Don’t Ask, Don’t Tell: The Saga Continues

Mackubin T. Owens

January 1, 2000

The issue of homosexuals’ serving openly in the military is shaping up to be one of the most contentious issues in this year’s presidential campaign. The tone of the debate was set in December when President Clinton claimed during a radio interview that the current policy of “don’t ask, don’t tell,” which has been in effect since 1993, was not working as he had intended.

Both leading Republican candidates for president, George W. Bush and John McCain support the current policy. But the Democratic contenders, Vice President Al Gore and former Senator Bill Bradley have both stated that if elected, they would scrap “don’t ask, don’t tell.” Indeed, during a Democratic debate in New Hampshire on January 5, Mr. Gore created a furor when, in answer to a question from moderator Peter Jennings of ABC News, he indicated that he would require a “litmus test” for prospective members of the Joint Chiefs of Staff on the issue of homosexuals serving openly in the military.

Those who agree with the Democratic candidates treat the whole affair as merely the latest episode in a struggle for equal civil rights. Indeed, proponents of permitting homosexuals to serve openly in the military invoke President Truman’s executive order after World War II that integrated the US military. For example, in his Boson Globe column of January 11, James Carroll writes that “today’s soldiers and sailors reluctant to serve shoulder to shoulder with homosexuals are the progeny of racist and sexist soldiers and sailors who were told to get over it or get out.”

Although it is popular to equate opposition to permitting homosexuals to serve openly in the military today with opposition to racial integration of the services five decades ago, the similarities between the two cases are superficial. Former Chairman of the Joint Chiefs of Staff, Gen. Colin Powell, who no doubt knows something about racial discrimination, made the proper distinction in a reply to former Rep. Pat Schroeder when she argued that point. “Skin color is a benign non-behavioral characteristic. Sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument.”

For this reason, Gen. Powell stated in testimony before Congress in 1992, it “would be prejudicial to good order and discipline to try to integrate [open homosexuals] into the current military structure.” Congress agreed and subsequently reaffirmed the long-standing exclusion of open homosexuals from military service.

This is an important fact that the Democratic candidates either don’t understand or are ignoring for partisan political purposes. There is a difference between the law regarding homosexuals in the military on the one hand and the “don’t ask, don’t tell” policy of the Clinton administration on the other.

The law, passed in 1993 by a veto-proof margin in a Democratic controlled Congress, codified regulations in effect before President Clinton’s inauguration. This law (section 654 of title 10, United States Code, included in the National Defense Authorization Act for Fiscal Year 1994, Public Law 103-160, November 30, 1993 and accompanying Senate and House report language) makes the historical prohibition against military service for homosexuals a matter of statute law.

The “don’t ask, don’t tell” policy was the result of a compromise between the president, who had failed in his attempt to lift the ban on homosexuals’ serving openly in the military, and the Joint Chiefs of Staff and key members of Congress, who adamantly opposed lifting the ban. The policy does not have the force of law and could be repealed at the stroke of a pen.

However, the reverse is not the case. Article I, Section 8 of the Constitution gives Congress the exclusive power to “raise and support Armies, …provide and maintain a Navy, [and]…make Rules for the Government and Regulation of the land and naval Forces.” As president, neither Mr. Gore nor Mr. Bradley could unilaterally declare that homosexuals are now permitted to serve openly in the military. The law would have to be changed as well.

The only modification of previous regulations codified in the 1993 law was suspension of the long-standing policy of asking recruit candidates if they were homosexuals before entering service. This small change has been the source of the false claim that the 1993 law embodied the “don’t ask, don’t tell” compromise.

In fact, the law requires that homosexuals, identified on the basis of acts or self-admission, must be separated from the service. The reason for this has nothing to do with equal rights or freedom of expression. Indeed, there is no constitutional right to serve in the military. According to the findings of Congress as expressed in the legislation and report language:

· Success in combat depends on military units characterized by high morale, good order and discipline, and unit cohesion.

· Military life is fundamentally different from civilian life. Because of the unique conditions service members face and the unique responsibilities that military service entails, the military community constitutes a specialized society governed by its own laws, rules, customs, and traditions, including restrictions on personal behavior that would be unacceptable in civilian society. Standards of conduct apply to military members at all times, whether on or off duty, whether on base or off.

· Homosexuality is incompatible with military service and presents a risk to the morale, good order and discipline, and unit cohesion that underpins military effectiveness. Officers and NCOs who have the responsibility for maintaining military effectiveness should have great discretion regarding what constitutes sufficient information upon which to question a service member regarding his or her status as a homosexual.

The congressional findings supporting the 1993 law reflect the common sense observation that military organizations exist to win wars. That is their functional imperative. To maximize the chances of battlefield success, military organizations must overcome the paralyzing effects of fear on the individual soldier and what the Prussian theorist of war, Carl von Clausewitz called “friction” and the “fog of uncertainty.” This they do by means of an ethos that stresses discipline, good order, and unit cohesion. Anything that poses a threat to the non-sexual bonding that lies at the heart of unit cohesion adversely affects morale, disciple, and good order, generating friction and undermining this ethos. Homosexuality poses such a threat.

There are a number of other practical reasons to be concerned with Mr. Gore’s “litmus test.” First it would lead to a dangerous politicization of the selection process for senior officers, by placing a premium on supporting the social agenda of liberal civilian activists at the expense of providing sound military advice. One consequence would be to reduce the pool of qualified candidates for high command. Secondly, unless the law is changed, requiring a nominee for the Joint Chiefs of Staff to support Al Gore’s preference regarding homosexuals in the service would put the nominee in conflict with the law.

The Democrats are wrong on this issue. They are wrong constitutionally because the president does not have the power unilaterally to permit homosexuals to serve openly in the military. But by far their greatest error is one of substance, not politics: the attempt to mollify a core constituency of the Democratic Party, if actually implemented, would undermine good order and discipline, morale and unit cohesion in the US military.

But the Republicans should not get a free ride on this issue, because they are wrong too. “Don’t ask, don’t tell” contributes to friction. The next president should repeal the policy and enforce the law. Those who don’t like the law should seek to change it.

P>Mackubin Thomas Owens is professor of strategy and force planning at the Naval War College in Newport, RI, and an adjunct fellow of the Ashbrook Center. The views expressed here are his own and do not reflect the position of the War College, Navy Department, or Department of Defense.