"Don't Ask, Don't Tell…Don't Kill?"

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Army Major Nidal Hasan / DoD photo

A soldier protests the gay ban at the White House / Getty









Two of the most vexing issues in today’s Army clash in the lead article of the latest issue of its senior professional journal: letting openly gay men and women serve in uniform, and the shooting, allegedly by Army Maj. Nidal Hasan, at Fort Hood that left 13 dead in November 2009.

The link between the two? When Congress scrapped the 1993 act ending “Don’t Ask, Don’t Tell” in December, it did so by tossing out a section of federal law containing the ban on homosexuals — along with other language that restricts the rights of U.S. troops. Junking all of that Section 654 of Title 10 of the U.S. Code frees soldiers to challenge the “good order and discipline” necessary to run a military force, the author argues. That will make commanders less able to challenge questionable behavior in the ranks like that allegedly exhibited by Hasan before the Texas rampage.

William Gregor, a professor of social sciences at the Fort Leavenworth, Kan.’s School of Advanced Military Studies, makes his case in the lead article of the just-released issue of Parameters, the Army’s top scholarly journal. Its title: The Death of Military Justice.

In the aftermath of the shootings, everyone, including Secretary of Defense Robert Gates, wondered why MAJ Hasan had not been disciplined or separated…[Gates ordered a review] to determine whether policies or procedural weaknesses make the military more vulnerable to attack. Unsurprisingly, the report concluded that the policies were generally adequate but that several officers failed to comply with them when taking actions regarding MAJ Hasan. The report noted that some medical officers based their evaluations solely on MAJ Hasan’s academic performance. His evaluation should have included observations of his total performance as an officer, academic and nonacademic. That recommendation is certainly consistent with current military law. Current law does not separate the servicemember into two persons—a private citizen and a public active duty officer. Unfortunately, since Section 654 was rescinded, the military will not have authority to assess an officer’s conduct if it does not occur in his or her place of duty. Servicemembers will assert that behaviors, including speech, that occur outside the duty place are beyond military jurisdiction.

Of course, many of Hasan’s alleged pro-radical Islamic outbursts came during classes at two Pentagon medical facilities, and several classmates complained of Hasan’s actions at the time to their professors, to no avail. But Gregor said Tuesday that the repeal of Section 654 of Title 10, which regulates the armed forces, would make kicking someone like Hasan out of the military more difficult, posing risks to his comrades.

“You look at indicators of the guy and you say — `Look, this guy is dangerous and we need to separate him'” from the Army, Gregor says. “Well, you have to have both jurisdiction over the speech, and the lawful authority to separate him on that suspicion.” Scrapping Section 654 takes away that power from military commanders, Gregor maintains. “There’s a tension in the military between the assertion of rights and maintaining good order and discipline,” he says. “And what’s happened by the blanket repeal of Section 654 is the main pillars of maintaining order have been removed.”

The 15 so-called “findings” contained in the original “Don’t Ask, Don’t Tell” law detail the legal peculiarities of military service, and include only two that refer to gays. But six of the others define the military-justice system. They were inserted to highlight Congress’s key role in setting rules for the military, and to defend the law against legal challenge on Constitutional grounds.  Now that they have been tossed out, U.S. military policies “regarding selection, retention, and discipline are subject to legal challenge or reinterpretation,” Gregor writes. In his 11-page article, he says that repealing Section 654 “will radically change the American system of military justice and discipline,” sending the U.S. military into “a litigious period of indiscipline” as “many servicemembers will claim their individual rights are protected from military rules.”

Not everyone agrees, of course. “It’s alarmist and incorrect,” says Eugene Fidell, a professor of military law at Yale Law School and president of the National Institute of Military Justice. The repeal of Section 654 doesn’t mean “that Congress was rejecting the findings of fact” it contained, Fidell says. “He’s trying to create a controversy where one really doesn’t exist.”

Parameters is published by the Army War College in Carlisle, Penn. It describes itself as “a refereed journal of ideas and issues [that] provides a forum for expression of mature thought on the art and science of land warfare…”