Turning Points: Challenges and Successes in Ending Don't Ask, Don't Tell

William & Mary Journal of Race, Gender, and Social Justice William & Mary Journal of Race, Gender, and Social Justice

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William & Mary Journal of Women and

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Article 4

December 2011

Turning Points: Challenges and Successes in Ending Don't Ask, Turning Points: Challenges and Successes in Ending Don't Ask,

Don't Tell Don't Tell

Michelle Benecke

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Turning Points: Challenges and Successes in Ending Don't Ask, Don't Tell

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TURNING POINTS: CHALLENGES AND SUCCESSES

IN ENDING DON’T ASK, DON’T TELL

MICHELLE BENECKE

INTRODUCTION

I. BACKGROUND

II. THE STRATEGY

A. Early Challenges: Fighting the Pentagon to Stop “Asking”

and “Pursuing”

B. Ending the Witch Hunts

C. Countering the Persecution of Women Under Don’t Ask,

Don’t Tell

D. Ending Selective Criminal Prosecutions

E. Restoring Dignity by Challenging Downgraded

Discharge Characterizations

F. Holding Leaders Accountable: The Murder of

PFC Barry Winchell

G. Protecting Use of New Media

H. Limiting the Scope of “Don’t Tell”

ONCLUSION

INTRODUCTION

On September 20, 2011, the Don’t Ask, Don’t Tell (DADT) law

that banned known gay men and women from serving in the armed

forces met its end after the culmination of a Congressional vote on

December 18, 2010. The vote allowed DADT to die upon “certification”

by the President, Secretary of Defense and Chairman of the Joint

Chiefs of Staff that it would not harm military readiness.

The demise

1. Thank you to Dixon Osburn, my colleague and co-founder of Servicemembers

Legal Defense Network (SLDN), and the staff of SLDN, past and present, whose dedi-

cation, persistence and talent saved lives and careers and brought about the end of Don’t

Ask, Don’t Tell (DADT). I am especially grateful to the editors and staff of this journal and

to Carolyn Cobb, Lila Helms, Julie Spiezio and Bridget Wilson, whose review, comments

and encouragement made it possible to write this history of early turning points in the

movement to end DADT.

* Michelle Benecke, Esq., is a founder and former Executive Director of the

Servicemembers Legal Defense Network (SLDN), the pioneering legal aid and policy

organization that assisted thousands of military members under Don’t Ask, Don’t Tell

(DADT) and galvanized the successful national effort to end DADT. Ms. Benecke is a

former Army officer.

2. Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515.

3. Chris Geidner, DADT Repeal Act Becomes Law, M

ETRO WEEKLY (Dec. 22, 2010,

2:16 PM), http://www.metroweekly.com/news/?ak=5858; Carl Hulse, Senate Ends Military

Ban on Gays Serving Openly, N.Y.

TIMES, Dec. 19, 2010, at A1; “Don’t Ask, Don’t Tell”

36 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

of DADT did not occur in isolation or merely as the fulfillment of a

presidential campaign promise. It resulted from a deliberate long-

term strategy—launched the day after President Clinton announced

DADT in 1993—to put an end to the law by turning public opinion

against it. This new chapter was a pivotal moment in the decades-

long fight against policies barring military service by known gay, les-

bian and bisexual (GLB) military members.

Understandably, recent

Consigned to History, CBS NEWS (Sept. 20, 2011, 6:21 AM), http://www.cbsnews.com

/stories/2011/09/20/national/main20108690.shtml.

4. Prior efforts by and large centered on the courts. Although some military members

were successful in the district courts, the appeals courts consistently upheld the military’s

exclusionary policies. See, e.g., Ben-Shalom v. Marsh, 881 F.2d 454, 455 (7th Cir. 1989)

(“First Amendment rights of [the] sergeant were not violated by application of regulation

making homosexuality . . . nonwaivable disqualification to service . . . .”); Woodward v.

United States, 871 F.2d 1068, 1068 (Fed. Cir. 1989) (holding that the Navy’s policy of dis-

charging homosexuals did not violate the right to privacy); Dronenburg v. Zech, 741 F.2d

1388, 1388 (D.C. Cir. 1984) (finding for the Navy on grounds that Navy’s policy of discharg-

ing members for “homosexual conduct” was not a violation of the constitutional right to

privacy or equal protection); Berg v. Claytor, 591 F.2d 849, 851 (D.C. Cir. 1978) (remanding

to the Navy to determine whether the appellant’s record was unique enough to exempt him

from discharge due to his homosexuality); Matlovich v. Sec’y of the Air Force, 591 F.2d 852,

852 (D.C. Cir. 1978) (remanding the case so that the Air Force could explain what “unusual

circumstances” would exempt appellant from the policy of discharging homosexuals). This

pattern continued in cases involving the “90s Plaintiffs,” many of whom came out in sup-

port of President Clinton’s pledge to lift the ban. See, e.g., Richenberg v. Perry, 97 F.3d 256,

256 (8th Cir. 1996) (affirming that the DADT policy “did not violate the First Amendment

or . . . Fifth Amendment” rights of the appellant); Steffan v. Perry, 41 F.3d 677, 678 (D.C.

Cir. 1994) (finding that the appellant failed to demonstrate that the DADT Directives were

unconstitutional as applied to his case); Thorne v. U.S. Dep’t of Def., 945 F. Supp. 924, 924

(E.D. Va. 1996) (holding that DADT “was not facially invalid”); Selland v. Perry, 905 F.

Supp. 260, 260–61 (D. Md. 1995) (holding that DADT “did not violate officer’s free speech

right; . . . separation was not unconstitutional . . . and . . . Navy’s decision was not arbitrary

and capricious”); N

ATHANIEL FRANK, UNFRIENDLY FIRE: HOW THE GAY BAN UNDERMINES

THE

MILITARY AND WEAKENS AMERICA 22 (2009) (discussing Air Force Staff Sergeant Tom

Paniccia’s announcement on the ABC News that he was a homosexual). Along the way,

some military members with long-standing careers would reach settlements with the ser-

vices after courts validated their complaints and be permitted to retire with their pensions

and benefits. See, e.g., Cammermeyer v. Perry, 97 F.3d 1235, 1235 (9th Cir. 1996) (holding

that the appellant should not have been discharged from the National Guard simply be-

cause she stated that she was a lesbian); Meinhold v. U.S. Dep’t of Def., 34 F.3d 1469, 1480

(9th Cir. 1994) (enjoining the Department of Defense from discharging appellant solely

based on his statement of homosexuality); Watkins v. U.S. Army, 875 F.2d 699, 731 (9th

Cir. 1989) (instructing the Army to reconsider appellant’s reinstatement application

“without regard to his sexual orientation”). Sergeant Justin Elzie served openly under

DADT for four years before reaching a settlement with the Marine Corps. Elzie v. Aspin,

841 F. Supp. 439, 444 (D.D.C. 1993) (affirming injunction against military taking adverse

action based on Elzie public announcement of homosexuality); F

RANK, supra, at 261. Out-

side the courts, fledgling efforts included the formation of the Gay, Lesbian and Bisexual

Veterans of America in 1990 and the Military Freedom Project, formed in 1988 by leaders

of the National Gay and Lesbian Task Force, National Organization for Women, the

Lesbian and Gay Rights Project of the American Civil Liberties Union, Women’s Equity

Action League and the Military Law Task Force of the National Lawyers Guild. The

author has personal experience working with these groups. See R

ANDY SHILTS, CONDUCT

UNBECOMING: LESBIANS AND GAYS IN THE U.S. MILITARY 640 (1993).

2011] TURNING POINTS 37

developments surrounding the end of DADT have received wide-

spread attention. This long-term strategy to overturn DADT and the

military members who sacrificed early in this fight have, for the most

part, gone unnoticed. Because the complete history of this effort would

require many volumes, this piece focuses on selected early turning

points that set the stage to overturn DADT. These events, and the

military members responsible for them, systematically dismantled

the infrastructure that supported DADT and provided indisputable

facts about GLB military members and their service to this country

that swayed public opinion against this discriminatory law and, by

bringing the issue back to the forefront of the national debate, made

the end of DADT possible.

With DADT now consigned to the history books, there can be little

doubt that it will be remembered as a chapter every bit as shameful

as the McCarthy-era witch hunts.

This is not hyperbole. For decades,

military officials proactively sought out, investigated and purged sus-

pected GLB servicemembers.

An estimated 125,000 men and women

lost their careers under the military’s gay bans since their inception

in 1945;

more than 14,500 were dismissed under DADT alone. Dis-

charge figures are but the tip of the iceberg. Those of us who left at the

end of our tours because of the gay bans are not counted.

Further,

no statistic can accurately convey the reign of fear and suspicion the

gay bans unleashed. Gay men and women in the armed forces had to

carefully, consciously hide the truth of their lives from their friends,

family members and colleagues; a discovered diary, using the wrong

pronoun or simply having suspected gay friends could lead to one’s

investigation and dismissal.

Looking solely at more recent history, even those who created

DADT in 1993 recognized its abuses. In 2000, the late Charles

Moskos, the Northwestern University sociologist who coined the

phrase “don’t ask, don’t tell,” authored the policy, and never re-

canted his support, joined me in writing a piece on this subject for

The Washington Post.

Moskos saw the “insidious” consequences of

5. See SHILTS, supra note 4, at 104–08 (1993) (describing the hunt for gays, who

were seen as a security threat, and noting that the military’s gay bans have their roots

in McCarthyism).

6. Id.

7. Rev. Dusty Pruitt, Introduction to J.

LEE WATTON, OUT OF STEP (2011).

8. Additionally, many officers were permitted to resign their commissions and thus

are not counted in the discharge figures. Others were kicked out for being gay, but were

given discharge paperwork reflecting other, less “stigmatizing ” codes than those for

homosexuality; the latter was a fairly common practice when I served and continued into

the DADT era.

9. Charles Moskos & Michelle M. Benecke, Op-Ed., Suffering in Silence, W

ASH. POST,

July 18, 2000, at A23.

38 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

the DADT policy in discouraging gay and lesbian military members

from reporting harassment.

This was just one of many ways in

which DADT harmed servicemembers, and Moskos understood that

fact. He warned the military that its witch hunts of gay and lesbian

servicemembers would lead to a backlash that would ultimately end

DADT.

His prediction proved correct and validated the strategy

described in this piece.

DADT is now a law of the past. A shameful chapter in our Nation’s

history has ended. But the end of this shameful period provides all the

more reason to learn from those who sacrificed and endured great

hardship from a military that did not see their service as worthy of

their own country. We must heed the lessons of their sacrifice, with-

out which the end of DADT would not have been possible.

BACKGROUND

On July 19, 1993, President Clinton announced DADT, portraying

it as a new beginning.

Although gay military members would be

subject to the same grounds for discharge as before

and would con-

tinue to be required to hide their sexual orientation, the President

and military leaders promised to stop “asking” military members

about their sexual orientation and to end the infamous witch hunts

to ferret out suspected GLB military members.

President Clinton

10. Id.

11. Declaration of Professor Charles Moskos ¶ 8, McVeigh v. Cohen, 983 F. Supp. 215

(D.D.C. 1998) (No. 98-116).

12. Clinton: Policy on Gays in Military is ‘Sensible Balance,’ W

ASH. POST, July 20,

1993, at A12 (“I believe the policy I am announcing represents a real step forward . . . .”

(quoting President William J. Clinton’s remarks from July 19, 1993 on his new policy

regarding homosexuals in the military)).

13. “Homosexual conduct” was defined as “engaging in, attempting to engage in, or

soliciting another to engage in a homosexual act or acts, a statement made by a service

member that he or she is a homosexual . . . or marriage or attempted marriage to a per-

son known to be the same biological sex.” D

EP’T OF DEF. INSTRUCTION NO. 1332.14, encl. 3

¶ 8.a(1) (Aug. 28, 2008) [hereinafter D

OD INSTRUCTION 1332.14], available at http://www

.dtic.mil/whs/directives/corres/pdf/133214p.pdf. There were two new developments under

DADT. First, sexual orientation was no longer a bar to military service: “[S]exual orien-

tation is considered a personal and private matter, and [homosexual orientation] is not a

bar to continued [military] service . . . unless manifested by homosexual conduct . . . .”

Id. Second, military leaders acknowledged for the first time that gay men, lesbians and

bisexuals serve our nation and do so honorably. See, e.g., Policy Concerning Homosexuality

in the Armed Forces: Hearings Before the S. Comm. on Armed Servs., 103d Cong. 707 (1993)

[hereinafter Policy Hearings] (statement of Gen. Colin L. Powell, Chairman, Joint Chiefs

of Staff) (“[H]omosexuals have privately served well in the past and are continuing to

serve well today.”).

14. Policy Hearings, supra note 13, at 709 (statement of Gen. Colin Powell) (“We will

not ask, we will not witch hunt, we will not seek to learn orientation.”); see also M

ICHELLE

BENECKE & DIXON OSBURN, SERVICEMEMBERS LEGAL DEF. NETWORK, CONDUCT

2011] TURNING POINTS 39

further promised to “carry out this policy with fairness, with balance

and with due regard for the privacy of individuals.”

The American

public was left with the impression that DADT would be a “more

lenient” policy and “less anti-gay” than its predecessors.

Gay military members and veterans knew otherwise. The day

after President Clinton announced DADT as the new policy, the

phones began ringing off the hook at the Campaign for Military

Service (CMS), the umbrella group that had formed to support

President Clinton’s initial effort to lift the ban on service by gay

military members.

Military witch hunts had immediately resumed,

notwithstanding promises to the contrary by the President and

military leaders.

The six-month debate that preceded the President’s announce-

ment of DADT focused unprecedented attention on the issue of gays

in the military and invited widespread speculation about who might

be gay.

During this time, suspected gay military members lived

with a “bulls eye” on their backs.

After the President’s announce-

ment, they were targeted with renewed vigor by criminal investi-

gators and commanders who felt emboldened by the President’s

defeat.

Servicemembers had nowhere within the military to turn

UNBECOMING: THE FOURTH ANNUAL REPORT ON “DON’T ASK, DON’T TELL, DON’T PURSUE,

ON’T HARASS” 4 (1998) [hereinafter SLDN FOURTH ANNUAL REPORT] (“I do not believe

we should have sex squads prying into the private lives of our service members.”

(quoting Sen. Sam Nunn, Chairman, S. Armed Serv. Comm., R

ECORD, May 31, 1993, at

A10) (internal quotation marks omitted)).

15. Clinton, supra note 12; see also Policy Hearings, supra note 13, at 786 (statement

of Jamie Gorelick, General Counsel, Department of Defense). Senator William Cohen, who

later became Secretary of Defense and oversaw the implementation of DADT, asked then

Department of Defense General Counsel Jamie Gorelick whether “the policy really [was]

designed to allow a small measure of privacy to homosexuals,” and Gorelick answered

clearly, “Yes.” Id.

16. J

ANET E. HALLEY, DON’T: A READER’S GUIDE TO THE MILITARY’S ANTI-GAY POLICY

1 (1999).

17. The U.S. Military’s Discriminatory Policy: “Don’t Ask, Don’t Tell,” S

OLOMON

RESPONSE.ORG, http://www.law.georgetown.edu/solomon/background.html (last visited

Nov. 2, 2011) [hereinafter Don’t Ask, Don’t Tell].

18. M

ICHELLE BENECKE & DIXON OSBURN, SERVICEMEMBERS LEGAL DEF. NETWORK,

ONDUCT UNBECOMING: THE THIRD ANNUAL REPORT ON “DON’T ASK, DON’T TELL, DON’T

PURSUE” (1997) [hereinafter SLDN THIRD ANNUAL REPORT], available at http://www.sldn

.org/page/-/Website/SLDN%20Reports/SLDN%20Reports/SLDN%20Report%203.pdf

(reporting ongoing witch hunts).

19. See, e.g., Dirk Johnson, Are Homosexuals the New Enemy?, N.Y.

TIMES, Jan. 28,

1993, at A16 (reporting on the increasing violent prejudice displayed against homosexual

military members).

20. See, e.g., id. (“It was a warning repeated time and again by . . . airmen . . . gathered

in the bar: . . . homosexuals in the military would be beaten.”).

21. See Eric Schmitt, U.S. Agencies Split Over Legal Tactics on Gay Troop Plan, N.Y.

IMES, Dec. 19, 1993, at A1 (discussing the increased discrimination against homosexuals

and the increased fear felt by homosexual military members).

40 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

for help.

They called CMS, which had received publicity during the

six-month debate.

At CMS, however, staffers and volunteers packed up and left; the

organization was never intended to outlast the debate over President

Clinton’s plan.

A co-worker, Dixon Osburn, and I found ourselves

standing alone at the CMS headquarters, wondering aloud about

next steps and what could be done to repeal this new policy and to

help the servicemembers who were calling.

No organization had plans to seek the repeal of DADT or assist

military members. With Congress moving to codify DADT into law,

activists considered the fight to be over.

If nothing were done, the issue of DADT repeal would fall off the

table and military members would continue to suffer, their plight un-

known to the public. While serving in the Army, I had vowed to form

an advocacy organization for GLB military members. Dixon and I

agreed—it was now or never.

With no seed money, we launched Servicemembers Legal Defense

Network (SLDN) the day after President Clinton announced DADT.

II. THE STRATEGY

SLDN had two goals: (1) repeal DADT, and (2) assist military

members harmed by the law in the meantime.

We developed a model

integrating legal, policy, watchdog, media and grassroots advocacy

efforts.

We would resuscitate the military issue, chip away at the

bulwark of prejudices that supported DADT and build the foundation

to overturn the law.

We committed ourselves to exploiting every

opportunity to protect military members. In a context where no real

recourse existed under DADT, more than legal tools were needed.

SLDN would give voice to military members who were required

to serve in silence.

The 1993 debate was dominated by the worst of

22. MICHELLE BENECKE & DIXON OSBURN, SERVICEMEMBERS LEGAL DEF. NETWORK,

ONDUCT UNBECOMING: THE FIFTH ANNUAL REPORT ON “DON’T ASK, DON’T TELL, DON’T

PURSUE” 1 (1999) [hereinafter SLDN FIFTH ANNUAL REPORT], available at http://sldn.3cdn

.net/a8b3dc696e4d065d6a_l5m6b5wse.pdf.

23. Don’t Ask, Don’t Tell, supra note 17.

24. Id.

25. Id.

26. About SLDN: Vision, Mission and Goals, S

ERVICEMEMBERS LEGAL DEF. NETWORK,

http://www.sldn.org/pages/about-sldn-vision-mission-and-goals (last visited Nov. 2, 2011).

27. Id.; Don’t Ask, Don’t Tell, supra note 17; Steve Ralls, The History Makers,

UFFINGTON POST, Dec. 20, 2010, http://www.huffingtonpost.com/steve-rall/the-history

-makers_b_798637.html.

28. About SLDN: Vision, Mission and Goals, supra note 26.

29. Id.

30. Id.

2011] TURNING POINTS 41

stereotypes and misconceptions about gay people.

It would be fair

to say that a great many Americans at the time saw GLB people as

subhuman; there was not yet any national consensus that gay rights

issues were civil rights issues.

We vowed to change the terms of the

debate by putting GLB military members front and center, knowing

that once we did so, it would be all the more difficult to deny their

humanity and to define them solely in terms of the most pernicious

stereotypes about gays and lesbians. This issue simply could not be

understood by the courts, Congress, the media and the public without

understanding servicemembers’ experiences.

When I served, military members were railroaded out of the ser-

vice in the middle of the night, leaving only rumors behind. Alone and

isolated, we were easy prey for military criminal investigators. As

lawyers at SLDN, we would provide a confidential and trustworthy

place for military members to seek help

under the attorney-client

privilege. With sound advice, military members could make informed

decisions about their lives and would have a choice to fight back.

We would assist military members who were harassed and

bring scrutiny to bear on command actions.

We would intervene

early to cut off investigations, before they snowballed.

While DADT

sealed the fate of those who were discovered engaging in “homosexual

conduct” (statements, acts or marriage);

we would ensure they re-

ceived what process the military afforded.

Over time, our aggressive

presence would start to change the climate. Our goal was to ward off

investigations and create some safe space for military members to

31. See, e.g., Policy Hearings, supra note 13, at 688 (statement of Sen. Strom

Thurmond) (asking Margarethe Cammermeyer, during her Senate testimony to the

Armed Services Committee, “Have you ever thought about seeking help, psychiatric or

medical help, to try to correct your situation?”); Eric Schmitt, Joint Chiefs Fighting Clinton

Plan to Allow Homosexuals in Military, N.Y.

TIMES, Jan. 23, 1993, at 1 (describing the

concerns of lifting the ban that came up during Defense Secretary Aspin’s first meeting

with the Joint Chiefs of Staff: “[t]he ban would wreck morale, undermine recruiting, force

devoutly religious service members to resign and increase the risk of AIDS for hetero-

sexual troops . . . .”).

32. See C. Dixon Osburn & Michelle Benecke, A Pivotal Moment, H

UFFINGTON POST

(Sept. 20, 2011, 9:35 AM), http://www.huffingtonpost.com/c-dixon-osburn/dadt-repeal_b

_971540.html (remarking that the repeal of Don’t Ask, Don’t Tell “marks the first time

Congress has acted to end discrimination against gay, lesbian and bisexual Americans”).

33. Early heroes Kathy Gilberd, Frank Kameny, Bridget Wilson, and Jim Woodward

were among the few advocates who assisted GLB military members on a daily basis prior

to SLDN’s formation.

34. SLDN

THIRD ANNUAL REPORT, supra note 18, at 26.

35. See id. at iii (urging the Department of Defense to require that commanders justify

decisions to commence investigations).

36. D

OD INSTRUCTION 1332.14, supra note 13; SLDN THIRD ANNUAL REPORT, supra

note 18, at i, 25–26 (emphasizing the “Machiavellian” reach of the policy).

37. SLDN

THIRD ANNUAL REPORT, supra note 18, at 19–20 (detailing SDLN’s efforts to

investigate and monitor military action in response to complaints).

42 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

live their lives. Most importantly, we would empower military mem-

bers to defend themselves by educating them on their legal rights and

the practical steps they could take if investigated.

Although most military members would require on-the-spot legal

advice and counseling from SLDN lawyers, we would build a network

of cooperating attorneys, eventually numbering 250, to support cases

requiring intensive litigation or international reach.

For the first time in history, there would be a watchdog to doc-

ument abuses and hold the military accountable.

Through our

casework, we would be able to identify individuals who harmed gay

military members, and document systemic trends for which we would

seek reform in Washington.

We would publish our findings and

recommendations in an annual report, around which we would en-

deavor to obtain press coverage and bring the issue of DADT repeal

to the national forefront.

From this platform, we would unearth the

hypocrisy of DADT.

Finally, we would create disincentives to enforcing DADT. There

had never before been a reason to think twice about going after

38. About SLDN: Vision, Mission and Goals, supra note 26; see also discussion infra

Part II.B, “Ending the Witch Hunts” (providing accounts of such investigations).

39. M

ICHELLE BENECKE & DIXON OSBURN, SERVICEMEMBERS LEGAL DEF. NETWORK,

ONDUCT UNBECOMING: THE SECOND ANNUAL REPORT ON “DON’T ASK, DON’T TELL, DON’T

PURSUE” v (1996) [hereinafter SLDN SECOND ANNUAL REPORT], available at http://www

.sldn.org/page/-/Website/SLDN%20Reports/SLDN%20Reports/SLDN%20Report%202.pdf.

Servicemembers would need other service providers as well. Within the military, service-

members could trust no one. Chaplains, doctors, therapists and psychologists were all

known to turn in GLB people who sought their help. SLDN

SECOND ANNUAL REPORT,

supra note 39, at 4. Civilian clergy would play an especially important role in situations

where military members feared for their safety. See, e.g., Beverly M. Payton, Clergy Group

Denounces Gay-bashing the Religious Leaders Didn’t Agree on Whether Homosexuality

Is A Sin. They Did Agree That Tolerance Is Needed., P

HILLY.COM (Feb. 25, 1993), http://

articles.philly.com/1993-02-25/news/25957295_1_ministerium-members-sexual-orientation

-homosexuals (giving an example of one interfaith consortium that “denounc[ed] violence”

against gays). Pastors of the Metropolitan Community Churches and other denominations

intervened many times at SLDN’s request to check on military members and let officials

know that someone was watching. See, e.g., Gay & Lesbian Military Personnel Receive

Church Support, W

ORLDWIDE FAITH NEWS (Apr. 23, 2003, 12:49 PM), http://www.wfn.org

/2003/04/msg00281.html (describing how the MCC supported servicemembers and their

loved ones). Persistent PFLAG members who were retired from the military would also

prove successful in this regard.

40. See Brief for Servicemembers Legal Def. Network as Amici Curiae Supporting

Plaintiff-Appellee at 1, Log Cabin Republicans v. United States, 2011 WL 4494225 (9th

Cir. Sept. 29, 2011) (No. 10-56634) (“Dedicated to helping servicemembers affected by the

discriminatory regime . . . [SLDN] is the nation’s premier organization addressing the

effects of DADT.”).

41. See id.

42. About “Don’t Ask, Don’t Tell”: SLDN Reports, S

ERVICEMEMBERS LEGAL DEF.

ETWORK, http://sldn.org/pages/sldn-reports (last visited Nov. 2, 2011) (providing the

SLDN annual reports for the first 10 years).

2011] TURNING POINTS 43

suspected GLB members.

Every incentive supported the military’s

pursuits of gay people.

Given the pre-existing exclusionary policies

and now DADT law, even well-intentioned commanders at the in-

dividual level believed they had no choice but to act on information

concerning a servicemember’s sexual orientation no matter how this

information came to light.

Having been a battery commander, I knew that outside inter-

vention was the last thing military leaders wanted. Where it was in

our clients’ interests, SLDN would trigger congressional inquiries,

inspector general investigations, media inquiries, grassroots delega-

tions of concerned citizens and visits by trusted civilian clergy—all

of which would impose scrutiny on the actions of military leaders and

require their response.

Our aim was to use guerilla lawyering to

“problematize” the implementation of DADT; some number of com-

manders would then consider it too much of a hassle to pursue GLB

military members.

We knew that, to win, the DADT repeal movement would need

to be bigger than SLDN. It was our hope to galvanize an integrated

national movement. We had faith that new allies would step up to the

plate over time, building on the work of pioneers in this fight—and

thousands did.

In the course of fighting against DADT, servicemembers would

stay on duty for longer periods of time, some even for full careers.

Their presence would bring about a sea change in attitudes within the

military as their leaders and fellow servicemembers came to know

gay people, many for the first time.

Over time, the rationale for

DADT—that known gay people harmed unit morale and cohesion—

would be proven to be the lie it was.

43. SLDN SECOND ANNUAL REPORT, supra note 39, at 18.

44. Id.

45. Id. at 25–26.

46. About SLDN: Vision, Mission and Goals, supra note 26.

47. Id.

48. See, e.g., Policy Hearings, supra note 13, at 649–50 (statement of Dr. Margarethe

Cammermeyer, former Colonel, Chief Nurse, Washington Army National Guard) (recalling

colleagues’ willingness to support her in court after learning of her sexual orientation); id.

at 662–63 (statement of Thomas Paniccia, former Staff Sergeant, U.S. Air Force) (testifying

that two co-workers went out of their way to show acceptance and that they “knew [he]

was still the same person”); id. at 667 (statement of Sgt. Justin Elzie, U.S. Marine Corps)

(expressing his realization that many servicemembers do not mind serving with gays and

lesbians but are afraid to publicly show support).

49. See, e.g., U.S.

GEN. ACCOUNTING OFFICE, GAO/NSAID-93-215, HOMOSEXUALS IN

THE MILITARY: POLICIES AND PRACTICES OF FOREIGN COUNTRIES, 3–4 (1993) (providing

testimony from foreign military officials that inclusion of homosexuals has not caused

problems); Om Prakash, The Efficacy of “Don’t Ask, Don’t Tell,” J

OINT FORCE Q., 4th

Quarter 2009, at 88, 90 (2009) (citing the lack of scientific evidence that homosexuality

harms unit cohesion); see also Suzanne B. Goldberg, Open Service and Our Allies: A

44 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

Our long term intention was to make the DADT law fall under

its own weight. Military buy-in was essential. We not only needed to

change attitudes in the courts, Congress and the public, we needed

to create an environment where even military leaders questioned the

efficacy of the law and no longer wanted to deal with DADT cases.

At the time, we predicted it would take twenty years to repeal

DADT in Congress if we put a consistent and effective advocate into

place. This timeline would be an improvement compared to efforts

to end exclusionary policies based on race and gender.

(To this day,

military women continue to face restrictions on their service.

) It took

eighteen years and tremendous sacrifices by thousands of military

members until DADT—this pernicious law that ruined the careers and

even lives of thousands of Americans serving their country—ended.

A. Early Challenges: Fighting the Pentagon to Stop “Asking” and

“Pursuing”

SLDN’s first priority was to get the military’s criminal investi-

gative agencies

out of the business of hunting down gay people.

Criminal investigators were responsible for the military’s infamous

witch hunts to ferret out and purge suspected gay military members.

Report on the Inclusion of Openly Gay and Lesbian Servicemembers in U.S. Allies’ Armed

Forces, 17 WM. & MARY J. WOMEN & L. 547 (2011) (reporting on the success of integrat-

ing openly gay servicemembers into the military in Australia, Canada, Israel and the

United Kingdom).

50. See, e.g., Brief for Servicemembers Legal Defense Network, supra note 40, at 2

(describing SLDN’s efforts to educate military commanders about the scope of DADT).

51. Lesbians and Gay Men in the U.S. Military: Historical Background,

UCDAVIS.EDU,

http://psychology.ucdavis.edu/rainbow/html/military_history.html (last visited Nov. 2,

2011); see also D

EP’T OF DEF., REPORT OF THE COMPREHENSIVE REVIEW OF THE ISSUES

ASSOCIATED WITH A REPEAL OF “DON’T ASK, DON’T TELL,” 81–88 (2010), http://www.defense

.gov/home/features/2010/0610_dadt/DADTReport_FINAL_20101130(secure-hires).pdf

(giving a short history of the integration of African Americans and women into the United

States Armed Forces).

52. Rick Maze, Bill Would Lift Combat Restrictions for Women, A

RMY TIMES, May

20, 2011, http://www.armytimes.com/news/2011/05/military-bill-would-lift-restrictions-on

-women-in-combat-052011w/.

53. Don’t Ask, Don’t Tell, N.Y.

TIMES, http://topics.nytimes.com/top/reference/times

topics/subjects/d/dont_ask_dont_tell/index.html (last updated Sept. 20, 2011).

54. These include the Army Criminal Investigation Command (CID), Air Force Office

of Special Investigations, Naval Criminal Investigative Service (NCIS) and Coast Guard

Investigative Service.

55. See, e.g., M

ICHELLE BENECKE & DIXON OSBURN, SERVICEMEMBERS LEGAL DEF.

ETWORK, CONDUCT UNBECOMING CONTINUES: THE FIRST YEAR UNDER “DON’T ASK,

DON’T TELL, DON’T PURSUE” 25 (1995) [hereinafter SLDN FIRST ANNUAL REPORT], avail-

able at http://www.sldn.org/page/-/Website/SLDN%20Reports/SLDN%20Reports/SLDN

%20Report%201.pdf (“[T]he Department of Defense should clearly and strongly commu-

nicate the intent of the new policy to stop anti-gay harassment and pursuits of suspected

homosexual servicemembers.”).

2011] TURNING POINTS 45

With their resources and broad jurisdiction, they had the ability to

quickly expand individual investigations into mass dragnets, in some

cases ensnaring hundreds of military members at a time.

To end the

witch hunts and create some safe space for military members, we

had to stop the criminal investigators.

Second, we had to make people believe there were limits on

investigations, even though none were included in the law as passed

by Congress in February 1994.

“Don’t Ask” and “Don’t Pursue” were

merely thin reeds of rhetoric.

To the extent there would be any

limits, the details would be worked out in the administrative process

at the Pentagon. There was only a short window at the very begin-

ning of DADT in which to try to influence this internal process and

obtain limits on the military’s ability to pursue people suspected of

being gay.

Fortuitously, the Pentagon’s proposed guidance to commanders

was leaked to SLDN during the implementation process. In an

Orwellian gambit, the guidance elevated pursuits of gay people to

official policy in the guise of placing limits on investigations. The

Pentagon had devised a construct that, on its face, appeared to up-

hold the President’s promises: military members would not be inves-

tigated absent “credible information” of “homosexual conduct.”

The

leaked document defined “credible information” so broadly that it

eviscerated any promised limits and revealed the Pentagon’s intention

to ferret out people suspected of being gay.

Contrary to the President’s promises to protect “associational

activities,”

military members could be investigated if they went to

a gay bar, marched in a gay pride parade, or associated with known

homosexuals.

Given the military’s long history of surveilling gay

bars, churches and other establishments,

this development was

56. At Parris Island Marine Corps Recruit Training Depot in South Carolina from 1986

to 1988, nearly half of the post’s 246 women were interrogated in one witch hunt: “[S]ixty-

five women eventually left the Marine Corps as a direct result of the investigation. At least

twenty-seven of these women were administratively discharged. Three women . . . were

jailed as a result of criminal convictions for [alleged consensual] homosexual activity.”

Michelle M. Benecke & Kirstin S. Dodge, Military Women in Nontraditional Job Fields:

Casualties of the Armed Forces’ War on Homosexuals, 13 H

ARV. WOMEN’S L.J. 215, 221

(1990) (footnotes omitted). Others chose to resign or accept discharges instead of facing the

risk of investigations and possible criminal charges. Id.

57. 10 U.S.C. § 654 (2006), repealed by Don’t Ask, Don’t Tell Repeal Act of 2010, Pub.

L. No. 111-321, 124 Stat. 3515 (containing no reference to investigations or limitations).

58. See Policy Hearings, supra note 13, at 709 (statement of Gen. Colin Powell) (“We

will not ask, we will not witch hunt, we will not seek to learn orientation.”).

59. See supra note 13, for the definition of homosexual conduct.

60. Policy Hearings, supra note 13, at 714 (statement of Gen. Colin Powell).

61. See SLDN

SECOND ANNUAL REPORT, supra note 39, at 16.

62. See, e.g., S

HILTS, supra note 4, at 435–36. The Army parked a surveillance van

outside Reverend Dusty Pruitt’s church, which ministered to a large gay congregation,

46 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

chilling to those of us who had served. While these tawdry practices

were not new, the Pentagon now sought to condone them as official

policy, rather than end them.

SLDN responded with a full court press involving all of the con-

tacts we had managed to develop at that early date. Ultimately, early

versions of the “Commanders Guidance” were shelved after senior

political appointees, including the Department of Defense General

Counsel, became engaged and made revisions to limit investigations,

many of them adopting SLDN recommendations.

after she came out while serving in the Army Reserves. Id. Gay bars were consistent tar-

gets in all the services. Agents surveilled the nearby streets and parking lots, writing down

license plate numbers and taking pictures of patrons. Agents then tracked down car owners

who were in the military. See, for example, the story of Danny Leonard, the proprietor of

Friends Lounge in Jacksonville, NC, who harbored 123 military patrons overnight on one

occasion, after Navy investigators from Camp LeJeune—an hour away—riding with local

sheriff’s deputies, remained parked outside through the night and into the next day. Id.

at 442–43. Investigators finally dispersed when television reporters and camera crews

showed up, called by Leonard to discuss the legality of this operation and its use of tax-

payer dollars. Id. at 443.

63. SLDN

SECOND ANNUAL REPORT, supra note 39, at 15–16 (citing a 1994 Navy memo

that suggests “gay associational activities” are “inconsistent with good military character”).

64. The new guidelines contained limits on gay investigations that included, but were

not limited to, the following:

• Only a service member’s commander may initiate an inquiry into homosexual

conduct [statement, act or marriage].

• Commanders may initiate inquiries only upon receipt of credible information of

homosexual conduct.

• Credible information exists when information, considering its source and the sur-

rounding circumstances, supports a reasonable belief that a service member has

engaged in homosexual conduct.

• Credible information requires a determination based on articulable facts, not just

belief or suspicion.

• Not all accusations of homosexual conduct constitute credible information as a basis

for inquiry or discharge.

• Credible information does not exist when the source of the accusation is not credible

or reliable.

• Credible information does not exist when the accusation concerns an associational

activity, such as going to a gay bar, associating with known homosexuals, or march-

ing in a gay rights rally in civilian clothes.

• Credible information does not exist when the information concerns possessing or

reading homosexual publications.

• Credible information does not exist when the information concerns listing by a ser-

vice member of someone of the same gender as the person to be contacted in the

case of an emergency, as an insurance beneficiary, or in a similar context.

• Credible information does not exist when the information concerns an allegation

by another that a service member is homosexual.

• Credible information does not exist when the inquiry would be based on rumor,

suspicion, or capricious claims concerning a member’s sexual orientation.

• Credible information does not exist when a service member reports being threat-

ened because he or she is said or perceived to be a homosexual.

• Inquiries shall be limited to the factual circumstances directly relevant to the

specific allegations.

2011] TURNING POINTS 47

The most important of these was to remove DADT cases from the

purview of the criminal investigative agencies. Individual commanders

rather than criminal investigators would be the primary authorities

responsible for DADT cases.

Allegations of “homosexual conduct”

(statements, acts or marriage) were to be handled in the adminis-

trative system, through “inquiries” by unit commanders.

Service-

members accused of engaging in “homosexual conduct” would face

discharge proceedings rather than criminal prosecutions.

Third, we had to close loopholes through which military officials

could conduct witch hunts. Among them, the security clearance pro-

cess threatened to become the proverbial “hole the size of a truck”

in the new limits that were supposed to curb pursuits of GLB mili-

tary members.

For decades, our government’s official policy was to discrimi-

nate against gay civilians and military members in issuing security

clearances.

On written forms and during interviews, security clear-

ance investigators directly asked applicants and those undergoing

periodic reviews whether they were “homosexual” or had ever en-

gaged in “homosexual conduct.”

Answering honestly—or declining

to answer—meant an end to one’s aspirations and career.

• Commanders shall exercise sound discretion regarding when credible information

exists.

SLDN

FOURTH ANNUAL REPORT, supra note 14, at 21–23 (footnotes omitted).

65. D

EP’T OF DEF., INSTRUCTION NO. 5505.8—INVESTIGATIONS OF SEXUAL MISCONDUCT

BY THE DEFENSE CRIMINAL INVESTIGATIVE ORGANIZATIONS AND OTHER DOD LAW

ENFORCEMENT ORGANIZATIONS, § A (1994) [hereinafter GUIDELINES FOR DCIOS], avail-

able at http://dont.stanford.edu/regulations/dodi5505.8.pdf.

66. Id.

67. Id. § D (“Except pursuant to subsections F. 2. and F. 3., below, a . . . law enforcement

organization shall not initiate a criminal investigation into sexual misconduct where such

misconduct is the only offense involved. . . . Investigations . . . shall be conducted in an

even-handed manner, without regard to whether the alleged sexual misconduct involves

homosexual or heterosexual conduct.”). The military’s criminal code polices a wide range

of consensual behavior for both heterosexual and GLB military members, but had been en-

forced selectively against GLB military members. See discussion infra Part II.D, “Ending

Selective Criminal Prosecutions.”

68. SLDN

FIRST ANNUAL REPORT, supra note 55, at 28.

69. See, e.g., U.S.

GEN. ACCOUNTING OFFICE, GAO/NSIAD-95-21, SECURITY

CLEARANCES: CONSIDERATION OF SEXUAL ORIENTATION IN THE CLEARANCE PROCESS

2 (1995) (stating that until 1991 civilian security clearance was routinely denied as a

result of an individual’s sexual orientation).

70. See, e.g., id. at 3 (stating that agency policy authorized investigators within the

Department of Defense and U.S. Secret Service “to pursue information regarding [a

civilian] applicant’s homosexuality,” and did not prohibit directly questioning individuals

about sexual orientation).

71. Perhaps the best known story is that of Frank Kameny, one of the pioneers of

the modern gay rights movement. See Will O’Bryan, Gay Is Good: How Frank Kameny

Changed the Face of America, M

ETRO WEEKLY, Oct. 5, 2006, http://www.metroweekly

.com/feature/?ak=2341. After fighting in World War II, Kameny lost his early career as

48 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

From the 1950s through the early 1990s, security clearance poli-

cies evolved somewhat for civilian employees.

Within the military,

servicemembers found to be gay during security clearance investiga-

tions continued to face mandatory discharge under the gay bans.

At SLDN, we pressed Pentagon officials to stop questions about

sexual orientation and wall off information obtained during the secu-

rity clearance process. We knew this goal was impossible to attain

because departments and agencies enjoy great deference in matters

of security, including clearances.

As we experienced time and again, however, pushing the envelope

opened up space in the process for other improvements. In this case,

we were successful in making security clearance information off limits

for purposes of discharge.

When released, new regulations stated

a government physicist because he was honest; it was an event that triggered a lifetime of

activism to end discrimination against gay Americans. See id. Kameny refused to lie about

his sexuality during the investigation, saying “it’s irrelevant. It has no bearing on any

valid governmental purpose . . . .” Id.; see also S

HILTS, supra note 4, at 194–95 (detailing

Kameny’s efforts as leader of the Washington Gay Activists Alliance).

72. In theory, it became possible to have a career in public service, but gay applicants

and employees were automatically subjected to a lengthier investigative process than

heterosexuals. U.S.

GEN. ACCOUNTING OFFICE, supra note 69, at 4–5. This often served

as an effective bar to employment; government offices and contractors were typically not

willing to wait the additional six months to hire a gay person, when other (heterosexual)

hires were available. This preference not to wait happened regardless of the reasons for

the delay. See, e.g., Richard Willing, White House Looks for Faster Top-Secret Clearances,

USA

TODAY, Feb. 14, 2007, http://www.usatoday.com/news/washington/2007-02-14-top

-secret-clearances_x.htm (demonstrating that job offers may close during delays in appli-

cants’ security clearance processes). This form of discrimination finally ended with the

issuance of President Clinton’s Executive Order banning discrimination based on sexual

orientation alone. See infra note 76.

73. See D

OD INSTRUCTION 1332.14, supra note 13, encl. 3, ¶ 8 (setting out the reasons

for mandatory discharges and suggesting, based on the 2010 amendments noting that

security clearances cannot be grounds for exclusion from the military, that gays had con-

tinued to be discharged based on security clearances). Prior to DADT, one rationale for the

gay bans was the notion that gay people posed a greater security risk than heterosexuals.

See, e.g., id. at 2; see also 32 C.F.R. pt. 41, app. A (1991) (stating that the exclusion of homo-

sexuals was necessary to “prevent breaches of security”). This policy was in effect from

1981 to 1994. In one form or another, this security rationale was used from 1949 to 1994.

This persisted despite internal reports to the contrary dating back to 1957 and statements

by prominent officials. T

HE CRITTENDEN REPORT: REPORT OF THE BOARD APPOINTED TO

PREPARE AND SUBMIT RECOMMENDATIONS TO THE SECRETARY OF THE NAVY FOR THE

REVISION OF POLICIES, PROCEDURES AND DIRECTIVES DEALING WITH HOMOSEXUALS 8–9,

14, 48 (1956–57); see also Judith Hicks Stiehm, Managing the Military’s Homosexual

Exclusion Policy: Text and Subtext, 46 U.

MIAMI L. REV. 685, 692 (1992) (describing the

1957 Crittenden Report and another done by the Defense Personnel Security Research and

Education Center in 1990, both of which “suggest[ed] that security is not an issue”); Defense

Policy in the Post-Cold War Era: Hearing Before the H. Comm. on the Budget, 102d Cong.

46 (1991) (statement of Dick Cheney, Secretary, Department of Defense) (famously refer-

ring to the security rationale as a “bit of an old chestnut”).

74. Policy Hearings, supra note 13, at 116, 126, 128, 151.

75. SLDN

SECOND ANNUAL REPORT, supra note 39, at 7–8.

2011] TURNING POINTS 49

that information about homosexual orientation or conduct gathered

during a security clearance investigation would not be employed in

separation proceedings; the regulations further provided that “a

servicemember [could] decline to answer questions about sexual

orientation without adverse consequence.”

Old habits die hard. After DADT was implemented, SLDN fought

a barrage of bad guidance that sought to justify witch hunts and

circumvent the limits described above.

These included a June 1994

memo from the Navy’s appellate litigation group that suggested asso-

ciational activities, for example “belonging to a gay men’s chorus,

[were] inconsistent with good military character.”

A slide from the

Navy’s training program implementing DADT hinted at the prevail-

ing mindset: “[DADT] Does Not Mean Don’t Investigate.”

Imagine

a different slide, one that said, “[DADT] . . . Places Limits On Investi-

gations.”

The latter would convey a completely different message.

Memos from top Air Force lawyers dated November 3, 1994, and

November 17, 1995, justified questioning family members, school

counselors, roommates and friends, and encouraged inquiry officers

to look for other suspected gay military members.

Over time,

SLDN’s work resulted in such guidance being rescinded or rendered

unenforceable.

The impact of sidelining criminal investigators and closing

down security clearance channels as an official loophole by which

to ferret out suspected GLB military members cannot be under-

stated. Individual commanders could reach suspected GLB people

in their units, but they lacked resources and authority to launch

76. Id. at 7. President Clinton’s issuance of Executive Order 12968 on August 4,1995,

would later provide further momentum to the issue. Id. at 8. The Executive Order prohibits

discrimination based on sexual orientation in the issuance of security clearances and makes

clear that neither sexual orientation nor homosexual activities is a bar to issuance of secu-

rity clearances in either the military or civilian contexts. Id. Representative Barney Frank

(D-MA) pressed for the Executive Order after intervening to stop an anti-gay witch hunt

by executive branch officials who used the security clearance process to identify suspected

gay employees. See Warren E. Leary, Government Agency Ferreted Out Names of Its Gay

Workers, N.Y.

TIMES, May 14, 1992, at A1.

As a practical matter, military members remained at risk of being outed by errant

security clearance investigators throughout the DADT era, making security clearance

interviews and investigations a nerve-wracking experience for GLB military members.

77. SLDN

SECOND ANNUAL REPORT, supra note 39, at 11.

78. SLDN THIRD ANNUAL REPORT, supra note 18, at 28.

79. Id. at 14.

80. Id.

81. Id. at 29. Additionally, the memoranda instructed: “if . . . other military members

are discovered during the proper course of the investigation . . . appropriate action may

be taken.” Id. (emphasis added). As we pointed out, “no proper investigation . . . would

ever turn up other people: that is a witch hunt.” Id.

50 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

global investigations.

On the other side of the coin, SLDN assisted

commanders who did not want to pursue suspected GLB military

members; these changes helped them push back on intrusive criminal

investigators and allowed them to ignore information obtained during

security clearance investigations.

SLDN’s work challenged the conception of GLB people as “crimi-

nals” and “security risks,” thereby undermining significant pillars

on which DADT stood.

It would take heroic work to put practical

teeth into these reforms, which saved the careers of countless mili-

tary members.

B. Ending the Witch Hunts

During the first two years under DADT, SLDN documented

forty-three witch hunts.

Among them, criminal investigative agents

interrogated twenty-one marines at Camp Hansen in Okinawa, Japan,

82. See DOD INSTRUCTION 1332.14, supra note 13, encl. 5 ¶ 1(a) (limiting inquiries to

suspected servicemember’s chain of command).

83. See id. ¶ 3(b) (granting commanders discretion to determine whether to initiate an

inquiry); see also G

UIDELINES FOR DCIOS, supra note 65, § A (instructing criminal inves-

tigators to refer private, consensual misconduct to commanders).

84. See, e.g., G

UIDELINES FOR DCIOS, supra note 65, at § D(3) (requiring that investi-

gations into sexual misconduct be conducted regardless of orientation); see also discussion

infra Part II.D, “Ending Selective Criminal Prosecutions” (examining uneven prosecution

of sexual misconduct).

85. Witch hunts refer to the military’s longstanding method of using mass investi-

gations to ferret out suspected GLB military members. See Benecke & Dodge, supra note

56, at 222 & n.46. During witch hunts, investigators compiled lists of suspected gay military

members by coercing servicemembers into naming others who were rumored to be gay. Id.

at 222–23. Obtaining the names of officers and senior enlisted leaders was especially

valued. Id. at 225. Investigative tactics included prolonged interrogations, denial of military

members’ requests to speak with an attorney, and threats of jail sentences or other nega-

tive outcomes, such as loss of custody of one’s children. Id. at 224. Often, military members

were falsely promised that “they would be ‘protected’ if they turned the other women in,

that the others had already confessed to being lesbians, and that the [investigators] had

obtained ‘conclusive evidence’ of their guilt.” Id. (footnote omitted).

Physical abuse was not unknown. Servicemembers have reported being beaten, locked

in dark broom closets and, in the case of Army Special Forces soldier Jay Hatheway, having

pins attached to his head for “neurological testing” until blood ran down his face. S

HILTS,

supra note 4, at 231.

Additionally, the services’ criminal investigative agencies conducted extensive surveil-

lance operations of civilian businesses and churches that welcomed gays, in an effort to

identify any gay patrons who might be in the military. See, e.g., id. at 435–36 (describing

the vane surveillance of Army Reserve Captain Dusty Pruitt). These are just a few ex-

amples of the lengths to which military criminal investigators went to identify suspected

gay military members.

86. This was likely the tip of the iceberg, as these mass investigations occurred at a

time when SLDN had limited outreach capability and the internet was not yet in wide use,

making it easier for the military to conduct its witch hunts in secret.

2011] TURNING POINTS 51

about their own sexual orientation and that of other marines.

One

marine was thrown in the brig for a month and others were targeted

for discharge before SLDN learned of the cases and intervened to stop

the witch hunt.

At Hickam Air Force Base in Hawaii, officials entered into a pre-

trial agreement with an admitted felon, Airman Bryan Harris,

who

was facing life in prison for rape and other charges.

Prosecutors

agreed to reduce Harris’s sentence from life to twenty months on the

condition he hand over the names of military men with whom he had

sex.

Harris named seventeen men, only five of whom were in the

Air Force.

The Air Force members were discharged, some after fur-

ther fishing expeditions.

In a case that once again placed scrutiny on the military’s use of

its gay policies to disproportionately investigate women, up to sixty

female sailors were targeted onboard the USS Simon Lake, ported in

Sardegna, Italy, in 1995.

Seaman Amy Barnes believes her refusal

of a male sailor’s advances triggered the investigation: “If you’re a

woman and single and don’t want to sleep around with every guy,

87. SLDN SECOND ANNUAL REPORT, supra note 39, at 11.

88. Id. SLDN was assisted by cooperating attorneys at the international law firm

Skadden Arps Slate Meagher & Flom.

89. Offer for Pretrial Agreement at 1–2, United States v. Harris, FR415-17-1302

(U.S.A.F. Pac. Cir. 1996).

90. SLDN

THIRD ANNUAL REPORT, supra note 18, at 10.

91. Id.

92. Id.

93. Id. In response to SLDN’s letter of complaint on behalf of four of the Air Force

members, the Air Force Inspector General (IG) looked into the matter and confirmed the

pretrial agreement and also verified that prosecutors asked co-workers of one of the men

accused by Harris the below questions:

1. Do you have any reason to believe that TSgt Gandy doesn’t like girls?

2. Have you ever had the feeling that Tsgt [sic] Gandy is interested in men?

3. Have you ever seen TSgt Gandy hug, kiss, or hold hands with another man

in a way that was more than just a means of saying hello?

4. Would you be surprised to find out that TSgt Gandy is gay?

5. What is it like to work in a unit with so many homosexuals?

6. Has TSgt Gandy ever talked about women to you, you know, the way men

talk about women?

7. Where does TSgt Gandy hang out? With whom?

8. Has TSgt Gandy ever had a girlfriend?

9. Do you think it is unusual for him not to have a girlfriend?

10. Does anyone in your office know that TSgt Gandy is gay?

Id. at 10–11. The Air Force IG, incredibly, maintained that officials did nothing improper.

The Marines ordered one man back from terminal leave in Texas, where he had moved to

start civilian life, with the intention of court-martialing him; they backed off after the man

retained a civilian attorney and assistance from SLDN. Id. at 11.

94. SLDN

SECOND ANNUAL REPORT, supra note 39, at 10.

52 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

they think you must be gay . . . . That’s just how everyone thought

and talked.”

Numerous sailors, men and women, were questioned about the

sexual orientation of women serving onboard the USS Simon Lake.

Later, female sailors “filed sworn affidavits in federal court alleging

that the command’s investigators threatened them with prison unless

they confessed to being lesbian or accused Seaman Amy Barnes as a

lesbian.”

One sailor stated in an affidavit dated March 26, 1996, that

an investigator told her: “ ‘If you do not tell the truth, you will go to jail

for 10–15 years.’ He then proceeded to interrogate her about her own

sexual orientation and that ‘of at least six other women by name.’ ”

Another sailor’s affidavit, dated April 27, 1996, stated:

Command Investigators threatened and intimidated me into

giving involuntary statements by telling me I would be violating

Article 78 of the Uniform Code of Military Justice [Accessory

After the Fact] and would go to jail if I did not answer their

questions and cooperate. . . . Being forced into giving statements

which had the potential to be used against RMSN Barnes, who

is my friend, was extremely upsetting.

Barnes was removed from her ship and flown via Italy to Norfolk

Naval Base to be processed for discharge. When she refused to sign

discharge paperwork and leave quietly, and instead requested an

administrative discharge hearing, Navy officials moved to expedite

her discharge and railroad her out of the service.

The case first ended up in federal court after Navy officials held

Barnes in a locked room and denied her access to counsel while trying

to force her to sign the discharge paperwork and waive her right to

a hearing. Cooperating counsel from Arnold & Porter and I raced to

the courthouse to petition for a temporary injunction after receiving

an urgent call from Barnes’s military defense counsel at Norfolk, with

whom we were working closely.

Federal District Court Judge Emmet Sullivan granted a tempo-

rary injunction to keep Barnes in the Navy so she could exercise her

right to a discharge board.

100

Ultimately, she was discharged and then

sued the Navy for reinstatement, but settled out of court for a modest

95. J. Jennings Moss, Lesbian Baiting in the Barracks, ADVOCATE, Feb. 4, 1997, at

36, 38.

96. SLDN

SECOND ANNUAL REPORT, supra note 39, at 12.

97. SLDN THIRD ANNUAL REPORT, supra note 18, at 9.

98. Id.

99. Id. (internal quotation marks omitted).

100. Catherine M. Brennan, Claim Settled but Issue Still Open ‘Don’t Ask, Don’t Tell’

Avoids Showdown in Seaman’s Case, D

AILY REC. (Balt.), Dec. 18, 1996, at 13.

2011] TURNING POINTS 53

agreement that enabled her to move on from the Navy and begin col-

lege with a record that reflected her honorable service.

101

In addition

to Barnes, one other woman, who opted not to fight her discharge,

was kicked out of the Navy because of the witch hunt.

102

In the meantime, SLDN intervened with top Navy officials in-

cluding the General Counsel. While we have no official confirmation,

we know that officials called the ship’s command; circumstances sug-

gest it was these calls that stopped the witch hunt.

In all prior matters, the military’s response when confronted with

complaints of witch hunts was to categorically deny wrongdoing, as

they did in the Hickam Air Force Base case.

103

For many years, it had

been possible for the military to conduct its investigations in secret,

without worry about outside scrutiny.

104

Navy officials did not adopt

the usual approach in the Barnes case. Officials never denied or

admitted a witch hunt had occurred.

105

Instead, they stuck with the

government’s argument that sailors had no recourse, even if military

leaders violated “Don’t Ask” or “Don’t Pursue.”

106

As disappointing

as the argument may have been, it nonetheless signaled an evolving

external awareness. That we possessed the entire record of investi-

gation showing the questions asked by investigators may also have

been a factor. When pressed, higher-level officials did not put their

veracity on the line to “cover” for the Navy’s witch hunt on the USS

Simon Lake.

An Army case the following year starkly contrasted with prior

cases in that officials themselves stopped a witch hunt. In this case,

“investigators interrogated a soldier who was alleged to have been

a male prostitute, stripper in a gay nightclub, porn star and drug

dealer. Rather than charge him for all of his alleged crimes, how-

ever, . . . investigators . . . turned him into an informant . . . to iden-

tify gay soldiers.”

107

Investigators obtained photos of the informant

socializing with other patrons of the gay bar, then asked him to iden-

tify the patrons and reveal everything he knew about them and their

sex lives.

108

101. Moss, supra note 95, at 38.

102. SLDN

SECOND ANNUAL REPORT, supra note 39, at 12.

103. SLDN THIRD ANNUAL REPORT, supra note 18, at 10–11.

104. See id. at 10.

105. Id. at 9.

106. Id. at 9–10.

107. SLDN F

OURTH ANNUAL REPORT, supra note 14, at 26.

108. Id. at 26–27. The questions included the following:

1. I’m showing you photograph #1, can you identify this individual?

2. I’m showing you photograph #2, can you identify this individual?

3. I’m showing you photograph #3, can you identify this individual?

. . .

7. I’m showing you photograph #7, can you identify this individual?

54 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

Instead of rushing to justify the command’s actions, an Assistant

Staff Judge Advocate (attorney) concluded in a letter to command

officials:

[These] statements are rife with questions and areas of investiga-

tion which, although not illegal, suggest a goal of the investigation

is identifying the sexual orientation of the soldiers among this

group. . . . Attempting to identify soldiers who associate with [B]

and asking witnesses to identify soldiers in photographs is easily

portrayed as a “witch-hunt” based upon sexual orientation.

109

Based on the attorney’s advice, the investigation was stopped.

110

By 1999, we could report a decline in witch hunts.

111

Ultimately,

SLDN ended the witch hunts. Aggressive legal intervention and pub-

lic scrutiny were key factors in reaching this turning point. Addition-

ally, SLDN built partnerships with military defense attorneys and

empowered military members with education and information.

112

SLDN sought out military defense attorneys who were willing

to “push the envelope” and help accused GLB military members

earlier in the process than usual.

113

Military defense attorneys did

not typically assist servicemembers until after an investigation was

completed and charges had been filed or discharge proceedings had

commenced.

114

Of course, that was too late to deter witch hunts or

8. Tell me everything you know about [A]?

9. How many times did you and [A] have sex and where?

10. Describe the different sex acts you and [A] would perform?

11. Describe . . . the locations in the house where you had sex?

12. Tell me everything you know about [B]?

13. Tell me everything you know about [C]?

14. Tell me everything you know about [D]?

15. How many other men have you had sex with that are in the military at

[base]?

16. Tell me everything you know about [E]?

Id.

109. Id. at 27–28 (emphasis added).

110. Id. at 27.

111. SLDN

FIFTH ANNUAL REPORT, supra note 22, at 2.

112. SHARON E. DEBBAGE ALEXANDER ET AL., CONDUCT UNBECOMING: THE TENTH

ANNUAL REPORT ON “DON’T ASK, DON’T TELL, DON’T PURSUE, DON’T HARASS” 19, 24 (2004)

[hereinafter SLDN TENTH ANNUAL REPORT], available at http://sldn.3cdn.net/77d5825

b8e0f3454f2_1cm6bgace.pdf.

113. See, for example, supra notes 94–101 and accompanying text, discussing involve-

ment of cooperating counsel and Barnes’s attorney in the Barnes case; see also SLDN

HIRD ANNUAL REPORT, supra note 18, at 2 (indicating that SLDN had 250 private attor-

neys helping with DADT violation cases).

114. See S

TACEY L. SOBEL ET AL., SERVICEMEMBERS LEGAL DEF. NETWORK, CONDUCT

UNBECOMING: THE SIXTH ANNUAL REPORT ON “DON’T ASK, DON’T TELL, DON’T PURSUE,

DON’T HARASS” vi (2000) [hereinafter SLDN SIXTH ANNUAL REPORT], available at http://

2011] TURNING POINTS 55

keep them from snowballing. As a result, isolated and alone, many

military members accepted less than honorable discharges and left

quietly due to threats by military investigators.

115

Most importantly, SLDN empowered military members to fight

back if ensnared in witch hunts, by providing support, education and

information.

116

Our basic message was simple and consistent: “Say

Nothing. Sign Nothing. Get Legal Help.”

117

Among others, we distrib-

uted a legal rights card the size of a business card, describing how to

invoke one’s rights to an attorney and thereby stop any questioning.

118

The gay newspapers reprinted the legal rights information and, over

initial objections from some publishers, we also placed classified ads

in military newspapers. Our “Survival Guide” contained comprehen-

sive information about DADT and the legal rights of military mem-

bers, including what to do if investigated.

119

It became the “bible” for

GLB military members and remained in use until DADT ended on

September 20, 2011. Before the internet was in widespread use, we

distributed hard copy materials through every network imaginable,

and gave classes and met in person with military members at gay

bars, churches, pride celebrations, homes and other venues around

the country.

120

Ending the witch hunts did not remove the “knife” from the backs

of military members, as some have so poignantly described life under

DADT.

121

It did not relieve the need to overturn DADT. Nor did it stop

some individual commanders from launching fishing expeditions to

identify and discharge gay people within their units.

122

Ending the witch hunts did, however, remove the greatest threat

to GLB military members, reduce the risk of criminal prosecution

sldn.3cdn.net/bc84613306fbdcf69d_gkm6iyfnf.pdf (recommending that military “members

should be able to obtain a military defense attorney before an inquiry is initiated, and have

an opportunity to show that no credible evidence exists” to start an inquiry).

115. SLDN F

OURTH ANNUAL REPORT, supra note 14, at 43.

116. About SLDN: Vision, Mission and Goals, supra note 26, at 2–3.

117. S

ERVICEMEMBERS LEGAL DEF. NETWORK, THE SURVIVAL GUIDE 3 (5th ed. 2007)

[hereinafter SLDN

SURVIVAL GUIDE], available at http://sldn.3cdn.net/48ee19f69cf2e4d028

_54m6bri8u.pdf. SLDN adopted this motto from the San Diego–based Military Law Task

Force of the National Lawyer’s Guild.

118. S

ERVICEMEMBERS LEGAL DEF. NETWORK, POCKET SURVIVAL GUIDE FOR SERVICE

MEMBERS (2010), available at http://sldn.3cdn.net/d758d07763926f8f46_4qm6bq9wz.pdf.

119. SLDN SURVIVAL GUIDE, supra note 117, at 3, 37–38.

120. See, e.g., Upcoming Events, S

ERVICEMEMBERS LEGAL DEF. NETWORK, http://www

.sldn.org/events/ (last visited Nov. 2, 2011) (listing SLDN events across the country).

121. Gay Military Underground Network Says Report “ Ends the Controversy,”

UTSERVE (Nov. 29, 2010), http://outserve.org/2010/11/gay-military-underground-network

-says-report-ends-the-controversy/.

122. See, e.g.¸ SLDN

TENTH ANNUAL REPORT, supra note 112, at 7 (continuing to rec-

ommend that the Department of Defense make it clear there are consequences for com-

manders who violate DADT guidelines).

56 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

and alleviate one of our worst fears. Looking ahead, military members

could find each other and organize online, for example, to fight DADT

leading up to the 2010 vote. This would never have been possible were

witch hunts still the primary vehicle by which the military policed the

presence of GLB military members, driven by the criminal investi-

gative agencies.

C. Countering the Persecution of Women Under Don’t Ask, Don’t Tell

PFC “Jane Wayne”

123

was nearing the end of her tour of duty in

South Korea when she was assaulted by male soldiers who threat-

ened to rape her.

124

When she reported the assault, the perpetrators

spread rumors that she was a lesbian.

125

Rather than investigate the

men who attacked her, Wayne’s leaders brought criminal charges

against her and threatened her with prison time if she did not name

other suspected lesbians; she refused to do so.

126

After the judge

dismissed the criminal charges for complete lack of evidence, her

battalion commander kept her beyond her scheduled transfer date

and initiated “discharge proceedings . . . based on the same retalia-

tory . . . allegations.”

127

In the meantime, she was denied a promotion

opportunity,

128

but “[s]he still refused to buckle.”

129

In July 1995, “after ten months of intense efforts by her family

[and] Servicemembers Legal Defense Network . . . the Army finally

dropped all charges and retaliatory actions against [Wayne].”

130

In the

process, her “family incurred more than $8,000 in non-legal expenses

on behalf of their daughter.”

131

Wayne’s case was not an exception.

Straight or gay, DADT was used as a club to silence women who were

raped, sexually assaulted or sexually harassed.

Lesbian baiting is “the practice of pressuring and harassing

women through calling, or threatening to call them, lesbians.”

132

Women often are accused of being lesbians when they rebuff sexual

advances by men or report sexual abuse.

133

In other cases, women are

harassed because they depart from gender stereotypes, for example,

123. A pseudonym is being used because she is still serving.

124. SLDN SECOND ANNUAL REPORT, supra note 39, at i.

125. Id. at 12.

126. Id.

127. Id.

128. Id.

129. Id. at i.

130. SLDN

SECOND ANNUAL REPORT, supra note 39, at i.

131. Id. at 12.

132. Benecke & Dodge, supra note 56, at 216.

133. See, e.g., SLDN

SECOND ANNUAL REPORT, supra note 39, at 10 (describing the

experiences of two female servicemembers).

2011] TURNING POINTS 57

“[w]omen who are top performers in nontraditional fields are also

subject to lesbian accusations, rumors and speculation designed to

undermine their professional standing.”

134

In the military, lesbian baiting gained legitimacy and power from

DADT and prior gay bans, under which women have been discharged

regardless of their actual sexual orientation,

135

and the military’s crim-

inal justice system, which was enforced selectively against gay people

prior to SLDN’s involvement.

136

Too often, commanders investigated

military women “under the guise of [DADT] rather than disciplining

the individuals” who harmed them.

137

Lesbian baiting is one of the main reasons why women were dis-

proportionately investigated and discharged under DADT and prior

policies.

138

In SLDN’s second annual report, for example, we found

that “[w]omen were disproportionately hurt by the new [DADT]

policy, accounting for 30% of SLDN cases and 21% of DOD discharge

figures, despite making up only 13% of the military’s active force.”

139

The following fiscal year, in 1996, women accounted for “29% of

gay discharges, despite making up only 13% of the active force”;

140

“[i]n

the Army, women accounted for 41% of gay discharges, three times

134. SLDN FIFTH ANNUAL REPORT, supra note 22, at 80; see also Benecke & Dodge,

supra note 56, at 217–22, 233 (describing how lesbian-baiting has been used when women

threaten male servicemembers’ “manpower”). The military’s use of anti-gay policies to

harass women is not new. Since World War II, purges of women have occurred in a pat-

tern that appears to be linked to women’s presence in nontraditional job fields. Id. at 218.

Not surprisingly, when women were integrated into combat arms fields and onboard ships

in the early 1980s, retaliatory lesbian allegations once again surfaced. Lisa M. Keen, DOD

Panel Advises Training to Help Curb Gay-Baiting, WASH. BLADE, Apr. 21, 1989, at 1

[hereinafter Keen, Gay-Baiting] (referencing testimony of Mary Beth Harrison, Defense

Advisory Committee on Women in the Services (DACOWITS) 1988 Spring Conference

(April 16–20, 1988)); Lisa M. Keen, Women are Separated from Military at a Higher Rate,

WASH. BLADE, Mar. 3, 1989, at 1. The DACOWITS members heard testimony from several

military women who, after reporting sexual abuse, were accused of being lesbians and

faced discharge as a result. The testimony so impressed the members that they recom-

mended that all commanders be trained in order to avoid misuse of retaliatory allegations.

SLDN THIRD ANNUAL REPORT, supra note 18, at 36 n.5 (“Harassment. DACOWITS rec-

ommends DOD expand existing leadership training to include dealing with unfounded

accusations of homosexuality against servicemembers.” (quoting DACOWITS 1989 Spring

Conference Recommendation 12)); Keen, Gay-Baiting, supra. The armed forces did not

implement this recommendation. SLDN THIRD ANNUAL REPORT, supra note 18, at 23–4.

135. See, e.g., SLDN

FIFTH ANNUAL REPORT, supra note 22, at 9 (describing how one

woman accused of being a lesbian presented ex-boyfriends as evidence at her discharge

hearing, but was ultimately unsuccessful in avoiding discharge).

136. See discussion infra Part II.D, “Ending Selective Criminal Prosecutions.”

137. SLDN

FIFTH ANNUAL REPORT, supra note 22, at 80.

138. See id.; SLDN SECOND ANNUAL REPORT, supra note 39, at iii.

139. SLDN

SECOND ANNUAL REPORT, supra note 39, at ii.

140. SLDN THIRD ANNUAL REPORT, supra note 18, at i.

58 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

their presence in the service.”

141

This disparity remained consistent

throughout the DADT era.

142

SLDN pressed military leaders to recognize lesbian baiting as a

form of sexual harassment and attempted to bar commanders from

initiating inquiries based on retaliatory accusations.

143

In 1997, the

Department of Defense, for the first time, officially acknowledged

lesbian baiting and issued guidance clarifying that commanders

should respond to anti-gay harassment and lesbian baiting by inves-

tigating the harassment itself, not servicemembers who report it (the

“Dorn memo”).

144

141. Id.

142. See Lisa Leff, Gay Ban Separates More Women, A

RMY TIMES, Oct. 8, 2009, http://

www.armytimes.com/news/2009/10/ap_gay_discharges_100809/ (reporting that a third of

those discharged were women, despite women making up only “15 percent of all active-

duty and reserve members”); see also T

HE SEC’Y OF THE ARMY, SENIOR REVIEW PANEL

REPORT ON SEXUAL HARASSMENT 66 (1997) [hereinafter SENIOR REVIEW PANEL ON SEXUAL

HARASSMENT] (“Female soldiers who refuse the sexual advances of male soldiers may be

accused of being lesbians and subjected to investigation for homosexual conduct.”).

143. See, e.g., M

ICHELLE M. BENECKE, SERVICEMEMBERS LEGAL DEF. NETWORK, POST-

ABERDEEN PERSPECTIVES: ARMY WOMEN AND SEXUAL ABUSE (1997). This SLDN publi-

cation was presented to the Army Senior Review Panel, which was convened to look into

the problem of sexual harassment Army-wide as the result of incidents of rape, sexual

assault and sexual harassment that occurred at the Army’s Aberdeen (Maryland) Proving

Grounds. The Senior Review Panel took up SLDN’s recommendation. S

ENIOR REVIEW

PANEL ON SEXUAL HARASSMENT, supra note 142, at 31 (recommending that “professionals

and leaders who are expected to deal with soldiers reporting incidents of inappropriate

sexual behavior are trained and qualified,” a response needed because “victims are reluc-

tant to report . . . for fear of being re-victimized by the very system that was put in place

to deal with their complaints”).

144. Memorandum from Edwin Dorn, Under Sec’y of Def. for Personnel and Readiness,

to Secretaries of Military Dep’t’s, Chairman of Joint Chiefs of Staff, Inspector Gen. of Dep’t

of Def., Guidelines for Investigating Threats Against or Harassment of Service Members

Based on Alleged Homosexuality (Mar. 24, 1997), available at http://www.defense.gov

/Releases/Release.aspx?ReleaseID=2171. The memorandum states:

This guidance is issued because of information we have received that some

service members have been threatened with being reported as homosexual

after they rebuffed sexual advances . . . .

. . . .

The fact that a service member reports being threatened because he or she

is said or is perceived to be a homosexual shall not by itself constitute cred-

ible information justifying the initiation of an investigation of the threat-

ened service member. The report of such a threat should result in the prompt

investigation of the threat itself. Investigators should not solicit allegations

concerning the sexual orientation or homosexual conduct of the threatened

person. . . .

Service members should be able to report crimes free from fear of harm,

reprisal, or inappropriate or inadequate governmental response. Please en-

sure that commanders take appropriate actions in such instances, with due

consideration given to the safety of persons who report threats, and see that

commanders hold fully accountable persons found to have made threats or

engaged in threatening conduct.

Id.

2011] TURNING POINTS 59

When the services failed to distribute the Dorn memo to the

field,

145

SLDN recommended it be reissued.

146

An April 1998 Depart-

ment of Defense report adopted this recommendation:

[I]t is critical that military service women feel free to report

sexual harassment or threats without fear of reprisal or inap-

propriate governmental response. . . . [W]e recommend that the

Department reissue guidance [the Dorn memo] to make clear

that when sexual harassment is reported, the focus of the inves-

tigation must be on the harassment or threat.

147

Congress and an Army Review Panel

148

also recognized and expressed

concern about lesbian baiting after hearing from SLDN and urged

military officials to take action to address this problem. The Dorn

memo was finally sent to the field in 2000 as one of a number of re-

forms undertaken in the wake of the murder of PFC Barry Winchell

at Fort Campbell, Kentucky.

149

Implementation of the Dorn memo in the field was far from

perfect.

150

However, recognition of lesbian baiting as a form of harass-

ment was a step forward. Like PFC Jane Wayne, there are women

serving today who otherwise would have been railroaded out of the

military were it not for these developments. On a broader level,

SLDN’s documentation of widespread lesbian baiting underscored

one means by which DADT, like prior policies, perpetuated sexual

violence in the military. Over time, this contributed to eroding public

support for DADT.

Sexual violence against military women by male servicemembers

is again in the headlines due to incidents in Iraq and Afghanistan.

151

145. SLDN FOURTH ANNUAL REPORT, supra note 14, at 1.

146. Id. at 2.

147. O

FFICE OF THE UNDER SEC’Y (PERS. AND READINESS), REPORT TO THE SECRETARY

DEFENSE: REVIEW OF THE EFFECTIVENESS OF THE APPLICATION AND ENFORCEMENT OF

THE

DEPARTMENT’S POLICY ON HOMOSEXUAL CONDUCT IN THE MILITARY (1998).

148. See SENIOR REVIEW PANEL ON SEXUAL HARASSMENT, supra note 142, at 66.

149. See SLDN

SIXTH ANNUAL REPORT, supra note 114, at 47–48; infra Part II.E,

“Restoring Dignity by Challenging Downgraded Discharge Characterizations.”

150. J

EFFREY M. CLEGHORN ET AL., SERVICEMEMBERS LEGAL DEF. NETWORK, CONDUCT

UNBECOMING: THE NINTH ANNUAL REPORT ON “DON’T ASK, DON’T TELL, DON’T PURSUE,

ON’T HARASS” 5 (2003), available at http://sldn.3cdn.net/d7e44bb7ad24887854_w6m6b

4y13.pdf (“SLDN has documented . . . that the training rarely meets the standards set

forth . . . .”).

151. See, e.g., Helen Benedict, The Private War of Women Soldiers, S

ALON (Mar. 7, 2007,

7:42 AM), http://www.salon.com/news/feature/2007/03/07/women_in_military (explaining

how assaults on female servicemembers in Iraq were so common that women’s command-

ers often warned them against using the latrines or showers alone); Nancy Gibbs, Sexual

Assaults on Female Soldiers: Don’t Ask, Don’t Tell, T

IME (Mar. 8, 2010), http://www.time

.com/time/magazine/article/0,9171,1968110,00.html (finding that the number of sexual

assaults on women serving in Iraq and Afghanistan rose 25 percent in fiscal year 2008).

60 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

The demise of DADT should benefit military women by removing a

major disincentive to reporting rape, sexual assault and sexual ha-

rassment. Women may be called lesbians, but they will not face dis-

charges based on retaliatory gay accusations. Unfortunately, other

forms of institutional failure to protect women who report rape, sex-

ual assault or sexual harassment continue to exist and contribute

to widespread under-reporting of abuse.

152

D. Ending Selective Criminal Prosecutions

Air Force Major Debra Meeks was looking forward to her retire-

ment later on February 28, 1996.

153

She was a “mustang,”

154

one of

a handful of officers who are commissioned after working their way

up through the enlisted ranks.

155

After a full and successful career,

Meeks was contemplating something different, perhaps going to culi-

nary school.

156

On February 8th, those plans came to a crashing halt

when Meeks learned that she was under investigation after a civil-

ian woman accused her of being gay and having a consensual sexual

relationship.

157

Based on these allegations, the Air Force held Meeks

beyond her retirement date to criminally prosecute her on charges

of consensual sodomy and conduct unbecoming an officer.

158

Meeks

faced up to eight years in prison, a derogatory discharge character-

ization and loss of all benefits, including her retirement pension and

medical care.

159

The United States military did not have laws or formal policies

concerning oral or anal sex until 1916, when Congress revised the

Articles of War to penalize assault to commit sodomy for both hetero-

sexuals and homosexuals.

160

It was not until 1951 that the military

152. See Advocacy, SERVICE WOMEN’S ACTION NETWORK, http://servicewomen.org

/our-work/advocacy/ (last visited Nov. 2, 2011). Military members who have experienced

Military Sexual Trauma (MST) (sexual harassment, assault or rape) can reach SWAN’s

National Peer Support Helpline at 1-888-729-2089 or peersupport@servicewomen.org.

153. Air Force Major’s Case Revives ‘Don’t Ask, Don’t Tell’ Debate, N.Y.

TIMES, Aug. 11,

1996, at 7.

154. M

ERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 768 (10th ed. 1993).

155. Air Force Major’s Case Revives ‘Don’t Ask, Don’t Tell’ Debate, supra note 153.

156. Id.

157. Id.

158. Id.; see also Article 125 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 925 (1956) (outlawing “unnatural carnal copulation” between adults, whether of the same

or opposite genders); Article 133 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 933 (1956) (stating that servicemembers “shall be punished as a court-martial may direct”

if convicted of conduct unbecoming an officer).

159. Air Force Major’s Case Revives ‘Don’t Ask, Don’t Tell’ Debate, supra note 153.

160. W

AR DEP’T, A MANUAL FOR COURTS-MARTIAL: COURTS OF INQUIRY, AND OF OTHER

PROCEDURE UNDER MILITARY LAW ix, 271 (1917) (reprinting 1916 revisions to Articles

of War).

2011] TURNING POINTS 61

adopted the Uniform Code of Military Justice, including Article 125,

which outlawed consensual oral and anal sex for both heterosexual

and homosexual adults.

161

Article 125 remains unchanged today.

162

Under DADT, commanders were supposed to handle allegations

of homosexual statements, acts or marriage in the administrative dis-

charge system; as mentioned above, commanders were not supposed

to use the criminal system against suspected GLB military members

for consensual, adult sexual activities in circumstances where they

would not investigate or prefer criminal charges against heterosexuals

for the same activities.

163

By requiring even-handed treatment in the

criminal system, this provision sought to change the military’s long-

standing practice of punitive investigations and selective prosecutions

against GLB members.

164

The military, however, did not consider the

guidelines to be binding.

165

When Meeks contacted SLDN, she had already concluded that

staying quiet was a sure road to prison. She wanted to fight the

charges, publicly if needed, to hold the Air Force accountable. All she

needed was a crack legal defense team.

Renowned attorney Michael Tigar, “a professor at the University

of Texas Law School and one of the lead defense lawyers in the

Oklahoma City bombing case, and Peter Held, a San Antonio lawyer

who spent 18 years in the Air Force as a judge advocate,” came to

Meeks’s defense.

166

With the benefit of his military experience and

161. Mynda G. Ohman, Integrating Title 18 War Crimes into Title 10: A Proposal to

Amend the Uniform Code of Military Justice, 57 A.F.

L. REV. 1, 9–10 (2005).

162. 10 U.S.C.A § 925 (West 2011).

163. G

UIDELINES FOR DCIOS, supra note 65, § D.3. The military has both administrative

and criminal systems. SLDN SURVIVAL GUIDE, supra note 117, at 37. Administrative sepa-

ration boards recommend whether a service member should be retained in the service or

discharged and what the characterization of any discharge should be. Id. at 41. The crim-

inal system determines whether a service member has committed a crime under military

law. Id. at 39. A service member who has said he or she is gay, has engaged in sexual activ-

ity with a person of the same gender, or married someone of the same gender was subject

to administrative discharge under “Don’t Ask, Don’t Tell, Don’t Pursue.” G

UIDELINES FOR

DCIOS, supra note 65, § D.3. Heterosexuals were not subject to administrative discharge

for the same statements, acts or marriages. A service member who has engaged in sexual

acts, such as consensual oral sex, whether heterosexual or homosexual, may also be subject

to criminal prosecution under the Uniform Code of Military Justice. Id. § F.2. The mili-

tary rarely criminally punishes heterosexuals for consensual sexual activities; throughout

history, however, the military has regularly prosecuted suspected gay service members

for the same activities. The DADT guidelines sought to stop the practice of selective crim-

inal prosecutions against GLB military members by requiring even-handed treatment in

the criminal system. Id. § D.3.

164. See, e.g., Tamar Lewin, Gay Groups Suggest Marines Selectively Prosecute Women,

N.Y.

TIMES, Dec. 4, 1988, at 34 (describing hypocrisy in the military’s unwillingness to

prosecute heterosexual sodomy).

165. See Air Force Major’s Case Revives ‘Don’t Ask, Don’t Tell’ Debate, supra note 153.

166. Id.

62 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

knowledge, attorney Held repeatedly called the Air Force to account

for its selective prosecution of Major Meeks.

167

Tigar delivered a

brilliant closing argument that paid homage to military service and

true military values. On August 15, 1996, after seven hours of deliber-

ations, the jury of Air Force Colonels (five men and two women) found

Major Meeks “not guilty.”

168

Throughout her ordeal, Meeks enjoyed tremendous support locally

in San Antonio, a large military town.

169

The national press, including

The New York Times and Los Angeles Times, covered her case closely,

shining a spotlight on the Air Force’s harsh tactics.

170

The publicity

surrounding Meeks’s case and her high-profile defense team served

as a warning to other commanders who sought to prosecute alleged

GLB people based on allegations of consensual adult relationships.

In the years following the Meeks trial, selective criminal prosecutions

of GLB military members waned, with the military typically discharg-

ing service members under DADT absent other alleged infractions.

171

Ironically, the demise of DADT causes renewed concern about

selective prosecutions of GLB military members.

172

With no gay-specific

167. Air Force Major’s Sodomy Trial Opens, L.A. TIMES, Aug. 13, 1996, at A10.

168. Air Force Major Acquitted of Lesbian Charges, L.A. TIMES, Aug. 16, 1996, at A26.

169. See Military City—San Antonio, I

NFORMATIONSANANTONIO.COM, http://www

.informationsanantonio.com/sanantonioliving/militarycitysanantonio.html (last visited

Nov. 2, 2011) (documenting the many military bases in and around San Antonio).

170. See Air Force Major Acquitted of Lesbian Charges, supra note 168; Air Force Major’s

Case Revives ‘Don’t Ask, Don’t Tell’ Debate, supra note 153; Air Force Major’s Sodomy

Trial Opens, supra note 167.

171. After the Supreme Court’s June 2003 decision in Lawrence v. Texas, 539 U.S. 558

(2003), it was hoped that Article 125 of the Uniform Code of Military Justice, 10 U.S.C.

§ 925 (1956), would be reformed to criminalize only nonconsensual activities. In Lawrence,

the Supreme Court ruled that a Texas sodomy statute prohibiting two persons of the same

gender from engaging in private consensual sexual conduct, and all similar state laws, are

unconstitutional. Lawrence, 539 U.S. 558. Lawrence overruled Bowers v. Hardwick, a

prior Supreme Court decision that infamously upheld state laws prohibiting private con-

sensual sexual conduct (Bowers involved sex between two men). Bowers v. Hardwick, 478

U.S. 186 (1986). Following the decision in Lawrence, there were multiple appeals of con-

sensual sodomy convictions in the military court system challenging the constitutionality

of Article 125; in August 2004, however, the military’s highest criminal court, the Court of

Appeals for the Armed Forces (C.A.A.F.), ruled in United States v. Marcum that, although

the Lawrence decision applies to the military, the military could nonetheless prosecute con-

sensual sodomy if the conduct fell outside of protections provided under Lawrence, or if the

conduct is prohibited because of additional factors solely relevant to the military context.

60 M.J. 198, 200, 202, 205–06 (C.A.A.F. 2004). In Marcum, the accused service member’s

“conduct was outside the constitutional protection defined by the Supreme Court” because

“it was with a subordinate (fraternization is a criminal offense in the military)”; as such,

the court ruled that the conviction was correct. D

AVID MCKEAN ET AL., SERVICEMEMBERS

LEGAL DEF. NETWORK, FREEDOM TO SERVE: THE DEFINITIVE GUIDE TO LGBT MILITARY

SERVICE 17–20 (2011). “In other words, the C.A.A.F. ruled that the military could consti-

tutionally continue to prosecute consensual sodomy under limited circumstances.” Id.; see

also Marcum, 60 M.J. at 207–08.

172. M

CKEAN, supra note 171, at 19.

2011] TURNING POINTS 63

administrative sanction available, advocates fear anti-gay commanders

and investigators might resort back to the criminal system to punish

GLB members.

173

Article 125 is not the only risk. Virtually any physi-

cal act with another person can be criminally prosecuted under the

vague provisions of Article 133 or 134, which are referred to as the

“general articles” and which, respectively, prohibit “conduct unbecom-

ing an officer and a gentleman”

174

and conduct that results in the

“prejudice of good order and discipline in the armed forces” or that

“bring[s] discredit upon the armed forces.”

175

This invites prosecu-

tion not only for consensual sex, but also for unintentional or inad-

vertent acts that, because a military member is known to be gay, are

mistakenly perceived as offenses.

E. Restoring Dignity by Challenging Downgraded Discharge

Characterizations

Air Force Captain Rich Richenberg “served in Desert Storm One,

where he commanded the control center aboard the AWACs aircraft

and garnered numerous accolades.”

176

He was “top notch,” ranking

in the top ten percent of all Air Force officers.

177

As such an officer,

many believed he would ultimately receive a position in the highest

ranks of the Air Force.

178

Unfortunately, his promising Air Force

career was cut short when he admitted to being gay during the first

year of DADT.

179

Like many military members, Richenberg had hoped the gay

ban would be lifted, but it was not in his nature to dissemble and lie

about who he was, as required by DADT.

180

He “believed deeply in the

military’s stated values of integrity, honor and courage.”

181

As a result,

he informed his commander of the ethical conflict he was experienc-

ing because he was gay.

182

He then faced months of derision from his

superiors, one of whom admitted on the record that he downgraded

173. Id.

174. Article 133 of the Uniform Code of Military Justice, 10 U.S.C. § 933 (1956).

175. Article 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934 (1956).

176. Michelle Benecke, In Memory of Rich Richenberg (Former Captain, US Air Force),

ERVICEMEMBERS LEGAL DEF. NETWORK (May 31, 2011) [hereinafter Benecke, In Memory

of Rich Richenberg], http://www.sldn.org/blog/archives/in-memory-of-rich-richenberg-former

-captain-us-air-force/.

177. SLDN

FIRST ANNUAL REPORT, supra note 55, at 12; Benecke, In Memory of Rich

Richenberg, supra note 176.

178. Benecke, In Memory of Rich Richenberg, supra note 176.

179. Id.

180. Id.

181. Id.

182. See id.

64 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

Richenberg’s performance evaluation and recommended against his

promotion solely because he was gay.

183

In the end, Richenberg was discharged.

184

Furthermore, “[t]o add

insult to injury, the Air Force gratuitously downgraded the charac-

terization of his discharge—to ‘General’” (under honorable condi-

tions) instead of “Honorable”—despite his impeccable performance

of his duties.

185

Richenberg “challenged his discharge in federal court with the

help of volunteer lawyers . . . at Robins Kaplan law firm.”

186

He was

among the first plaintiffs to challenge a discharge under DADT; how-

ever, “the courts were not yet ready to overturn DADT.”

187

At SLDN,

we fought to have Richenberg’s discharge upgraded through military

channels.

188

Richenberg finally received the Honorable discharge char-

acterization that he deserved, but only after taking his case through

the entire chain of Air Force authority until he reached the Secretary

of the Air Force.

189

In this regard, his case represents a turning point.

For decades, military officials forced gay military members to

accept downgraded discharge characterizations on the theory that

being gay, alone, was an affront to military standards of conduct.

190

183. Amended Verified Complaint for Declaratory and Injunctive Relief at 12,

Richenberg v. Perry, 909 F. Supp. 1303 (D. Neb. 1995) (No. 8 Civ. 95-393).

184. Benecke, In Memory of Rich Richenberg, supra note 176.

185. Id. Administrative discharge characterizations are supposed to reflect the quality

of a member’s service. SLDN

SURVIVAL GUIDE, supra note 117, at 43. An Honorable

discharge characterization is given when the quality of a military member’s service has

generally met the standards of acceptable conduct and performance of duty for military

personnel. See id. at 43–44. As a practical matter, the overwhelming majority of military

members receive honorable discharges. A characterization of General (under honorable

conditions) is typically reserved for instances where significant negative aspects of a mili-

tary member’s conduct or performance of duty outweigh any positive aspects. Referred to

colloquially as a “General” discharge, this characterization will normally bar a service

member from reenlisting or entering a different military service, and may jeopardize a ser-

vice member’s Montgomery G.I. Bill benefits. Id. at 44. An Other Than Honorable (OTH)

discharge is given when the reason for separation is based on a pattern of behavior that

constitutes a significant departure from the conduct expected of members of the Military

Service. Id. Often, an OTH is given in lieu of criminal charges that would otherwise result

if the military member was facing prosecution in the criminal system. See id.

186. Benecke, In Memory of Rich Richenberg, supra note 176.

187. Id.; see Richenberg v. Perry, 73 F.3d 172, 172–73 (8th Cir. 1995) (taking a defer-

ential view toward military regulations); Richenberg v. Perry, 909 F. Supp. 1303, 1316 (D.

Neb. 1995) (finding that DADT did not violate constitutional rights); see also Richenberg

v. Perry, 97 F.3d 256, 261–62 (8th Cir. 1996) (“We join six other circuits in concluding

that the military may exclude those who engage in homosexual acts . . . . Military life re-

quires servicemembers to sacrifice privacy . . . .” (citations omitted)); Thomasson v. Perry,

80 F.3d 915, 949 (4th Cir. 1996) (supporting the policy “as a permissible exercise of the

Legislature’s plenary authority to prescribe regulations for the military”).

188. Benecke, In Memory of Rich Richenberg, supra note 176.

189. Id.

190. U.S.

GEN. ACCOUNTING OFFICE, GAO/NSIAD-92-98, DEFENSE FORCE MANAGEMENT:

DOD’S POLICY ON HOMOSEXUALITY 2 (1992), available at http://archive.gao.gov/d33t10

2011] TURNING POINTS 65

In other cases, military investigators forced gay people to accept less

than honorable discharge characterizations and leave quietly by

threatening them with prosecution and prison.

191

Richenberg’s case brought this discriminatory practice into

the national spotlight and challenged the notion that being gay out-

weighed one’s ability to perform his duties.

192

As we transition to a

post-DADT world, the practice of downgrading gay military members’

discharge characterizations is now well documented.

193

This should

assist veterans who seek to have their characterizations upgraded

in the future. Additionally, civilian applicants and employees of the

federal government and its contractors, who often must possess

security clearances, have this precedent to rely upon in explaining

less than honorable discharges they may have received because they

are gay.

194

F. Holding Leaders Accountable: The Murder of PFC Barry

Winchell

195

Private First Class (PFC) Barry Winchell was an infantryman

in the elite 101st Airborne Division at Fort Campbell, Kentucky.

196

Standing at more than six feet tall and weighing over 200 pounds,

Winchell was a natural choice to serve as the heavy weapons man

for his squad. By all accounts, he was an ideal soldier who wanted to

make a career in the Army.

197

/146980.pdf. “U.S. forces have had policies prohibiting homosexuals from serving in the

military since the beginning of World War II. DOD’s current policy on homosexuality

was formalized in 1982 and specifically states that: ‘Homosexuality is incompatible with

military service.’ ” Id.

191. See supra Part II.A, “Early Challenges: Fighting the Pentagon to Stop ‘Asking’

and ‘Pursuing ’ ” (describing the ferreting and intimidation tactics used to discover gay or

lesbian military members).

192. Benecke, In Memory of Rich Richenberg, supra note 176 (“The vicious means by

which senior Air Force officers sought to harm [Richenberg] . . . moved many to support

both [him] and DADT repeal.”).

193. SLDN

SIXTH ANNUAL REPORT, supra note 114, at 30 n.58; see also SLDN FIRST

ANNUAL REPORT, supra note 55, at 12 (documenting Lieutenant Colonel Trask’s ad-

mission that he downgraded discharge characterizations simply because the officer was

homosexual).

194. See Benecke, In Memory of Rich Richenberg, supra note 176.

195. This section is adapted from Michelle M. Benecke, The Murder of PFC Barry

Winchell: Lessons for Don’t Ask, Don’t Tell Repeal Implementation (June 21, 2011)

(unpublished manuscript) (on file with author). Many of the statements in this section

are drawn from the author’s personal involvement in the SLDN investigation that followed

Winchell’s murder.

196. SLDN

SIXTH ANNUAL REPORT, supra note 114, at 1.

197. Pat & Wally Kutteles, Murdered Soldier’s Parents: Repeal ‘Don’t Ask, Don’t Tell,’

CNN (Aug. 17, 2010), http://articles.cnn.com/2010-08-17/opinion/kutteles.dadt.son_1_barry

66 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

In the pre-dawn hours of Monday, July 5, 1999, Winchell was

bludgeoned to death with a baseball bat as he lay sleeping in his

barracks.

198

He was struck with such ferocity, his face so obliterated,

that his mother and stepfather, Patricia and Wally Kutteles, could

barely identify him.

199

Winchell never regained consciousness; he died

the next day of massive head injuries.

200

He was 21 years old.

201

Soldiers later testified that Winchell’s murder followed months of

anti-gay harassment.

202

Winchell never stated his sexual orientation

publicly.

203

He confided that he was gay to a fellow soldier and the

soldier’s wife, but they appear to have kept his confidence.

204

At the

time of his murder, Winchell was dating a transgender woman.

205

Re-

gardless of his actual sexual orientation, the testimony of Winchell’s

NCOs and fellow soldiers at trial established that he was murdered

because he was labeled as being gay.

206

The harassment against Winchell started after another soldier in

the unit, Specialist (SPC) Justin Fisher, spread rumors that Winchell

had gone to a gay bar, and began calling Winchell anti-gay epithets.

207

A younger soldier, Private (PVT) Glover, followed Fisher’s lead in

harassing Winchell.

208

Winchell did not report the harassment, tell-

ing friends in his unit that he feared being labeled as “gay” and

kicked out under Don’t Ask, Don’t Tell.

209

The harassment only worsened.

210

At one point, Fisher hit

Winchell in the head with a metal dustpan, opening a wound on his

face that required stitches.

211

Other soldiers in the unit became so

-winchell-fort-campbell-army-commendation-medals?_s=PM:OPINION (“He loved the

Army. He loved serving our country. And he was among the best in his company. Barry

was awarded two Army Commendation Medals and one Army Achievement Medal with

the Oak Leaf Cluster. He wanted to be the best he could be and eventually become a

helicopter pilot.”).

198. SLDN

SIXTH ANNUAL REPORT, supra note 114, at 1.

199. Pat & Wally Kutteles, supra note 197.

200. SLDN Investigates Murder of Army Soldier, A

LL THINGS QUEER, http://www.rs

levinson.com/gaylesissues/features/collect/winchell/blwinchell01.htm (last visited Nov. 2,

2011).

201. Pat & Wally Kutteles, supra note 197.

202. SLDN

SIXTH ANNUAL REPORT, supra note 114, at 1.

203. Id.

204. Id. at 12, 50.

205. Francis X. Clines, Killer’s Trial Shows Gay Soldier’s Anguish, N.Y.

TIMES, Dec. 9,

1999, http://www.nytimes.com/1999/12/09/us/killer-s-trial-shows-gay-soldier-s-anguish.html.

206. SLDN

SIXTH ANNUAL REPORT, supra note 114, at 1.

207. Id.

208. Id. at 1, 51.

209. Id. at 1, 50.

210. Id. at 50.

211. Id.

2011] TURNING POINTS 67

concerned that they reported the harassment to their supervisors,

who were noncommissioned officers (NCOs).

212

Nothing was done to

stop the harassment.

213

Instead, the NCOs, started an ad hoc investigation into Winchell,

based on the rumor that he had gone to a gay bar.

214

They questioned

other soldiers in the unit about Winchell’s sexual orientation in vio-

lation of DADT.

215

In addition, the NCOs began joining in the harass-

ment by calling Winchell anti-gay epithets.

216

Testimony indicates

the NCOs viewed the name calling as “normal” banter, joshing or

poking fun.

217

This continued even after, as one NCO testified, they

noticed that Winchell was becoming visibly depressed by the com-

ments directed at him, which had become a daily event.

218

Finally, the harassment escalated to a point where even two

of the NCOs became alarmed and sought help from the unit First

Sergeant, the top enlisted leader in Winchell’s unit.

219

Rather than

stopping the harassment, the First Sergeant also began referring to

Winchell using anti-gay slurs.

220

This prompted the NCOs to report

the First Sergeant to their company commander and, in an unprece-

dented step, the base Inspector General.

221

Again, nothing was done.

222

Things escalated again over the July 4th weekend, during which

there was drinking and little to no supervision in the barracks.

223

Early in the weekend, Glover began yelling anti-gay epithets at

Winchell.

224

He pushed, and then shoved Winchell in an effort to get

a reaction.

225

When Winchell did not respond in kind, Glover punched

Winchell.

226

At that point, Winchell hit him back.

227

In one punch,

Winchell bested Glover.

228

Fisher then taunted Glover for letting a

“faggot” beat him up.

229

212. SLDN SIXTH ANNUAL REPORT, supra note 114, at 50.

213. Id.

214. Id. at 12, 49.

215. Id. at 49.

216. Id. at 49–50.

217. See id. at 50, 68 (“As the cases . . . point out, many non-gay service members view

terms such as ‘fag,’ ‘faggot,’ ‘queer’ and ‘dyke’ as a normal part of military life.”).

218. SLDN

SIXTH ANNUAL REPORT, supra note 114, at 50.

219. Id.

220. Id.

221. Id.

222. Id.

223. Id. at 50–51.

224. Clines, supra note 205.

225. SLDN

SIXTH ANNUAL REPORT, supra note 114, at 50.

226. Id.

227. Clines, supra note 205.

228. Id.

229. SLDN

SIXTH ANNUAL REPORT, supra note 114, at 51.

68 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

On that Monday, Glover attacked Winchell while he slept in a

cot that he had placed in the hallway of the open-air barracks.

230

It was suspected that Fisher encouraged the attack and was

present in his room with the door open to view Glover’s actions.

231

This could not be proven sufficiently at trial due to compromised

evidence.

232

Soldiers have said that, on the morning of July 5th, only

hours after Winchell was attacked, the First Sergeant ordered them

to paint over the scene.

233

This spoiled much of the evidence before

it could be adequately collected and analyzed. Soldiers were also

confined to the barracks and given a direct order not to discuss the

incident or contact anyone outside the unit.

234

Upon Winchell’s passing the next day, the Fort Campbell public

affairs office published a press release stating that Winchell died

from injuries sustained in a “physical altercation” in the barracks,

suggesting he was in a mutual fight with another soldier.

235

After these events, soldiers defied orders and snuck out of the

barracks to use a pay phone—this was before cell phones were widely

available.

236

The soldiers believed Winchell was murdered and they

feared Fort Campbell leaders were covering up the circumstances of

his death. They called the only gay authority figure they knew, one

soldier’s uncle. They told of anti-gay harassment against Winchell.

237

The uncle called the Human Rights Campaign (HRC), a national gay

rights organization, and HRC called SLDN. This occurred on Friday,

July 9th.

238

SLDN immediately dispatched investigators to Fort Campbell

and nearby Nashville.

239

The information gathered over the weekend

indicated that concerns that Winchell was murdered in a hate crime

were well founded.

240

230. Id. at 1.

231. See id. at 1, 48–49.

232. See id. at 49.

233. Id.

234. Hate Crime on Military Base, L

OG CABIN REPUBLICANS (Aug. 9, 1999), http://www

.lcrga.com/news/PFC-Barry-Winchell-Murder-Gay-Hate-Crime-Military-Fort-Campbell

/199908091557.shtml.

235. SLDN

SIXTH ANNUAL REPORT, supra note 114, at 49.

236. Michelle Benecke & C. Dixon Osburn, SLDN Letter—Request for Meeting

Regarding the Alleged Murder of PFC Barry Winchell, A

LL THINGS QUEER (July 12, 1999)

[hereinafter, Benecke & Osburn, SLDN Letter], http://www.robertslevinson.com/gayles

issues/features/collect/winchell/blwinchell02.htm.

237. SLDN

SIXTH ANNUAL REPORT, supra note 114, at 49.

238. Benecke & Osburn, SLDN Letter, supra note 236.

239. Michelle M. Benecke & C. Dixon Osburn, SLDN Memorandum, A

LL THINGS

QUEER (July 14, 1999), http://www.rslevinson.com/gaylesissues/features/collect/winchell

/blwinchell04.htm (last visited Nov. 2, 2011).

240. See Benecke & Osburn, SLDN Letter, supra note 236 (“Based on . . . preliminary

findings, . . . it appears that concerns about the possibility of an anti-gay hate crime are

well-grounded and deserve full investigation.”).

2011] TURNING POINTS 69

Of the next few weeks, Pat Kutteles has said that much of what

the Army told them was untrue and that everything I told them

turned out to be true. As a result, the Kutteleses asked for SLDN’s

assistance. SLDN advised the Kutteleses throughout their ordeal

and, on their behalf, prodded Army officials to more fully investigate

the case.

241

Among others, SLDN asked Pentagon officials to send a

team of more experienced homicide investigators to Fort Campbell.

242

Investigators from the Fort Campbell Criminal Investigation Division

initially denied that Winchell’s death was a hate crime—without ever

having investigated the possibility.

243

Investigators continued to deny

to SLDN finding any evidence of a hate crime into late August 1999,

even though at that point it was indisputable.

244

At his widely publicized trial, PVT Glover was convicted of pre-

meditated murder and sentenced to life with the possibility of parole

for the murder of PFC Winchell.

245

SPC Fisher received a sentence

of twelve years on lesser charges as part of a pretrial agreement.

246

After Winchell’s murder, harassment at Fort Campbell sky-

rocketed.

247

Dozens of soldiers called SLDN in fear for their lives

because of the escalating situation.

248

Talk of “killing fags” went un-

checked and became commonplace in many units; it was accompanied

by general threats to kill anyone found to be gay.

249

Time and again,

soldiers told SLDN, “If it can happen to a guy like Winchell, it can

happen to me.”

Graffiti appeared throughout Fort Campbell that glorified the kill-

ing of Winchell and encouraged the murder of gay people generally.

250

The graffiti was so widespread that it included public venues such as

the Family Support Center, where a large two to three foot long draw-

ing of a baseball bat with the words “Fag Whacker” written inside of

it appeared on a bathroom wall.

251

At a base recreation center, this

graffiti appeared: “All Fagets [sic] in the Army will be killed.”

252

Offi-

cers and NCOs who used these facilities every day could not miss

seeing it, yet nothing was done about it.

253

241. SLDN SIXTH ANNUAL REPORT, supra note 114, at 52.

242. Id.

243. Id. at 49.

244. Id.

245. Id.

246. Id.

247. SLDN

SIXTH ANNUAL REPORT, supra note 114, at 52 (describing “increased anti-

gay epithets, comments and graffiti at Fort Campbell”).

248. Id. at 3; Hate Crime Military Base, supra note 234.

249. SLDN

SIXTH ANNUAL REPORT, supra note 114, at 52.

250. Id.

251. Id.

252. Id. (alteration in original) (internal quotation marks omitted).

253. Id. at 52–53.

70 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

Meanwhile, NCOs began calling “jodies,” rhyming jingles that

keep running formations in step, praising Winchell’s murder.

254

One

soldier reported the following jody to SLDN: “Faggot, faggot, down

the street. Shot him, shot him, till he retreats.”

255

Some soldiers

indirectly referenced Winchell, joking about baseball bats and kill-

ing “faggots.”

256

In this command climate, many soldiers felt they had no choice

but to come out and accept a discharge under DADT as their only

recourse to protect their lives.

257

Winchell’s murder and the escalat-

ing harassment destroyed any illusion that they could protect them-

selves and “fit in” by pretending to be straight.

258

In dozens of cases,

SLDN intervened to protect military members and obtain speedy dis-

charges to remove them from threatening command climates.

259

soldier with whom we worked wanted to leave the military, but for the

threats he or she experienced.

Throughout this time, SLDN sounded the alarm and repeatedly

asked the Commanding General to take action to send a different mes-

sage and stem the harassment.

260

Nothing was done. Instead, Major

General Robert Clark had the audacity to suggest that the soaring

numbe r s of ga y discharges in the w a ke of PF C Winche l l ’ s murd e r were

the result of gays voluntarily leaving because they wanted a so-called

easy way out of the military.

261

Pat and Wally Kutteles found it deeply disturbing that leaders

were mocking their son’s murder and contributing to harassment

against others. A quiet Midwestern couple, they reluctantly decided

to go public out of concern that other soldiers might be killed. Lisa

Myers of NBC News broke the story of Winchell’s murder and the

growing harassment at Fort Campbell,

262

which raised the issue to

national attention.

254. Id. at 51.

255. SLDN

SIXTH ANNUAL REPORT, supra note 114, at 3 (internal quotation marks

inserted); Clines, supra note 205.

256. See, e.g., SLDN

SIXTH ANNUAL REPORT, supra note 114, at 52 (relating how one

soldier, responding to another’s comment of “You are a faggot,” added, “That’s right, and

I will beat you with a baseball bat” (internal quotation marks omitted)).

257. Id. at 2–3.

258. See Clines, supra note 205.

259. See, e.g., SLDN

SIXTH ANNUAL REPORT, supra note 114, at 43 (discussing case of

Petty Officer Second Class Barbe, discharged after increasingly menacing threats from

her supervisor).

260. J

EFFREY M. CLEGHORN ET AL., SERVICEMEMBERS LEGAL DEF. NETWORK, CONDUCT

UNBECOMING: THE EIGHTH ANNUAL REPORT ON “DON’T ASK, DON’T TELL, DON’T PURSUE,

DON’T HARASS” 15 (2002).

261. Elizabeth Becker, Policy on Gays Part of the Drill at Army Base, N.Y.

TIMES,

Feb. 14, 2000, at A1.

262. Today: Questions Emerging About Why Soldier Was Beaten To Death In Kentucky

(NBC television broadcast Aug. 11, 1999) (transcript available on LexisNexis).

2011] TURNING POINTS 71

In the wake of the Winchell case, public debate surrounding

DADT reached its highest level since the policy was first announced

in 1993. Political candidates,

263

the public,

264

and newspaper editorial

boards

265

all called for repeal of the law. White House and Pentagon

officials hastened to respond.

266

The Commanding General left his

command early, citing family medical issues, and was delayed his

anticipated promotion.

267

It was widely perceived that his early de-

parture was related to the Winchell case.

268

For the first time, a high

ranking leader faced consequences for tolerating anti-gay violence

and harassment.

Additionally, White House and Pentagon officials implemented a

number of systemic changes to stem harassment at Fort Campbell and

across the Army.

269

Three months after Winchell’s murder, President

Clinton signed an Executive Order that amended the Manual for

Courts-Martial.

270

The newly amended manual provided for sentence

263. SLDN SIXTH ANNUAL REPORT, supra note 114, at 6 & nn.10–15 (citing Rejecting

“Don’t Ask, Don’t Tell,” N.Y.

TIMES, Dec. 10, 1999, at A34 (“Hillary Rodham Clinton was

exactly right when she told a gay audience at a fund-raiser in SoHo this week that homo-

sexuals ought to be able to serve openly in the United States military.”); Ceci Connolly &

Bradley Graham, Gore Vows New Policy on Gays in Military, W

ASH. POST, Dec. 14, 1999,

at A1; Sandra Sobieraj, Bradley: Civil Rights Act Protection, Open Military Service for Gays,

SSOCIATED PRESS, Sept. 16, 1999; Excerpts from the Debate Among G.O.P. Candidates,

N.Y.

TIMES, Jan. 7, 2000, at A15; James Warren, McCain Says Gore Wrong on Military

Gays Policy, CHI. TRIB., Dec. 15, 1999, http://articles.chicagotribune.com/1999-12-15/news

/9912150086_1_sen-john-mccain-gore-criticism-gore-aides; Radio Interview of President

Clinton (CBS radio broadcast Dec. 11, 1999) (transcript on file with U.S. Department of

State Office of International Information Programs)).

264. Id. at 6 & nn.16–17 (citing A

LAN S. YANG, FROM WRONGS TO RIGHTS: PUBLIC

OPINION ON GAY AND LESBIAN AMERICANS MOVES TOWARD EQUALITY 12–13 (1999);

Ronald G. Shafer, The Wall Street Journal/NBC News Poll, WALL ST. J., at A1 (“DON’T

CARE: The public, by 74% to 22%, favors allowing gays to serve in the military.”)).

265. Id. at 6–7 & n.18 (citing “Don’t Ask, Don’t Tell” Policy Doesn’t Work, A

RIZ. REPUBLIC,

Dec. 15, 1999, at B8; Editorial, Enforcing ‘Don’t Harass’ “Don’t Ask, Don’t Tell,” B

OS.

LOBE, Feb. 7, 2000, at A14; Don’t Lie: Clinton Admits “Don’t Ask Don’t Tell” is a Policy

Failure, P

LAIN DEALER (Cleveland), Dec. 20, 1999, at 8B; Military’s Gay Policy: Time to

Get Real, DAYTON DAILY NEWS, Dec. 15, 1999, at 14A; Gays in Military: Clinton Admits

“Don’t Ask, Don’t Tell” Is a Failure, H

OUS. CHRON., Dec. 21, 1999, at 34; David P. Sheldon,

Don’t Expect a Change in “Don’t Ask . . . ,” NEWSDAY, Dec. 16, 1999, at A65; Bigotry in the

Military, N.Y.

TIMES, Aug. 30, 1999, at A18; Rethink “Don’t Ask, Don’t Tell,” PROVIDENCE

J.-BULLETIN, Dec. 15, 1999, at 6B; Deborah Mathis, Anti-homosexual Policy Avoids Reality,

EATTLE POST-INTELLIGENCER, Aug. 19, 1999, at A11; Don’t Ask, WASH. POST, Dec. 15,

1999, at A46).

266. Id. at 2.

267. National News Briefs: Fort Campbell General Is Reassigned Again, N.Y.

TIMES,

July 26, 2000, at A16; Slain Gay Soldier’s Case Slows a General’s Rise, N.Y.

TIMES, May 18,

2003, at N32.

268. Steven Lee Myers, Transfer of General at Site of Anti-Gay Killing Is Protested, N.Y.

IMES, June 9, 2000, at A24.

269. SLDN

SIXTH ANNUAL REPORT, supra note 114, at 4.

270. Id. at 69.

72 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

enhancement regarding hate crimes based on race, gender, sexual

orientation, and disability

271

—a first for the military. The recom-

mendation from the military’s Joint Service Committee had been on

the President’s desk for more than one year; it was signed too late

to be used in Winchell’s case.

272

The Department of Defense added “Don’t Harass” to its de-

scription of the law: “Don’t Ask, Don’t Tell, Don’t Pursue, Don’t

Harass.”

273

Through sheer repetition, SLDN had been successful

in changing the accepted reference from “Don’t Ask, Don’t Tell” to

“Don’t Ask, Don’t Tell, Don’t Pursue” to underscore the need to halt

investigations designed to ferret out GLB military members. The

Pentagon also strengthened harassment guidelines, making it clear

from the first time that anti-gay epithets such as “faggot,” “fag,”

“queer” and “dyke”—the most prevalent form of abuse—constituted

harassment.

274

In response to a long-standing SLDN request, the

Secretary and Chief of each service issued statements denouncing

anti-gay harassment.

275

The Army Inspector General, at SLDN’s request, launched an in-

vestigation into the command climate at Fort Campbell.

276

Secretary

271. Id. The Executive Order’s hate crime provision states in part, “Evidence in aggra-

vation may include evidence that the accused intentionally selected any victim or any

property as the object of the offense because of the actual or perceived race, color, religion,

national origin, ethnicity, gender, disability or sexual orientation of any person.” Id. (quot-

ing Executive Order No. 13,140 (1999) (internal quotation marks omitted)).

272. Id. at 5.

273. Linda D. Kozaryn & Jim Garamone, Cohen Adds ‘Don’t Harass’ to Homosexual

Policy, Says It Can Work,

DEP’T OF DEF. (Dec. 29, 1999), http://www.defense.gov/news

/newsarticle.aspx?id=41912.

274. SLDN

SIXTH ANNUAL REPORT, supra note 114, at 4. These were more specific in re-

gard to anti-gay comments than prior guidance issued one month after Winchell’s murder

stating that “[c]ommanders must take appropriate actions [when incidents of harass-

ment are reported], with due consideration given to the safety of persons who report

threats or harassment, and see that persons found to have made threats or engaged in

threatening or harassing conduct are held fully accountable.” Memorandum from Rudy de

Leon, Undersec’y of Def. for Pers. & Readiness, Guidelines for Investigating Threats

Against or Harassment of Servicemembers Based on Alleged Homosexuality (Aug. 12,

1999), available at http://dont.stanford.edu/regulations/memo1.htm. The guidelines reit-

erated a March 1997 memorandum issued by the same office by Undersecretary of Defense

for Personnel and Readiness, Edwin Dorn, to the secretaries of the military departments,

Chairman of the Joint Chiefs of Staff and Inspector General. See Memorandum from

Edwin Dorn, supra note 144 (stating that service members should feel comfortable report-

ing crimes to commanders).

275. SLDN

SIXTH ANNUAL REPORT, supra note 114, at iv.

276. S

TACEY L. SOBEL ET AL., SERVICEMEMBERS LEGAL DEF. NETWORK, CONDUCT

UNBECOMING: THE SEVENTH ANNUAL REPORT ON “DON’T ASK, DON’T TELL, DON’T PURSUE,

ON’T HARASS” 77 (2001) [hereinafter SLDN SEVENTH ANNUAL REPORT], available at http://

sldn.3cdn.net/cb11db6afdbe882794_jbm6iidrb.pdf (citing DEP’T OF THE ARMY INSPECTOR

GEN., FORT CAMPBELL TASK FORCE, DAIG SPECIAL ASSESSMENT OF ALLEGATIONS OF

VIOLATIONS OF THE DOD HOMOSEXUAL CONDUCT POLICY AT FORT CAMPBELL (2000)).

2011] TURNING POINTS 73

Cohen also ordered a Department of Defense Inspector General

investigation into anti-gay harassment throughout the military.

277

The Inspector General conducted random surveys of 71,570 active

duty military members from all services concerning the frequency

of anti-gay harassment.

278

In March 2000, the Inspector General re-

leased the survey results, which showed that anti-gay harassment was

commonplace and tolerated by a significant number of leaders.

279

the press conference releasing the report, the Pentagon’s spokesman

acknowledged, “[W]e need to do more work on this policy. In short . . .

offensive comments about homosexuals were commonplace and the

majority believed that . . . these offensive comments[ ] were tolerated

to some extent within the military.”

280

Following the release of the Inspector General’s survey results,

Secretary of Defense William Cohen formed a working group of top

Defense Department leaders and charged them to produce recom-

mendations to combat harassment.

281

In July 2000, the working

group produced a thirteen-point action plan addressing policy, train-

ing, reporting, and discipline for those who harassed GLB military

members.

282

Unfortunately, the recommendations were never imple-

mented.

283

Additionally, Secretary Cohen ordered mandatory train-

ing for all service members on the investigative limits of “Don’t Ask,

277. SLDN SIXTH ANNUAL REPORT, supra note 114, at iv.

278. OFFICE OF INSPECTOR GEN., DEP’T OF DEF., EVALUATION REPORT: MILITARY

ENVIRONMENT WITH RESPECT TO THE HOMOSEXUAL CONDUCT POLICY i, 4 (2000).

279. Id. at i–ii, 6, 10–11.

80 percent of the respondents stated they had heard offensive speech, derog-

atory names, jokes, or remarks about homosexuals in the last 12 months.

Eighty-five percent believed such comments were tolerated to some extent.

Thirty-seven percent of the Service members responded that they had wit-

nessed or experienced an [incident] that they considered to be harassment

based on perceived homosexuality. About 5 percent believed that [it] was

tolerated by someone in their . . . chain of command, and 10 percent believed

[harassment] was tolerated by other unit members.

Id. at i–ii. One-third of the respondents, roughly 23,600 service members, provided more

information on incidents they had experienced or witnessed. Id. at 10. Twenty-two percent

(or 5,192 service members) said the incident was witnessed by a senior officer, and of these,

73 percent (or 3,790 service members), stated that the senior officer did nothing immedi-

ately to stop the harassment. Id. at 11. The Marine Corps led the branches with 45 percent

reporting “they had heard offensive comments often or very often,” followed by the Army

at 37 percent. Id. at 6.

280. Kenneth Bacon, Assistant Sec’y of Def. for Pub. Affairs, Department of Defense

News Briefing with Deputy Undersecretary of Def. for Planning Frank Rush (Mar. 24,

2000), http://www.defense.gov/transcripts/transcript.aspx?transcriptid=1136.

281. Id.

282. Department of Defense Working Group, Anti-Harassment Action Plan, July 21,

2000, available at http://www.defense.gov/news/Jul2000/plan20000721.htm.

283. SLDN S

EVENTH ANNUAL REPORT, supra note 276, at vii.

74 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

Don’t Tell, Don’t Pursue, Don’t Harass.”

284

The order partially adopted

a long-standing SLDN recommendation.

Upon taking command, the new Commanding General of Fort

Campbell invited SLDN to address his leadership. He sent a message

by requiring every Battalion-level Commander and Command Ser-

geant Major to attend a mandatory meeting to discuss the Winchell

case and make recommendations to prevent such a tragedy from oc-

curring again. Finally, a leader at Fort Campbell weighed in against

violence and harassment against suspected GLB soldiers.

Even these unprecedented developments would not stop harass-

ment on their own. The DADT law itself branded GLB Americans as

“lesser” and thereby encouraged less than equal treatment. Further,

so long as military leaders were missing in action, harassment would

continue to fester. Marine Lieutenant Colonel Edward Melton is one

example of the kind of intransigent leader with whom SLDN fre-

quently dealt.

285

In October 1999, Melton sent the following e-mail

to his boss and subordinates at Twenty-Nine Palms, California in re-

sponse to Department of Defense guidance to train one’s troops on the

need to properly apply the “Homosexual Conduct Policy” and to stop

anti-gay harassment.

286

Without a trace of irony, Melton callously

wrote in his e-mail:

Due to the “hate crime” death of a homo in the Army, we now

have to take extra steps to ensure the safety of the queer who has

‘told’ (not kept his part of the DOD “don’t ask, don’t tell” policy).

Commanders now bear the responsibility if someone decides to

assault the young backside ranger. Be discreet and careful in

your dealings with these characters. And remember, little ears

are everywhere.

287

Rather than set the example for his marines, this officer chose to

undercut the new leadership guidance and convey to his subordinates

that they need not take it seriously.

288

The developments in the wake of Winchell’s murder, however,

provided SLDN and the families of military members with a greater

chance of holding leaders accountable. Shocked by Melton’s disregard

for their son’s murder, for example, Pat and Wally Kutteles sought

accountability in a letter to the Commandant of the Marine Corps,

284. Memorandum from Rudy de Leon, supra note 274.

285. See SLDN

SIXTH ANNUAL REPORT, supra note 114, at 55.

286. Id.

287. Id. (quoting an e-mail from. Lt. Col. Edward Melton to his subordinates and copying

his superior officer (Oct. 20, 1999)). This e-mail excerpt was part of a chain of e-mails from

the end of October, 1999. Id.

288. Id.

2011] TURNING POINTS 75

General J. L. Jones, and the base commander, Major General Clifford

Stanley.

289

While they did not receive a reply, on January 26, 2000,

the San Diego Union-Tribune reported the statement of a combat

center spokesman: “Administrative action has been taken against

Col. Melton, and he has been transferred.”

290

Perhaps more than any other event in the DADT era, the mur-

der of PFC Barry Winchell revived the public debate over DADT.

Winchell’s brutal murder and the military’s callous inaction stood

as stunning contradictions to the oft-repeated assertions of military

officials that “the policy is working.”

291

By this time, SLDN had by and

large overcome initial skepticism on the part of journalists through

our accurate reporting and mountains of evidence. Pentagon spokes-

persons, however, continued to try to dismiss our findings.

292

These

included prior warnings about the likelihood of another murder if

leaders did not take measures to stop anti-gay harassment.

293

In the

Winchell case, it became clear that harassment and abuse were the

norm, not the exception. The military establishment acquiesced in, if

not condoned, abuses.

294

The Pentagon’s credibility never recovered.

G. Protecting Use of New Media

Senior Chief Petty Officer Timothy McVeigh was a senior en-

listed leader onboard the nuclear submarine USS Chicago when the

289. Id. Their letter said, in part, “Melton’s e-mail [also] shows a lack of concern for the

men and women who serve under him and may be in need of his guidance, leadership or

protection. We request that Lt. Col. Melton is held accountable . . . .” Id. (alteration in

original) (quoting letter from Patty & Wally Kutteles to Gen. J. L. Jones and Melton’s

base commander, Maj. Gen. Clifford Stanley).

290. Stephen Green, ‘Don’t Ask, Don’t Tell’ Training to Be Set Up; Pentagon Will Stress

‘Don’t Harass’ as Well, S

AN DIEGO UNION-TRIB., Jan. 26, 2000, at A-1 (internal quotation

marks omitted).

291. See, e.g., Bernard D. Rostker, Undersec’y Def. (Pers. & Readiness), Department of

Defense News Briefing (July 21, 2000), http://www.defense.gov/Transcripts/Transcript

.aspx?TranscriptID=1537 (defending DADT as a good law that protects privacy and will

continue to work well with additional training).

292. See SLDN

SIXTH ANNUAL REPORT, supra note 114, at 47. The following quote is

just one example:

What has been alleged is that there is a lot of harassment of homosexual

service members within the military. We have always said that every time

we have clear evidence of harassment, we will investigate that. . . . We don’t

believe that there has been escalating harassment of gays in the military,

and I don’t believe that the evidence shows that. . . . [I ]t’s not an issue that

generally comes up, that this is a problem for commanders.

Id. (alteration in original) (quoting Kenneth Bacon, Defense Department Spokesman,

Dec. 9, 1999).

293. See, e.g., SLDN

THIRD ANNUAL REPORT, supra note 18, at 19 (recounting Seaman

Allen Schindler’s murder and the “dangerous” dismissal of death threats).

294. See, e.g., SLDN F

IFTH ANNUAL REPORT, supra note 22, at 24–25 (providing accounts

of harassment in the Marine Corps and Navy); SLDN S

IXTH ANNUAL REPORT, supra note

114, at v, 12 , 49–50 (detailing pervasive abuse at Fort Campbell).

76 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

Navy tried to discharge him in 1997 based on information that it

obtained about McVeigh’s identity from America Online (AOL).

295

McVeigh, then 36, had risen quickly through the ranks to earn this

senior position after 17 years in the Navy.

296

McVeigh’s case reminds one of the saying, “No good deed goes

unpunished.” McVeigh’s troubles began in the course of his work on

a toy drive for the families of sailors onboard his submarine. On

September 2, 1997, McVeigh mistakenly used his personal e-mail

account when corresponding with the civilian organizer, the wife of

another senior enlisted sailor on the USS Chicago.

297

McVeigh’s e-

mail addressed administrative and logistical details of the toy drive

and was signed, “Tim.”

298

The screen name on McVeigh’s personal account was “boysrch.”

299

The organizer searched through AOL’s member profile directory and

found that “boysrch,” an AOL subscriber, was a military member

named Tim who lived in Honolulu, Hawaii.

300

She also found that

“Tim” identified his marital status as “gay.”

301

The organizer and

McVeigh had e-mailed back and forth about the toy drive on several

prior occasions.

302

Although the profile did not include a full name

or any other specific information tying it to McVeigh, the organizer

suspected it was his profile.

303

She turned over the e-mail to her hus-

band and the e-mail made its way to McVeigh’s commanding officer

and the submarine’s legal adviser, a Navy lawyer.

304

The legal advisor set out to prove the e-mail and profile belonged

to McVeigh.

305

She directed a paralegal to call AOL and elicit infor-

mation that would link McVeigh to the profile and screen name.

306

The paralegal called AOL’s technical support number and spoke to a

representative named “Owen.”

307

At McVeigh’s subsequent discharge

hearing, the paralegal admitted that he lied to “Owen” by claiming to

be a friend of McVeigh’s who was “in receipt of a fax sheet and wanted

295. SLDN FOURTH ANNUAL REPORT, supra note 14, at 24.

296. McVeigh v. Cohen, 983 F. Supp. 215, 217 (D.D.C. 1998); SLDN FOURTH ANNUAL

REPORT, supra note 14, at 24.

297. McVeigh, 983 F. Supp. at 217.

298. Id.

299. Id.

300. Id.

301. Id.

302. Id.

303. McVeigh, 983 F. Supp. at 217.

304. Id.

305. Id.

306. Id.

307. Email Press Release: Fears of Cyber-Spying Escalate, as Navy Prepares to

Discharge Sailor, America Online and Navy May Have Violated Law, Experts Say,

IRED STRATEGIES (Jan. 12, 1998), http://www.wiredstrategies.com/email9.htm.

2011] TURNING POINTS 77

to confirm the profile sheet, [and] who it belonged to.”

308

The para-

legal did not reveal that he was in the Navy, or that he was calling

as part of a Navy investigation.

309

AOL’s “Owen” verified the profile

belonged to McVeigh.

310

Based on “Owen’s” identification, the Navy moved to discharge

McVeigh, claiming he had violated DADT by making a statement of

homosexuality in his AOL profile.

311

An administrative discharge

board met on November 7, 1997, and voted to discharge McVeigh.

312

SLDN and McVeigh’s military attorney collected ample evidence

that the Navy had violated its own limits against investigations under

DADT.

313

The Navy’s legal advisor had engaged in a fishing expedition

based on an anonymous profile, which was not “credible information”

sufficient to start an inquiry.

314

SLDN had argued since the inception

of the law to exclude information obtained by the military in violation

of its own limits on investigations.

315

Within the military’s adminis-

trative system, however, there was no such provision.

316

While there was no chance of saving McVeigh’s career within the

military’s process, the case had broader implications for internet pri-

vacy for all Americans.

317

We sought help from some of the nation’s

foremost internet privacy experts.

318

They volunteered many hours

and, with SLDN, intervened with top Defense Department lawyers

and officials, members of Congress and the press, raising the case to

national attention. An intensive internet advocacy campaign launched

on McVeigh’s behalf was, on its own, a landmark at the time.

319

308. McVeigh, 983 F. Supp. at 217 (alteration in original) (internal quotation marks

omitted).

309. Id.

310. Id.

311. Id.

312. Id. at 217–18.

313. Id. at 219–20.

314. McVeigh, 983 F. Supp. at 219.

315. See, e.g., SLDN

SEVENTH ANNUAL REPORT, supra note 276, at xi (recommending

an exclusionary rule for illegally obtained evidence).

316. Legal Services FAQ, U.S.

NAVY JUDGE ADV. GEN.’S CORPS, http://www.jag.navy

.mil/legal_services/legal_services_faq.htm (last visited Nov. 2, 2011) (“The Military Rules

of Evidence generally do not apply to boards and a board’s decisions . . . .”).

317. McVeigh, 983 F. Supp. at 221 (“Certainly, the public has an inherent interest in

the preservation of privacy rights . . . . In this case in particular, where the government

may well have violated a federal statute in its zeal to brand [McVeigh] a homosexual, the

actions of the Navy must be more closely scrutinized . . . .”).

318. These included the Electronic Privacy Information Center, the Center for

Technology and Democracy, Wired Strategies, and SLDN cooperating attorneys from

the Proskauer Rose law firm.

319. See, e.g., David Sobel, Email Press Release: Internet Lawyer Writes Navy, W

IRED

STRATEGIES (Jan. 14, 1998), http://www.wiredstrategies.com/email15.htm (“[T]his case

raises serious questions concerning the Navy’s compliance with federal privacy law.

78 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

In a coordinated effort, SLDN cooperating attorneys filed for a

preliminary injunction on McVeigh’s behalf to prevent the Navy from

discharging him.

320

McVeigh argued that the Navy violated his rights

under the Electronic Communications Privacy Act (ECPA) as well as

DADT and the 4th and 5th Amendments to the U.S. Constitution.

321

Professor Charles Moskos, the author of DADT who first sug-

gested the law to Senator Sam Nunn, filed an affidavit on behalf of

McVeigh stating that the Navy’s actions violated the policy he created:

In my opinion, the Navy’s actions in this case violated the “Don’t

Ask, Don’t Tell” policy. In simple terms, Senior Chief McVeigh

did not “tell” in a manner contemplated under the policy . . . . In

my opinion, this sort of heavy-handed “enforcement” by the Navy

will inadvertently undermine the “Don’t Ask, Don’t Tell” policy

by eroding confidence among servicemen that the Navy will not

“ask” if they do not “tell.”

322

Further, Moskos declared that McVeigh’s discharge should be halted

to send a message to the Navy to refrain from heavy handed investi-

gations and to preserve DADT.

323

In a strongly worded opinion, Judge Stanley Sporkin enjoined

the Navy from discharging McVeigh, based on both DADT and the

ECPA.

324

Judge Sporkin found “the Navy has gone too far,” and chas-

tised the Navy for “embark[ing] on a search and ‘outing’ mission”

against McVeigh.

325

Prior to the litigation, SLDN met with top AOL officials to apprise

them of the company’s role in having McVeigh fired. AOL executives

were genuinely shocked to learn the facts of the case. The company

cooperated with McVeigh’s attorneys and provided information show-

ing that the Navy illegally obtained McVeigh’s identity.

326

The case was ultimately settled in June of 1998.

327

McVeigh,

who had been denied a promotion because of his case, was permitted

Specifically, [it] appears to have violated the Electronic Communications Privacy Act

(“ECPA”) during the course of its investigation of Mr. McVeigh.”).

320. Plaintiff ’s Reply Memorandum in Support of His Motion for a Temporary

Restraining Order, Jan. 21, 1998, McVeigh v. Cohen, 983 F. Supp. 215 (D.D.C. 1998)

(No. 98-116).

321. Id. at 8.

322. Declaration of Professor Charles Moskos, supra note 11, ¶¶ 7–8.

323. Id. ¶¶ 5, 9.

324. McVeigh v. Cohen, 983 F. Supp. 215, 219–22 (D.D.C 1998).

325. SLDN

FOURTH ANNUAL REPORT, supra note 14, at 20, 22.

326. McVeigh, 983 F. Supp. at 221; see also SLDN F

OURTH ANNUAL REPORT, supra

note 14, at 24.

327. Bradley Graham, Gay Sailor Takes Navy Retirement Settlement; AOL Also Will

Pay for Privacy Violation, W

ASH. POST, June 13, 1998, at A3.

2011] TURNING POINTS 79

to retire as a Master Chief Petty Officer, the senior rank he had

earned.

328

The Navy also agreed to pay his legal fees.

329

Separately,

AOL agreed to pay damages to McVeigh for disclosing his identity

to the Navy.

330

The impact of McVeigh’s case far exceeded his immediate situ-

ation. McVeigh’s willingness to challenge the Navy’s actions secured

the use of the internet for military members to reach out from their

isolation and connect with others—albeit anonymously under DADT—

to seek legal help, to bring abuses against them to public attention

or simply to find community.

331

Reaching out was still fraught with

risk; service members were discharged throughout the DADT era after

co-workers or family members snooped on their e-mail and turned

them in to military officials. Nonetheless, later groups of military

members, such as OutServe and Servicemembers United, used the

power of the internet to enable service members to contribute their

experiences to the debate leading up to the Congressional vote to end

DADT.

332

McVeigh’s legacy empowers servicemembers of today.

H. Limiting the Scope of “Don’t Tell”

In announcing the new policy, President Clinton assured Ameri-

cans that there would be “due regard for the privacy of individuals.”

333

Yet, Corporal Kevin Blaesing, serving with the Marine Security Force

in Charleston, South Carolina, was turned in by a Navy psychologist,

simply because he asked about sexuality during private counseling.

334

Blaesing’s first commander did not act on this information.

335

After

that commander left for a new assignment, the incoming commander

took action to discharge Blaesing, despite being informed by the Navy

psychologist that Blaesing never said he was gay or discussed his own

sexual orientation, and despite being advised by his legal advisors not

328. Id.

329. Id.

330. Id.

331. Air Force Major Mike Almy was discharged after investigators read his personal

e-mails. Nick Wing, Mike Almy, Soldier Discharged After Air Force Searched His Private

Emails, “Dumbfounded” by McCain Comments, H

UFFINGTON POST (Sept. 22, 2010, 1:23

AM), http://www.huffingtonpost.com/2010/09/22/mike-almy-mccain-gay_n_734726.html.

Almy subsequently testified before the Senate Armed Forces Committee and spoke to news

outlets, refuting claims “that the military was not ‘seeking out’ servicemembers who were

gay.” Id.

332. See O

UTSERVE, www.outserve.org (last visited Nov. 2, 2011); SERVICEMEMBERS

UNITED, www.servicemembersunited.org. (last visited Nov. 2, 2011).

333. Clinton, supra note 12, at A12.

334. SLDN

FIRST ANNUAL REPORT, supra note 55, at 10.

335. “Don’t Ask, Don’t Tell”—Marine Style, N

EWSWEEK (June 12, 1994), http://www

.thedailybeast.com/newsweek/1994/06/12/don-t-ask-don-t-tell-marine-style.html.

80 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

to proceed.

336

Blaesing was discharged in December 1994.

337

Contrary

to the recommendations of Blaesing’s supervisors, the commander

gave Blaesing the lowest possible recommendation for re-enlistment,

an insult given Blaesing’s honorable service.

338

Blaesing’s story illustrates the falsehood of one of the primary

initial defenses of the DADT policy: that it would merely restrict public

statements of sexual orientation, not private ones. During the 1993

debate, Senator Sam Nunn and others conjured up the specter of GLB

military members standing on tables in military mess halls, shouting

out their sexual orientation.

339

Military scholar Professor Charles

Moskos pitched DADT to Nunn, in part to address the “public broad-

casting” scenario: the military would not intrude, but gay service

members would not go public.

340

Congress latched onto the proposal

and, with the writing on the wall, the Administration capitulated.

341

When implementing DADT, the Department of Defense again

underscored that it “would protect a ‘zone of privacy’ for all service-

members,”

342

and termed sexual orientation a “personal and private

matter.”

343

The new regulations specifically permitted statements to

security clearance personnel, as described above, and the military al-

ready had provisions respecting attorney-client privilege and chaplain-

penitent privilege, similar to civilian law.

344

In reality, the military enforced “Don’t Tell” in ways so intrusive

that most Americans would never have contemplated the possibility.

The military discharged service members who confided in parents,

other “family members, close friends, church members, doctors,

psychologists and other health professionals”—even chaplains.

345

336. SLDN FIFTH ANNUAL REPORT, supra note 22, at 10; SLDN FIRST ANNUAL REPORT,

supra note 55, at 10.

337. Courage Under Fire, A

DVOCATE, Apr. 15, 1997, at 25, 25.

338. SLDN

FIRST ANNUAL REPORT, supra note 55, at 12.

339. See, e.g., Policy Hearings, supra note 13, at 482–83 (statement of Sen. John F.

Kerry) (documenting the debate between Senator Kerry and Senator Nunn).

340. See id. at 421–22 (transcribing Professor Charles Moskos’s reply to questioning

about “Don’t Ask, Don’t Tell”).

341. See D

EP’T. OF DEF. DIRECTIVE NO. 1304.26 (Dec. 21, 1993), available at http://

biotech.law.lsu.edu/blaw/dodd/corres/html2/d130426x.htm.

342. SLDN

SECOND ANNUAL REPORT, supra note 39, at 4.

343. Id. at 5 (internal quotation marks omitted).

344. Id. at 4.

345. Id. More frequently, chaplains told GLB military members to turn themselves in,

without informing them of the consequences. SLDN F

OURTH ANNUAL REPORT, supra note

14, at 18–19. Military chaplains are not required to minister to a military member in cases

where they feel it violates their religious precepts. The alternative is to refer the military

member in question to another chaplain. Instead, many chaplains ignored this alternative,

berated GLB military members who sought their spiritual guidance, and turned them in

or advised military members to turn themselves in. Id. at 18–19.

2011] TURNING POINTS 81

At SLDN, we called this attempt to enforce a “gag rule” in

communications between military members and their families, pro-

fessional health care providers and spiritual advisors “chilling.”

346

We believed that “[m]ost Americans would be appalled to learn that

their tax dollars are being spent on such unprecedented invasions into

relationships that are widely accepted as private and confidential.”

347

A combination of past practices and new Pentagon guidance con-

spired to make this a virulent trend. The Navy erroneously instructed

therapists that they had a duty to turn in GLB military members.

348

Air Force memoranda,

349

as described above, directed inquiry officers

to locate and question parents, close civilian friends, mentors such as

high school guidance counselors, and other confidants about the sexual

orientation and activities of GLB military members.

350

The memo-

randa provided a “laundry list of twenty-five questions” that inquiry

officers should ask about the military members’ private lives,

351

an effort to dig up additional information that could be used against

them. Parents, like the mother of Air Force Captain Earl Brown,

352

described being “shocked” when Air Force officials showed up at their

homes and proceeded to question them about their children’s sexual

orientation and sex lives.

353

Brown was just one of numerous military

members targeted in this manner.

354

The mentality reflected in the

Air Force memoranda infected all the services.

Even more insidiously, this approach to enforcing DADT created

incentives for hatemongers to harass and assault suspected GLB

service members, who were unable to report the abuse to any of the

usual officials.

355

They could not report crimes against them to law

346. SLDN SECOND ANNUAL REPORT, supra note 39, at 7.

347. Id.

348. See SLDN

FIFTH ANNUAL REPORT, supra note 22, at 35–36 (discussing the instruc-

tions in the General Medical Officer Manual).

349. The Air Force memoranda first arose in the context of military members who faced

discharge after attending college or professional schooling funded by the service. In these

cases, the Air Force adopted a “prove you are gay” policy that not only violated DADT,

but that potentially subjected Air Force members to criminal prosecution and prison if

information about their sexual activities came to light. In effect, the Air Force wielded

the hammer of criminal prosecutions to force “valuable” GLB military members to stay

tightly in the closet, and send a message to others to stay silent as well. These memoranda

spread well beyond their original context to infect all gay inquiries.

350. An Air Force memorandum by Colonel Richard A. Peterson, a top Air Force lawyer,

instructed inquiry officers to interrogate parents about the sexual orientation and private

lives of their children to obtain information against the service members for the purpose

of discharge or other punishment.

SLDN SECOND ANNUAL REPORT, supra note 39, at 6–7;

SLDN

THIRD ANNUAL REPORT, supra note 18, at 7.

351. SLDN THIRD ANNUAL REPORT, supra note 18, at 29.

352. SLDN

FIRST ANNUAL REPORT, supra note 55, at 10.

353. Id.; SLDN SECOND ANNUAL REPORT, supra note 39, at 6.

354. See SLDN

SECOND ANNUAL REPORT, supra note 39, at 6.

355. SLDN FIFTH ANNUAL REPORT, supra note 22, at 1, 35.

82 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

enforcement, confide in their families, or seek treatment for physical

injuries or trauma (e.g., PTSD) without a high risk of being “outed”

to their commanders and discharged under DADT.

356

This problem was acutely highlighted in the Winchell case, and

the resulting escalation of harassment at Fort Campbell in the wake

of his murder.

357

During the Pentagon study that followed, I once

again sought help from an unlikely source, Professor Charles Moskos,

to bolster SLDN’s long-standing argument that “Don’t Tell” did not

preclude all statements by service members concerning their sexual

orientation and private lives. Moskos’s interest was directly con-

trary to ours; he wanted to preserve DADT and viewed military

“overreaching” as a threat to the viability of the law. He agreed to

co-write a Washington Post op-ed with me.

358

Together, we wrote:

Military members who reveal their sexual orientation during

private medical treatment, or in the course of reporting harass-

ment or assaults, are not “telling” in a manner contemplated by

“Don’t Ask, Don’t Tell, Don’t Pursue.” The Department of Defense

must order inspectors general, law enforcement officials, psycholo-

gists and doctors not to out gay service members who seek their

help. It should forbid military judges and members of discharge

boards from considering statements from these officials as evi-

dence of homosexuality.

359

If “implacable foes” like us, the father of DADT and a leader of the

group that was fighting DADT, “c[ould] find common ground,” we

wrote, then “anyone c[ould].”

360

By 2002, through painstaking work in our cases, annual reports

and media scrutiny, SLDN was successful in having the Navy and

Air Force memoranda rescinded or rendered unenforceable.

361

The

official practice of proactively seeking out parents, close civilian

friends, and others ended, although GLB military members would

continue to be discharged if information shared with confidants came

to light in other ways. For example, military members were discharged

in cases where parents themselves turned over the information or

when other service members snooped on e-mail correspondence.

362

356. Id. at 35; Moskos & Benecke, supra note 9, at A23.

357. See SLDN SIXTH ANNUAL REPORT, supra note 114, at 50–51 (describing the in-

creased harassment occurring at Fort Campbell after Winchell’s death).

358. Moskos & Benecke, supra note 9, at A23.

359. Id.

360. Id.

361. SLDN

THIRD ANNUAL REPORT, supra note 18, at 7.

362. See, e.g., SLDN FIFTH ANNUAL REPORT, supra note 22, at 53 (discussing a case in

which an investigator questioned a friend of the officer and gained access to the officer’s

e-mail).

2011] TURNING POINTS 83

Throughout this time, we continued to press further in meetings

with Pentagon officials and in our annual reports for adoption of an

exclusionary rule barring information obtained in violation of the

policy’s limits on inquiries, including from private conversations.

363

Additionally, we asked Defense Secretary Cohen to adopt a therapist-

patient privilege and issue new guidance to the field.

364

In 1998,

Defense Secretary Cohen partially addressed this recommendation

by making it clear there was no duty to turn in GLB military mem-

bers who sought mental health services.

365

In 1999, President Clinton

signed an Executive Order providing for a limited psychotherapist priv-

ilege in the criminal system.

366

Through independent discussions with

the Army Inspector General, we came to an agreement allowing GLB

military members to report harassment and its surrounding circum-

stances to Inspectors General without being “outed” and discharged.

The issue would come to a national forefront on and off throughout

the DADT era. Years later, the well-publicized case of Air Force fighter

pilot Lieutenant Colonel Victor Fehrenbach crystallized such abuses

and made a powerful argument for ending DADT.

367

Fehrenbach

faced discharge under DADT because he cooperated with civilian

police officers after he was falsely accused of rape by another man,

who also made false allegations against others.

368

Even though the

allegations were proven to be false, civilian police turned over infor-

mation about Fehrenbach’s sexual orientation to the military.

369

this case, the Secretary of the Air Force “sat on” Fehrenbach’s dis-

charge paperwork, permitting Fehrenbach to retire with full benefits

on September 30, 2011.

370

Though we ultimately succeeded, SLDN and our allies actually

had to fight to end official military support for using parents as wit-

nesses against their children. In the Fehrenbach case alone, SLDN

had to fight to prevent a single military member from being pun-

ished merely for speaking honestly with law enforcement. These

battles were significant turning points in the overall effort against

363. See, e.g., id. at 84 (recommending the DoD stop prying in officers’ lives); SLDN

OURTH ANNUAL REPORT, supra note 14, at 2 (stating that service members should not

be discharged based on private conversations).

364. SLDN F

OURTH ANNUAL REPORT, supra note 14, at 2.

365. SLDN SIXTH ANNUAL REPORT, supra note 114, at 22.

366. Exec. Order No. 13140, 64 Fed. Reg. 55115, 55116–17 (Oct. 12, 1999).

367. Ed O’Keefe, ‘Don’t Ask, Don’t Tell’ to Face Test in Court, W

ASH. POST, Aug. 13,

2010, at B3.

368. Id.

369. Id.

370. Full Rank, Pension for Fehrenbach, A

DVOCATE (Feb. 16, 2011, 10:50 AM), http://

www.advocate.com/News/Daily_News/2011/02/16/Fehrenbach_to_Retire_with_Full_Rank

_and_Pension/.

84 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

DADT, and the fact that our victories represented changes in the

status quo further proves just how horrific and McCarthyesque that

status quo was. It is small wonder that even an architect of DADT

feared overreaching.

ONCLUSION

This piece describes the long-term strategy that changed public

opinion and hastened the demise of DADT. This is the story of mili-

tary members and their families who fought back against DADT

with SLDN’s assistance and, through their courage, toppled key

pillars upholding this discriminatory law.

371

The men and women

honored in this piece represent thousands of military members, many

of whose stories will never be told, unless they so choose, because of

the attorney-client privilege. As has been the case with other move-

ments, “most of the movement’s participants weren’t the famous;

they were the nameless—ordinary people who in extraordinary times

did extraordinary things.”

372

Representing every rank, service, spe-

cialty and geographic location and including men and women from

every racial group, their example challenged dehumanizing stereo-

types that were used to justify the gay bans and encourage abuse of

people who were suspected of being gay. By fighting back against

DADT, they transformed our nation and opened the door to a better

future for those who follow.

DADT was a terrible law through which Congress and the

Pentagon sought to enshrine the harsh status quo. GLB military

members were silenced and kicked out on the exact same grounds

as the prior gay bans. Meanwhile, publicly, Congressional and military

leaders portrayed DADT as a benign compromise: we won’t “ask,”

gays won’t “tell.” As a result, many Americans believed DADT was a

more lenient policy and that the issue had been resolved. With public

attention waning, military officials resumed “business as usual,” witch

hunting and pursuing criminal prosecutions against people who were

suspected of being gay. The Pentagon nearly got away with this ruse.

371. This is not an exhaustive account. Other turning points, such as the military’s firing

of Arabic linguists who were gay and the resulting degradation of our nation’s military

capabilities, or the “90s plaintiffs” such as Grethe Cammermeyer and Zoe Dunning, who

came out in support President Clinton’s effort to lift the ban, have been well publicized.

See Chris Durang, Hey Bush—What’s All This Firing of Gay Arabic Linguist Specialists?,

UFFINGTON POST (Aug. 11, 2006, 9:24 AM), http://www.huffingtonpost.com/chris-durang

/hey-bush-whats-all-this-f_1_b_27017.html; supra note 4 (citing examples of “90s Plaintiffs”).

372. 2010 Civil Rights Tour with Julian Bond Goes from Memphis to New Orleans,

ATODAY (Nov. 18, 2009), http://www.virginia.edu/uvatoday/newsRelease.php?id=10510

(quoting Professor Julian Bond).

2011] TURNING POINTS 85

The formation of SLDN changed “business as usual.” We created

levers of change and used them to pry open the military’s closed

system. For the first time, a watchdog existed to document and chal-

lenge the military’s discriminatory treatment of servicemembers who

were suspected of being gay. SLDN pushed back in ways that sur-

prised military officials. We obtained “smoking gun” records of in-

vestigations and other internal documents. We initiated congressional

inquiries and inspector general investigations. We engaged respected

law firms to represent military members pro bono and assist in put-

ting on defenses at administrative separation boards within the mili-

tary. We used the media to spotlight abuses and educate the American

public about the hypocrisy of DADT. We leveraged every possible

tool—legal, policy, watchdog, media, grassroots—to create synergies

that resulted in breakthrough opportunities. Over a number of years,

our “guerrilla legal work” made it increasingly difficult for the mili-

tary services to enforce DADT, generated political momentum (inside

and outside the military) and put a human face on the issue.

SLDN fully engaged all three branches of the federal govern-

ment. Outside of the field of public health, gay organizations tend

to focus on the courts or the legislature as avenues for change; the

federal administrative system is woefully underutilized. We plied

the unglamorous waters of the executive branch and administrative

system, eking out more than two dozen policy changes to improve

the safety of military members’ daily lives and maintaining a constant

presence on their behalf. Various litigation efforts and SLDN’s work

with Members of Congress to introduce legislation overturning DADT,

beginning in 2005, are better known. SLDN’s early work in the admin-

istrative system, however, built the foundation to end DADT.

SLDN built victories brick by brick in a way that made linkages

with other advocates and activists possible as they emerged onto the

national stage to create the movement to end DADT. Legions of family

members, friends, “battle buddies,” veterans, academics,

373

Members

of Congress and their staffers, and Administration and military offi-

cials took risks to support GLB military members and advocate on

their behalf, publicly and behind the scenes.

At the end, even military officials dropped the pretense that the

law was working just fine. Defense Secretary Gates, Chairman of the

Joint Chiefs of Staff, Admiral Mullen and other military leaders testi-

fied in favor of ending DADT in language reflecting the experiences

373. Academics such as Rhonda Rivera, Linda Grant De Pauw, Francine D’Amico, Diane

Mazur and Elizabeth Hillman, among others, have long written about the military’s gay

bans. The formation of the Palm Center by Aaron Belkin in 1999 solidified the field as

a viable academic pursuit and connected research and study findings directly to the

public policy debate.

86 WILLIAM & MARY JOURNAL OF WOMEN AND THE LAW [Vol. 18:035

of military members. They rightly found DADT to violate military

values by requiring servicemembers to violate their integrity as a

condition of military service, and exercised courageous leadership to

bring our military’s practices in line with our nation’s ideals.

“Ending DADT is arguably one of the most significant civil rights

achievements of the current generation. It signals that gay Americans

are full citizens and should be treated equally.”

374

Our government’s

gag order on patriotic Americans who heed the call to duty is lifted.

Now, servicemembers from every comer of our great Nation will work

side by side with gay Americans and see for themselves that nothing

bad happens as a result. While much work remains to be done to

achieve full equality, DADT’s demise marks the first time Congress

has acted to end discrimination against GLB Americans, a significant

development that paves the way for future progress. As we celebrate

the end of DADT, it is fitting to salute the military members who

sacrificed to make this moment possible.

375

374. Osburn & Benecke, supra note 32.

375. Id.