Don't Ask, Don't Be
So they're sitting in an armored Hummer in the Mojave, wearing full battle-rattle: uniforms, flak vests, nine-millimeters strapped to the side. Specialist Tommy Cook, his sergeant and a third man are sitting on heavy artillery. Got a few M-4s and M-16s and a .50-caliber machine gun, among others.
It's December 2003, and they're running field-training exercises in anticipation of next month's deployment to Iraq. Right now, they're parked outside the Tactical Operation Center, waiting to get their next assignment, when the gay guy walks by. Twentysomething, short, skinny. We're talking flaming. All three can tell by his walk.
So the sergeant turns to Cook and says, "If I ever found out someone in my crew was gay, I would kill him."
Specialist Tommy Cook, sitting shotgun, freezes. His great-great-grandfather, an infantryman, was wounded in battle during the Civil War. His great-grandfather survived combat in World War I. His grandfather was, like Cook, ground-surveillance intelligence, but he never saw combat. Cook, who hails from Lake Jackson, Texas, has come to the conclusion that he will be the first military man in his family to be shot and killed by his own sergeant.
His sergeant is a little guy; five foot seven maybe, 150 pounds. Cook's bigger, but recalling the incident in an e-mail to the Houston Press earlier this month, he wrote, "Now I am much bigger than he is, so size was not an issue. It's not the size of the guy, but how well of a shot he is. I mean he could have [shot] me if we went to Iraq and [I] would have had no defense for a bullet."
Cook knew all he had to do was keep mum about being gay. But he worried about the safety of any other gay soldiers who crossed this sergeant's path. He decided to report the threat to his commanding officer. One month later, Specialist Tommy Cook was honorably discharged after nearly three years of service.
In December 2004, Cook and 11 other service people filed suit against the U.S. government in a Boston district court, demanding their jobs back. They are seeking to eliminate what is known as the Don't Ask, Don't Tell policy, which can only be done by lifting what is essentially a legislative ban on homosexuals. His isn't the first lawsuit over DADT, but it's the first since the U.S. Supreme Court's landmark Lawrence decision, which in 2003 abolished a Texas law criminalizing private, consensual homosexual acts.
The current suit, known as Cook v. Rumsfeld, is the latest in renewed efforts by gay advocacy groups and state and federal legislators to get rid of Don't Ask, Don't Tell. Citing low recruitment numbers and the loss of highly specialized service members, these opponents say DADT is just plain idiotic in time of war. Plus, they say, there's that whole liberty thing, too.
Cook wants the right to take a bullet in the head in Iraq. He just doesn't want it to come from one of his own men.
Last January, Maryland Representative Martin Meehan asked the U.S. Government Accountability Office to figure out how much Don't Ask, Don't Tell has cost the military in money and brainpower since its 1994 implementation.
The GAO replied in February with the helpfully titled Financial Costs and Loss of Critical Skills Due to DOD's Homosexual Conduct Policy Cannot Be Completely Estimated.
This result was due to a variety of record-keeping factors, the most important being the lack of data for the Marine Corps. But the GAO was able to come up with some figures, namely that roughly 9,500 people have been booted out of military service under DADT. Those 9,500 accounted for roughly 0.4 percent of 2.37 million service members discharged for any reason since 1994. About 750 of those held critical jobs such as voice interceptor, data processing technician and interpreter/translator. About 320 of the total had skills in Arabic, Farsi and Korean.
In a study the following month, the GAO reported that recruitment was down for the early part of the 2005 fiscal year. The army missed its February recruiting goal by nearly 2,000.
"This is significant," according to the report, "given that the Army has also already called up members from the Individual Ready Reserve and moved new recruits from its delayed entry program into basic training earlier than scheduled."
The army was missing out on not just recruits but specialized recruits. As of November 2004, the navy was short more than 1,000 special divers; the air force was short 445 airborne cryptologists; and the army was short 490 health care specialists. Marine Corps data were not available.
Ultimately, the report warned that "the high pace of military operations combined with the level of casualties in Iraq and other factors such as lengthy overseas deployments have raised concerns about DoD's ability to recruit and retain sufficient numbers of personnel who possess the skills and experience needed."
The reports were enough for Meehan, part of the House Committee on Armed Services, to propose a law in March abolishing the ban on gays in the military. One hundred other legislators, including Sheila Jackson Lee, are co-sponsoring the bill.
Now might be a good time to clarify Don't Ask, Don't Tell, which would be better described as Don't Be Gay, as proffered by an attorney involved in Cook v. Rumsfeld.
Prior to 1993, the military decided that homosexuality was incompatible with military service. Therefore, potential recruits were asked upon application if they were gay. If they said yes, they were denied entry.
But shortly after he took office, President Bill Clinton announced his intention to end the gay ban and implemented an interim executive policy that suspended the up-front questioning of sexual orientation. Congress convened a series of hearings on whether gays were a threat to unit cohesion and privacy. Meanwhile, Clinton commissioned legal and military experts, most notably Northwestern University professor Charles Moskos, to draft a compromise, in case the plan to abolish the ban failed.
The result was a more antigay legislative and military stance than ever before.
What was previously a military policy banning gays from service suddenly became a federal statute. In the statute, Congress states that homosexuality is incompatible with military service. It goes on to define a homosexual as a person with a "propensity" to engage in homosexual conduct. Conduct includes stating that one is a homosexual, and engaging in any bodily contact that a "reasonable person would understand to demonstrate a propensity or intent" to satisfy same-sex sexual desires.
The statute explained that the presence of gays in the military "would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability."
The statute required the Department of Defense to implement regulations reflecting the law. In its "sense of Congress" statement, which is not part of the statute, Congress suggested that the DoD continue the interim policy of not asking about sexual orientation up front. This created a loophole allowing gays to covertly serve in the military, in direct violation of the law Congress had just created.
Clinton, Moskos and other supporters of the policy thought they had scored a coup by changing the military ban from one of orientation to one of conduct. The idea was that as long as two guys or two gals refrained from having sex in the middle of the barracks, they'd pretty much be left alone. Yet the statute's "propensity" clause ties orientation to conduct and makes it much easier for commanding officers to discharge alleged homosexuals.
Under the military's policy, the act of two people of the same sex holding hands can be considered akin to sodomy. So is saying "I am gay." It's up to the discretion of the commanding officer, so stories abound about the one who looks the other way and the one who investigates a woman who hangs up a Melissa Etheridge poster.
Those accused are provided the chance to prove they do not have a propensity to engage in homosexual acts. Because it is virtually impossible to prove a negative, much less to prove that something won't happen in the future, these defenses usually fail. The few known successful defenses hinge not on denying the statement, hand-holding, Etheridge-posting, etc., but on proving how hetero one is. One successful case, described in Janet Halley's 1999 book Don't, describes an accused homosexual who brought his wife before the review board to say how good her husband was in the sack.
The policy also allows what is known as the "queen for a day" rule. If an accused homosexual can prove that "such conduct is a departure from the member's usual and customary behavior," he or she can remain in service.
An illustration of what is known as DADT, then, is this: A male private is seen holding hands with a male civilian. The commanding officer now has reason to believe that his private has the propensity to sodomize the civilian. If it goes before a review board, the private's best bet is to bring in at least one woman to talk about what a masterful lover he is. Or, he could risk the queen-for-a-day loophole and say he had never before held any man's hand and never will again.
"I always paraphrase what Winston Churchill said about democracy," Charles Moskos says from his office at Northwestern University: "Don't Ask, Don't Tell is the worst system possible -- except for any other."
Moskos, 72, is the sociologist credited with drafting the 1993 military compromise.
"There are, like, three times in life where you're forced to live with people you might not otherwise choose. One is the military, the other is jail, and the third is freshman dorm," he says. He later adds, "Should privacy be respected? That's the question To force people of different sexual orientations to live in intimate quarters, to me, is wrong."
Moskos was drafted into the army in the late '50s, where he served under a "discreet" gay captain. He agrees with the idea that gays have always served in the military, often with distinction. But having straight and gay men share a shower is akin to having men and women lathering up together.
As he says, "Prudes have rights."
Moskos focuses on the privacy argument, as opposed to the "unit cohesion" argument, which theorizes that straight and gay service members cannot work well with each other.
Elaine Donnelly is one person who supports the unit-cohesion argument.
The Michigan resident created a Web site called the Center For Military Readiness to balance information issued by what she calls the "advocacy groups."
"No one has an inherent right to serve in the military," she says from her home, later adding that gays, like the infirm and the elderly, can "serve their country in some other way."
She says Congress recognizes that "if someone says, 'I am homosexual,' that means that they engage in the conduct that defines what homosexuality is. Again, it's that simple."
Again, it's not.
A policy that, in its strictest sense, discharges a virgin who says he's a homosexual while keeping a guy who says he's heterosexual but fellated half his company is anything but clear. That's why the Department of Defense issued a manual with a set of scenarios in 1993, supposedly to give service members the idea of what's homosexual behavior and what's not. The manual asks what you should do (and then tells you) if you see a service member "hanging around a downtown gay bar"; if you find a letter from one man to another signed "All my love, Sugar"; or if you see photographs of two men engaging in anal sex.
Eight years later, service members apparently were still befuddled, so the army tried explaining things in comic-book format. The 2001 pamphlet "Dignity & Respect" introduced Major Rivers, Private First Class Howard, Sergeant Williams and the rest of the gang, who maneuvered through different DADT scenarios.
The comic book explains the reasoning behind why homosexuality is not compatible with military service. This unit-cohesion argument, however, contradicted two federally financed studies indicating that recruiting openly gay service members would not be harmful.
A 1993 RAND study financed by the Department of Defense suggested that cohesion can be divided into two categories: social and task. Social cohesion -- a set of shared values or traits -- is wonderful, but is not necessary to achieve a common task.
"Task cohesion, not social cohesion, appears to be what drives successful performance," the study concluded.
The study acknowledged the military's "high levels of hostility toward homosexuals" at the time and stated that how well a unit accepted openly gay service members depended a lot on leadership. The report also suggested that instead of booting anyone out of service, you can always assign disruptive members to another unit.
A 1992 GAO report came to the same conclusion as the RAND study. That report cited an earlier study by the DoD itself that stated, "The order to integrate blacks was first met with stout resistance by traditionalists in the military establishment. Dire consequences were predicted for maintaining discipline, building group morale and achieving military organizational goals. None of these predictions of doom has come true."
Donnelly doesn't buy the race argument. As Colin Powell argued in 1993, Donnelly says, race is only skin-deep, whereas sexuality is a force to be reckoned with.
"Sexuality is a very powerful force in human relationships," Donnelly says. "The desire for modesty should be respected. The primary thing I will say is this: It's difficult enough to be in the military. It's difficult enough. And I do not agree with those who would impose this additional social burden on those who volunteer to serve."
Furthermore, she says, "acceptance of that agenda would hurt recruiting."
Stacy Vasquez knows recruiting.
The Dallas native was the top recruiter in her brigade at Fort Sam Houston for the first quarter of 2003. Her evaluation also shows she had the highest score in her company on the Army Physical Fitness Test.
"A top-notch NCO [noncommissioned officer] and leader prepared and destined for positions of greater responsibility," her company commander wrote of Vasquez in her February 2003 evaluation.
At the same time, she was under investigation for allegedly conducting a homosexual act. The civilian wife of a service member told Vasquez's commander she saw Vasquez kiss another woman at a club in Dallas. She sat idle for a few months until she was discharged. In 12 years of service, Vasquez was promoted seven times. She earned the Army Commendation Medal, Army Achievement Medal, National Defense Service Medal, Army Gold Recruiter Badge and Expert Marksmanship Qualification Badge with Grenade Bar, among other awards.
Like Cook, Vasquez grew up in a family with a strong military tradition. Her great-grandfather was a cavalry commander, her grandfather an air force colonel, and her father a navy SEAL in Vietnam. She joined when she was 17, before she realized her sexual identity.
The army paid for her tuition at the University of Houston, where she earned a degree in political science and interned for City Controller Annise Parker, who is openly gay. In the army, she worked as a paralegal and recruiter.
Upon her discharge, she joined the staff of the Servicemembers Legal Defense Network in Washington, D.C., which is representing Vasquez and the other plaintiffs in Cook v. Rumsfeld.
"I enjoy helping young people find good ways to pay for their education and get skills and stuff like that," the 33-year-old says from her D.C. office. "I think that the army does a great job at that I still have recruits that I'm in contact with now. One of my recruits just left for Iraq today."
Citing the Urban Institute's estimate of 65,000 gay men and women in the military today, she says, "I don't see the army collapsing right now."
Vasquez won't say if she kissed a woman. She will say that she was a great recruiter and that recruits are hard to come by these days.
But would Vasquez and Cook even be welcome if they won their suit?
While opponents of the gay ban cite anecdotal and obscure polls alleging an increasingly tolerant attitude among service members, the Congressional Research Service's May 2005 report relied on data showing otherwise.
In a 2005 Military Times survey of 1,423 subscribers, 65 percent said they opposed openly homosexual people serving in the military; 25 percent said they were for it; 9 percent had no opinion. According to a Times pollster, their subscribers are generally older, high-ranked career officers.
The numbers are nearly reversed in a 2004 CNN/Gallup poll of the general public: 63 percent were in favor of openly gay service members; 32 percent opposed; and 5 percent had no opinion.
People on both sides of the issue acknowledge that gays have always served in the military and are still serving. Gay witch-hunts have always been a concern and are technically easier under the current policy.
Halley, whose 1999 book Don't offers the most in-depth analysis of DADT, says the policy's selective enforcement creates a climate of suspicion. In the course of her research, she came across a commanding officer whose definition of homosexual propensity included short-haired women wearing black watches. You simply don't know who is going to be targeted when. Therefore, a good way to avoid suspicion is to be openly hostile.
"It's kind of mandated homophobia," Halley says from her home in Massachusetts. "Everyone has to ratchet up the degree to which they're not gay."
Proving how not gay you are has embarrassed the military in the past.
In 1919, under the auspices of Assistant Secretary of the Navy Franklin Delano Roosevelt, commanders at the Newport Naval Station in Rhode Island conducted a thorough investigation of alleged gays in their midst. It started out as a covert operation by Chief Machinist's Mate Ervin Arnold, without navy authorization.
According to Lawrence R. Murphy's account of the scandal in his book Perverts By Official Order,Arnold gathered a pool of potential volunteers in the basement of an X-ray room and told them their jobs would be to "obtain information and evidence pertaining to cocksuckers and rectum receivers and the ring leaders of this gang "
Their duties, if necessary, would include performing sexual acts with these men.
Strangely, Arnold had no trouble getting volunteers.
The undercover paramours were given pocket money, motorcycles and the opportunity to wear civilian clothes in trolling for their marks. Targets included a sailor nicknamed Speedy whose oral technique was so good he could "draw [a man's] brains down through his penis." Another sailor, known as Galli Gurci, was a "two-way artist" who could be "screwed in the rectum and take it in the mouth." Many of these trysts occurred in the base's YMCA.
When the undercover agents testified at the subsequent trials, they were able to prove better than anyone that these alleged homosexuals were in fact homosexual.
In his testimony against Maurice Kreisberg, Floyd Brittain said, "I know that Kreisberg is guilty of immoral practice, such as sucking pricks. My only experience with him is that he sucked me off."
Ultimately, 19 service members were discharged or court-martialed. News of the investigation never would have gone beyond the base if it weren't for the base commanders' idea to use the same tactics with civilians, including a popular local minister. After that, the Newport Naval Station gave up the cruising business.
Cook was raised in Lake Jackson and lives there today with his grandparents. He's studying nursing at Brazosport College.
Sometimes he and his grandfather will stay up all night swapping army stories they've told a hundred times before. They were both ground-surveillance intelligence: Cook in Kuwait and his grandfather in Lebanon.
When he was growing up, Cook's time was divided mostly between church and baseball. He played in a Little League team pridefully named the Astros.
"I was normally a pitcher or a catcher -- no pun intended," Cook says.
There was never any question that Cook would join the military. He grew up hearing the men in his family talk about their military days, and he wanted in. He signed up fresh out of Angleton High School because, he says, "I wanted to serve my country and do my American duty." It was April 11, 2001.
Back then, he didn't realize he was gay. That came up later, after battling the Southern Baptist fire-and-brimstone in the back of his brain. But he kept quiet and never had any problems until that day in the Mojave.
By that time, he had spent six months in Kuwait and earned an Army Achievement Medal. He says he knows it sounds weird, but he was looking forward to serving in Iraq.
When Cook's sergeant said he'd kill any crew member he found out was gay, it put Cook in a tough spot. If the sergeant found out Cook was gay, there could be trouble. However, reporting the threat would out Cook and he'd be discharged.
"At that point, it was kind of like [a] 'keep your mouth shut, you don't want to die' kind of deal," Cook says from Lake Jackson.
He stayed silent for a while but ultimately felt compelled to tell his commanding officer. Cook hoped for a transfer to another unit. Instead, he found himself telling his mother over the phone that he was gay and had now been discharged for it. He says his family stands beside him.
"My mother was proud of the reason why I was discharged and proud that I was willing to stand up and fight for it," he says. "My father was more worried that -- I live in a very, very conservative Southern Baptist environment down here in Lake Jackson -- and [he] was worried more for my safety."
Cook's parents, brother and sister declined interview requests.
"I think I gave them a whole new notion of what a gay person is," he says of his family. "They've always had this idea in their head of what a gay person is. I think that goes with a lot of Southern families."
Cook v. Rumsfeld offers a chance to continue the Cook family's military tradition. The chance is slim, however.
The outcome depends on whether the Boston district court feels the Lawrence decision applies to military life. According to the May 2005 Congressional Research Service, courts have almost always deferred to military policy. Moreover, a host of DADT cases have already failed on a variety of constitutional grounds.
Sharon Alexander, an attorney with SLDN, is cautiously optimistic. Mark Quinlivan, the assistant U.S. attorney defending the case, said he was not permitted to discuss pending cases but referred the Press to relevant transcripts and filings.
In a hearing July 8 on a motion to dismiss, Quinlivan argued that Lawrence was not applicable to military life and rattled off a list of court decisions upholding the military's policy. He also cited the unit-cohesion argument.
"When military service members are in battle, they do not fight necessarily because of love for country; they fight because after the cohesion of the unit has been built, they are standing there for the man or woman next to them, and fighting for that person, and they're not willing to leave them in battle," he said, according to the transcript.
There is no indication the Department of Defense will revisit the policy on its own. In his response to the GAO report on loss of critical skills since DADT, Under Secretary of Defense David S.C. Chu pointed out that far more service members have been separated from service for pregnancy, weight standards, serious offenses, parenthood and drug offenses.
Chu wrote: "The Department of Defense seeks to implement the federal statute concerning homosexual conduct in the military in a fair manner, treating every service member with dignity and respect."
In order to clarify that concept, copies of the "Dignity & Respect"comic book are available from the U.S. Department of the Army.
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