Dr. Jillian T. Weiss

DADT is more "humane"?

Filed By Dr. Jillian T. Weiss | March 28, 2010 1:00 PM | comments

Filed in: Politics
Tags: Don't Ask Don't Tell, Don't Ask Don't Tell repeal, military

I haven't followed the DADT repeal situation that closely, though I have long been in support of those working on it.

But I was blown away when I heard about the steps that Secretary Gates is taking to make the policy "more humane." When he announced yesterday what they had been doing up until now, I was outraged as a law professor and as a human being concerned with due process and fairness.

If the military's "justice system" has been using these unjust methods as a part of Don't Ask, Don't Tell policy, then it's pretty obvious that the policy is itself unjust. Putting in a few tweaks is not going to make an unjust policy into a just one. It's putting icing on a turd.

It sounds as if the military has been running medieval courts of the sort ridiculed by Monty Python 35 years ago. (Holy Mazola, has it been that long?) A video of that is after the jump. In light of how the military has been treating soldiers accused under DADT, the video isn't really funny.

I was stunned by the changes they are going to make. From the sound of it, they have been using evidence that has been banned since the Middle Ages: information without testimony under oath, hearsay and attorney-client privileged information.

They will now require testimony made under oath. Excuse me, but what were you using before? Witness testimony under oath is the basic building block of a trial of any sort. The idea that trials can proceed without testimony of witnesses under oath is beyond shocking. It's like saying that they will no longer allow the use of psychics in trials. It means statements were admitted into evidence without any affirmation that they were the truth according to personal knowledge of the facts. It suggests that information was used without any opportunity to cross-examine the provider of that information.

No oath means the evidence isn't subject to traditional tests of reliability. And in my experience as a litigator for over a decade, most people routinely lie or exaggerate in court proceedings. When i say most people, I mean 99%. After you're done cross-examining them, generally 25% of what they said is left as having any sort of reliability.

They're no long going to use hearsay evidence. Legally, hearsay refers to information from a third party who isn't available for cross-examination in court. Were they using that? No other court system in the country permits use of hearsay, except in very few specified exceptions. It's just unreliable. It's like letting someone whisper in the judge's ear, and not letting anyone else hear or question what was said.

They're no longer going to use confidential information provided to your lawyer. Were they using that? What did they think "confidential" meant? I call it abuse of process. No other court system in the country permits use of privileged statements made to a lawyer. It makes it impossible to assist in your own defense because anything you say to your lawyer can come out. It means your lawyer is working with one hand tied behind their back. It's just wrong.

These are violations of due process, and there's just no other way to say it. To think our military operates like a giant kangaroo court has to shock the conscience of any right-thinking person.

It reminds me of this scene from Monty Python and the Holy Grail. While witch trials occurred a long time ago, and all of the horror of them has been leached out with the passage of time, so that we can now laugh about it, it sounds as if the military has been doing essentially this to service members. Now that's not funny.

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These are the same people who gave us the concept of 'collateral damage'.

Sadly Jillian, the truth is up until the mid 90’s the Commanding Officers were allowed to hold mast/office hours for ‘non-judicial punishment’ under the UCMJ. The CO was judge, jury and executioner and his judgment was final. He had authority to discharge and set the type of discharge as well. Because of rampant abuse Commanding Officers had that privilege removed and it was placed higher.

All discharges are at the higher (flag) level for all infractions and discharge type is set at that level. CO’s can make recommendations for discharge and type of discharge. CO’s still hold mast/office hours and so long as its minor infractions the CO still has power to discipline his troops.

The part that always infuriated me was when a young kid who’s had abuse issues due to being GLBT would end up needing to talk to someone about their life issues. Um… I think everyone reading this knows at least one person who had serious issues regarding abuse, neglect, abandonment and the realization that they’re ‘different’. Not everyone can walk thru the hell that is adolescence for GLBT youth and not be affected at some level about it. That person needs to talk to someone who can sit and listen and say the right things… unless you’re in the military. Prior to this ‘new humane policy’ if you talked about those life stressors to a military therapist, military clergy or military lawyer they were bound by the law to divulge that information to your chain of command.

For you Jillian, think back to the day you realized “OhmygodImtransgendered!”…
Good day, bad day, indifferent day you probably needed to talk to someone about what that meant. Now think about how much stress that would put you in if, in the act of talking to anyone about it that you should that they would immediately report you to your chain of command for discharge? ‘Outing’ is just a word, that action leads to harassment, abuse, assault, attempts on lives.

It’s one little thing, not a scrap or even a crumb of a right but I’m glad for this one little bit. I know that this one bit will save the lives of young Transgendered citizens serving their country in a very high stress job that eats people every day will give them the ability to at least talk to someone without fear of being outted and discharged when they only have some issues to talk about.

So the DoD is forcing our military to start to work with in the 20th Century. At the rate they’re going they’ll get to the 21st Century sometime around 3048…

The horror stories are out there, like the officer who followed all the rules but when his home burned down, the people investigating the fire found gay videos in the remains of his home and turned in the evidence - resulting in his being discharged just a few months before he was eligible for retirement benefits. By what standard is that "telling?"

And of course, all the women who, over the years, have been turned in as lesbians because they turned down the advances of the male servicemembers around them. It's a common statement by lesbians who serve that it's almost mandatory for their own self-defense to engage in at least one very flagrant and public heterosexual relationship (and to break it up very publicly) to deflect suspicion and prevent the "she must be lesbian since she didn't sleep with me" blackmail.

More than a few people have been discharged because they came out to their doctor or chaplain, too.

Nathaniel Frank summarized the "good news" here:

• Peers who accuse service members of being gay will be expected to testify under oath, making it more difficult for hearsay, rumors, or vengeance to trigger a homosexual inquiry
• People who are motivated by a wish to cause "personal or professional harm" to suspected gay people--i.e. homophobes or even those who oppose gays in the military--will not be considered viable informants for the purpose of starting an inquiry
• The officer conducting the inquiry will now have to have a rank of O5 or higher, making it harder (but hardly impossible) for a low-ranking homophobic officer to end a gay person's career through a rogue investigation
• The standard of evidence for an actual hearing before a military board will be raised to a "preponderance of the evidence," rather than simply "sufficient evidence," again making it harder for the process to end in discharge
• The use of the notorious phrase "propensity or intent to engage in homosexual acts" has been limited (but not eliminated), meaning that the focus will be shifted to actual conduct or statements rather than someone's idea of what might demonstrate a likelihood or possibility that a soldier will, at some point, engage in homosexual conduct
• Observed behavior by a third party which "amounts to a non-verbal statement" of homosexual identity in the eyes of a "reasonable person" is no longer considered admissible evidence to trigger an inquiry
• Service members will be protected from discharge in their confidential conversations with clergy, psychologists, medical professionals, lawyers, and security clearance investigators


Someone I know in the military actually doesn't go to the psychologist because he's worried it'll affect his ability to get promoted, so instead he goes to clergy.

This is kind of why the military shouldn't be in charge of dispensing justice. They aren't all that good at it.

With respect, first off, they never said they would no longer use “hearsay,” just "discourage" it. Such an implied prohibition already existed, in fact.

But the trap remains in not just WHO defines “hearsay” versus the existing requirement for “credible information,” but what it leads to. In fact, slimy Pentagon General Counsel Jeh Johnson was asked what they would do with “valid information” resulting from following “invalid information,” and, true to form of his transparent opposition to repeal, he said they hadn’t thought about that.

Further, the “under oath” requirement, while some are celebrating the chilling effect it could have on rumor mongers, et al., doesn’t mean what is said under oath is TRUE.

But more importantly, JUST AS THEY INTENDED IN THIS STUNT TO DISTRACT FROM THE FACT THAT THE PRESIDENT IS LETTING REPEAL DIE ON THE LEGISLATIVE VINE, most everyone is wasting time talking about slight changes to “process” when the fact remains that HOWEVER they come to the conclusion a servicemember is gay THAT SERVICEMEMBER WILL STILL BE DISCHARGED. That's why cagey Gates kept using the expression "fact-finding inquiry." If they find the fact is you're gay, you'll be booted regardless of what led them to that fact, regardless of the motivation of the "outer". "Third-party outings" are NOT now banned. Period.

An analogy is capital punishment. Whether they shoot, hang, gas, poison, or electrocute you, you’ll STILL BE DEAD.

However, it remains important to address the others misunderstandings of the military generally and the discharge process specifically.

1. Right or wrong, by its very nature, the military is an institution in and of itself. By enlisting, one signs away much [but not all] of the due process protection rights available to civilians, and that truth has been upheld by civilian courts repeatedly in all kinds of applications. The average person of a certain age understands that some laws vary from state-to-state, e.g., gun laws, but most with little or no contact with the military can't imagine how all-encompassing the military's own set of laws is under the Uniform Code of Military Justice.

In short, by enlisting, one signs away many of the protections and privileges civilians take for granted, and must throw out his/her preconceptions of what is legally allowed; legally fair. I assure you, every one of the “violations” you cite has been upheld by some court as some time, just as DADT itself has been, save, in its case, by the US Supreme Court. [They have upheld lower court rulings simply by denying appeal, but have never ruled on the Constitutionality of DADT per se.]

Many parts of the unique legal world all servicemembers find themselves in parallel recognized constitutional limits put upon civilian employees such as that which has frequently snared gay servicemembers: using "company" computers/e-mail services. Say you work for Acme, Inc. If it's one belonging to them, they can legally snoop on the computer you use at work all they want; files, e-mails, Internet searches, etc. If you take a company-owned laptop home, if you access a company intranet from home on your own computer, your privacy in those contexts doesn't exist either. I believe they can even listen in on calls you make ON company phones without a warrant.

The same is true in the military and MUCH more.

2. RE DADT specifically: for decades, even before DADT replaced the previous form of the ban, discharges "just for being gay" have been handled by hearings under a formal “administrative separation procedure” [ADSEP]. What you’re thinking of as a “trial,” a COURT martial, is now only commenced when there has been some specific violation of the UCMJ they choose to prosecute one for. Many fail to understand that “being gay” isn’t a violation of the UCMJ, and that while “sodomy” is, it is almost never prosecuted alone any longer.

There are three types of courts martial, and their similarity or difference from a civilian “trial” vary. Going into those, for the purpose of this discussion, are irrelevant given, again, that virtually no gay servicemember, UNLESS he or she has violated the UCMJ, is subject to one.

2. Given that the grounds for firing a person in this case can simply be "being gay," such ADSEP hearings, while, again, NOT a "trial," are much fairer in concept than the firing process in civilian companies wherein one's fate, regardless of the “cause” for dismissal, is usually TOTALLY in the hands of a single supervisor and there is no "hearing" of ANY kind, no “evidence” submitted, etc., etc. The only "legal" apparatus involved [assuming the business isn't stupid] is to have a personnel/human resources person make certain the reason for dismissal doesn’t violate any laws, e.g., “being gay” in those states with job protections.

One can waive one’s right to such a hearing, which, for all practical purposes is like “pleading guilty” or “no contest” but, in this case, you never see a “judge,” and it’s just a matter of time before your discharge processing is completed and you’re a civilian. Victor Fehrenbach considered that but changed his mind; deciding to have the hearing and appeal any resulting discharge recommendation through channels. I’m aware of no such appeal ever having been granted. The only reason he isn’t a civilian yet is because he went public and Obama, Inc., at least recognizes that making him an even bigger martyr is not in their political interest. Meanwhile, hundreds of unknowns have been sent to the unemployment lines.

In a hearing, held before an “administrative board” [terms vary from branch to branch] one can present evidence, is represented by a military attorney, and can also be represented by a civilian attorney [at your own expense, of course]. In Dan Choi’s case, the board consisted of two Army officers and two National Guard officers because he is in the Army NG. Fehrenbach went before five Air Force colonels.

I can’t speak to other kinds of charges, but the BIGGEST outrage legally speaking re DADT is that, if it gets to this point, one is virtually assumed to be guilty in a way that even Kafka might not be able to imagine. In essence, one is presumed to be guilty of FUTURE "crime" unless he/she "proves" otherwise.

Specifically, many wrongly think, based on the propaganda put out in 1992 by those as high as Pres. Clinton [sometimes I think even HE didn’t “get it”], that “DADT is not about status but conduct.” WRONG. If they believe you “are” gay, you are presumed to have a “propensity” for future gay sexual acts [even if they believe you’re standing before them a certified virgin], and, therefore, ipso facto, a threat to unit cohesion, blah blah blah.

They will say one has the opportunity to “rebut the presumption,” but, as the saying goes, how does one prove a negative?

In closing, I’ll say this. The ONLY good that came out of the changes announced Thursday is the broadening of confidentiality. Though there were violations, lawyer-client privilege was already generally recognized. The frequent and flagrant violations involved chaplains [predictable given the religious basis for homophobia], physicians, and therapists.

BUT rules are only as strong as their observance. There are many documented examples of unpunished violations of the existing "don't harass" prohibition. Now, and even after full repeal, IF that ever happens, we will continue to have to watchdog against violations, just as one does now against violations of existing military bans on racial and gender discrimination.

Yeah, and if you’ve ever done time in the military you know that ‘redefining’ a word, phrase or entire regulation to suit a want or need is normal everyday activity in the military.

And, if they can’t get you through DADT, they’ll just use a different regulation to damn you.