28 May 2010

DADT repeal? No, it is neither.

Passage of the "Liberman Amendment" currently in the news does not repeal DADT, does not allow gays to serve openly in the military, and furthermore, it doesn't even require the replacement policy to be nondiscriminatory.

Like Obama's "extending benefits to LGBT federal employees," it's another cynical "Look at me, I'm doing the right thing!" performance piece for the benefit of the Democrat base, bereft of any actual benefit to the LGBT community.

1. It isn't DADT.

"Don't Ask, Don't Tell" is a policy directive, not federal law; thus, it is not subject to Congressional repeal.

DADT is the nickname for Department of Defense Directive 1304.26, issued by President Bill Clinton late in 1993. DADT was intended to ameliorate the effect of the very extreme "Homosexual Exclusion" law (10 U.S.C. §654) hastily passed by Congress earlier that year. The law Congress is currently considering repealing is this Homosexual Exclusion law.

Like Barack Obama, Bill Clinton campaigned on the promise of enacting a military nondiscrimination policy, and he was elected. Congress, then as now, sensibly responded, ZOMFG! TEH GHEYZ R N UR BOIZ BATHROOMZ!!11! EVRYBDY PANCKE!!! and House Armed Services Chairman Ron Dellums (D-CA) hastily inserted language into the National Defense Authorization Act for Fiscal Year 1994 (10 U.S.C. § 654) which he'd cribbed from Ronald Reagan's Department of Defense Directive 1332.14, itself an absolute bar on gays serving in the military, period.

The Defense Authorization Act with Dellums' Amendment passed Congress with veto-proof bipartisan majorities about six months after Clinton's election, and only four months after Dellums proposed the language — proving that when they need to do something really important (like keeping gays in their place) Congress can act with terrifying speed. Clinton signed it, enacting bigotry into federal law and breaking his campaign promise.

Late that year, President Clinton issued Defense Directive 1304.26 (Don't Ask, Don't Tell, Don't Harass, Don't Pursue) as a "compromise" to allow deeply closeted gay people to join and serve as long as their sexual identity was neither disclosed by themselves nor disclosed by others.

DADT wasn't a policy that directly discriminated against all gays, only the honest ones. Openly gay people continued to be excluded from joining and discharged if already serving. While DADT might have been intended to stop witch-hunts, as a practical matter it didn't. DADT also discriminated against the unfortunate. Vengeful comrades or former partners routinely rat out gay servicemembers, who are discharged on such "evidence."

Meanwhile, a military desperately hungry for fresh meat issued thousands of waivers to applicants with inadequate aptitude scores, health problems, and criminal convictions beginning in 2003 and lasting until the recent financial depression helpfully created mass unemployment. Even as the military welcomed violent armed robbers, it discharged more than 13,500 otherwise qualified soldiers for their insufficient fascination with penis-in-vagina sex.

2. It isn't repeal.

The Lieberman Amendment merely provides a mechanism for possible repeal, leaving the status quo in place while the Defense Department (1) completes its year-long "comprehensive review" (by prior agreement with POTUS, due in December), and (2) promulgates new rules (no deadline provided). Discrimination and discharges will continue to be the rule for the foreseeable future.

The amendment also allows that if either the president, secretary of defense, or chairman of the joint chiefs of staff refuses to "certify" those new DOD rules as being, in his opinion, inconsistent with "military standards," the repeal mechanism isn't triggered and it dies, leaving the law as is.

Ultimately, the Lieberman Amendment grants the DOD the power to both conceive the replacement policy and obtain its late-term abortion. That's not repeal, it's a scheme for the possibility of repeal at the unanimous discretion of a three-party body, two of whom are unelected and military.

3. It doesn't end discrimination.

It is significant that nothing in the Lieberman Amendment requires the DOD's new rules and policies to be nondiscriminatory. I fully expect military discrimination to continue in fresh new ways, (even as I fully expect President Obama to hold his "certification" hostage until after his election in 2012, to guarantee the LGBT vote).

It's also noteworthy that Congress didn't require any supporting study or formal review to enact an extreme antigay law, but repealing that law necessitates a year-long "comprehensive review," followed by another unspecified period for the top brass to careful study that review.

This somehow critically important "comprehensive review" is indeed comprehensive to the extent that it that includes the input of everyone except gay servicemembers and their families. In thoroughly kafkaesque fashion, if a servicemember volunteers how antigay policy actually affects or might affect them as a gay person, that's a sufficient "tell" to initiate discharge proceedings under DADT. Seriously, could that be more fucked up?

Even if everything goes optimally, reasonable new policies are enacted and the Homosexual Exclusion law is repealed, the Uniform Code of Military Justice's Article 125 consensual sodomy ban (unaffected by the Lieberman Amendment) will almost certainly continue to be applied with virtual exclusivity against only the gay practitioners of oral or anal sex, as civilian sodomy laws were until 2003's Lawrence v Texas. There's no way bigots are going to permit the foreclosure of every legal process to rid themselves of unwanted gays.

Here's the Lieberman Amendment in full if you want to check my work. It's a pretty easy read, so I guess it's got that going for it. For extra credit, compare that sack of crap it to the vastly superior Murphy/Tauscher bill.

Here's the bigoted company we keep.

3 chimed in:

J9 said...

insufficient fascination with penis-in-vagina sex

Seems to be going around! Love that wording!

the crustybastard said...

Thanks for your continued patronage, J9.

Nuke said...

I don't know if I have ever commented on this blog. I enjoy the writing but seldom have anything to add to the conversation. As a strait white guy I have little experience on the receiving end of discrimination, but I know it pisses me off.

For instance, a relative of my GF at a family BBQ Sunday really went overboard in revealing his true colors as not only a gay hater and racist but a conspiracy nut (I think the 3 are a perfect combination). It was as close as I have come to acting out physically from loosing my temper in many years. He finally shut up when a bunch of us impressed upon him that our hostess was a Latina and might have an issue with his stance on Arizona and immigration.

OK back onto topic, I really hope that this all works out to replace DADT with something that will be fair to service members of all orientations. But I agree with your assessment that the odds seem against it.