because then there is nothing to lose.

Oct. 14 2010 01:14 PM
Theresa from USA

What consequences to the soldiers if it's repealed right now?? Gay people are already there. They’re already behaving themselves in close quarters or they would have already been thrown out for wrong behavior. All that needs to be done is say, “No one gets thrown out if people find out they are gay.” That’s ALL! If someone misbehaves discipline them. If they don’t, then don’t. If they get married in a place that they can legally marry, then they get the same benefits as anyone else who is legally married. Their choice of mate is irrelevant. There doesn’t need to be a study or training or anything. If the soldier’s working with the gay soldiers have a problem with it, they are still ordered to behave properly. If they don’t, they’ll be punished. They shouldn’t have a survey of what the other soldiers think of DADT, they are to follow orders regardless! So why ask them what they would do it a gay soldier brought her/his mate to a military function. Who cares what they would do? They are ordered to not do anything untoward or indecent or illegal. Why do we suddenly have to train the soldiers to follow their orders. Isn’t that what they have to do anyway? The ones who don’t will be weeded out!

It doesn’t make a difference in a time of war anyway. They are finding out people are gay, sending them into combat, and then discharging them when they get home from risking their lives like everyone else over there! They aren’t too worried about unit cohesion when they knowingly send them into battle are they? This is all bunk and waste of time and money! They just need to stop discharging soldiers if it is revealed they are gay. If they are good soldiers, leave them be. If they aren’t, then boot them out for the proper reasons!

Oct. 14 2010 12:40 PM

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