08/12/2010 12:28 pm ET | Updated May 25, 2011

Obama and Gates Fail the Fehrenbach Test

Back on Feb. 2 when Defense Secretary Robert Gates and Joint Chiefs Chairman Admiral Michael Mullen testified before the Senate Armed Services Committee about their views on the state of "Don't Ask, Don't Tell" and their plans to study how to successfully implement a repeal of that law, Secretary Gates also committed to a series of more immediate regulatory changes that would, in his words, make the implementation of the current law "more humane."

Given that it was difficult to rationalize the continuation of the wholesale abuses of the law that had come to characterize the Defense Department's implementation of "Don't Ask, Don't Tell" over 17 years, abuses that even the policy's architects had called out, these quick regulatory revisions -- known as the "45-day review" changes -- were sold to the public by the Obama administration as a temporary patch to alleviate demands that they act quicker on this issue.

Indeed, the prospect of an expensive nine-month "study" of the issue, one that had already been studied exhaustively, didn't sit well coming from our "fierce advocate," but the 45-day review changes were at least supposed to stop the ongoing abuses of the law that had become so pervasive, such as third-party outings by civilians for spite and firings based on rumor or suspicion. Or so we were told.

This is how the Obama administration calmed down the intense public clamoring for change. But it now appears that the American public -- 80% of which want the "Don't Ask, Don't Tell" law gone -- was sold a handful of magic beans with this 45-day review patch, and the proof is a man named Lt. Col. Victor Fehrenbach.

Lt. Col. Fehrenbach's case has been widely viewed as a test of whether these 45-day review changes are substantive, serious, and meaningful or not. Fehrenbach, a decorated Air Force aviator and Iraq combat veteran, was forced out of the closet by a seemingly unstable civilian who falsely accused him of rape. At the time, the 18-year veteran was forced to reveal his sexual orientation in order to prove the rape allegations to be false, which led the Air Force to drop the investigation for rape but immediately open another investigation for homosexuality.

Fehrenbach's case became the expected public test of President Obama's and Secretary Gates' 45-day review commitment. If what the administration said about their intentions to rein in abusive applications of the law were true, a change that they said would apply to open cases, then surely the Fehrenbach case, if any, would be dropped and Fehrenbach would be retained to regular duty in the Air Force.

This week, however, we learned that President Obama, Secretary Gates, and the 45-day review changes have all failed the Fehrenbach test. Fehrenbach's separation board, which was supposed to take the new 45-day review guidance and retroactively apply it to his case, apparently just recommended that Fehrenbach still be fired.

Now a stunned American public is left asking, "How can this be?" Why would the administration and the Defense Department betray us like this? They promised that the 45-day review changes -- this temporary patch that was supposed to make the application of the current law "more humane" -- would eliminate even moderate abuses of the law, and the Fehrenbach case represents one of the law's worst abuses.

There are only two logical conclusions here that the American public can now draw. One is that the administration and the Defense Department's leadership have been dishonest with the American public about the true effect of the 45-day review changes on the implementation of the existing "Don't Ask, Don't Tell" law. Such dishonesty would be a travesty of immense proportions that would fully justify harsh reactions against the administration -- politically, electorally, and financially.

The only other logical conclusion is that Fehrenbach's separation board committed a grave error if it did indeed recommend his separation despite the 45-day review guidance as it was sold to the American public. But even if this turns out to be the case, this scenario still represents a severe leadership failure within the Department of the Air Force. Of all cases, how could an Air Force separation board come to this conclusion in this case? Borderline cases, maybe. But I don't refer to the Fehrenbach case as a test case without good reason. If any case should have fallen within the 45-day review changes, it would have been this case.

If the latter scenario is truly the case, and the administration did not mislead the American public about its seriousness in stopping the abuses of the "Don't Ask, Don't Tell" law until it can be repealed, then swift and decisive action is in order to right this wrong. The administration and the Defense Department leadership should quickly intervene to ensure that the Air Force retains LTC Fehrenbach and that no other violation of the public trust occurs vis-a-vis the 45-day review changes.

Surely the media attention surrounding the Fehrenbach case is a thorn in the side of both the administration and the Defense Department. Surely they want this whole episode to just die down and go away. And surely they know that the only way to ensure that outcome is to simply do the right thing, which they promised the American public they were doing all along. Yet here we are.