17 February 2004

More Electioneering Over Sense

There was an interesting article today on the gays in the military issue today in, of all places, Newsday. The article discusses a number of flag officer who "came out" relatively recently. (Given the time lapse and Newsday's usual practices, for that paper it's "relatively recently.")

…Adm. John Hutson, 56, who was a judge advocate general — the top legal officer of any service — joined their open dissent. The former Navy officer, a heterosexual who has been married 35 years, asserted recently in an exclusive Newsday interview that "don't ask, don't tell" undermines core U.S. military values. "It exacts a huge cost in dignity and respect from gays, who are forced to conceal their true sexual identity," said Hutson, who ended a 28-year naval career several years ago to head the Franklin Pierce Law Center in Concord, N.H. "It also detracts greatly from the esteem in which our military has been held by the international community, many of whose members allow such people to serve."

Arnold Abrams, "Ex-Officers: Military's Gay Policy Outdated" (17 Feb. 2004) (emphasis added; fake paragraphing removed for clarity).

Now compare this to the clear misconduct going on at the Air Force Academy—heterosexual misconduct in the main—and ask yourself which kind of conduct is more harmful to the military: consensual sexual relations between adults or heterosexual rape? I spent the better part of a decade as a commanding officer, and never used the then-equivalent of AFI 36-3208 § 5G (enlisted, then known as AFR 39-10 ¶ 5-11(h)) or AFI 36-3207 § 1B (officers, then under AFR 36-12). I had too many problems with heterosexual misconduct in my units to waste effort on witch hunts.

Review of 10 U.S.C. § 654 is enlightening:

[(a)](2) There is no constitutional right to serve in the armed forces.

(3) Pursuant to the powers conferred by section 8 of article I of the Constitution of the United States, it lies within the discretion of the Congress to establish qualifications for and conditions of service in the armed forces.

(4) The primary purpose of the armed forces is to prepare for and to prevail in combat should the need arise.

(5) The conduct of military operations requires members of the armed forces to make extraordinary sacrifices, including the ultimate sacrifice, in order to provide for the common defense.

(6) Success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion.

(7) One of the most critical elements in combat capability is unit cohesion, that is, the bonds of trust among individual service members that make the combat effectiveness of a military unit greater than the sum of the combat effectiveness of the individual unit members.

*  *  *

(15) The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts 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.

These statements are all in the "findings of fact" part of the statute, which is virtually unreviewable. These findings of fact were made by persons who had never served in combat after stacked hearings. They would be thrown out by a court of appeals had they been made by a lower court. But what is most enlightening is the structure: it takes fourteen findings of fact before getting to that crucial fifteenth one. In argumentation, a chain of inference that long is usually a sign that some or all of the intermediate facts are known to the speaker as being of dubious value. For example, item 5 is a non sequitur — remove it from the chain and you've lost nothing. It is clearly an element of item 4, since the word "combat" implies "possibility of death or maiming". Instead, what this structure does is bury the controversial assertion —it doesn't even qualify as a "legal fact" — in the hope that eyes will glaze over before reaching it.

Yep. That kind of disingenuousness really improved my morale, enabled me to ensure good order, discipline, and unit cohesion, and helped create bonds of trust among individual service members. We're supposed to protect the Constitution against all enemies, foreign and domestic. So, by the terms of this statute, we have to consider that some of ourselves are the enemy. Whether those enemies are the ungodly homosexuals in the service or the moronic legislators is above the pay grade of most service members — but not above mine. I was a commissioned officer, which requires me to always ensure the lawfulness of orders I gave or followed. That did not always mean a formal legal review; but it meant a much more searching inquiry than that performed by William Calley and Ernest Medina.