Following President Obama’s undertaking in the State of the Union address, Admiral Michael Mullen (Chairman of the US Joint Chiefs of Staff) and Robert Gates (US Secretary of Defense) have recommended an end to the “don’t ask, don’t tell” policy preventing homosexuals from openly serving in the US military, in testimony to the Senate Armed Forces Committee. While the arguments are not quite the same, the general position and line of rhetoric (“the troops will get over it”) was memorably presented a decade ago in The West Wing:
All that having been said, it’s neither the Chairman nor the Secretary nor the President’s call. It’s for Congress to decide, and at present the bill is thirtyish votes shy of passing. But if it is done, this will be a genie of sorts; once out of the bottle, no force will put it back in. If the armed forces are even faintly representative of wider society, there will be thousands — tens of thousands, even — of demonstrably capable, patriotic, decorated soldiers, including perhaps some in the very highest ranks of the service who, while perhaps not having a coming-out parade, will nevertheless feel gradually more free to leave the closet. A future administration will court political and military ruin if it embarks on a witchhunt to purge them all from the nation’s ranks, particularly given the extensive nature of the USA’s current military deployments.
Update: Thanks to Hugh and Pablo (in comments) for correcting me on whose “call” it is.
Actually I believe that it is a matter for the President – in his position as CoC he has the right to order the armed forces to end the policy. No, he can’t directly overturn the Congressional Act, but he can effectively make it meaningless. Granted, this might be seen as an undesirable extension of executive power, but it does have a history – I believe Truman did something similar with ending racial segregation in the armed forces.
Not to say that an Act of Congress wouldn’t be the best way to do it, but the idea that this is not a matter for the President is far less true than it is for, say, healthcare.
Hugh, yes, Truman’s desegregation was an executive order.
I’m not an expert on the topic, but I think the President can go almost all of the way on his own authority (with the approval of the Joint Chiefs and operational command), but for it to be properly and legitimately done the Uniform Code of Military Justice needs to be amended, since that’s where the “misconduct” of homosexuality is defined. I believe that can only be amended by act of Congress.
Pablo on February 3rd, 2010 at 19:24
An executive order is all that is needed. Congress can (and will) make a fuss about it, but as C-in-C he calls the shots (which Clinton did when he instituted the “don’t ask, don’t tell” policy over the wishes of both the Joint Staff and Congress). Here Obama has both SecDef and the Chief of the JCS on his side, and they, not he, raised the matter before Congress. At a time when the military is scraping the barrel for volunteers (although recruitment picked up in 2009 after six consecutive years of shortfalls), especially amongst officer candidates, they can use all the talent that they can get.
Two points worth mentioning from my personal perspective. 1) the intelligence services have no problem with “out” gays as colleagues, since they cannot be blackmailed as easily as closet gays or married heterosexuals; 2) having had a female Naval officer as a partner for five years, including a time when she was the XO then CO of two different units, I can relay the view from her perspective that when it comes to sexual harassment it was hetero male on female that constituted 95% of all cases; followed by hetero female on male, female on female and male on male in that descending order. So I do not think that bunking or taking showers together is going to lead to any orgies and a drop in morale, so long as gays maintain military discipline, suffer and die in the same measure as their “straight” counterparts (quotations because there is plenty of freakiness in the hetero soldier community)–and they will.
Ok, I accept the criticism — it is to an extent the “President’s call” (since as a matter of practicality the Joint Chiefs defer to him as Commander in Chief) but it’s not solely his call because ultimately the permanent repeal (amending the Code) can only be enacted by Congress, who could in principle defy the President (not that they will in this case).
But I’d like to at least show some of my working. According to this Centre for American Progress report on the topic (which forms the basis of my understanding), the executive order is the initial instruction which provides cover and guidance to the other agencies enacting the repeal, and can do the trick on i ts own for a while (under stop-loss), but isn’t in and of itself a permanent solution. Is this a valid analysis?
There’s also an interesting question about mandate (and Obama appearing to overreach his by acting without Congress), but that’s more a perception problem than one of reality.
Pablo on February 3rd, 2010 at 21:28
Lew: The role of the Congress is to “advise and consent.” If the Adjunct General re-writes the UCMJ and the JCS and President sign off on it, then Congress will be hard pressed to offer a rationale as to why it will not consent to the change. And given the numbers, it will not.
What you can expect is a bunch of Congressional GOP moralizing pontificators and their media mentors getting their collective panties in a twist over this.
I see. So the sequence between Command and Congress is reverse of what I had thought (which was President orders -> Congress ratifies -> Command implements; when in reality it’s something more like President orders -> Command implements -> Congress ratifies).
I suppose the experience of the W. Bush administration ought to have corrected me on that.
Pablo on February 3rd, 2010 at 21:53
Actually Lew, the way it works (depending on the strength of the White House at any given moment, and right now it is not that strong), the syllogism works as follows: WH suggests—>command agrees or disagrees—>WH persists or desists—>Congress is notified (leaks having already telegraphed the consensus or lack thereof between the WH, SecDef and JCS)—>Congress barks or rolls over.
If Congress is dominated by the opposition and barks loudly, WH or JCS may cave because there are other issues in the pipeline that need trading off. If Congress rolls over, especially if the public image given is that the JCS wants the policy change, it is a done deal.
So–yay for open gays in the US military! They will still kill “bad” people just as much dead as a straight soldier. The question then is not so much about who does the shooting but why they are doing it.
It’s ironic that the one actor in this role who explicitly has no executive role – the Joint Chiefs – is the one that is seen as the most legitimate and carrying the most authority.
Probably simply due to the high levels of respect the military enjoy in the US. For some reason the patriotism and desire to serve of military officers is generally presumed as a given until proven otherwise, unlike almost any other state employee.