View From the Hill: The End of DADT?
BY Kerry Eleveld
July 02 2009 11:00 PM ET
Frank explained that the law leaves two openings for commanders: what qualifies as "credible evidence" of someone's sexual conduct and, even if an investigation ensues, whether to actually issue a finding in that case.
"The law says a service member will be separated if a finding [of homosexual conduct] is made, but nowhere does the law require that a finding be made," says Frank.
And let's not forget that DOD itself has already done some tinkering since 1993. Indeed, the Pentagon seems to have engaged in a protracted effort to make the policy more restrictive than the statute originally intended.
Take the case of Navy lieutenant commander Zoe Dunning, who was in the process of coming out when President Bill Clinton scrapped efforts to let gay service members serve openly and settled for "don't ask, don't tell."
Dunning managed to escape discharge by showing that even though she identified as a lesbian, she wouldn't engage in homosexual acts, which is what the law is supposed to target -- conduct, not orientation.
Shortly after Dunning's victory, the Pentagon's general counsel, Judith Miller (not to be confused with the infamous New York Times reporter), issued a memo saying this would no longer be an acceptable defense.
"That completely took away the opportunity that the law had in mind to allow service members that said they were gay to prove that they wouldn't engage in homosexual conduct," says Frank, who detailed the case in his book, Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America.
So perhaps if the Defense secretary needs some help reinterpreting the law, he can simply retrace the steps of his own agency.