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Magazine / Civil Rights

Outing the Debate

An inside account of the struggle to end “don’t ask, don’t tell.”

Asking, telling: Gay-rights activists and gay veterans handcuffed themselves to the White House fence on November 15.(Alex Wong/Getty Images)

photo of Marc Ambinder
December 9, 2010

N2K: Unlikely Champions for Gay Rights

Barack Obama was in an unusually surly mood when he climbed into a thickly armored limousine. It was April 19, and the president had just finished a high-spirited rally with Democratic financial titans in Los Angeles. His speech had been interrupted by gay-rights demonstrators frustrated that the “don’t ask, don’t tell” ban on gays serving openly in the military was still in place.

Obama did not like the allegation that he and his staff were deferring the issue. Indeed, the idea infuriated the man whose election had been hailed as a watershed moment for integration and inclusion. It implied that Obama, the most progressive president since Lyndon Johnson, was lying when he said publicly and repeatedly that he intended to end the ban once and for all. It implied that the commander in chief was being rolled by the military, which many gay-rights activists felt had outmaneuvered the president.

 

Seated in the car, painfully aware that his boss was angry, was Jim Messina, Obama’s deputy chief of staff, the White House point man on don’t ask, don’t tell, and the target of many activists’ ire. Obama uttered a curse. “Messina, I don’t understand these guys. What is it about what we are doing that they don’t get? If they want to protest, they should go protest someone who was against this.”

In the Senate, as Obama knew, the votes to end don’t ask, don’t tell just weren’t there yet. But he strongly believed that they would be, once the Pentagon had completed its internal reckoning with the change—a militarywide survey of attitudes and opinions about integrating gay troops that was due at year’s end. That study came out last week, and it reported that integration of openly gay service members would be much less of a challenge than opponents had argued. Now, even if the Senate fails to end the ban, the policy is likely to crumble under assault in the courts.

THE FREEDOM AGENDA

By the time Obama was elected, ending the ban had become the most pressing symbolic issue for the organized gay-rights community—even though the policy’s demise would affect at most a fraction of gay people. About 14,000 gay men and lesbians had been discharged, and some 65,000 were currently serving their country in silence.

As he campaigned in 2008, Obama repeatedly promised to end don’t ask, don’t tell. He reiterated that pledge in his 2010 State of the Union address, even as the military’s service chiefs sat stone-faced in front of him. In public, he seemed to be a victim of circumstance and process. In private, he was trying to move a mountain.

During his transition to the presidency, when Obama first discussed the subject with Defense Secretary Robert Gates, whom he was courting to stay, Gates warned him that a quick reversal of the 1993 policy during a time of two wars would be difficult for the military culture and bureaucracy to take. But at his first meeting with Gates after Obama took office, the president raised the issue directly: “I want to repeal don’t ask, don’t tell, and I want your support,” he said, according to two officials briefed separately on the conversation.

Gates understood that it was an order, not a request. He responded by telling Obama how he had quietly worked to integrate gay case officers in the CIA in the early 1990s when he was the agency’s director under President George H.W. Bush. “But this is going to be different, Mr. President. We’re in the middle of two wars. We have to go about this very carefully,” Gates said. “I have real concerns with how it will work in the field.” (Gates would later repeat the CIA anecdote in public.)

Gates insisted on adhering to a schedule that activists deplored.

“So how do we do it?” was what Obama wanted to know. Gates told Obama he needed a process that would examine the issue from top to bottom, a process that would incorporate the views of as many service members as possible, a process thorough enough to inoculate the Defense Department against criticism that it ended the ban without carefully considering the consequences. Gates was also sending a subtle message: Executive action or court-imposed fiats would cause an open revolt among generals and admirals. The idea of getting the military on board appealed to Obama, and Gates committed himself to a process that would end don’t ask, don’t tell in a way that no future president could reverse.

The Defense secretary asked the president for time. He said he would work with Jeh Johnson, the Pentagon’s general counsel, to devise a way to get it done. White House officials saw that Obama and Gates were deepening the trust in their relationship, but they were especially placated by the role given to Johnson, who they believed would hold Gates to his promise. (Johnson has been active in Democratic politics for years and served as a counsel to John Kerry’s presidential campaign in 2004.) For a year, however, the Pentagon proposed no process; Gates was busy running two wars and working to reform the department at large.

As important as Gates’s steady support would turn out to be, Obama unexpectedly found that he would have no greater ally than the chairman of the Joint Chiefs of Staff, Adm. Mike Mullen. For Mullen, ending don’t ask, don’t tell would become a personal mission and a professional ambition.

Months before the transition, well before Mullen knew who would be president, an informal group of advisers suggested to him that if a Democrat were elected, the victor might consider repeal. In November 2009, the Joint Chiefs chairman put together a small working group and invited each service chief to send a representative. Anticipating that he would have to testify on the matter at some point early in the coming year, Mullen wanted to know everything that the Pentagon knew about don’t ask, don’t tell; he wanted a timeline of the events that led up to its enactment in 1993, and he wanted any studies or scholarly articles on the effect of a possible repeal.

One day in December 2009, Mullen mused to members of his personal staff that he “just can’t escape the conclusion that this has become an integrity issue for the troops,” according to someone who wrote down the comment. The military couldn’t inculcate truth-telling in its soldiers and then ask some of them to live a lie. But he still didn’t know what impact repeal would have on the armed forces. Mullen wouldn’t go public with his opinions just yet: The small interservice working group recommended a militarywide study.

The Pentagon didn’t know it at the time, but the nation’s most powerful gay-rights lobby was also proposing a study of sorts. During the presidential transition, the Human Rights Campaign sent a memo to the White House listing 100 changes—some of them banal, others consequential—that a Democratic president could propose to further the cause of civil rights for gays. Included was a proposal for a “commission” on don’t ask, don’t tell, which HRC believed was necessary “to give members of Congress some political cover,” a senior HRC official said. 

When House Speaker Nancy Pelosi met with gay-rights groups before Obama was inaugurated, a timeline for passing civil-rights legislation was agreed to. First would come hate-crimes legislation; then, a bill banning employment discrimination against gays; and then, don’t ask, don’t tell. The hope was to get all of it approved in one session of Congress. But these initiatives would prove to be tough sells in the Senate.

The economic crisis ended any possibility of getting it done quickly. And when the White House communicated with the gay-rights groups, officials kept mum about a timeline. The organizations were OK with that, but they began to worry about how much leverage Obama had over his executive branch. The Justice Department, run by Obama’s longtime pal Eric Holder, had issued an unusually strong brief in June 2009 defending the Defense of Marriage Act, a Clinton-era measure allowing states to ignore gay marriages from other states. Although the act initially attracted widespread support from Democrats, it had come to be seen as a rampart blocking gay-rights progress. Obama opposed the law but felt as president that he had to defend it as constitutional. “That was a screwup,” one of the administration’s top lawyers conceded in an August interview. “We could have done that much more carefully. Should have.”

Obama would occasionally raise don’t ask, don’t tell with Gates and Mullen, who indicated they were working on a process. In June 2009 at the Pentagon, Obama engaged the service chiefs, all of whom were opposed to repeal, and repeated his intention to end the ban. He promised to work with the Pentagon to ensure that the procedure was not disruptive, but he made it clear, according to White House and Defense officials, that he intended to move forward. Gates later told reporters that members of his staff were pursuing ways to introduce some “flexibility” into how the Pentagon enforced the ban.

Hate-crimes legislation passed the House in April 2009. It took a little longer to clear the Senate, but Obama signed it into law that October. Action on employment discrimination stalled, and the House got sidetracked by heath care. In the meantime, Obama installed as the secretaries of the Army and the Navy two people he knew supported repeal.

By the end of 2009, gay-rights activists were getting impatient. They thought they knew the plan—they assumed that the House and Senate would attach repeal legislation to the next fiscal year’s Defense authorization bills. But White House senior adviser Valerie Jarrett sent word to the groups: Obama would raise the issue during his State of the Union address, and the Pentagon was on board. “In the end,” Messina told National Journal this week, “I don’t think there was a way to 60 [votes] without a process and having the Pentagon involved.”

Messina and other White House officials assumed that Obama’s reassurance would be enough to soothe the concerns of activists. But more and more service members were being discharged—or were coming out on national television, and then being kicked out. High-profile political entrepreneurs, such as Lt. Daniel Choi, a translator discharged for his homosexuality, were ubiquitous on TV. In California, former Solicitor General Ted Olson, a Republican, joined the team fighting to declare the state’s ban on gay marriage unconstitutional.

On February 1 of this year, Gates and Mullen briefed Obama in the Oval Office on their plan and timetable. A report based on the militarywide survey would be released on December 1. Notably, it would also include, as an appendix, a plan to implement the expected repeal. Gates and Mullen were leaning forward, not backward. As the meeting broke up, Mullen motioned for Obama to look at the paper he was holding: It was the personally typewritten statement that Mullen planned to deliver the next morning during Senate testimony. “No matter how I look at this issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens,” Mullen intended to say.

That night, Jarrett called Human Rights Campaign President Joe Solmonese. “You are going to love what Gates and Mullen have to say tomorrow,” she told him. Solmonese begged for more details. “I can’t tell you just yet, but I promise … you will love it.” 

Jarrett was right—Mullen’s testimony was historic. The most senior military officer in the land was sharing his personal view: The ban was unfair, unjust, and even harmful. Some of the admiral’s advisers had urged him not to make the issue personal. But Mullen knew he would be asked for his opinion, so he decided to get that out of the way first and allow questions from senators to focus on implementation. Mullen noted that he didn’t know just yet how repeal would affect the troops, and he wanted to see the military working group’s report before he formally recommended repeal.

Gates’s presentation was more measured, but he left no doubt that he believed that if his process were followed, the ban could be ended with a minimum of distraction. Repeal seemed to be on track. “Irrespective of what happens on this issue, Admiral Mullen is a figure up there with Harvey Milk and Gavin Newsom in terms of importance to the gay community,” said Fred Sainz, a Human Rights Campaign vice president.

A panel led by Gen. Carter Ham, then the commander of U.S. forces in Europe, and Jeh Johnson began its work immediately. Ham was seen by many gay soldiers as sympathetic to repeal, but he insisted on maintaining neutrality and kept his views to himself. When I identified him as a supporter of repeal, in a story for The Atlantic, Ham took the unusual step of writing a reproachful e-mail, telling me, in effect, to mind my own business.

DERAILED

Still, the process did not go entirely smoothly. A collision of law, politics, and personalities nearly wrecked the whole thing. The Pentagon envisaged a two-year process: The review would end in December, and legislation incorporating its recommendations would be introduced in 2011. For its part, the White House had not yet adjusted for the possibility that Democrats might lose control of one or both chambers of Congress. A few weeks after Gates and Mullen testified, the Center for American Progress’s Winnie Stachelberg and David Smith met with Messina at the White House. They wanted to know how Obama planned to repeal don’t ask, don’t tell in a Republican House—and Messina didn’t have a good answer.

Gates insisted that the White House support his schedule, which would push repeal to a lame-duck session, at the earliest. Gay-rights groups, frustrated that action on employment discrimination had stalled in the House and worried that the White House wouldn’t commit to a timeline, asked Pelosi to bring a measure to repeal the ban to the floor more quickly. She agreed, and in April, Rep. Ike Skelton, D-Mo., the chairman of the House Armed Services Committee, wrote to Gates asking the Defense secretary—baiting him, really—to say whether he thought that repeal language attached to that year’s appropriations legislation would be helpful.

Gates’s response provoked a crisis. In the “strongest possible terms,” he said he opposed “any legislative action” that would jeopardize the Pentagon’s opportunity to “conduct a thorough, objective, and systematic assessment of the impact of such a policy change; develop an attentive, comprehensive plan; and provide the president and the Congress with the results.” The activists were convinced that Gates was just dressing up intransigence as a routine procedural hurdle, at the same time that relationships between the White House and some of the gay-rights groups had broken down.

From the start, Aubrey Sarvis, a hard-charging ex-Army infantryman who heads the pro-repeal Servicemembers Legal Defense Network, was convinced that the Pentagon plan was needlessly long and complicated, and he told Messina so. “I did not think you needed 10 months to undertake this type of analysis,” Sarvis said in an interview. “I was also concerned with the way the study was going to engage the force.”

Messina, in turn, became exasperated; he was tired of being portrayed as a villain sabotaging the process from within the White House. Obama had tapped him to lead the repeal effort because he expected Messina to get the job done. In one conversation, a frustrated Messina told Sarvis where he could stick it—and stopped inviting him to meetings.

SLDN was founded as a legal-aid service for gay soldiers. Sarvis’s temporary excommunication from the White House turned him into a grassroots hero, a role he assumed with relish. Assisted by an aggressive communications team, Sarvis aimed a bazooka at the White House, recruiting Lady Gaga to help generate public support for repeal. Suddenly, the group found itself a rival to the Human Rights Campaign, whose negotiating tactics were less confrontational. SLDN had captured the spotlight, and its in-your-face tactics alienated the White House as much as they provided sustenance to gay-rights bloggers and activists.

Messina became an antihero—the target of conspiracy theories holding that, far from being a force for repeal, he was secretly trying to undermine it. That notion escaped the confines of gay blogs and percolated into the wider sphere of Democratic activists, and it worried Messina. He was stung by the personal criticism, but he also wanted to run Obama’s 2012 reelection campaign and could not afford to alienate vocal, if not terribly influential, party supporters.

“I think it’s a fair criticism,” Messina would later say, “that I tend to get mono-focused, and I just want to win. And there’s coalition politics that I was naive about.” But to “Aubrey’s credit, he called me and said, ‘Let’s sit down and talk about it.’ He let me explain my position, and I think he got that we were not trying to game him.” Sarvis, who acknowledges the “friction” between the two men, now says they “work together” and that he “never doubted Jim Messina’s commitment to reform.”

BACK ON TRACK

Journalist Chris Geidner would describe what happened next as the “Four Days That Shook Don’t Ask, Don’t Tell.” A course correction was needed, Messina recognized, and he convened a series of meetings involving the White House, the military, the gay-rights groups, and lawmakers. The goal was to figure out a compromise, because the rights groups had persuaded Pelosi to permit a vote on repeal before the military’s report was ready. Gates and Mullen wanted language included in the legislation that would require them to certify that the repeal would not affect morale, retention, recruitment, or military effectiveness. In turn, they gave up control of the timeline, something they had jealously guarded.

The gay-rights groups believed they had extracted from the Pentagon a way for gay soldiers to give input on the ban without risking their jobs, though a senior Defense official disputes this, contending that the working group had contingency plans to make sure that gay soldiers would be able to talk confidentially. In turn, the measure’s congressional sponsors dropped language about discrimination that the Pentagon felt was incompatible with the way the military worked. The groups trusted this compromise because they trusted Mullen, whose testimony and personal commitment to the issue had moved them.

Grudgingly, the Pentagon watched as the House passed repeal language on May 28. In the Senate, however, election-year politics intruded: Republicans in favor of ending the ban sent word to the White House that there was no way they could support anything associated with the Democrats so close to the election. A mid-September vote to begin debate failed; no Republican broke ranks. A vote would have to wait until the lame-duck session of Congress.

On October 12, another thunderbolt: A judge issued a nationwide injunction against enforcement of don’t ask, don’t tell, reviving a long-dormant case first brought by activists in 2006. What followed was what one Pentagon official called “four weeks of frenetic chaos.” The Justice Department had an appeal ready by that afternoon, but the White House asked it to wait; Obama wanted to know whether he had other options. Some of his advisers wanted him to let the injunction stand, but his national-security team was adamant that the Pentagon would endure no uncertainty. So Obama let the Justice Department ask for a stay. Eight days later, the U.S. Court of Appeals for the 9th Circuit agreed to one. But in the intervening period, “we had eight days where gays served in the military, and the skies didn’t turn black and the earth didn’t open up,” a senior administration official said. (SLDN warned soldiers not to come out during this period, and so it’s hard to say whether any gays actually served openly.)

On October 22, Gates effectively stopped all don’t ask, don’t tell discharges by requiring that the politically appointed secretaries of the services sign off on every one. Since then, no service member has been discharged because of homosexuality.

If Gates’s personal views on the subject remain unknown, even to his aides, the report that came out on December 1 showed he had changed his mind over the year. Talking to the press on the day the report was issued, Gates called the don’t ask, don’t tell process “morally fraught,” and said that he was committed to “an approach that, to the extent possible, welcomes all who are qualified and capable of serving their country in uniform, but one that does not undermine—out of haste or dogmatism—those attributes that make the U.S. military the finest fighting force in the world.”

For Mullen, the day he read the report was the day his personal views became his professional obligation. And Messina fought a postelection effort by some Democrats to detach the ban’s repeal from the Defense spending bill. He succeeded. The working group report persuaded at least two Republican senators, Susan Collins of Maine and Scott Brown of Massachusetts, to back repeal. Which means there are more than 60 votes to pass don’t ask, don’t tell on an up-or-down vote.

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