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Despite Reforms, 'Don't Ask, Don't Tell' Continues to be Anti-Gay Military: The way it is administered just makes things worse. The next president must address the failures. By JANET E. HALLEY; Janet E. Halley is a professor of law at Stanford University and the author of "Don't: A Reader's Guide to the Military's Anti-Gay Policy" (Duke University Press, 1999) We finally have reforms in the implementation of the compromise "don't ask, don't tell, don't pursue" policy meant to settle the issue of gays in the military. But the Clinton administration regulations continue to make the policy much worse even than the statute adopted by Congress.
Recent events implicitly confirm what critics have said all along: This policy is no compromise. It's outright anti-gay. Much of that can't be fixed without the cooperation of Congress. But any future president could take the following steps toward fairness without seeking new legislation: Restore "don't ask. " This part of the supposed compromise never made it into the statute or the Clinton administration's implementing regulations. It appears only in informal "guidelines, " where it is always coupled with a warning that it is unenforceable chit-chat. The new directives don't change that.
Commanders can still ask service members whether they are gay whenever they please. "Don't ask" should be mandated and backed up with procedures for its enforcement. Narrow the grounds for discharging people. The statute says that commanders must process service members for discharge if they "tell" or if they engage in bodily contacts that "manifest a propensity" to engage in same-sex erotic acts. But Clinton administration regulations still go way beyond that, requiring commanders to start proceedings against service members who have engaged in conduct that manifests a propensity. Various military enforcers have decided that this could include having a gay friend, cutting your hair a certain way or objecting to the "don't ask, don't tell" policy. This is a viciously anti-gay rule, allowing for arbitrary, even imaginary charges and the new guidelines do nothing to alter it.
The new president should stipulate that proceedings cannot begin without corroborated evidence of specifically sexual contact and seek repeal of the propensity clause. Allow service members to challenge commanders' decisions to initiate discharge proceedings. Clinton administration regulations still allow commanders to decide unilaterally what conduct properly triggers discharge proceedings. If your commander thinks that you " ve manifested a propensity -- bang! -- you " re in discharge proceedings, and you must be kicked out of the military unless you prove you have no propensity. You have no way of challenging that triggering decision. Commanders can be a s arbitrary as they like.
This is tyranny, not law. Service members should have standing to challenge every element of the case against them. Reinstate "don't pursue. " The new directives purport to limit investigations, but really they just clarify who decides: commanders. Nor is it new to say they can consult top military lawyers.
And we know what advice they will get. Navy lawyers have urged commanders to investigate a service member who has merely come out as gay until they find evidence of same-sex acts. In one memo, Air Force lawyers advised that if investigators stumble on evidence implicating other service members, so much the better; commanders should "be creative" about how to run a witch hunt. The Marines' top lawyers have allowed commanders to hold suspected service members for up to 10 days without providing them with access to legal advice. It's time for substantive, not merely procedural, "don't pursue" rules. Stop pretending the policy is a good one.
The Clinton administration has repeatedly misled the public and courts about "don't ask, don't tell. " It pretends that the policy punishes service members "not for who they are but for what they do. " The new directives hide behind this tired old fig leaf yet again. But homosexual identity -- not homosexual acts -- really is the crucial issue at every procedural moment. The Clinton administration has further misled the public by avoiding formal promulgation of its implementing regulations. It has ducked the Administrative Procedure Act's public notice and comment period and its due process rules. Thus also the regulations remain unpublished, and few people know what they are or even how to find out. The regulations should undergo the rigors of the APA.
President Clinton wanted to end discrimination in the armed forces, but he has instead presided over the institutionalization of anti-gay animus. Many of the really bad things about "don't ask, don't tell" come not from the congressional statute but from his implementation of it. A new president can undo his mistakes. Copyright 1999 The Times Mirror Company; Los Angeles Times Bibliography:
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