New Regulations For DADT

Secretary of Defense Robert Gates announced new enforcement regulations Thursday for the military's "don't ask, don't tell" policy, part of an interim plan while the Pentagon completes a full review.

The new guidelines, which are detailed here, are intended to enforce the existing policy in a fairer way. Changes announced by Secretary Gates will raise the rank of a person who can initiate a DADT inquiry to a general or admiral, and elevate standards for evidence to be presented in discharge cases, according to reports in The New York Times and Reuters. The changes also aim to lessen the number of expulsions based on "third party" outings.

"Officials said the new steps would include a requirement that only a general or admiral could initiate action in cases where service members were suspected of violating the prohibition against openly gay service in the armed forces," reported the Times.

A complete Pentagon review of how the military might implement a repeal of "don't ask, don't tell" is expected to be completed by December 1.

In a letter to Gates last July, Servicemembers Legal Defense Network executive director Aubrey Sarvis laid out a set of recommendations for what would/wouldn't meet the standard for triggering an investigation into someone's sexuality.

They included that the third party must be another service member, not a civilian, and not anonymous. They also suggested that evidence must be based on firsthand knowledge rather than hearsay, that any sexual misconduct occurring prior to a soldier's service not be deemed admissible, and that statements made to chaplains, doctors, psychologists, and other health professionals be kept off limits.

The letter also recommends that the Pentagon adopt as policy the ruling of the ninth circuit court of appeals in Maj. Margaret Witt's case (Witt v. Department of Air Force), which stipulated that the government must prove that a service member's presence disrupts unit cohesion and good order rather than the service member having to prove that his or her presence is not disruptive.

The letter is below in full:

Dear Secretary Gates:

I am writing on behalf of Servicemembers Legal Defense Network to follow up on your comments last week concerning the way the "Don't Ask, Don't Tell" law has been implemented by the armed services.

SLDN is a non-profit organization that provides free legal services to military personnel affected by "Don't Ask, Don't Tell." Since 1993, we have responded to more than 9,000 requests for legal assistance.

SLDN advocates the repeal of "Don't Ask, Don't Tell." While Congress is considering repeal, we have urged that legislation be passed stopping investigations of possible "Don't Ask, Don't Tell" violations. In particular, we propose that the DOD authorization bill include the following provision:

Directs the Secretary of Defense to instruct the Secretaries of each of the armed services that there may be no investigation of or inquiry into, or any administrative action relating to, conduct described in 10 U.S.C. SS 654(b), "Policy concerning homosexuality in the armed forces," until the end of the 111th Congress; provided that, this shall not limit the authority of the Secretaries of the armed services with respect to conduct that would violate the Uniform Code of Military Justice.

We hope that you will consider this proposal and that you will be able to support it.

In the meantime, we would support any measures that would make the application of "Don't Ask, Don't Tell" less draconian. We believe that you have flexibility in the way to apply "Don't Ask, Don't Tell" and that you can exercise this flexibility immediately. In particular, you can instruct the services when it is permissible to initiate an inquiry or investigation under that law, that

1. To be sufficient to support the initiation of an inquiry into a possible violation of "Don't Ask, Don't Tell," the source of the allegation must be another service member. Information from a civilian is not sufficient.

2. An anonymous tip is not a sufficient basis to start an inquiry into a possible violation of "Don't Ask, Don't Tell."

3. Hearsay cannot support the initiation of an inquiry; the allegation must be based on personal knowledge.

4. The alleged homosexual conduct must have occurred after the service member joined the armed forces.

5. Statements made to chaplains, doctors, psychologists and other health professionals cannot be a basis of an inquiry into a possible violation of "Don't Ask, Don't Tell."

In addition, the Secretary should ensure that the court's decision in Witt v. Dep't of Air Force, 527 F.3d 806 (9th Cir. 2008), is faithfully implemented and that it is applied throughout the armed services. This decision requires the armed services to handle DADT cases in a way that ensures that service members' constitutional rights are not violated. In order to find a violation of the policy and to order discharge of a service member, the military must show that there is a justification for the application of the policy to that particular service member and that there is no less intrusive way to achieve the governmental interests recognized by the court. Although this decision technically applies only in the nine states and two territories that make up the Ninth Circuit, this standard should be applied uniformly throughout the military.

These changes would address the situations you referred to in your remarks as well as other cases in which there could be no possible justification for applying "Don't Ask, Don't Tell." Members of SLDN's legal staff and I would be happy to meet with you and your legal advisors to discuss these proposals.

Sincerely,

Aubrey Sarvis
Executive Director
Servicemembers Legal Defense Network