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CMR Sitrep
Tuesday, February 17, 2009
Pentagon Pressured to Support Gays in the Military

1. The Pentagon

Officials Should Read 2008 Military Times Poll

The third item in the Washington Times' February 12 "Inside the Ring" column mentions statements made by the Joint Chiefs of Staff on the matter of "Don't Ask, Don't Tell"---a policy that is constantly confused with the 1993 law stating that homosexuals are not eligible to serve in the military. Gen. Peter W. Chiarelli, Vice Chief of Staff of the Army, told reporters that it would be hard for him to provide with certainty any feel for how attitudes in the military have changed over time.

The general declined to give his personal views on the issue other than to repeat that he supports "the law of the land" as it now stands. He also said he was unaware of any studies or polling done to gauge opinions among members of the military. Gen. Chiarelli, it seems, missed the front-page January 5, 2009, Army Times story reporting results of the 2008 Military Times Poll.

As in previous years, the poll revealed that approximately 58% of respondents are opposed to efforts to repeal the "Don't Ask, Don't Tell policy." More importantly, a new question asked active duty subscriber/respondents what they would do if Congress repeals the 1993 law.

Seventy-one percent said they would continue to serve, but almost 10% said "I would not re-enlist or extend my service," and 14% said "I would consider not re-enlisting or extending my service." Only 6% expressed "No Opinion." These findings do not guarantee future actions, but all high-level Pentagon officials should be concerned about the potential loss of 10% - 24% of the volunteer force.

If the opinions of reserve and national guard troops are similar to those of active duty personnel surveyed in the Military Times poll, and if the poll's findings approximate the number of military people who would leave or consider leaving if the 1993 law is repealed, combined losses (including guard and reserve forces) would be huge.

-- A rough estimate using Defense Department numbers for all service branches and components, totaling more than 2 million, indicates that a loss of one in ten (almost 10%) would cost the military approximately 228,600 people---more than the active duty Marine Corps (200,000).

-- If an additional 14% decided to leave, the voluntary exodus would translate into a loss of almost 527,000---a figure approaching the size of today’s active duty Army (more than 545,000). Estimates of losses in active duty forces alone would range between 141,000 (10%) and 323,000 (23%).

The poll's findings are not an exact prediction, but they are significant and ought to be of concern to President Barack Obama, the Joint Chiefs of Staff, and members of Congress. Regardless of what it is called, repeal of the 1993 law, Section 654, Title 10, would devastate the volunteer force.

2. The Department of Justice

Opposition to Solicitor General Nominee Elena Kagan

On February 10, the Reserve Officers Association (ROA) issued a news release opposing the nomination of Harvard Dean Elena Kagan to become Solicitor General of the United States.

On the same day, members of the Senate Judiciary Committee reportedly asked questions of Dean Kagan about her willingness to defend the Solomon Amendment, a law mandating equal campus access for ROTC programs and military recruiters. It is disappointing, however, that the senators did not question her further about specific issues affecting the military.

The Solicitor General's office participates in the preparation of petitions, briefs, and other papers filed by the government in Supreme Court proceedings. In addition, the office reviews all cases decided adversely to the government in the lower courts to determine whether they should be appealed and, if so, which position should be taken.

In 2005 Ms. Kagan and 53 other law school faculty members filed an amicus brief supporting litigation asking the courts to declare the Solomon Amendment unconstitutional. The U.S. Court of Appeals for the Third Circuit agreed with that position, but the Supreme Court overruled on a unanimous vote.

The outcome of this case very likely would have been different if Dean Kagan had been the Solicitor General instead of a law professor endorsing a losing argument. Absent an appeal, the Third Circuit ruling would have nullified the Solomon Amendment by judicial fiat, without any review by the Supreme Court.

At her confirmation hearing Dean Kagan submitted a statement promising to vigorously defend the statutes of this country against constitutional attack, and to honor the principle of stare decisis with regard to previous Supreme Court decisions. Nevertheless, we need to know whether Kagan still endorses the amicus argument that the military is no different than other employers. If this is her view, will she respect Supreme Court precedents recognizing the principle of "deference" to the executive branch and Congress on matters of regulation and law affecting the military?

In view of the far-reaching powers invested in this office, members of the Judiciary Committee and the full Senate should ask more questions of Ms. Kagan to determine her legal philosophy with regard to the Solomon Amendment and other specific matters affecting the military. This is especially important since she has been mentioned as a possible candidate for nomination to the U.S. Supreme Court.

Enormous power should not be entrusted to an official whose judicial philosophy would do great harm to the all-volunteer force.

* * * * * * *

Interested readers, including members of the military, are invited to comment through the "Confidential Contact" site on this website, Nothing in the CMR SITREP Blog is intended to aid or hinder elections or the passage of legislation before Congress.
posted by CMR Editor @ 2/17/2009 02:02:00 PM

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