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Tuesday, March 1, 2011

Coast Guard Considers DADT Repeal Outcome a ‘Non-Event’

By Tom Carpenter -

Coast Guard Commandant
Admiral Robert J. Papp

Today the Navy started tier three “Don’t Ask, Don’t Tell” (DADT) Repeal training throughout the Fleet.  This means the Navy is starting to train its sailors with an eye to completing all initial training by the end of June this year.  Like its unilateral decision to allow women to serve on submarines without Congressional intervention, again the Navy is ahead of the game. The Chief of Naval Operations, Admiral Gary Roughead, has publicly stated that repeal will be easy,  but is the Navy really leading on repeal?
“Semper Paratus”- The Coast Guard is ready!
While the training for repeal proceeds within the Department of Defense (DOD) in accordance with requirements of the law and the four services have now set deadlines, the United States Coast Guard has again shown it is “Always Ready.” Although the Coast Guard is a military service, it is not part of the DOD but falls under the Department of Homeland Security (DHS). When DADT was implemented in 1993, and before the Coast Guard was transferred to the DHS, the service signed a memorandum of agreement with the DOD to comply and follow the DADT law.
The Commandant of the Coast Guard, Admiral Robert Papp, has not produced an instructional video with the Master Chief Petty Officer of the Coast Guard. In fact, he has neither set any deadlines for training nor even started training the force. Why not?
Apparently, the Coast Guard has chosen to follow the lessons of our closest cultural military allies, the British, Canadians and Australians. These allies did not see the need for an extensive and long drawn out process and training program. When the British were ordered by the European Court of Human Rights to lift their ban in 1999, they followed the example of the Australians who and successfully and voluntarily done the same thing five years earlier. These allies, like our military leadership, recognized that the most important thing for a successful implementation of repeal of their ban was leadership.  The British merely issued a one-page document entitled “Armed Forces Code of Social Conduct” which sets out a policy based on behavior and whether an individual’s conduct may impact adversely on the cohesion, efficiency or operational effectiveness of the Service.
The transition to open service was reported by these allies as a “non-event.” It has been over 10 years since this non-event occurred in the United Kingdom and there have been very few problems reported.
It seems the Commandant of the Coast Guard has taken the same approach as our allies. He recently issued a one-page document entitled “Anti-Discrimination and Anti-Harassment Policy Statement” in which sexual orientation is specifically listed along with other protected classes. To quote Vice President Joe Biden, “this is a big F-ing deal.”
The Coast Guard’s approach to repeal of DADT is probably best represented in a State of the Coast Guard speech given to leadership of the service by Admiral Papp on February 11, 2011 in which he said,
“The repeal of Don’t Ask, Don’t Tell will also require YOUR leadership – And I’m counting on YOU to exercise it. It’s every Coast Guardsman’s job to make the workplace one of respect. YOU must value YOUR shipmates, no matter what their background.”
The United States Coast Guard has shown the way forward. It has provided the protections needed to reverse hundreds of years of discrimination against LGB patriots. It has recognized the need to make this change expeditiously and has again demonstrated that leadership is far more important than any training program in guaranteeing success. Semper Paratus, indeed.

What about the rest of the services?
Marine Commandant Gen. James Amos
Earlier in the month I wrote a piece for LGBT POV entitled “Storm Warning- Problems with Implementation Ahead.” As the DOD moved forward to implement repeal of the DADT law, I pointed out three potential problem areas. The first two dealt with uncertainty and the failure to set firm deadlines. The third was regarding the nondiscrimination provisions that had been stripped out of the final bill. Since then, the military has moved ahead with all due speed, led by the service that was most resistant to change in this personnel policy – the Marine Corps.  Surprisingly, the newly Obama appointed Commandant of the Marine Corps, General James Amos, during his confirmation hearing on September 21, 2010, testified that he, like his predecessor, General James Conway, opposed a change in the law.  Again on December 3, 2010, when he testified before the same Senate Armed Forces Committee, he repeated his opposition but said that if the law were repealed, the Corps would step out smartly to carry out the new policy. On January 28, 2011, he joined the Sergeant Major of the Marine Corps and reiterated his intention for the Corps to lead the way forward.
Not to be outdone by the Marine Corps, on February 4, 2011, the Chief of Naval Operations, Admiral Gary Roughead, gave orders to the fleet about the Navy’s plan for implementation.
Like their counterparts in the Marine Corps and Navy, the Air Force Chief of Staff, Gen. Norton Schwartz and Chief Master Sergeant of the Air Force, James Roy, have produced a video to be shown during training that has not been made public yet. The Air Force announced on their website on February 11, 2011 that training would start soon.
The Army took a different approach. On February 17, 2011, the Army Chief of Staff, Gen. George W. Casey Jr., during the 4-star conference at the Pentagon, launched the Army’s DADT Repeal training program to senior leaders from across the force.
The good news is that all four services have now set deadlines in which to complete the training programs. The Marines again lead the way with a target date of May 31, 2011. Both the Navy and Air Force are planning to have their initial training completed by June 30, 2011. The Army, with by far the largest force, has a goal of mid-July for Active duty soldiers and mid- August for Reserves and National Guard.
If these deadlines are met, then the 60 day period called for in the repeal statute, should start to run at the completion of the Army program with a realistic target date of around mid to late October – Halloween. Since the first Servicemembers Legal Defense Network (SLDN) dinner in 1994 was held around this time and entitled “End the Witch Hunts!” what could be more appropriate?
It is clear that the uniformed services are diligently carrying out the orders of the civilian leadership. So far, there has been no evidence of delay or any attempt to “kick the can down the road.” But SLDN continues to remind servicemembers that DADT is still law until the 60 day period is complete and the commander-in-chief says the law is fully repealed.

Tom Carpenter and Rep. Patrick Murphy
A return to the status quo before DADT
On February 14, 2010, Karen Ocamb and I moderated a panel for eQualityThinking entitled “The Truth Behind
Don’t Ask, Don’t Tell Repeal.” Our guests were former Rep. Patrick Murphy, the House champion of the Military Readiness Enhancement Act, which in addition to repeal DADT, had as its major component a policy of nondiscrimination; Aubrey Sarvis, Executive Director of SLDN; Allison Herwitt, Legislative Director from Human Rights Campaign; as well as former Army 1st Lt Dan Choi and the lead trial attorney in the case of Log Cabin Republicans(LCR) v. Gates, Dan Woods.
One of the issues we were concerned about is how and why nondiscrimination was removed from the law that passed. Rep. Murphy told us that in order to move the bill in the Senate this compromise was necessary. He did not identify which Senators demanded that nondiscrimination be stripped out of the Act.
We can only speculate that this compromise was an effort to appease the Secretary of Defense and the military leadership who wanted open service done their way.  Perhaps they did not want this President to repeat the fiasco of 1993, but instead get a buy-in by the military with the legislative implementation scheme presently in place. In essence, what was happening was that the policy on gays in the military was being removed from the control of the legislative branch, where it had been since passage of DADT in 1993, back to the executive. In order for this to happen, statutory discrimination protection was likely sacrificed.

Why additional protection is needed
It is the third problem that still needs to be addressed and soon. What additional protections will be available to lesbian, gay and bi-sexual (LGB) service members once repeal is in place? Right now there are none. Dr. Stanley, in his briefing in early February, talked about leadership and the need to treat all service members with dignity and respect. He and General Cartwright, the Vice Chairman of the Joint Chiefs of Staff, advanced use of the chain of command or the Office of the Inspector General to remedy any problems experienced by LGB troops. These are standard procedures that have been in place in the military for centuries and are available to all members of the Armed Forces who claim there has been a failure of leadership.  The question is, will this be adequate with the change in the law and if not, what can be done to insure that LGB service members are treated fairly?
I would argue that this is not enough. Like other minorities such as women and people of color, gays and lesbians have also faced discrimination in the military. But the discrimination against LGB service members has been very different. Since Frederick Gotthold Enslin was discharged from the Continental Army in 1778, many tens of thousands of Americans have faced a similar fate. Some were even imprisoned just because of whom they loved. It has been the official policy of the United States government for over 218 years that gays, lesbians and bisexuals could not serve, period.
For the past 17 years, under the “compromise” of DADT the government welcomed the service and sacrifice of GLB patriots as long as they denied and concealed the most fundamental part of their identity and lived a lie. The rationale for these two different policies has changed over time but the results have been the same – government mandated discrimination. DADT was the only law in the land that made GLB people second-class citizens. It encouraged, no required, members of the military to discriminate against their LGB comrades in arms. Against this history of bigotry, the DOD now mandates a 180-degree turn around in the law and the attitude of some and anticipates no recriminations against those who have been the object of this discrimination. With all due respect to the quality of leadership of those professionals in the military, this may be a bridge too far for some.

If it isn’t broke, don’t fix it?
A policy of nondiscrimination based on sexual orientation is now, in all practicality, dead in the legislative process. There remains only two ways left to provide adequate protection to LGB service members, by executive action or judicial intervention. On February 9, 2011, SLDN called upon President Obama to issue an executive order to make it the official position of the United States to not discriminate against members of the services because of their sexual orientation or gender identity.
There is another executive option available. The DOD can merely change the Human Goals Charter to include sexual orientation as a protected class. There is precedent for this action. In 1998, the Charter was changed by the DOD to include sexual orientation as a basis for protection for civilian DOD employees. The mere insertion of the words “sexual orientation” in the section dealing with the uniformed services would be an important step in solving this foreseeable problem.
Finally, the judicial branch may take action. The Log Cabin Republican case now pending on appeal in the 9th Circuit Court of Appeals may provide that vehicle. On many occasions, Secretary Gates and Admiral Mullen have made it clear that the DOD does not want a judicially mandated repeal of DADT and a finding that the law is unconstitutional. That is precisely what happened in this case and for 8 days the DOD was enjoined by the trial court from enforcing DADT. In spite of the concerns of the DOD there were no reported problems.  Dan Woods, lead attorney in the LCR case told us during the recent panel “The Truth Behind Don’t Ask, Don’t Tell Repeal” and afterwards he intends to pursue this litigation even if repeal becomes effective. His argument is that a future Congress or administration may try to reverse repeal of DADT and if Judge Phillip’s decision is upheld, it would prevent this from happening.
While it appears the process towards certification, as required by the law, is proceeding in a timely fashion, we must be ever vigilant. The other services should look to the Coast Guard. They now have appropriate protections in place for LGB service members and will have lived with open service for many months before the DOD’s extensive implementation process is completed.  The Coast Guard experience will likely be consistent with the undisputed fact that GLB patriots have been serving for years, often with the knowledge of their fellow comrades in arms with no negative impact on unit cohesion, morale and discipline.  I suspect the other services, like our allies and the Coast Guard, will find that repeal will be a “non-event.”


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