Duty: Memoirs of a Secretary at War (73 page)

Thanks to the good work of Jeh Johnson and others, I was able to announce in late March a number of changes, effective immediately, to make application of the existing policy and law fairer. I announced that I would raise the rank of officer authorized to initiate an inquiry or separation because of homosexual conduct to general or admiral. We would
revise what constituted “credible information” about a service member’s homosexuality to require, for example, that a sworn statement would be necessary and hearsay would not be allowed. We would revise what constituted a “reliable person,” upon whose word an inquiry could be initiated, “with special scrutiny on third parties who may be motivated to harm the service member.” This was meant to address the problem of jilted lovers and spurned romantic advances, situations in which the accuser used the DADT policy to get revenge by “outing” a service member. Certain categories of confidential information would no longer be used in support of discharges, including information provided to lawyers, clergy, and psychotherapists, medical professionals in furtherance of medical treatment, and public health officials. In effect, these changes limited DADT inquiries and separations to service members who had “outed” themselves intentionally or made little or no attempt to hide their orientation. The military would not consume time and resources trying to ferret out gays and lesbians in the ranks who kept their personal lives to themselves.

As one reporter put it, “There will no longer be an investigatory zeal, a prosecutorial mode, or a policy designed to search for serving gays. A small step, but it will help change the culture.” Since 1993, more than 13,500 service members had been discharged for homosexual conduct. Now the number would plummet.

Since Mullen’s and my testimony, there had been considerable talk on the Hill about quickly enacting some kind of legislation for repeal. Senator Levin wanted to declare a moratorium on discharges until Congress could act. I wondered how you could declare a moratorium on the enforcement of any law. Fortunately Jeh Johnson backed me up. I made clear to the president and to Emanuel that any effort to legislate DADT before completion of the review was unacceptable to me because it would be perceived as a direct insult by men and women in uniform who had just been told that their views would be sought out before any policy change. It would send the message that neither the president nor the Congress gave a damn what they thought. Obama and Emanuel promised—unequivocally and on several occasions—to oppose any legislation before completion of the review.

By mid-April, we were hearing rumors of quiet side deals being discussed between members of the White House staff and Congress. I met with Rahm on April 21 and told him there were multiple indications from
the Senate that White House officials were actively encouraging Senators Lieberman and Levin to move legislatively on DADT in advance of the Defense review. I told Rahm I was getting tired of the White House preoccupation with responding to pressure from gay advocacy groups on DADT without taking into account the impression on the troops that no one “over here” (at the White House) cared about military views and attitudes.

Nine days later Mullen and I repeated our position in a response to a letter from Ike Skelton on the advisability of legislative action to repeal DADT prior to completion of the Defense review: “I strongly oppose any legislation that seeks to change this policy prior to the completion of this vital assessment process.” Our concern fell on deaf ears. The politicos at the White House, despite protestations of innocence, continued to negotiate with congressional staffers and outside supporters on the terms of legislation. I knew this because on several occasions during the first part of May, Rahm approached me with one formulation or another to ask if it would work for me. After the assurances from the president and Rahm that they would oppose congressional action before the review was complete, I felt there had been a breach of faith by the White House.

On May 21, Robert Rangel and Jeh Johnson met with White House deputy chief of staff Jim Messina, NSS chief of staff McDonough, and several others from the White House on how to proceed with Congress. Rangel laid out my position (again). Messina said that the president could not publicly declare opposition to congressional action now. He said they had been able to “finesse” and “dodge” the issue over the last several months, but Congress’s insistence on taking action was about “to force his hand.” Johnson and Rangel explained why Mullen and I felt so strongly about preserving the integrity of the review process and asserted that no matter how “artfully” we rationalized a change of position in a way that could be sold in Washington, “it will not translate well to the world where the troops live—to them it’s a simple matter of Congress repealing in advance of the review or not.”

On Sunday, May 23, as Rangel, Johnson, and the White House tried to reach agreement on how to proceed with Congress that coming week, Mullen joined me on my porch at home to discuss the state of play. As I puffed on a cigar, I told Mike that Emanuel was pushing me to accept some sort of legislation that would repeal DADT but would delay implementation until after the review was done and recommendations considered.
I said it still sent the wrong message to the troops—that Congress didn’t care what they thought. Mullen said he had been “diddled” by the White House on an issue where he already was way out in front of the chiefs. He was also deeply bothered by the recently published Jonathan Alter book
The Promise
, which portrayed the White House and the president as distrustful of the military leadership. I responded that I, too, was frustrated and stressed. Afterward I jotted down what I had told him: “The Democrats fear losses in the fall will prevent action on Don’t Ask, Don’t Tell after the election (and after the review).” They are listening only to the gay and lesbian groups, I had said, and not willing to wait to listen to the troops: “It’s all politics, and I’ve had it.”

One last time, on May 24, I tried privately to dissuade the president. I told him that in 1993, the Joint Chiefs, including the chairman, had all come out together against the president on gays serving in the military. I said that seventeen years later Mike and I had gotten the chiefs on board by promising, based on Obama’s assurances, that we would have time to complete the review process and there would be no action beforehand. “You’re about to blow that up,” I said, and “I cannot predict the results.” I made no headway, so I threw in the towel. I told the president I could live with the proposed legislative language as a minimally acceptable last resort.

The deal with Senators Levin and Lieberman repealed the 1993 law, but the repeal would not become legally effective until the Defense Department review was complete, its recommendations to prepare for the change fully implemented, and the president, secretary of defense, and chairman of the Joint Chiefs each certified that implementation would not affect military readiness, recruitment, or retention. “I continue to believe that ideally the DoD review should be completed before there is any legislation to repeal the Don’t Ask, Don’t Tell law,” I announced. “With Congress having indicated that is not possible, I can accept the language in the proposed amendment.” As CNN’s John King reported on May 25, I had “put out a statement that indicates support for it [the amendment], but wow, it is a very, very, very tepid statement.” He got that right. While the bill was passed by the Senate Armed Services Committee that week 16–14, it would stall in the Senate. The House Armed Services Committee passed repeal legislation over the objections of its chairman, and the full House voted in favor 229–186. Due to the obstruction of Republicans in the Senate, however, full repeal did not pass until
just before Christmas during the lame duck session of Congress—after the review was complete.

Superbly managed by Jeh Johnson and General Ham, the review consisted of a survey sent to 400,000 service members (the original plan was for 200,000, but I told the cochairs to double it), another survey sent to 150,000 military spouses, focus group meetings with Johnson and Ham that involved face-to-face dialogue with nearly 25,000 troops, and a third-party-managed hotline where gay and lesbian service members could offer their views confidentially. The surveys were the largest ever conducted of our military and represented the first empirically based review of military attitudes on gays and lesbians serving openly.

On September 27, I received a first, preliminary report on the results of the surveys. It was encouraging: 15 to 20 percent of respondents said that repeal would have a positive effect, and another 50 to 55 percent said repeal would have little or no effect on their unit’s ability to carry out its mission. About a third were opposed. The percentage of those opposed was substantially higher in all-male combat arms units in the Army, among Special Forces of all the services, and in the Marine Corps generally. The survey was helpful in identifying areas of concern that would require special attention in changing our policies and in training prior to repeal. The bottom line, even in the preliminary report, was that opposition to repeal was considerably less than I expected. Implementation of the change would present challenges, but the survey strongly suggested they were manageable. The report, I felt, might just persuade the Senate to pass the legislation.

Just when I thought we had a path forward for repeal of DADT and successful implementation, the courts threw everything into chaos. On September 9, Federal District Judge Virginia Phillips in San Diego ruled that the DADT law was unconstitutional. On October 12, she denied the administration’s request to keep the law in place and issued an injunction ordering the military to stop enforcing the law. My worst fear had come to pass. It precipitated the worst confrontation yet between the president and me.

I was in Brussels for a NATO defense ministers meeting when Judge Phillips issued her injunction. The president called me on the thirteenth and said he was prepared to seek a stay of the judge’s order, but we needed to figure out a way to “suspend” application of the law long enough to give Congress time to act—“suspended animation,” he called it. I said I
thought we still had to enforce the law if the judge’s decision was stayed by the court of appeals. I suggested that Jeh Johnson, White House counsel Bob Bauer, and Justice Department folks get together to decide what options were available to us “in the context of the law.” The president agreed that that group should get together, but there was “a need to find a way to turn the temperature down on the issue.”

The battle lines for the next week between the White House and Defense—between the president and me—were drawn that same night, when the attorneys’ meeting I had suggested took place. Bauer proposed that Justice seek a stay and appeal Judge Phillips’s ruling but also tell the court that we would suspend any further DADT proceedings and/or separations pending a ruling on the appeal by the Ninth Circuit Court (the most liberal in the nation). Johnson and Rangel said such a step was not legally permissible in light of the long Defense Department history in applying the law. They reminded Bauer that the administration had rejected this same rationale in opposing Senator Levin’s proposal for a moratorium earlier in the year, and observed the negative impact if the administration suddenly decided not to faithfully enforce the law. The two sides were at an impasse. The White House team said they would reengage with the president.

Even though I was still traveling overseas, arrangements were made for the president and me to talk again on the telephone on October 15. Before the call, Johnson told me it was clear from Bauer that the president “really wants” to suspend separations on a temporary basis while appealing the lower court’s decision: he had “thought long and hard about this” over the preceding two days. Johnson told Bauer that I, too, felt strongly and that the president needed to know we were still far apart on the issue.

I talked with Mullen, Johnson, and Rangel from my plane. I told them, “I’m so jet-lagged I’m barely coherent. How do I play the role of constitutional lawyer with a president who is a constitutional lawyer?” Rangel said I just needed to question the wisdom and legal sustainability of suspending separations, not argue the merits of the law itself. “It seems to me that a stay means the law is in effect—all the law,” I said. “I think it’s black and white: law or no law.”

When the president called, he said he still wanted a suspension of separations while the case was heard by the Ninth Circuit. Bauer and Johnson were talking with the Office of Legal Counsel at Justice (the
component in the department that tells the government whether its actions are legal) about whether that was possible. The president pretty much ignored my objections.

The president and I reengaged on the issue on October 19 at the White House. I said, “I have a problem enforcing part of the law but not all of it.… There is either law or no law—there is no gray area.” Mullen agreed. The president leaned forward in his chair and said very firmly, “I strongly disagree. I believe the law is wrong, that the plaintiffs have a stronger case than the government.” With barely suppressed anger, he went on: “Two years into my presidency, and there is no action on this. No one can accuse me of being precipitous.” He told us to think again and that we would meet again the next day; the matter needed to be decided within the next twenty-four to forty-eight hours. He and I then talked privately for a few minutes, and he told me that he thought the Ninth Circuit, despite its liberal reputation, would reverse the district court’s decision. He would need to react somehow, “or the groups [gay activists] will go crazy.” He said that suspension of separations during the appeals process would allow him to be seen as doing something to mitigate DADT once the reversal reinstated the policy.

The next day, after an NSC meeting on Afghanistan, the president asked to see Mullen and me in the Oval Office. He asked where we were on DADT, and I said we were in the same place as before. I said I had been told that once it had been determined that a person had engaged in what the law defined as “homosexual conduct,” the law was crystal clear in mandating separation. I told the president that, according to Jeh Johnson, “you are proposing to suspend the most directive part of the law.” When it was clear there was no give in my position, the president vented: “I won’t ask you to sign up to something you’re not comfortable with. I’m the leader of the free world, but I can’t seem to make anything happen.”