In announcing today that it would make it harder to fire gay troops under existing policy, the Pentagon took a major step toward ending DADT. While the President and Pentagon could have gone further, for instance halting all discharges by executive order or allowing only two-star generals to initiate a discharge (instead the level was set at one-star), the policy is also a federal law, and so the Pentagon is ultimately limited in what it can do to relax the ban.
Today's news marks an admirable first step which could have a real impact on the lives of service members, while leaving much work to be done to ensure full repeal. Most important, the revisions under what's being called the "Obama Rule" are a recognition by the military that openly gay service does not disrupt the force. The military would not have agreed to soften the gay ban (just as it did not agree in 1993) if its leadership truly believed it would harm readiness--and Secretary Gates said today that the new regulations were created with the "unanimous" support of all the Service Chiefs, even though some have been grumbling about repeal.
Below is a summary of the changes, an interpretation of what they mean, and an assessment of how the political landscape looks following today's announcement of the Obama Rule.
Summary of changes
The changes involve raising the level of the officer who is authorized to initiate and sign-off on a discharge, and narrowing the kinds of information that will be admitted as evidence of a homosexual violation. The new regs will:
• Require that only a general or flag officer can initiate a discharge proceeding
• Require that only a general or flag officer can sign off on the discharge of an enlisted service member (the bar for finalizing an officer's discharge is already set at the higher level of Service Secretary)
• Narrow what counts as admissible evidence in launching and conducting an inquiry
• Narrow who is considered a "reliable person" when using third-party evidence against a suspected gay or lesbian service member
• Protect service members by treating confidential information as inadmissible for the purpose of initiating a discharge
What it Means: the Good News
These changes mark the first substantive cracks to DADT since it was enacted in 1994. By limiting which informants and information count as admissible evidence for an inquiry, the Pentagon is creating a situation where people known to the world as gay can continue to serve--in effect allowing openly gay service for the first time. For instance, when police in South Dakota outed an Air Force sergeant to her command after they spotted a marriage license to another woman, she was fired. Under the new regs, that police information could be inadmissible. The sergeant's lesbian identity would be a matter of public record (it was written up in the police record, and in this case broadcast to the world by the Associated Press) and yet the Pentagon would be barred from taking action, thus allowing a known gay person to stay in uniform. How much longer can conservatives in Congress insist that known gays hobble the military when openly gay service is a fact of life (already, polls show that a majority of troops believe there are gays in their units)?
That's the political good news. There is also good news for the tens of thousands of lesbian, gay and bisexual service members whose privacy will be somewhat more protected under the new rules. Under the new regs:
• Peers who accuse service members of being gay will be expected to testify under oath, making it more difficult for hearsay, rumors, or vengeance to trigger a homosexual inquiry
• People who are motivated by a wish to cause "personal or professional harm" to suspected gay people--i.e. homophobes or even those who oppose gays in the military--will not be considered viable informants for the purpose of starting an inquiry
• The officer conducting the inquiry will now have to have a rank of O5 or higher, making it harder (but hardly impossible) for a low-ranking homophobic officer to end a gay person's career through a rogue investigation
• The standard of evidence for an actual hearing before a military board will be raised to a "preponderance of the evidence," rather than simply "sufficient evidence," again making it harder for the process to end in discharge
• The use of the notorious phrase "propensity or intent to engage in homosexual acts" has been limited (but not eliminated), meaning that the focus will be shifted to actual conduct or statements rather than someone's idea of what might demonstrate a likelihood or possibility that a soldier will, at some point, engage in homosexual conduct
• Observed behavior by a third party which "amounts to a non-verbal statement" of homosexual identity in the eyes of a "reasonable person" is no longer considered admissible evidence to trigger an inquiry
• Service members will be protected from discharge in their confidential conversations with clergy, psychologists, medical professionals, lawyers, and security clearance investigators
What it Means: the Bad News
You'll notice that this section is shorter. To some extent, that suggests the good outweighs the bad; but in another respect, the bad is just easier to summarize:
• The full steps the White House and Pentagon could have taken, including full suspension of discharges by executive order, or announcing that no "findings" under the law should be made, were not taken
• The level of rank for initiating a discharge is not as high as it could have been (1 star instead of 2 or 3 star), and Secretary Gates said that was because, the higher rank you require, the fewer officers there are who can practicably initiate a discharge; some of us were hoping that was the point!
• Third-party outings were not barred, just restricted
• History shows that earlier attempts to make a bad, unnecessary, harmful failure of a policy "more humane" have been unsuccessful, in part because the changes were not enforced consistently, and in part because beating your wife gently is still beating your wife
At the end of the day, there remain major problems with the Obama Rule, mainly that "don't ask, don't tell" still exists, something which President Obama could work harder to change by putting repeal into the Defense Authorization Bill. Meanwhile, service members are still at risk of being fired every day for something that has nothing to do with military capability. Even in the new regs, much of the old language of "propensities" and "fact-finding inquires" that stinks of 17th-century Salem, and that has made this policy so odious and so impossible to enforce consistently, still exists, and so there will still be problems as a result.
Maddeningly, as admirable as Secretary Gates and Admiral Mike Mullen have been in showing leadership on this front, they are sending highly mixed messages that will end up making the job of repeal harder when it inevitably comes: they continue to say every chance they get that the repeal process could be dangerous and complicated, and must go slowly, even though research consistently says the opposite: that this kind of transition is best done quickly to avoid confusion and obstruction. Gates said today that moving swiftly to implement repeal "is very risky" and Mullen agreed, saying it could "generate a very bad outcome."
Besides the operational problems these comments will create in a self-fulfilling prophecy (when leaders say a transition will be tough, that makes it tougher), they are politically toxic. Surely conservatives in Congress will find that even the current year-long study period is too quick. For them, another two centuries would be a more appropriate time line, and they will continue to say, even at the end of this year, that change must be "cautious and deliberate," Washington-speak for "never." This is why the mandate of the study group is flawed: while Gates says the group is studying how, not whether, to lift the ban, it is Congress that will ultimately decide whether to repeal the ban; and the more military leaders, with the President's blessing, speak of the danger and risk of repeal (despite evidence that both are negligible), the less likely it is that sufficient votes will emerge in Congress to actually carry out the military's recommendation to end the ban.
Kudos for the first step. Now it's time for Washington to rein in those who are veering off the path to repeal, and take the final steps needed to actually reach the finish line.