October 13, 2010
From a Bad Policy to Bad Law—A Commentary by Eugene Fidell
The following commentary was posted on newyorktimes.com on October 13, 2010.
From a Bad Policy to Bad Law
By Eugene Fidell
Eugene R. Fidell teaches military law at Yale Law School. He is also president of the National Institute of Military Justice, and served in the U.S. Coast Guard from 1969 to 1972.
Reading Judge Virginia A. Phillips’ 84-page decision in the Log Cabin Republicans’ attack on the "don’t ask, don’t tell" act, I found myself feeling angry and frustrated. From the very beginning, the policy has been a disaster, but events have conspired to permit it to remain on the books for 17 years – nearly the length of time it takes to earn retirement from the armed forces.
The policy has been a bad one from the only perspective that counts: ensuring an effective fighting force.It seems a lifetime ago that President Bill Clinton, shortly after his inauguration, began to take steps to change the rule under which homosexuality was deemed incompatible with military service. He received no support from the members of the Joint Chiefs of Staff, who, as a practical matter, engaged in a mutiny on this issue.
What he should have done was summon them to the White House and ask if any of them would find it difficult to support his policy change – and then, for those who declined to do so, thank them for their service and ask them to make retirement plans. He failed to do so, and lost the momentum he might otherwise have had, during his honeymoon phase, to make the change.
Congress thereupon decided it would take no chances, and proceeded to enact Don’t Ask, Don’t Tell as a federal law rather than a mere policy. In the process, it hard-wired into the Statutes at Large a variety of findings including, notably, one about unit cohesion, that would make it extremely difficult for any court to overturn.
The policy destroyed the lives of many dedicated members of our armed forces, causing them to lie, distorting their lives, and forcing them to live in fear of discovery. The policy worked in arbitrary ways: one soldier might slip through the net, but another might be drummed out of the service with a stigmatizing discharge.
The policy has been a bad one from the only perspective that counts: ensuring an effective fighting force. As Judge Phillips found, "don’t ask, don’t tell" caused a hemorrhage of talented members of the armed forces in critical areas such as needed language specialists and medical personnel. When war broke out and we found it necessary to call up National Guard and Reserve units, and subject them as well as the regular component forces to repeated combat tours in Iraq and Afghanistan, allowing that hemorrhage to continue was boneheaded.
The number of G.I.'s discharged under "don’t ask, don’t tell" — or who refused to re-enlist out of fear of the policy — was not insubstantial. The loss had to be made up somehow. As Judge Phillips recounts, the results were lower recruiting standards and higher recruiting expenses.
Her opinion also shows how the armed forces themselves undercut the Congressional findings about unit cohesion by suspending or deferring "don’t ask, don’t tell" investigations until the affected soldiers’ combat tours were complete. In other words, gay and lesbian soldiers, sailors and airmen were retained in the battle space, the very place where the experts (and Congress) claimed they could do the most damage to unit cohesion.
The policy has had other grave side effects. It obviously soured relations between the armed forces and the universities, leading to protracted litigation over whether recruiters had to be afforded access to campuses. The resulting chill is only now being mended.