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DADT: “One of the great injustices and follies of our time”

Posted by GayPatriotWest at 12:06 pm - February 18, 2005.
Filed under: War On Terror

In my post on the misguided Don’t Ask/Don’t Tell policy, I promised to forward the post to a lawyer friend of mine for comment. Here’s his response:

The Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass policy is an amalgam of statutes, executive orders, and military regulations. A comprehensive guide to it can be found in a very lengthy yet very helpful document available at SLDN. The answers to the specific questions raised by your blog post are (a) the policy applies equally to officers and enlisted personnel, (b) the policy has no wiggle room to distinguish between combat and non-combat roles, and no wiggle room to distinguish between “auxiliary” and non-auxiliary roles.

The basic governing statute is 10 U.S.C. ? 654. [reproduced under “READ MORE”] You will probably find its harshness shocking. Unfortunately, there are other documents (executive orders and regs) one must consult for all of the express language of all of the governing legal rules, but Section 654 should tell you what you want to know for present purposes.

. . . . I do think this is one of the truly great injustices and follies of our time . . . . [Y]ou should tout the great work of the Servicemembers Legal Defense Network.

I agree. DADT is one of the truly great injustices and follies of out time.

Section 654. Policy concerning homosexuality in the armed forces

(a) Findings. – Congress makes the following findings:
(1) Section 8 of article I of the Constitution of the United
States commits exclusively to the Congress the powers to raise
and support armies, provide and maintain a Navy, and make rules
for the government and regulation of the land and naval forces.
(2) There is no constitutional right to serve in the armed
forces.
(3) Pursuant to the powers conferred by section 8 of article I
of the Constitution of the United States, it lies within the
discretion of the Congress to establish qualifications for and
conditions of service in the armed forces.
(4) The primary purpose of the armed forces is to prepare for
and to prevail in combat should the need arise.
(5) The conduct of military operations requires members of the
armed forces to make extraordinary sacrifices, including the
ultimate sacrifice, in order to provide for the common defense.
(6) Success in combat requires military units that are
characterized by high morale, good order and discipline, and unit
cohesion.
(7) One of the most critical elements in combat capability is
unit cohesion, that is, the bonds of trust among individual
service members that make the combat effectiveness of a military
unit greater than the sum of the combat effectiveness of the
individual unit members.
(8) Military life is fundamentally different from civilian life
in that –
(A) the extraordinary responsibilities of the armed forces,
the unique conditions of military service, and the critical
role of unit cohesion, require that the military community,
while subject to civilian control, exist as a specialized
society; and
(B) the military society is characterized by its own laws,
rules, customs, and traditions, including numerous restrictions
on personal behavior, that would not be acceptable in civilian
society.
(9) The standards of conduct for members of the armed forces
regulate a member’s life for 24 hours each day beginning at the
moment the member enters military status and not ending until
that person is discharged or otherwise separated from the armed
forces.
(10) Those standards of conduct, including the Uniform Code of
Military Justice, apply to a member of the armed forces at all
times that the member has a military status, whether the member
is on base or off base, and whether the member is on duty or off
duty.
(11) The pervasive application of the standards of conduct is
necessary because members of the armed forces must be ready at
all times for worldwide deployment to a combat environment.
(12) The worldwide deployment of United States military forces,
the international responsibilities of the United States, and the
potential for involvement of the armed forces in actual combat
routinely make it necessary for members of the armed forces
involuntarily to accept living conditions and working conditions
that are often spartan, primitive, and characterized by forced
intimacy with little or no privacy.
(13) The prohibition against homosexual conduct is a
longstanding element of military law that continues to be
necessary in the unique circumstances of military service.
(14) The armed forces must maintain personnel policies that
exclude persons whose presence in the armed forces would create
an unacceptable risk to the armed forces’ high standards of
morale, good order and discipline, and unit cohesion that are the
essence of military capability.
(15) The presence in the armed forces of persons who
demonstrate a propensity or intent to engage in homosexual acts
would create an unacceptable risk to the high standards of
morale, good order and discipline, and unit cohesion that are the
essence of military capability.
(b) Policy. – A member of the armed forces shall be separated
from the armed forces under regulations prescribed by the Secretary
of Defense if one or more of the following findings is made and
approved in accordance with procedures set forth in such
regulations:
(1) That the member has engaged in, attempted to engage in, or
solicited another to engage in a homosexual act or acts unless
there are further findings, made and approved in accordance with
procedures set forth in such regulations, that the member has
demonstrated that –
(A) such conduct is a departure from the member’s usual and
customary behavior;
(B) such conduct, under all the circumstances, is unlikely to
recur;
(C) such conduct was not accomplished by use of force,
coercion, or intimidation;
(D) under the particular circumstances of the case, the
member’s continued presence in the armed forces is consistent
with the interests of the armed forces in proper discipline,
good order, and morale; and
(E) the member does not have a propensity or intent to engage
in homosexual acts.
(2) That the member has stated that he or she is a homosexual
or bisexual, or words to that effect, unless there is a further
finding, made and approved in accordance with procedures set
forth in the regulations, that the member has demonstrated that
he or she is not a person who engages in, attempts to engage in,
has a propensity to engage in, or intends to engage in homosexual
acts.
(3) That the member has married or attempted to marry a person
known to be of the same biological sex.
(c) Entry Standards and Documents. – (1) The Secretary of Defense
shall ensure that the standards for enlistment and appointment of
members of the armed forces reflect the policies set forth in
subsection (b).
(2) The documents used to effectuate the enlistment or
appointment of a person as a member of the armed forces shall set
forth the provisions of subsection (b).
(d) Required Briefings. – The briefings that members of the armed
forces receive upon entry into the armed forces and periodically
thereafter under section 937 of this title (article 137 of the
Uniform Code of Military Justice) shall include a detailed
explanation of the applicable laws and regulations governing sexual
conduct by members of the armed forces, including the policies
prescribed under subsection (b).
(e) Rule of Construction. – Nothing in subsection (b) shall be
construed to require that a member of the armed forces be processed
for separation from the armed forces when a determination is made
in accordance with regulations prescribed by the Secretary of
Defense that –
(1) the member engaged in conduct or made statements for the
purpose of avoiding or terminating military service; and
(2) separation of the member would not be in the best interest
of the armed forces.
(f) Definitions. – In this section:
(1) The term ”homosexual” means a person, regardless of sex,
who engages in, attempts to engage in, has a propensity to engage
in, or intends to engage in homosexual acts, and includes the
terms ”gay” and ”lesbian”.
(2) The term ”bisexual” means a person who engages in,
attempts to engage in, has a propensity to engage in, or intends
to engage in homosexual and heterosexual acts.
(3) The term ”homosexual act” means –
(A) any bodily contact, actively undertaken or passively
permitted, between members of the same sex for the purpose of
satisfying sexual desires; and
(B) any bodily contact which a reasonable person would
understand to demonstrate a propensity or intent to engage in
an act described in subparagraph (A).

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