Questions We Still Have About Sec. Gates’ New DADT Dismissal Rules

Yesterday morning, Defense Secretary Robert Gates announced, after a 45-day study, the new rules that being implemented immediately to curb the worst of the Don’t Ask Don’t Tell dismissals. Essentially, only soldiers that voluntarily come out will be subject to investigations; a soldier outed by someone else won’t be entirely safe, but his accusers will have to testify under oath, and anonymous outings won’t be material. But this still leaves a lot of questions unanswered. And we’d like to have some definite positions on them before the Pentagon finishes up its nine-month policy review in December. Care to help us out?

If a soldier is on the receiving end of one what Gates’ describes as a “malicious outing” — where a jilted ex-partner outs the person in retaliation — does that mean the soldier is free of DADT? And can serve as an openly gay man? Or just that they won’t investigate the ex-partner’s claims, but if the soldier outs himself, he could still be investigated? We’re inclined to believe the latter; the malicious outing simply can’t be used as evidence in an investigation. But if a gay soldier’s comrades and COs know he’s gay because of the outing, it won’t take much to find other so-called evidence to out him in more kosher ways.

What constitutes protected and private data? The new rules will bar any medical data or security reviews from being used as evidence in a DADT dismissal. Also, conversations with legal counsel. But what is the definition “medical data”? We imagine soldiers’ consultations with doctors will be off limits as always (like they are with lawyers), and that the new rules would prohibit any “leaked” medical documents that might find their way into the wrong hands. But let’s say an entire unit at Ft. Bragg decides to participate in a local blood drive, and one gay men is forced to sit out because of FDA rules. Does dodging the question of why he’s not taking part constitute reason to investigate his sexuality? Does it constitute “telling”? Or is it protected medical data? Also: Hasn’t this always been the policy?

What happens if a four-star general is suspected of being gay? Or another senior ranking officer? Even with Gates increasing the rank an officer must have (to a one-star general) to initiate an investigation, can a lower-level officer lead dismissal charges against a higher-ranking one? Common wisdom says a lower-ranking officer would simply never challenge somebody whom outranks him, but then we get to the malicious outing portion of the program: What if the lower-ranking officer wants his gay boss’ job? (Yes, we know the likelihood of this situation ever arising is slim to none. But still, what’s protocol?)

Will officers still be allowed to publicly support DADT? Lt. Gen. Benjamin Mixon, the commander of U.S. Army Pacific, submitted a letter to the editor to Stars and Stripes saying he opposed repealing the law, and now he’s in trouble with Sec. Gates and Joints Chiefs of Staff chairman Adm. Mike Mullen. (Mullen told reporters Mixon is “obliged to certainly follow the direction of leadership right up to the president,” and if he feels “so strongly about it” then “the answer is not advocacy; it is in fact to vote with your feet.”) We all know the military isn’t headquarters for free speech, but just because the president says he wants DADT repealed, and his Pentagon leadership agrees, does it mean everyone must fall into line? Should officers opposing a repeal be treated the same way as white officers who say they don’t want to serve alongside blacks?

Will dismissed soldiers have any hope of re-enlisting? Gates made clear that the new rules will apply to current and future investigations only, which means anyone already dismissed under DADT — even with evidence used from the very malicious third-party outings that are now banned — won’t be welcomed back. This means folks like Lt. Col. Victor Fehrenbach, who had to come forward to defend himself against false rape charges, and Air Force Maj. Mike Almy, who was outed when his personal emails were surreptitiously included in his DADT investigation, remain persona non grata. But if they aren’t “automatically” allowed back in, can they attempt to re-enlist? We’re guessing not, because they’ve publicly identified as gay on numerous cable news programs, but what about the silent majority of dismissals who’ve taken their discharges and kept quiet? If these folks never publicly got involved in “telling” anyone, do the new rules forever make them ineligible? Perhaps we’ll know more in December, when the full report on repealing DADT is revealed.

We certainly haven’t covered all the unknowns. What questions do you still have? And perhaps some of our questions about have been answered, but we haven’t looked in the right places. Tell us.