‘Don’t Ask, Don’t Tell’ Not Consistent With Existing Federal Law Barring Gays From Military, Says Center for Military Readiness

By Nicholas Ballasy | February 23, 2010 | 8:27 PM EST

In this Feb. 2, 2010, file photo Defense Secretary Robert Gates, left, seen with Joint Chiefs Chairman Adm. Michael Mullen, testifies about the "Don't Ask, Don't Tell" policy at a Senate Armed Services Committee hearing on Capitol Hill in Washington. (AP Photo/Manuel Balce Ceneta, File)

(CNSNews.com) -- The Defense Department’s  “Don’t Ask, Don’t Tell” (DADT) policy is “not consistent” with existing law that makes it illegal for homosexuals to serve openly in the military, Elaine Donnelly, president of the Center for Military Readiness told CNSNews.com.
Contrary to much news coverage over the years, the DADT policy was not created through an executive order by President Bill Clinton in 1993 but, rather, through Clinton-led directives written into Department of Defense regulations.

“The 1993 law (10 USC 654) states homosexuals are not eligible to be in the armed forces,” Donnelly told CNSNews.com at the Conservative Political Action Conference (CPAC) in Washington, D.C. on Feb. 18. “Bill Clinton signed the law (prohibiting gays in the military) but then he issued some enforcement regulations that are quite different”  than the DADT regulation.

“The policy known as ‘Don’t Ask, Don’t Tell’ suggests that you can be in the armed forces, provided that you do not say that you are homosexual,” said Donnelly. “Now that’s ‘don’t ask, don’t tell’ – that’s the concept that Congress considered but did not vote for.”

According to the Congressional Research Service, on Nov. 30, 1993, the FY1994 National Defense Authorization Act was passed by Congress and signed into law by President Clinton. Section 571 of that law, codified at 10 United States Code 654 (10 USC 654), says that an individual can be discharged from the military for the following reasons:
“(1) the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts (2) the member states that he or she is a homosexual or bisexual; or (3) the member has married or attempted to marry someone of the same sex.”

The current law (10 USC 654) states,  “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.”

It is the Department of Defense (DOD) directive 1332.14, entitled, “Enlisted Administrative Separations,” which established the policy known as “don’t ask, don’t tell” in December 1993. It says, in part, “Commanders or appointed inquiry officials shall not ask, and members shall not be required to reveal, whether a member is a heterosexual, a homosexual, or a bisexual.” (Click here for link to updated directive.)

Donnelly told CNSNews.com that the DADT policy is “not consistent” with the existing federal law (10 U.S.C. 654).

“It (DADT) doesn’t contradict it but it is not consistent with it” [the existing law], said Donnelly. “In 1996, the 4th Circuit Court of Appeals ruled that the law was constitutional but it also said that Clinton’s ‘don’t ask, don’t tell policy,’ administrative policy, was not consistent with the law.”
“Now, that was the 4th Circuit Court of Appeals but the administration retained that policy any way,” said Donnelly. “That’s why there is so much confusion about the difference between the law and the policy.”
The DOD directive also states, “A Service member’s sexual orientation is considered a personal and private matter, and is not a bar to continued service under this paragraph unless manifested by homosexual conduct in the manner described in subparagraph 8.a.(2) of this enclosure.”
“This statement,” however,  “contradicts the findings in Section 654, Title 10,” said Donnelly. “The law, Sect. 654, Title 10 applies 24/7, off-base and on-base.  A person who says he is homosexual and engages in the conduct defines homosexuality.  The phrase ‘sexual orientation’ is indefinable, which is why Congress refused to put it into the law.”
Kenneth Mayer, a professor of political science at the University of Wisconsin and an expert on DADT and presidential executive orders, told CNSNews.com that DADT is a popular name for the policy established by the Defense Department but it is not a legal title because it is not a law.

President Barack Obama speaks at the Jacksonville Naval Air Station, on Monday, Oct. 26, 2009, in Jacksonville, Fla. (AP Photo/Phil Coale)

“The law (10 USC 654) specifies the conditions under which a person can be separated from the armed forces for violating the policy,” said Mayer.  “It requires conduct or an admission.  DADT is not a legal title in any event, but rather the popular name of the policy.”
Media outlets such as ABC, CNN, and The New York Times have reported that DADT is an actual law rather than a policy or regulation.
 Mayer also told CNSNews.com that DADT never appeared as a formal executive order by President Bill Clinton.
“DADT never actually appeared as a formal executive order – it was the result of policy decisions made within DoD,” said Mayer.
Media outlets such as Reuters, among many others, have reported that DADT was established through an executive order issued by President Clinton rather than DOD directives. An executive order is a rule or regulation issued by the president to a federal agency authorizing a specific action. An executive order has the effect of a law but does not require an act of Congress. 
The Wall Street Journal has reported that changing DADT “likely requires congressional action because the law is currently codified in a federal statute, 10 U.S.C. Sec. 654.”
Therefore, repealing the DADT policy would not change the existing law that bans individuals from military service for saying they are homosexual and/or engaging in homosexual conduct. Congress would have to repeal the law.
“I think that formally changing the policy would require congressional action but policies can be de facto altered through enforcement policy, so it would be possible to undermine ‘don’t ask, don’t tell’ by executive order,” Michael Klarman, a constitutional law professor at Harvard University, told CNSNews.com
President Obama has vowed to repeal DADT but congressional sources say the White House has not given Congress a clear road map on how to execute the president’s promise.
“Not only did Obama toss (of ‘don’t ask, don’t tell’) to a Congress that’s preoccupied with the economy and the midterms -- he tossed it to perhaps the most dysfunctional Congress in the history of the country,” a senior aide to a Senate Democrat who has been pushing for repeal told Politico.com.
Sen. Joe Lieberman (I-Conn.) is heading up efforts in the Senate to repeal DADT while Rep. Patrick Murphy (D-Pa.) is leading the effort in the House as the main sponsor of the Military Readiness Enhancement Act (H.R. 1283). 
Sen. Lieberman previously told CNSNews.com that his “intuition” is that changing the DADT policy will not hurt recruitment. 
The Department of Defense did not return CNSNews.com’s inquiries about the directive that established the DADT policy.