As Barack Obama tries to avoid the mistakes Bill Clinton made on gays in the military, the new president's hesitation is already causing damage: Last week came news that yet another Arabic language specialist is about to be dismissed for homosexuality, the first under the new White House. What's more, advocates of repeal are now facing political blow-back: Recently, over 1,000 retired officers released a letter claiming that ending the ban could "break" the armed forces. The statement is an effort by social conservatives to enlist the military community in their drive to stigmatize homosexuality, and is not based on any new research or information. But it is a reminder of the real lessons for Obama of Clinton's 1993 fiasco.
Some think Clinton's mistake that year was to move too quickly on this issue, without consulting the military. Indeed, it seems this has become the current White House's rationale for delay. But this is the wrong lesson. Although Clinton spoke up early about this issue, usually in response to press inquiries, he opted not to issue a quick executive order, instead letting the debate spiral out of his control. Clinton did consult with the military, meeting with the Joint Chiefs of Staff within weeks of both his election; they simply didn't like what they heard, and their resistance crushed the resolve of the first president in half a century who hadn't served in uniform. Clinton's error was not moving too quickly--it was moving too slowly. Indeed, it was during his proposed six-month "time-out" that religious conservatives hijacked the debate, eroded public support for change, and defeated the president.
One of the main impediments to swift action is the assumption that, since the current ban on openly gay service is a federal law, Congress is the only body that can end it. But according to a report released yesterday by the Palm Center (to which I contributed), the president actually has legal authority to end gay discharges with a single order. "Don't ask, don't tell" is both a Pentagon policy and a federal statute, the result of a 1993 political compromise by Clinton, Congress, and military brass. To get the current ban wholly off the books, Congress will need to act. But to end the practice of discharging gays from the military, the president can exercise his constitutional and statutory authority without any blessing from Congress.
This is because Congress has already granted the president authority to halt military discharges in the interest of national security. Under 10 U.S.C. 12305, "the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States."
Using this authority is a perfectly legitimate and fully legal suspension of the "don't ask, don't tell" statute. And for those who need more proof that the president has the power to halt homosexual discharges, the language of the statute was clearly written to allow executive action to modify its effects, explicitly granting the Pentagon the discretion to determine the process by which discharges will be carried out. What's more, while the law calls for a discharge "if" a finding of homosexuality is made, Congress nowhere requires the military to ever conduct such findings; the commander-in-chief can simply order that the military immediately cease making findings of homosexual conduct or statements.
While neutralizing the policy with an executive order is legal, would it be good politics? Four-fifths of the public supports Obama's commitment to end "don't ask, don't tell," as do majorities of conservatives, Republicans, and even church-goers. And the president's historic popularity--which is unlikely to last forever--gives him the political capital to do this now. Even within the military, three quarters of personnel are personally comfortable around gays, and two thirds already know or suspect gays in their units. No research has ever shown that openly gay service impairs recruitment or retention rates; in fact, studies in countries that allow gays to serve openly have shown no adverse affect on these numbers. And a recent report by the Palm Center shows that cohesion was not compromised in units that knew of gays serving in their ranks.
Though the executive option might seem controversial, it would be a less explosive way to carry out a campaign promise than dragging the nation through a protracted debate in Congress. And once people see that gays can serve openly without incident, it will be easier to push a repeal of the law through Congress down the road--a step that will still be needed to keep a future president from re-instating the ban.
Ending the ban is not just a moral imperative, but an issue of military readiness. In the years since 9/11, the military repeatedly failed to reach its recruiting targets in specific fields in which gay troops have been fired. The 9/11 Commission Report found that the government "lacked sufficient translators proficient in Arabic and other key languages, resulting in significant backlog of untranslated intercepts"--a concern echoed by a Pentagon advisory panel soon afterward. Yet under "don't ask, don't tell," the military has fired over 12,000 capable gay troops, including more than 300 linguists.
While the poor economy has eased the recruitment crisis somewhat, critical shortfalls remain. For instance, Defense Secretary Robert Gates recently said the military is "desperately short" of computer science and information technology experts. When the military can't fill all its slots, it relies on its so-called "stop-loss" power--the same authority by which the commander-in-chief could retain gay troops--to force troops to stay past their enlistments. Recently, Gates announced plans to phase out this unpopular practice, which makes now an ideal time to use that power instead to let those who actually want to serve--such as gay troops--do so. Obama's executive order would thus enable the retention of ready and willing soldiers, while letting go of those who want and deserve to go home.
Until then, the routine discharges of critically needed gay personnel continue despite the fact that no research has ever shown a connection between homosexuality and military effectiveness. At least 24 allied nations now let open gays serve, and none experienced any impairment of readiness. Yet plenty of evidence shows that the talent loss and forced dishonesty caused by the policy ill-serve the military and the nation. My own research on gay troops who served in Iraq and Afghanistan found that the current policy hinders gays and lesbians from accessing the support services that are critical to morale and readiness because they can't speak openly to chaplains, doctors, or psychologists without fearing reprisal. Even former Senator Sam Nunn, the chief Congressional architect of "don't ask, don't tell", now says the policy is "getting in the way" of readiness.
Some worry the debate over gay troops will distract Obama from other pressing issues and force him to expend valuable political capital. But unlike solving the economic crisis, reforming health care, or combating climate change, ending the gay ban takes few resources, little imagination, and no mystery. We know exactly what to do, and it can be done with the stroke of a pen.
Dr. Nathaniel Frank is author of Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America (St. Martin's Press). He is Senior Research Fellow at the Palm Center at University of California, Santa Barbara, and teaches on the adjunct faculty at New York University. His scholarship and writing on gays in the military and other topics have appeared in the New York Times, Washington Post, The New Republic, USA Today, Los Angeles Times, Newsday, Slate, Huffington Post and others, and he has been interviewed on numerous television and radio programs including "The Daily Show" and "The Rachel Maddow Show." He lives in Brooklyn, NY.