Oct 30, 2009  |  By: Chris Johnson  | COMMENTS     

The Defense Department is examining whether a ruling in a lawsuit challenging “Don’t Ask, Don’t Tell” could be used to relax enforcement of the policy without changing the law, according to a Senate aide.

The Pentagon “is looking carefully” at the Ninth Circuit Court of Appeals ruling last year in Witt v. Air Force “to see if there are any nationwide implications beyond the Ninth Circuit,” said the aide, who spoke to the Washington Blade on condition of anonymity.

The ruling challenged the U.S. military to prove that the presence of Maj. Margaret Witt, a lesbian nurse who was discharged under “Don’t Ask, Don’t Tell” after serving in the Air Force for 18 years, was detrimental to unit cohesion.

The Ninth Circuit remanded the case to district court for further consideration last year in light of protections granted by the U.S. Supreme Court’s 2003 ruling in Lawrence v. Texas.

“It does not appear that there are” nationwide implications to the ruling, the aide said. “However, given the higher standard that applies for the Ninth Circuit, [it] could be relevant across the country.”

The aide continued: “Given the fact that [Defense] Secretary [Robert] Gates has publicly said we’re going to look for humane ways to do this, clearly, the higher standard established in the Ninth Circuit provides some guidance on how to do that.”

Doug NeJaime, a gay associate professor at Loyola Law School, Los Angeles, said the Witt case “could be a way to keep ‘Don’t Ask, Don’t Tell’ on the books, but enforce it in a way that actually effects a much less significant number of people.”

NeJaime said Witt is an as-applied challenge, meaning the Ninth Circuit considered “Don’t Ask, Don’t Tell” as a way to further government interests to maintain unit cohesion.

But the Ninth Circuit disputed that notion in its ruling, and said in a footnote that it’s not Witt’s sexual orientation that undermines unit cohesion, but the process of discharging her from her unit.

NeJaime said if the U.S. military used this standard in its enforcement of “Don’t Ask, Don’t Tell,” the law could be applied “in a more case-by-case” basis and examine whether the discharge of each service member actually inhibited unit cohesion.

“So, if [discharging] actually undermines unit cohesion … then you wouldn’t discharge,” NeJaime said. “So, I mean, it could allow for a much more forgiving ‘Don’t Ask, Don’t Tell’ policy.”

This application of “Don’t Ask, Don’t Tell” seems consistent with remarks Gates made in June, when he said he’s looking for a “more humane” way to implement the law, as well as whether there is any “flexibility” in applying it.

“Let me give you an example,” he said at the time. “Do we need to be driven when the information, to take action on somebody, if we get that information from somebody who may have vengeance in mind or blackmail or somebody who has been jilted?”

Cynthia Smith, a Pentagon spokesperson, didn’t respond to a request for comment on whether the Defense Department was looking at the Witt case as a way to mitigate “Don’t Ask, Don’t Tell.”

But in an earlier e-mail, Smith confirmed that officials were consulting with legal experts to find a different way to apply the law.

“The secretary has asked the DOD General Counsel to review the law to determine if there is any flexibility in how this law is applied,” she said. “This action is still currently being reviewed by the [Office of the General Counsel.]”

Smith said there was no set time for a conclusion of this review.

Kevin Nix, spokesperson for the Servicemembers Legal Defense Network, also said the Pentagon could decide to follow the Witt standard as a way to change application of “Don’t Ask, Don’t Tell” for the entire military, even though the ruling is technically only binding in the Ninth Circuit.

But Nix said SLDN doesn’t view a relaxation of “Don’t Ask, Don’t Tell” under Witt as a more humane application of the law.

“SLDN believes the [‘Don’t Ask, Don’t Tell’] law is unconstitutional and inherently inhumane,” he said. “There is no way to apply it to make it constitutional. Congress must repeal the law.”

The Defense Department, Nix said, can instruct services conducting investigations under the law to follow several guidelines, such as requiring the allegation of homosexuality to come from another service member and not a civilian or an anonymous tipster.

Nix also said the Pentagon could change application of the law so that hearsay couldn’t support an inquiry; only homosexual conduct after joining the armed forces would be eligible for investigation and statements made to chaplains, doctors, psychologists or other health professionals couldn’t be used as a basis for inquiry.