During an appearance on Maddow’s show last month, Fehrenbach — who is still awaiting review of his case — said that he hoped that the military’s new “more humane” approach towards discharging gay and lesbian service members (unveiled by Defense Secretary Robert Gates in March of this year) would apply to his case. “As you know, those standards – some of the things you now see, my case meets all those standards. For instance, it was not credible information that was presented. It was not from a reliable source. And my chain of command did not take into consideration how that information was gained,” he said. “And then finally, it was clearly malicious intent involved by the person who outed me.”
But now, a new report from the Palm Center finds that the military’s new discharge rules don’t go far enough — at least not in the case of Fehrenbach, who was discharged within the jurisdiction of the 9th circuit court:
If the Pentagon discharges Lt. Col. Victor Fehrenbach without showing that he undermined his unit’s readiness, this would violate the 9th Circuit Court of Appeals decision in Witt v. Department of the Air Force, according to a new report. The 2008 Witt decision holds that gay and lesbian service members cannot be discharged on the basis of the claim that homosexuality generally is detrimental to unit effectiveness. Rather, the Pentagon must show that a service member undermined his or her unit if that individual is to be discharged under “don’t ask, don’t tell.”
The Witt decision applies only to service members based in the 9th Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Mariana Islands. At the time that he was reported for being gay, Lt. Col. Fehrenbach was stationed in Idaho. Defense Secretary Robert Gates said on February 2, 2010 that the Pentagon would “devise new rules and procedures in light of the appeals court decision in Witt versus the Department of the Air Force for the areas of the country covered by the appellate court.” Such regulatory revisions, however, have not been forthcoming.
The Witt decision, which came down on May 21, 2008, established a new constitutional standard for enforcing the ban against openly gay and lesbian servicemembers. “The Ninth Circuit was required to reassess the constitutionality of the policy in light of the United States Supreme Court decision in Lawrence v. Texas, 539 U.S. 558 (2003),” which ruled that “the Constitution protects the liberty of all persons, gay and straight, to enter into private, intimate relationships without interference of the government, unless there is sufficient justification for government regulation.”
Witt concluded that DADT might not meet the heightened standard of review used in cases involving constitutionally protected liberties and established a new rule for DADT discharges. Under these new rules — which the Pentagon has yet to enforce — the military must “demonstrate that the individual ‘undermined good order and discipline’ in his or her unit and that “the only way to preserve good order and discipline was to separate Maj. Witt, and that no lesser remedy, such as a single standard of appropriate conduct for gay and straight servicemembers, could satisfy the military’s needs.”
Prior to the Witt decision, the military could discharge individuals “regardless of whether the statements or conduct affected good order and discipline in the service member’s unit.” “The law allowed the military to rely on a general, hypothetical assumption that the presence of known gay service members automatically undermined military effectiveness, regardless of whether that actually occurred in any specific case.” As Matt Duss pointed out, given the millions of dollars spent on training servicemembers like Fehrenbach, this is the equivalent of “flushing tens of millions of dollars down the toilet.” Since 1994, the military has discharged more than 13,000 members at a cost to the taxpayer of some $363.8 million. And so long as the Pentagon continues to ignore the Witt precedent, the military will go on burning money and ruining lives.