How to Fix Repeal of DADT: A new Commander in Chief (Simple as that)

12/17/2010 | Brices Crossroads

[Brices Crossroads]

I know many of us are demoralized over Congress' decision yesterday to repeal the so-called "Don't Ask, Don't tell" policy which prohibits homosexuals from serving the Armed Forces of the United States. I am particularly saddened to read the comments of those who have children in the Armed Forces now.

I claim no particular expertise in matters military, but decided to do a little research and actually read the statutes in question, both the repeal itself, which is short and the DADT statute from 1994, 10 U.S.C. 654, which is short as well.

Let's start with the DADT statute itself, 10 U.S.C. 654. Recall that this statute was passed in 1994 by Clinton and the Democrat Congress to "soften" the absolute prohibition against homosexuals in the military which had existed and was enforced via discharge of the Service member. Congress had been silent on this issue prior to 1994. The DADT policy did liberalize the law (which is why Clinton was for it), in that it allowed the possibility that closeted homosexuals could serve, as set forth in parts (A)-(D) below:

A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations: (1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that— (A) such conduct is a departure from the member’s usual and customary behavior; (B) such conduct, under all the circumstances, is unlikely to recur; (C) such conduct was not accomplished by use of force, coercion, or intimidation; (D) under the particular circumstances of the case, the member’s continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and (E) the member does not have a propensity or intent to engage in homosexual acts.

LINK

The repeal of DADT does not, insofar as I can see do anything other than restore the status quo ante, that is: It returns the United States Code to silence on the subject of homosexuals in the Armed Forces, other than the prohibition on sodomy in the UCMJ (which applies to both homo and hetero-sexuals), 10 U.S.C. 925. The text of the repeal is very short: It provides:

"(f) Treatment of 1993 Policy-

(1) TITLE 10- Upon the effective date established by subsection (b), chapter 37 of title 10, United States Code, is amended--

(A) by striking section 654; and

(B) in the table of sections at the beginning of such chapter, by striking the item relating to section 654.

(2) CONFORMING AMENDMENT- Upon the effective date established by subsection (b), section 571 of the National Defense Authorization Act for Fiscal Year 1994 (10 U.S.C. 654 note) is amended by striking subsections (b), (c), and (d)."

LINK

Congress would still need to pass changes in the UCMJ and that would have to be done in the next Congress, which is highly unlikely.

The repeal statute, which is linked above does nothing affirmative to permit homosexuals to serve, and inoint of fact, it states:

"(d) Benefits- Nothing in this section, or the amendments made by this section, shall be construed to require the furnishing of benefits in violation of section 7 of title 1, United States Code (relating to the definitions of `marriage' and `spouse' and referred to as the Defense of Marriage Act).

(e) No Private Cause of Action- Nothing in this section, or the amendments made by this section, shall be construed to create a private cause of action."

Of course, Obama is going to change the regulations to permit open homosexuals to serve in the military. Clinton could have done the same thing in 1994, but public opinion dissuaded him and he hid behind DADT as his attempt to split the difference.

The point I am making is that under Article 2, Section 2 the President is the Commander in Chief of the military and, absent some act of Congress pursuant to its power (under Article 1, Section 8, cl. 14) "to make Rules for the Government and Regulation of the land and naval Forces", the President is free as Commander in Chief to set the policy for the Armed Forces. Even absent the sodomy statute, a new President needs to do nothing more than repeal by Executive Order Obama's soon to be promulgated Executive Orders liberalizing the policy and issue new policies defining such conduct as a "General Article offense" incompatible with good order and discipline pursuant to General Article 134 of the UCMJ, 10 U.S.C. 934:

"Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court."

LINK

So much of the harm Obama and his friends on Capitol Hill have done can be remedied by the expedient of electing a conservative President who puts the military first.

[onyx]

THANKS VERY MUCH!!!

Committee Amendment Proposed by Mr. Lieberman
At the appropriate place in title V, insert the following:

SEC. [ARM10802]. DEPARTMENT OF DEFENSE POLICY CONCERNING HOMOSEXUALITY IN THE ARMED FORCES.

(a) COMPREHENSIVE REVIEW ON THE IMPLEMENTATION OF A REPEAL OF 10 U.S.C. § 654.—
(1) IN GENERAL.—On March 2, 2010, the Secretary of Defense issued a memorandum directing the Comprehensive Review on the Implementation of a Repeal of 10 U.S.C. § 654 (section 654 of title 10, United States Code).
(2) OBJECTIVES AND SCOPE OF REVIEW.—The Terms of Reference accompanying the Secretary’s memorandum established the following objectives and scope of the ordered review:
(A) Determine any impacts to military readiness, military effectiveness and unit cohesion, recruiting/retention, and family readiness that may result from repeal of the law and recommend any actions that should be taken in light of such impacts.
(B) Determine leadership, guidance, and training on standards of conduct and new policies.
(C) Determine appropriate changes to existing policies and regulations, including but not limited to issues regarding personnel management, leadership and training, facilities, investigations, and benefits.
(D) Recommend appropriate changes (if any) to the Uniform Code of Military Justice.
(E) Monitor and evaluate existing legislative proposals to repeal 10 U.S.C. § 654 and proposals that may be introduced in the Congress during the period of the review.
(F) Assure appropriate ways to monitor the workforce climate and military effectiveness that support successful follow-through on implementation.
(G) Evaluate the issues raised in ongoing litigation involving 10 U.S.C. § 654.

(b) EFFECTIVE DATE.—The amendments made by subsection (f) shall take effect only on the date on which
the last of the following occurs:
(1) The Secretary of Defense has received the
report required by the memorandum of the Secretary referred to in subsection (a).
(2) The President transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating each of the following:
(A) That the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have considered the recommendations contained in the report and the report’s proposed plan of action.
(B) That the Department of Defense has prepared the necessary policies and regulations to exercise the discretion provided by the amendments made by subsection (f).
(C) That the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.

(c) NO IMMEDIATE EFFECT ON CURRENT POLICY.— Section 654 of title 10, United States Code, shall remain in effect until such time that all of the requirements and certifications required by subsection (b) are met. If these requirements and certifications are not met, section 654 of title 10, United States Code, shall remain in effect.

(d) BENEFITS.—Nothing in this section, or the amendments made by this section, shall be construed to
require the furnishing of benefits in violation of section 9 7 of title 1, United States Code (relating to the definitions of “marriage” and “spouse” and referred to as the “Defense of Marriage Act”).

(e) NO PRIVATE CAUSE OF ACTION.—Nothing in this section, or the amendments made by this section, shall be construed to create a private cause of action.

(f) TREATMENT OF 1993 POLICY.—
(1) TITLE10.—Upon the effective date established by subsection (b), chapter 37 of title 10, 18 United States Code, is amended—
(A) by striking section 654; and (B) in the table of sections at the beginning of such chapter, by striking the item relating to section 654.
(2) CONFORMINGAMENDMENT.—Upon the effective date established by subsection (b), section ARM10802 S.L.C. 571 of the National Defense Authorization Act for Fiscal Year 1994 (10 U.S.C. 654 note) is amended by striking subsections (b), (c), and (d).

[DBeers]

Very well stated! AND very true.

This can be undone as easily as it has yet to be done...

I imagine we will see much delay and passive resistance within and without the military regarding this leftist assault.

As far as the natural law -you can drag a conservative horse to poisoned water but you can not make him drink it....

[DBeers]

ping

[little jeremiah]

I’ve gotta turn my computer off (again) due to winter storm/flickering electricity. I”ll read this later, I hope my simple mind can understand it!

[Salvavida]

Wrong. National repentence one family at a time is the only action that will reverse this course.

If we say something is immoral or evil, we must have a standard. The Bible is that standard.

[JSDude1]

Good idea, and POST OF THE DAY!

[Elsiejay]

Is there evidence, or a record of “butch” females in positions of authority in military service discriminating against male soldiers of lesser rank?

[apoliticalone]

Thanks for your thoughts. The most important thing that we can all do for society is listen to others. I strongly support the draft (but both M/F). They could serve the many supporting roles that are done by overpaid private contractors.

Serving in the military will make a man out of the wimpy Americans that now spend their time on Facebook, texting and worthless TV. I served at a time when the draft brought those at all socio-economic levels of our country together. That merging of rich and poor doesn’t happen much in society today and it surely doesn’t happen in the volunteer military. It was a great thing.

It required Americans to serve the country in some aspect instead of only themselves. Yep some found a way to get out, but most didn’t or they served in reserve status. It was a sacrifice for America.

The draft could eliminate the need for expensive private armies that cost too much and cannibalize the military. It is a good thing for all to serve one’s country.

There is nothing that has frustrated me more than seeing Wall Street bankers get bailed out from BUSH/OBAMA from their incompetence only to be made rich again by putting the tab on taxpayers borrowing from China. Both Parties took very good care of them. Much of the aid the banksters got is now hidden on Federal Reserve balance sheets.

I’m all for paying our way (even if it means more taxes) and not putting the bill on unborn generations, and helping others because I prefer living in a country with a prosperous populace in lieu of having one where only those connected get the wealth.

Most all of those in the “enlisted” non-officer military today come from working and middle class Americans and it needs to change.

Sorry, didn’t mean to deflect from your OP on DADT which based upon my life and mil experience has never been a problem. I’m a libertarian at heart and those people just don’t bother me as much as a corrupt government that has their nose in my life or is subsidizing big business or others.

[juliej]

I cringed when I saw NY State Senator Gillebrand shrieking about why we have to get rid of DADT. This woman could not care less about our military or our soldiers, sailors and Marines: it is all about “rights” and being politically correct and that is no way to win a war. The armed forces are not about being an “individual”.

[unique]

The repeal of DADT will have some unintended consequences, that’s for sure. For those that have not lived about gays that are openly gay especially. It’s a very different world when one is forced to face that scenario each and every day, primarily in a work situation but I suppose it would be worse in a private life scenario. Now, not all gays a completely irritating, but so many of them are - it’s going to be a rough trip for military folks, one that is unnecessary.

Of course, it’s really the ObamaNation that has pushed this, or a least encouraged it. We seems screwed.

[Lucky Dog]

US Constitution

Section. 8.

Clause 14: [ The Congress shall have Power] To make Rules for the Government and Regulation of the land and naval Forces;

The courts have always given deference to the Congress in regulating the military. The Lawrence case was purely civil in nature and does not apply in any way to the military. Additionally, if Congress so chooses, it can completely bar civil courts, even the Supreme Court, from ruling on any issue other than the Supreme Court's "original jurisdiction" specified directly in the Constitution.

Article. III.

Section. 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish...

[OldEagle]

DADT was an agreement which allowed gays to serve in the military. Will its repeal prevent their service?

[Sola Veritas]

http://www.defense.gov/home/features/2010/0610_gatesdadt/DADTReport_FINAL_20101130(secure-hires).pdf

Unfortunately, the DoD already has plans to ammend the UCMJ to remove the sodomy prohibitions.

I hope that the incoming congress will have the guts to refuse to ammend it (I don’t believe they do). However, with the passage of repeal, the homosexuals have an even greater tool to take to court. If one “newer” law repeals DADT and the prohibition to be an active homosexual in the military, the portions of the UCMJ that contradict this will be thrown out by courts if congress doesn’t take action.

So, unless the new congress can somehow challenge the validity of the Lame Duck’s action and make it a priority to “repeal the repeal” (how with the Senate still in Dem hands and with 3+ RINO senators?) Then it is a done deal.

IF it were possible to make the new House REPs make this a priority issue and threaten to shut down DoD funding until the repeal is rolled back, then this might get things going....I don’t think the stomach or desire is there to do this.

Plus, the “values” candidates for POTUS like Huckabee and Palin haven’t spoken out that strongly on this issue...actually they have been very vague. So, unless a REAL new Ronald Reagan is found...we are toast.

I tried before the vote to get both Huckabee and Palin to come out strong against this mess....was ignored. I attempted to get others on FR to help me push them to use their influence...I was berated for it. Contrary to what some think her on FR, neither Palin or Huckabee or ANY other current potential candidate for POTUS is a Ronald Reagan on this issue.

Removing Obama from the oval office in 2012 will be a wonderful thing, but unless someone trully worthy steps forward in the GOP, it won’t change the homosexual horror set in motion by the lame duck congress this weekend.

[CharlesWayneCT]

It may help to have a President with military experience or family members that are active duty.

I hadn't thought about that before, but I guess your wording solves that problem for people who have in the past complained when a candidate had "shirked" their military duties in some way.

[CharlesWayneCT]

I would presume that anybody currenty deployed would have the right to be honorably discharged of their duties.

Unfortunately, I’m afraid that the reason for the “no lawsuits” clause defined above was NOT to keep homosexuals for suing for rights, but was to keep heterosexuals from being allowed to sue for discharge.

[OldDeckHand]

"The Lawrence case was purely civil in nature and does not apply in any way to the military"

I cited for you the specific case, United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), that applies here. You're entitled to your own opinion, but you're not entitled to your own facts.

"Additionally, if Congress so chooses, it can completely bar civil courts, even the Supreme Court, from ruling on any issue other than the Supreme Court's "original jurisdiction" specified directly in the Constitution."

As entertaining as it may be to discuss the boundaries of judicial stripping, none of the statutes found under 10 USC are provisioned in such a manner. The UCMJ is fully reviewable by the US Supreme Court, and its subordinate Courts.

[verity]

"...can be remedied by the expedient of electing a conservative President..."

Since Congress can override a Presidential veto, both houses need to be cleaned out as well.

[Lucky Dog]

Here you go:

The UCMJ is fully reviewable by the US Supreme Court, and its subordinate Courts.

US Constitution

Article. III.

Section. 2.

Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. [emphasis added]

Note: these are not my facts.

I think your assertion is flawed... what do you think?

[OldDeckHand]

"The Lawrence case was purely civil in nature and does not apply in any way to the military"

Incidentally, Lawrence was not "purely civil in nature". It was quite clearly, a facial challenge to a criminal statute. It was not a civil case.

[Lucky Dog]

It was not a civil case.

It was not a military law case.