The secretary of defense and the chairman of the joint chiefs both endorsed the eventual repeal of the "don't ask, don't tell" policy at a Senate hearing on Tuesday. Since its implementation in 1994, more than 13,000 members of the armed services have been discharged for homosexual conduct. We know what happens to a soldier who tells about his sexual orientation, but what happens to one who asks?
Nothing. For most service members, it's not even against the rules. The "don't tell" half of the 1993 agreement between Congress, the president, and top military brass is a matter of federal law. The "don't ask" portion stands for a combination of military regulations and memoranda that ended the Pentagon's long-standing practice of asking service members about their sexual orientation during the recruitment and security-clearance processes. It also limited the conditions under which a commanding officer may investigate suspected homosexual conduct. But there is no provision in law or regulation that forbids a rank-and-file service member from asking a colleague whether he or she is gay. Superior officers, of course, retain the general authority to discipline subordinates who engage in inappropriate behavior—like harassing a peer with repeated accusations—but there is no record of a service member being punished for asking about homosexual conduct.
The phrase "don't ask, don't tell" was coined by sociologist Charles Moskos, who also fashioned the policy that went with it. (His original formulation was actually "don't ask, don't tell, don't seek, don't flaunt.") * Politicians and policymakers adopted the slogan because of its ring of reciprocity. In fact, asking happens all the time, usually without consequences for either party. Gay service members have been outed by colleagues who asked about their sexuality, and there is nothing to stop investigators from relying on that information in a discharge proceeding.
While the rank-and-file are free to ask about homosexuality, military rules require commanding officers to avoid the subject. So when can a commanding officer start making inquiries? He's not supposed to look into a soldier's sexual orientation without credible information—firsthand from a reliable source—that the soldier has engaged in a homosexual act, stated that he is a homosexual, or married someone of the same sex. The Pentagon notes that the following behavior does not constitute credible information: "going to a gay bar, possessing or reading homosexual publications, associating with known homosexuals, or marching in a gay rights rally in civilian clothes." Many commanders look the other way even when they have good evidence, and federal law expressly permits them to ignore confessions if they believe the soldier is lying about his sexuality to avoid military service, the way Cpl. Klinger from the 1970s series M*A*S*H feigned insanity to seek a discharge. *
Army regulations also limit whom an investigating officer can interview (PDF) during a sexuality investigation. He may speak only with the accuser, the accused, the commanding officers of the accused, and others who may have witnessed the offending act. To go further, the investigator needs approval from the secretary of the Army, which never happens. Still, the regulations do not prescribe punishment for overbroad investigations, and no officer is known to have been punished for witch-hunting. Prior to 1994, some commanding officers weeded out homosexuals by approaching a friend of the suspect and threatening to investigate him if he didn't out his friend. Today, zealously anti-gay commanding officers are limited to scanning Facebook pages for statements of sexual preference—a practice that has done in many closeted gay soldiers.
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Explainer thanks Eugene R. Fidell of the National Institute of Military Justice, Diane H. Mazur of the University of Florida, and David McKean and Aaron Tax of Servicemembers Legal Defense Network. Thanks also to reader Kelaine Conochan for asking the question.
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Correction, Feb. 8, 2010: This article originally mischaracterized the original phrasing of the policy as "don't ask, don't tell, don't flaunt." (Return to the corrected sentence.)
Correction, Feb. 10, 2010: The original version of this article suggested that Cpl. Klinger feigned homosexuality to obtain a discharge. In fact, Klinger hoped his superiors would view his transvestism as an indicator of insanity. (As it happens, the DSM classified homosexuality as a psychiatric disorder when the show first aired in 1972.) Return to the corrected sentence.