[Senate Hearing 105-767]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 105-767


 
  ARE MILITARY ADULTERY STANDARDS CHANGING? WHAT ARE THE IMPLICATIONS?

=======================================================================

                                HEARING

                               before the

 SUBCOMMITTEE ON OVERSIGHT OF GOVERNMENT MANAGEMENT, RESTRUCTURING, AND
                        THE DISTRICT OF COLUMBIA

                                 of the

                              COMMITTEE ON
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED FIFTH CONGRESS

                             SECOND SESSION

                               __________

                            OCTOBER 7, 1998

                               __________

      Printed for the use of the Committee on Governmental Affairs


                               


                   U.S. GOVERNMENT PRINTING OFFICE
 51893cc                  WASHINGTON : 1998
_______________________________________________________________________
            For sale by the U.S. Government Printing Office
 Superintendent of Documents, Congressional Sales Office, Washington, DC 20402


                   COMMITTEE ON GOVERNMENTAL AFFAIRS

                   FRED THOMPSON, Tennessee, Chairman
WILLIAM V. ROTH, Jr., Delaware       JOHN GLENN, Ohio
TED STEVENS, Alaska                  CARL LEVIN, Michigan
SUSAN M. COLLINS, Maine              JOSEPH I. LIEBERMAN, Connecticut
SAM BROWNBACK, Kansas                DANIEL K. AKAKA, Hawaii
PETE V. DOMENICI, New Mexico         RICHARD J. DURBIN, Illinois
THAD COCHRAN, Mississippi            ROBERT G. TORRICELLI, New Jersey
DON NICKLES, Oklahoma                MAX CLELAND, Georgia
ARLEN SPECTER, Pennsylvania
             Hannah S. Sistare, Staff Director and Counsel
                 Leonard Weiss, Minority Staff Director
                       Lynn L. Baker, Chief Clerk

                                 ------                                

SUBCOMMITTEE ON OVERSIGHT OF GOVERNMENT MANAGEMENT, RESTRUCTURING, AND 
                        THE DISTRICT OF COLUMBIA

                    SAM BROWNBACK, Kansas, Chairman
WILLIAM V. ROTH, Jr., Delaware       JOSEPH I. LIEBERMAN, Connecticut
ARLEN SPECTER, Pennsylvania          MAX CLELAND, Georgia
                      Marie Wheat, Staff Director
      Laurie Rubenstein, Minority Staff Director and Chief Counsel
                     Esmeralda M. Amos, Chief Clerk


                            C O N T E N T S

                                 ------                                
Opening statement:
                                                                   Page
    Senator Brownback............................................     1
Prepared statement:
    Senator Cleland with attachments.............................    85

                               WITNESSES
                       Wednesday, October 7, 1998

Elaine Donnelly, President, Center for Military Readiness, and 
  Former Member of the Defense Advisory Committee on Women in the 
  Services (DACOWITS) and the Presidential Commission on Women in 
  the Armed Forces...............................................     3
Daniel R. Heimbach, Former Deputy Assistant Secretary of the Navy 
  for Manpower...................................................     7
Lieutenant Colonel Robert L. Maginnis (U.S.A. Ret.), Director, 
  Military Readiness Project, Family Research Council............    11

                     Alphabetical List of Witnesses

Donnelly, Elaine:
    Testimony....................................................     3
    Prepared statement with attachments..........................    23
Heimbach, Daniel R.:
    Testimony....................................................     7
    Prepared statement with additional comments..................    35
Maginnis, Lt. Col. Robert L.:
    Testimony....................................................    11
    Prepared statement with attachments..........................    46

                                Appendix

Letter to Senator Brownback from Elaine Donnelly, dated Nov. 2, 
  1998, with an attached article.................................   100


  ARE MILITARY ADULTERY STANDARDS CHANGING? WHAT ARE THE IMPLICATIONS?

                              ----------                              


                       WEDNESDAY, OCTOBER 7, 1998

                                       U.S. Senate,
         Oversight of Government Management, Restructuring,
                      and the District of Columbia Subcommittee,   
                        of the Committee on Governmental Affairs,  
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:01 p.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Sam 
Brownback, Chairman of the Subcommittee, presiding.
    Present: Senator Brownback.

             OPENING STATEMENT OF SENATOR BROWNBACK

    Senator Brownback. Good afternoon. The hearing will come to 
order. I would like to welcome everyone here today. I 
appreciate our distinguished panel of witnesses who took the 
time to be here with us and look forward to your testimony.
    I would note for the record that we are starting only 1 
minute late, which is about 10 minutes early by Senate standard 
time, so we are going to be going a little bit faster than 
normal. We may have a vote here fairly soon and we will have to 
take a short recess.
    At the end of July, the Secretary of Defense announced that 
he was directing the services to clarify the Manual for Courts 
Martial (MCM) provisions relating to adultery. I was 
immediately concerned because in the Pentagon's effort to 
clarify, I believed that they might instead muddy the waters 
for those commanders who would eventually have to use these 
guidelines in making real-life determinations of misconduct.
    America's military is the best in the world. Just last 
week, the Senate passed a $250 billion appropriation bill for 
the Department of Defense. We try to give the military the best 
technology and resources available. However, dollars and cents 
cannot buy the qualities most needed in our soldiers. Those are 
honor, integrity, and self-sacrifice.
    Our soldiers voluntarily subject themselves to unique 
hardships and duties. The demands placed upon them require a 
level of trust, fidelity, and responsibility that far surpasses 
that of civilian society. When our armed forces are in harm's 
way, the moral authority of the commanding officer and the 
trust of his or her troops is literally a matter of life and 
death.
    Therefore, proposals that punishment for adultery be 
reserved for cases in which adultery is ``directly prejudicial 
to good order and discipline'' are, I believe, misguided. 
Meting out punishment based not on the act of adultery but on 
others' response to the act sends the dishonorable message that 
as long as infidelity is secret, it is OK.
    When these new standards were first promulgated, we were 
told that they were introduced in part to address a perception 
that enlisted troops may be subjected to different standards in 
the enforcement of the military prohibition against adultery 
than officers. Certainly, enforcement of the prohibition 
against and the punishment of adultery must be equitable and 
consistent. There should not be--indeed, there must not be--
distinctions drawn on the basis of rank, race, gender, or any 
other grounds. But I am thus concerned that the proposed 
changes to the Manual for Courts Martial make the possibility 
of favoritism and double standards in enforcement more likely 
rather than less.
    These new guidelines leave enforcement open to subjective 
judgments about which cases of infidelity disrupt good order 
and discipline and which do not. Such false distinctions are, 
by nature, discriminatory. They shift the focus of military 
discipline from whether adultery occurred to the manner in 
which those responded to its occurrence. Decisions should be 
made by the rule of law and the weight of the evidence, not by 
reaction, rumor, or public opinion.
    Back in August, I let Secretary Cohen know my concerns with 
the proposed changes to the Manual for Courts Martial through 
conversations and correspondence. He assured me that these 
proposed changes are not designed or expected to make it more 
difficult to prosecute at court martial those cases of adultery 
that warrant disposition at that level.
    Today, I want to take a closer look at those guidelines. I 
want to examine what these guidelines mean in a practical 
sense, what they mean to the commanders who will have to 
enforce them, what they mean to the officers and enlisted folks 
who will have to live by them. Are these changes clarifying or 
do they, in fact, make it easier for a commander to let someone 
off because the effects of the offense were on immediate, 
obvious, and measurably divisive. Will the popularity of the 
officer or the reaction of his colleagues to the act of 
infidelity bear more weight in determining justice than the 
facts of the case? Will these new rules be used as a technical 
tool for lawyers to prove why certain violators cannot be 
prosecuted because their conduct did not indirectly or remotely 
impact order and discipline? Is the military's new policy on 
adultery that of ``no harm, no foul''?
    We serve no one by allowing our military standards to 
become arbitrary or subjective. In matters of duty, honor, and 
country, the best standards are the simplest. Our goal must be 
to seek the fair enforcement of the high military standards of 
commitment and fidelity. I believe it is imperative for us to 
examine these questions before these guidelines are permanently 
adopted by the Department of Defense and I look forward to 
exploring these questions with our witnesses here today.
    We have a distinguished panel and I look forward to hearing 
your comments. Joining us today for our panel are Ms. Elaine 
Donnelly, Dr. Daniel Heimbach, and Colonel Robert Maginnis.
    Ms. Donnelly is a former member of the Defense Advisory 
Committee on Women in the Services and was also appointed to 
serve as a member of the Presidential Commission on Women in 
the Armed Forces. She is currently serving as President of the 
Center for Military Readiness, an independent education 
organization that concentrates on military personnel issues.
    Dr. Heimbach is the former Deputy Assistant Secretary of 
the Navy for Manpower. He is a 1972 graduate of the U.S. Naval 
Academy and a Vietnam War veteran. He is currently a professor 
of ethics.
    Lieutenant Colonel Robert Maginnis retired from the Army in 
1993 after an assignment in the Pentagon, where he served as an 
Inspector General. He was an Airborne Ranger, infantry officer, 
with an assignment history that includes Korea, Germany, and 
others. He currently serves as the Director for the Military 
Readiness Project at the Family Research Council.
    I thank you all for being here and I look forward to your 
testimony. I think with that, Ms. Donnelly, we will start with 
your testimony. You can summarize if you would like. We can put 
your full statement into the record. Please proceed however you 
would like, and we thank you very much for joining us.

TESTIMONY OF ELAINE DONNELLY,\1\ PRESIDENT, CENTER FOR MILITARY 
READINESS, AND FORMER MEMBER OF THE DEFENSE ADVISORY COMMITTEE 
   ON WOMEN IN THE SERVICES (DACOWITS) AND THE PRESIDENTIAL 
            COMMISSION ON WOMEN IN THE ARMED FORCES

    Ms. Donnelly. I have a shorter version of my statement, and 
thank you very much. I appreciate your opening statements also, 
Chairman. Your comments are well taken.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Donnelly appears in the Appendix 
on page 23.
---------------------------------------------------------------------------
    The proposed changes that we are seeing now that are in the 
Federal Register for public comment do not appear to be a 
radical departure from the previous standard and the previous 
rules that were in effect, but my organization, the Center for 
Military Readiness, remains concerned. CMR, by the way, is an 
independent public policy organization and we specialize in 
military personnel issues.
    We are concerned that expectations have been raised that 
the rules regarding adultery have been or will be relaxed. 
Without some firm steps to counter that perception, it will 
become a self-fulfilling prophesy. Our concerns are heightened 
by several circumstances and current events.
    I became aware recently by means of a Freedom of 
Information Act request, a FOIA request, that in the process of 
formulating this policy, the Pentagon official responsible for 
organizing statements on it, General Counsel Judith Miller, 
solicited advice from outside groups. I just had a hunch that 
perhaps this was happening and that is why I filed the FOIA 
request. I only recently got a response.
    What we have here is a collection of feminists, 
homosexuals, and extremely liberal organizations, such as the 
ACLU, the National Organization for Women, the National Women's 
Law Center, and the Service Members Legal Defense Network. All 
of them were invited to formulate policy on this sensitive 
issue of adultery. The tax-funded DACOWITS Committee, of which 
I am a former member, was also invited to have a meeting with 
the Task Force on Good Order and Discipline.
    Now, on the ideological spectrum, these groups go all the 
way from A to Z. Judging from the statements they filed, all of 
these groups are--well, they are nearly unanimous in 
recommending that the adultery rules either be scrapped or 
weakened significantly. Most were outspoken supporters of the 
former Air Force Lieutenant Kelly Flinn, who lied and disobeyed 
orders to end an affair with the husband of an enlisted woman. 
That was the big controversy of last year, of course.
    None of them appear to be representative of the many 
military women who were appalled by Kelly Flinn's behavior. Nor 
do they represent the military families who expect official 
support during long separations from their spouses. Virtually 
all of them recommend adoption of civilian codes of conduct and 
enforcement procedures, even though most of their 
recommendations would undermine the commander's authority under 
the Uniform Code of Military Justice.
    Instead of soliciting the views of people who actually send 
their sons and daughters to serve in the military, the Defense 
Department has turned for advice to a post-modern ``get real'' 
crowd, if you will. This is an elitist bunch and they almost 
uniformly believe that the Pentagon should lighten up on 
antiquated rules, as they put it, and endorse the view that 
private sexual behavior, including, I might add, homosexual 
behavior, is no one else's business. To this group of people, 
consensual extramarital relationships in the military, or in 
the Oval Office, for that matter, are no big deal. All that 
matters, they say, is that people perform their jobs.
    Conspicuously missing from the list are major women's 
groups, veterans' and public policy organizations that support 
the laws designed to preserve good order and discipline in the 
military. I am talking about the American Legion, the Veterans 
of Foreign Wars, Independent Women's Forum, the Family Research 
Council, Concerned Women for America, the Heritage Foundation, 
and my own organization, the Center for Military Readiness. We 
do not even have the professional societies here, the 
Association of U.S. Army, the Naval Institute, the Air Force 
and National Guard Associations, Navy and Marine Corps Leagues. 
None of them were specifically invited to participate in this 
process before the proposal was finalized.
    The question becomes, why? Why would we have people saying 
nothing is going to change, after they originally said they 
were going to change, and yet these groups have been involved 
in the process all along? My concern is that because of this 
insider influence within the Pentagon, what is important is not 
so much the actual words of the proposal, the law itself or the 
Manual for Courts Martial. What really matters is who decides 
what the words mean, and we have seen this process before on 
the issue of homosexuals in the military.
    It is the kind of thing that is very disturbing because you 
cannot really put your finger on it. It is hard to find out 
what is going on. It appears that this exercise is not just 
about adultery. It is about an agenda. Avatars of the sex 
without consequences revolution should not be in a position to 
set policy on an exclusive insider basis. We have some people 
who do not even know what the word ``is'' is, so words matter. 
And if people can change the meaning of words at will, it is 
very disturbing for the future of the military, which brings me 
to the example set by the Commander in Chief.
    There has been a lot of talk about this lately. The outcome 
of Congress' debate on impeachment will have a direct and 
profound effect on disciplinary rules and the culture of the 
military. The reason is that the President is not subject to 
the UCMJ but he is the ultimate role model for troops under his 
command. He is responsible for enforcing the military law. He 
signs the order when somebody is disciplined. If the 
President's behavior is considered acceptable by Congress, it 
would set a new, lower precedent for everyone in uniform.
    One of the cases cited in the Manual for Courts Martial, 
called United States v. Butler, suggests that military 
standards of conduct are tied to shifting public opinion and 
declining civilian morals. In a statement sent to me by 
Professor William Woodruff of Campbell University that analyzes 
this opinion, he says, ``Parts of the judge's decision makes it 
clear that what makes adultery service discrediting is not the 
fixed star of a permanent moral standard but a comparison with 
current values and morals of the larger civilian community. 
This suggests that the phrase `service discrediting' lies in 
the eye of the beholder, with the beholder in this case being 
larger society. The implication is that what brought discredit 
upon the military in the past may no longer do so today or 
tomorrow.''
    So Congressional tolerance of the President's behavior 
could, and probably would, be cited as credible evidence that 
the civilian morals have shifted downward. From there, it is a 
very short step to say that the military should follow the 
trend set by the Commander in Chief. That would have a 
devastating effect on discipline, which is the basis of 
military culture. Such an outcome is virtually certain if 
outside liberal groups, such as the ones that I have 
mentioned--the sex without consequences crowd--are given the 
exclusive opportunity to interpret the meaning of the law.
    This would be consistent with a goal that we are hearing an 
awful lot about in military press and academic circles. That is 
the idea that the military should become more like the civilian 
world. It is a phrase that is coming up more and more 
frequently lately.
    Back in July, you may recall the front-page story about 
this issue in the Sunday New York Times. This was a major trial 
balloon. Something does not appear on the front page of the 
Sunday Times unless somebody wants it there. In this case, the 
Times quoted unnamed Defense Department sources. According to 
this story, the task force was going to come out with a 
proposal saying that penalties for adultery should be reduced 
and DoD should recognize that the military world should not 
really be that different from the civilian.
    Well, the trial balloon drew immediate fire, not just from 
my organization. The Marine Corps and many columnists joined 
in. Many people, including myself, said it looks like President 
Bill Clinton is about to impose his peculiar moral code on the 
armed forces. This obvious double standard between the behavior 
of the President and the troops under his command is a thorn in 
the side of the White House. But no one expected that an 
attempt would be made to close the ``misconduct gap,'' if you 
will, by bringing the armed forces down to the President's 
level.
    Fortunately, the trial balloon was shot down. DoD pulled 
back. The proposal they came out with was not as extreme as we 
feared. They did not recommend changes in the actual law but 
just in the Manual for Courts Martial. The new elements of 
proof which enforce the UCMJ, would have new elements added to 
them.
    Senator Brownback. Ms. Donnelly, I am going to have to 
leave in about 2 minutes, if there is a way you could maybe 
summarize at this point and then we will go into a short recess 
while I go over to vote and then I will be coming back.
    Ms. Donnelly. OK. That will be fine.
    Under these factors that are added, there are at least nine 
factors in determining the level of discipline. As you said, 
does it actually make things clearer or does it muddy the 
waters? I would suggest it would probably muddy the waters, 
because with that very specific language, adultery will not be 
punished unless it brings major discredit, unless it causes 
major disruption.
    How is a commander supposed to prove that if the case of 
Kelly Flinn was treated as if it was something different, when 
it really was not? That should have been an open and shut case. 
But the Air Force lost in the court of public opinion because 
they allowed a media circus to ensue. There was a public 
relations firm involved. They led people to believe that there 
was something unusual or something special about Lt. Flinn's 
lying about an affair with another officer. If commanders think 
they have to meet that same standard before they even begin 
procedures, I think we have raised the bar quite a bit.
    Another case is Syracuse, which is described in my 
statement. The ``Boys from Syracuse'', a New York National 
Guard F-16 unit, was virtually destroyed because of an 
adulterous relationship involving a female pilot and one of her 
instructors, a superior officer. Later, a romance between the 
two was admitted, but it was very disruptive in that unit, and 
when the commander tried to enforce the rules, guess what? He 
was punished. Eleven others were punished. The woman involved 
was not punished. It was so outrageous that the men involved 
put 150 medals on the steps of the U.S. Capitol here earlier 
this year to protest their shabby treatment.
    If that kind of a situation was not subject to the rules as 
they are or as they are supposed to be, well, what are future 
commanders supposed to do?
    Questions about Major David Hale also raise some issues 
that I think we need to look at, and statements made by 
Secretary Cohen on television when he was asked three times by 
Tim Russert--what about the comparison of the President's 
behavior with the troops--and the Secretary of Defense could 
not even answer those questions. He could not give a straight 
answer regarding any general involved in similar relationships 
with junior women or a single junior woman, comparable to a 
President with an intern. Why did he not just say that is wrong 
and say that that is the way the rules should be seen in the 
military? Instead, he hemmed and hawed. The transcript is in my 
statement.
    Is it any surprise that we already have a Marine sergeant 
writing to the President and saying, ``Yes, I am convicted of 
adultery and fraternization as a junior Marine, but look, I am 
asking for a Presidential pardon, Mr. President. My situation 
is just like yours.''
    We are already seeing a lowering of the standard. 
Regardless of how that particular case is settled, just the 
fact that questions are being raised now shows, as you said 
earlier, that we need to say something and we need to say it 
firmly so that the issue is cleared up.
    I have several suggestions that I have in my statement. 
Perhaps when you come back we can go into those.
    Senator Brownback. Let us do those when I come back. There 
will be a 15-minute recess while I go over to the floor and 
back, so we will resume at about 2:35. If I can get back 
sooner, we will start sooner.
    We are in recess until about 2:35. Thank you.
    [Recess.]
    Senator Brownback. Thank you all for your patience while I 
was gone. I apologize for having to leave to go vote, but it is 
the sort of duty we are called to and I hate to miss any votes.
    Let us go on, then, Ms. Donnelly. I think we will go ahead 
to Dr. Heimbach, if we could. What we are looking at here and 
what we want to study and focus on are the impact of these 
changes on the military and if there are problems with the 
proposed changes or things we should be concerned about with 
the military. If you could mostly confine your comments to that 
category, of its impact on the military and suggestions you 
might have or concern areas you think we ought to watch, I 
would appreciate it.
    Dr. Heimbach, thank you for being with us.

  TESTIMONY OF DANIEL R. HEIMBACH,\1\ FORMER DEPUTY ASSISTANT 
               SECRETARY OF THE NAVY FOR MANPOWER

    Mr. Heimbach. Thank you very much, Chairman Brownback and 
Members of the Subcommittee. I appreciate the opportunity to 
address you. I am Dan Heimbach, and as the Chairman said in his 
opening remarks, former Deputy Assistant Secretary of the Navy 
for Manpower, and that is active duty manpower. That was under 
the Bush administration. I have also served as a commissioned 
officer in the U.S. Navy and am a veteran who served in the 
Vietnam War.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Heimbach appears in the Appendix 
on page 35.
---------------------------------------------------------------------------
    We are focusing today on whether changes in military 
adultery standards proposed by the Clinton administration 
Department of Defense really are significant or not, and I will 
do my best to stay narrowly focused on just this issue. Of 
course, we could focus discussion on whether the changes 
proposed are addressing a real need or we could focus on 
whether the changes proposed are beneficial or hazardous, but 
views on these last two questions are very much affected by how 
we answer the first question regarding significance. I will 
argue here that the changes being proposed to military adultery 
standards are highly significant and that the nature of the 
stakes involved require strong opposition to their 
implementation.
    Do the changes proposed matter? Will they make any 
significant difference? The Clinton administration claims there 
is no cause for alarm. The changes proposed really do not 
amount to anything that matters. But, their own actions belie 
the disposition they urge others to adopt. If the changes 
proposed are inconsequential, if they have no real 
significance, then why is the administration defending its 
proposal so strongly? If it affects nothing that really 
matters, then why has the administration invested so much time, 
energy, and expense defending these changes before the Congress 
of the United States?
    The actions of the administration clearly demonstrate that 
it is convinced there are critical stakes involved and that it 
is determined to achieve them by amending military adultery 
standards. So if the administration does not believe its own 
rhetoric, why should we?
    Although Secretary Cohen claims, ``There will be no 
lowering of military adultery standards,'' the changes proposed 
by the Department of Defense in the Federal Register will 
certainly lower adultery standards in at least three critically 
important ways.
    First, by reversing the relationship of disciplinary 
standards to morale and cohesion by ordering a standard of 
discipline so that it follows as a result of poor morale and 
failing cohesion when, in fact, good morale and strong cohesion 
are never produced except as the result of well-enforced 
discipline.
    Second, by shifting the way a punishable offense is defined 
by moving the nature of the offense away from matters of 
objective fact, that is, whether the act occurred or not, and 
toward matters of subjective interpretation, that is, how 
others feel about it.
    And third, by replacing a fixed standard with one that 
varies over time and from place to place, depending on the 
vacillations of public opinion.
    In other words, the changes proposed by the administration 
abandon the idea that adultery is always a dishonorable act 
that is inherently opposed to the sort of moral discipline and 
personal character required of every military service member 
under all circumstances. In place of this approach, the 
administration seeks to substitute disciplinary guidelines 
derived from the idea that adultery involves no actual offense 
unless enough other people can be found to say they have taken 
offense.
    These are general criticisms. I will now point out a few 
places in the language of the administration's proposal, as 
published in the Federal Register, that demonstrate the 
criticisms just described.
    One, as proposed, subparagraph (c)(2) states, ``To 
constitute an offense under the UCMJ, the adulterous conduct 
must either be directly prejudicial to good order and 
discipline or service discrediting.'' Stated this way, the new 
language redefines the offense involved by locating the offense 
for which punishment is deserved, not in the act of adultery 
itself, but in the impact it may or may not have on the 
perceptions and feelings of others under some circumstances.
    Two, as proposed, subparagraph (c)(2) alters the term 
``prejudicial of good order and discipline'' by inserting 
``direct'' as a qualifier, and other changes are made regarding 
the meaning of service discrediting. If these changes are made, 
then no longer will all acts of adultery be deemed prejudicial 
or detrimental to the good order, discipline, and reputation of 
the armed forces. Rather, they will codify a new legally 
protected category of adultery in which military members will 
be allowed to engage so long as it does not become ``directly 
prejudicial'' and does not sufficiently ``injure the reputation 
of the armed forces.''
    Third, as proposed, subparagraph (c)(2) defines directly 
prejudicial acts of adultery as ``conduct that has an immediate 
obvious and measurable divisive effect on unit or organization 
discipline, morale, or cohesion.'' This wording, if 
implemented, will mean that service members will rarely, if 
ever, be convicted of any adultery that is deemed ``directly 
prejudicial.'' The standard to secure conviction is almost 
entirely subjective and measures factors that, while meaningful 
in conceptual form, are notoriously difficult to quantify. 
These realities are observable only by their impact over time 
and are nearly impossible to assess by trying to find the 
immediate effects of a single act.
    How shall we quantify units of depressed morale or 
weakening cohesion? How long should a commanding officer wait 
to measure the full impact an act of adultery may have on his 
command? How much corrosion of organizational discipline is 
tolerable before punishment can be considered? Even if these 
effects could be quantified, the standard is unworkable except 
where damage on military order and discipline is allowed to 
take effect. Preemptive measures are not warranted because no 
offense arises until a corrosive impact can be sufficiently 
measured.
    Fourth, as proposed, subparagraph (c)(2) creates a standard 
for the punishment of adultery that is ``service 
discrediting.'' But the new standard does much more than 
clarify disciplinary practices. Instead of treating adultery as 
an act that, by its very nature, is injurious to the reputation 
of the military services, it turns the term into a highly 
variable and subjective measure that depends on assessing 
prevailing opinion in the area where an act of adultery was 
discovered.
    Thus, service members would be guilty of no offense in 
areas where their active adultery does not subject the armed 
forces to ``public ridicule'' or lower their ``public esteem.'' 
So whether a service member is guilty of an offense worthy of 
dishonorable discharge is made to depend entirely on the 
shifting opinions of others over which he or she has no control 
and the status of which he or she may have no reliable way of 
assessing in advance.
    Thus far, I have concentrated rather narrowly on what the 
changes to military adultery standards being proposed by the 
administration mean in and of themselves. But this is not where 
their greatest significance lies. To understand the most 
profound stakes involved in the administration's proposal, we 
must step back and see the part it plays in a much larger 
picture. We must consider how this one change in adultery 
standards is part of a general shift in ethical thinking that 
is fundamentally opposed to the moral structure on which the 
American military services were built and on which they rely 
for their success.
    A shift in ethical perspective is now working to so 
completely reshape and redefine military manpower policies and 
disciplinary standards that should it succeed, it will threaten 
not only the combat effectiveness of our military services but 
their existence, as well. We need to understand that current 
efforts to minimize and relativize adultery standards is part 
of a much larger problem impacting the military services, a 
problem that, if not checked, can ultimately threaten the 
survival of the United States as a military power.
    Put another way, the real significance that lies behind the 
administration's proposal to change military adultery standards 
is that they are part of a larger trend that threatens to 
dissolve the sustaining ethic on which the essential military 
qualities of combat readiness, good order and discipline, and 
unit cohesion most rely. The changes to military adultery 
standards proposed by the administration are based on a self-
oriented, feeling-based, therapeutic ethic. It is based on an 
ethic of individual desire and self-fulfillment that opposes 
and corrodes the ethic of self-sacrifice without which no 
military force can survive, much less succeed.
    While the general public may not yet be fully cognizant, 
those who are paying close attention to military manpower 
policy decisions understand that it is an area of national 
leadership that has itself become a major battleground in the 
moral wars now dividing American life and culture. Although the 
military services have been dealing with redefining their 
national defense mission and have been wrenched by the largest 
restructuring of defense forces since the founding of our 
Nation, the challenges these have brought have not troubled the 
services nearly as much as those that have been arising over 
social issues produced by a contrary ethical perspective.
    Shifting guidance for interpreting adultery standards so 
that the difference between an honorable or dishonorable 
discharge is determined by personal sentiment and vacillating 
public opinion, rather than the immorality of the act itself, 
has now joined job security for single military parents, mixed-
gender recruit training, the deployment of women in combat 
roles, adjusting strength requirements to allow a double 
standard favoring women over men, the prioritization of child 
care facilities over combat readiness, accommodating the 
limitations of dual military couples, and guidelines that 
accommodate the presence of known homosexuals, in a growing 
list of issues changing the face of military manpower policy.
    What these issues have in common is that each compromises 
the national security mission of the military services in order 
to accommodate a policy idea that arises out of an ethic of 
individual desire and self-fulfillment. Each accommodation 
makes room for some new idea of individual self-fulfillment 
that is contrary to the ethic of self-sacrifice on which the 
military mission depends.
    Thus, it is critical to understand that the motivation for 
shifting adultery standards does not stand alone. It is part of 
a general trend that corrodes the very purpose for which the 
military services exist. The ethic from which the adultery 
proposal arises puts the accommodation of individual needs and 
desires over the disciplinary needs of the services. The ethic 
from which the adultery proposal arises puts individual rights 
over the importance of unit cohesion, morale, good order, and 
discipline. The ethic from which the adultery proposal arises 
is more concerned with minimizing complaints and matching 
popular opinion than inculcating self-discipline and 
emphasizing duty.
    In other words, the ethic from which the adultery proposal 
arises is not so much about sacrificing personal feelings and 
ambitions or even life itself to achieve the higher goal of 
national security as it is about compromising disciplinary 
standards in order to accommodate military life to the sort of 
individualistic self-indulgent lifestyle demands a growing 
number of civilians in this country are coming to expect for 
themselves.
    Military life is determined by the overwhelming need to 
maintain sacrificial discipline under fire in combat, and 
civilian life, quite simply, is not. If the ethic that sustains 
sacrificial military discipline is permitted to decline in 
favor of a therapeutic civilian ethic that prioritizes personal 
desire and self-satisfaction, our military services will soon 
cease to win wars no matter how superior our military 
technology may be compared to future opponents. Thank you.
    Senator Brownback. That is a powerful statement, Mr. 
Heimbach. I look forward to exploring some of it with you and I 
appreciate very much you coming forward and discussing this 
with us. It was a very strong statement.
    Colonel Maginnis, thank you very much for joining us today 
and I look forward to your testimony.

  TESTIMONY OF LIEUTENANT COLONEL ROBERT L. MAGINNIS,\1\ USA 
  RET., DIRECTOR, MILITARY READINESS PROJECT, FAMILY RESEARCH 
                            COUNCIL

    Colonel Maginnis. Thank you, Mr. Chairman. I appreciate the 
opportunity to address the Subcommittee on the topic of the 
military's adultery standards and the impact of these changes 
that we are talking about today. I hope to put them in 
perspective.
---------------------------------------------------------------------------
    \1\ The prepared statement of Lt. Colonel Maginnis appears in the 
Appendix on page 46.
---------------------------------------------------------------------------
    My vantage point is somewhat different, of course. I spent 
24 years of active Federal service, primarily as an infantry 
officer. I was the chief for leadership at the infantry school. 
The military sent me to graduate school to learn how to teach 
ethics so I could communicate tough issues to muddy boot 
infantrymen.
    At the time, I was one of the few officers that wrote 
extensively about personnel issues, especially leadership, and 
about the very issues we are talking about today.
    My final assignment was in the Pentagon as an IG. I was an 
Inspector General investigating sexual impropriety of general 
officers. I conducted many investigations that dealt with 
charges of adultery. I was also part of the ``don't ask, don't 
tell'' committee before I retired in 1993. Since 1993, I have 
dealt with military personnel policy.
    The military's culture is, quite frankly, unique because 
service in the profession of arms is not just a job, it is a 
commitment to a most serious calling, a commitment to die at 
the behest of the Commander in Chief. Military culture demands 
camaraderie, absolute trust, and teamwork. Out of necessity, 
military culture must constantly focus on its primary mission, 
which is to win wars. Soldiers behave toward one another 
according to a set of rigid standards--honesty, accountability, 
sacrifice, and absolute fairness. Anything that interferes with 
this focus can damage combat readiness, morale, and unit 
cohesion.
    In recent years, the military has been assaulted by 
numerous ethos-bashing phenomena. My comments this afternoon 
will focus primarily on adultery, but the expanded testimony 
has many other factors.
    To appreciate the seriousness of the adultery issue, one 
must understand two radical and relatively recent cultural 
changes. The military has become a family-based institution and 
it has been feminized. Becoming family-friendly has been a 
byproduct of the 1973 all-volunteer concept. Today, two-thirds 
of all service members are married. This makes sustaining 
marriage absolutely critical. A mostly married military has 
created significant personnel problems, like high divorce rates 
and domestic violence.
    In 1994, then-Marine Corps Commandant Carl Mundy tried 
prohibiting Marines from marrying until the end of their first 
enlistment in an attempt to curb high divorce rates among young 
Marines who deploy frequently. The idea was, unfortunately, 
struck down by then-Secretary of Defense Les Aspin.
    Service by increasing numbers of women has radically 
changed military culture, as well. Today, 14 percent of the 
force is female and many women serve in combat. Since 1993, the 
Clinton administration has overseen the removal of 260,000 
combat exemptions for women. These politically-motivated 
changes have hurt combat readiness by ignoring the overwhelming 
evidence that women do not have an equal opportunity to survive 
on the battlefield and that mixing the sexes in units 
contributes to readiness-busting jealousies, rivalries, and 
favoritism.
    Mixing the sexes in traditionally single-gender military 
units has resulted in serious readiness problems. These 
problems are attributable to predictable and unavoidable sexual 
tensions within the ranks. Few emotions are more powerful or 
distracting than those surrounding the normal sexual attraction 
between young men and women. Amorous relationships threaten 
fairness, and they often destroy marriages, which brings up 
another very important issue, and that is adultery.
    It is a problem in the military because soldiers too often 
are tempted to disregard their vows of fidelity during frequent 
unaccompanied tours and deployments. Such behavior is 
stimulated by the increased number of women in the ranks and 
the forced intimacy of the environment in which young men and 
women must operate. Adultery is destructive of unit morale. It 
may also reduce effectiveness and deployability because of the 
spread of sexually-transmitted diseases.
    Even worse for the military, the soldier involved is a 
dishonest person. Honor among warriors is key and the corrosive 
act of adultery is a violation of both trust and commitment. 
For centuries, the U.S. military has severely punished soldiers 
for cheating, robbing, and lying. These acts represent 
character flaws that damage military organizations which must 
be built on trust. That is why the military prosecutes 
adultery. Such cases are really about honor.
    Not all adultery cases are treated the same, though. The 
commander has the discretion to fit the punishment to the 
situation. The adultery standard requires that the offense 
demonstrate adverse impact on ``good order and discipline and 
brings discredit upon the armed forces.''
    An Air Force wife told her husband's commander about an 
affair, which she blamed in part on the stress of military 
life. She said she benefitted from the adultery policy because 
it was used as leverage to force her husband into counseling. 
You see, she said, ``Either let us go voluntarily,'' to her 
husband, ``or I will take it to the commander and you will be 
compelled to go.''
    Well, contrary to many liberal views, adultery is not a 
victimless crime. In the military, both the offended spouse and 
the unit suffer. Mr. Chairman, adultery attacks the heart of 
military culture--honesty, commitment, and fairness. In the 
closed military subculture, adultery is a disease with grave 
readiness consequences and deserves the strictest enforcement.
    With regard to the impact of these changes that have been 
recommended, quite frankly, I see that the changes are 
undermining the discipline of the military. It will damage the 
cohesion, the things that hold the military together. Based on 
my daily contact with active duty members, it is already 
undermining discipline. Unfortunately, soldiers are looking at 
what is going on at the national scene and saying, much like 
Ms. Donnelly said, if the President can get away with this, why 
can't I? So we are losing the discipline that is really 
absolutely more important to the military than any weapons 
system we can buy. Thank you, Mr. Chairman.
    Senator Brownback. Thank you very much, as well.
    Let me pursue some questioning with you. I talked with 
Secretary Cohen about these proposed changes when they were 
being rumored and then when they were put forward and Secretary 
Cohen said to me that there are no changes that are taking 
place, that this is to standardize, to provide greater clarity 
to people looking to enforce the current adultery standards. He 
emphasized that to me. I think he has written some letters in 
that regard. Do you think that these are changes that are being 
made in the adultery standards?
    Ms. Donnelly. At the news conference that took place 
announcing the new provisions, the elements of proof and the 
Manual for Courts Martial, a statement was made that these new 
elements were new, that they had not been anywhere in the rule 
book before. That statement, I found out later, was incorrect, 
that the new statements are based on court precedents and all 
the court precedents are on the books. They have happened. That 
is probably why the Secretary of Defense said what he said 
that, technically, this is not new language. It is based on 
precedents we have seen before.
    But the question is not what has happened in the past. The 
question is what is going to happen in the future. The problem 
is, the perception has been raised that the rules are going to 
be relaxed. When the proposal was announced, the headlines in 
many of the major military as well as the regular press said, 
rules will be relaxed. Nothing was done the whole week that 
that trial balloon was out there to change that impression.
    Sometimes it is not so much what is in the words, it is 
what people say the words mean. With the kinds of consultants 
and the attitude of the General Counsel of the Department of 
Defense, since she only invited in people who want the rules to 
be rendered meaningless, it does raise some questions about 
what is going on here.
    And I might add that the Secretary of Defense's responses 
on ``Meet the Press'' when he was being questioned by Tim 
Russert were totally inadequate. He dodged all over the 
question. He did not quite get the statement clear. In doing 
so, he failed to show leadership, and it was very confusing 
and, I would add, demoralizing to the troops.
    Senator Brownback. Mr. Heimbach.
    Mr. Heimbach. I believe you are asking if there is any 
change--what was the second part of the question, if you would 
clarify it?
    Senator Brownback. He is charging that there are no changes 
in the adultery standards being put forward and that this is 
not going to change the military system. I was simply asking if 
you would agree with that. Would that be your opinion? If not, 
why not?
    Mr. Heimbach. I would disagree very strongly on several 
grounds. First of all, I guess very, very simply and initially, 
if there is no change, then what is being proposed in the 
Federal Register? There is a change being proposed. New 
language, at least, is being added to the Manual for Courts 
Martial.
    It is true regarding the revised position of the 
administration that the punishments will not be changed, there 
will be no change to the UCMJ, so that they can argue the 
consequences of conviction are not being changed. But my belief 
and my argument is that there is a tremendous change involved 
in terms of their interpretation, and that is what the language 
proposed for amending the Manual for Courts Martial actually 
involves. The issue is interpretation.
    I have a couple of things to say about the significance of 
that change, in addition to what I said already in my remarks. 
First, we must respond to the sort of information Ms. Donnelly 
was given, that the interpretation does not amount to any thing 
significant because courts have made rulings and so forth and 
we are just simply putting this into effect.
    I think we need to question that. I think this is something 
that needs to be looked at very carefully. Why? Because the 
Supreme Court certainly has not acted on it. The reference is 
to lower court decisions, if they pertain at all. The services 
are certainly within their rights and responsibility if they 
wish to maintain and interpret their personnel disciplinary 
standards in a way that is different from the way some lower 
court has interpreted them. They can appeal it and take it to 
higher court if they believe it necessary, and the courts have 
historically been very, very deferential to the armed services 
when it comes to matters of military discipline. The courts 
historically differ in the area of military discipline, they 
allow the military services to be different from civilian norms 
and expectations because they have to require whatever it takes 
to meet a special mission given to them by the people of the 
United States.
    So, if some lower court in some part of the United States 
has made a decision that would try to interpret it differently, 
the services are usually successful if they wanted to appeal or 
challenge decisions like these. So basing argument on some 
lower court decision is simply another way of saying, we are 
not going to fight this, we are going to roll over, we do not 
want to maintain it, because if they wanted to fight it they 
certainly could and would do so.
    That particular strategy, I think, needs to be identified 
for what it really is. To me it is simply a smokescreen. It 
means the Clinton administration is saying it wants our 
standards to be reinterpreted or changed in a way that is 
beginning to be defined by some lower court decisions with 
which they agree. That is just a terribly irresponsible way to 
shape military manpower policy. It is a strategy that allows 
civilian judges to make decisions that undo the unique culture 
and mission of the United States military services. It defers 
leadership away from those with war-fighting experience and to 
those who do not. So I think it invites all sorts of problems.
    I guess the last thing I wanted to mention is the question 
or the claim that somehow this is motivated by the desire to 
promote clarity. I think that it produces the reverse. I can 
make this no more obvious than to note that the offense of 
adultery, as defined by the amendment, is located in the 
feelings of other people other than the actors, and because the 
offense is located in something so subjective it is going to 
vary from situation to situation, and from time to time. As the 
culture changes, the offense will change, and it will change 
from place to place.
    A service member is not going to know--and remember, the 
punishment is a dishonorable discharge--a service member is not 
going to know if he or she might be guilty of committing an act 
that is going to bring discredit to the services because hey, 
in one circumstance, it might not matter to anybody. In another 
circumstance, it will. How are they going to know in advance? 
They will not. They are not going to know in advance whether 
they will be guilty of an act that is going to result in a 
dishonorable discharge or whether what they plan to do will 
simply be something that is allowable by military disciplinary 
standards. The very same act done in exactly the same way is 
going to be judged worthy of a dishonorable discharge in one 
place and not another place. How is that service member going 
to tell when they have crossed the boundary from one 
circumstance to the other?
    As a matter of fact, the commanding officer, who is 
supposed to uphold these new standards, is not going to know 
whether he should hold the service member guilty unless he 
takes a poll and figures out whether the community has been 
sufficiently offended so as to affect the service's reputation, 
in a prejudiced way? How is he going to access that? Even if he 
could, how is he going to know whether the prejudicial affect 
is significant enough to take an action? My point is the 
amended language is terribly, terribly relative. Rather than 
bringing about some kind of a standard interpretation, it is 
going to produce great inequity.
    Senator Brownback. Lieutenant Colonel Maginnis, as a former 
Inspector General in the military and in contact with military 
personnel regularly, how do you see these changes, if they 
become the regulation within the Manual for Court Martial, how 
do you see them being implemented? How do you think this is 
going to work?
    Colonel Maginnis. Sir, I think the provisions are 
absolutely unnecessary. Commanders have always had discretion. 
We do not want to take discretion away from combat commanders, 
because, after all, tomorrow, they may have to go out and tell 
people to go die for their country and we need to give them all 
the latitude necessary to make tough decisions in peacetime.
    These are just more of an encumbrance, quite frankly. 
Having investigated many adultery cases personally, I did not 
see that this was necessary. We knew what adultery was. The 
three provisions in the law were very clear. We just had to 
work out the details and whether or not this was, indeed, 
dishonoring to the service.
    I see a much larger thing, though, sir, and having been 
back in 1993 in the Pentagon, I began to recognize a major 
shift in culture that is trying to be imposed on the military, 
a radical change. The military is based on the character of the 
people that serve. If you have bad characters, you are going to 
have bad decisions and you are going to have a corrupt 
military.
    Unfortunately, today, I see people trying to change the 
very foundation of the integrity, of the camaraderie that makes 
the military the great military that it is, and unfortunately, 
the intent that comes out of Mr. Cohen's mouth is not, well, we 
are just going to make it easier for the commander. The intent, 
which is what we tell commanders, this is the bottom line which 
you have to accomplish, is that we are going to change this, 
and that is how it has been interpreted.
    As I have talked to soldiers, I have even looked at many of 
their letters, they are saying we know what is going on behind 
the background here. You are really trying to change the moral 
foundation of our institution and the integrity.
    Secretary of the Air Force Widnall said that integrity is 
absolutely foundational and adultery is about integrity. You 
pull out the rug on adultery, you have compromised integrity, 
you have compromised the standing and the viability, I think, 
of our military. So we need to be extraordinarily careful. Any 
change, even guidelines, which are absolutely unneeded, I think 
is inappropriate.
    Senator Brownback. I want to ask you specifically, do you 
believe the insertion of the words, and let me quote these, 
``immediate, obvious, and measurably divisive'' in the Manual 
for Courts Martial will make it more or less likely that 
commanders will actually take disciplinary actions against 
those who commit adultery? Those are the words being inserted. 
Do you think it more or less likely that actions will then be 
taken?
    Ms. Donnelly. Senator, I think the specificity will have 
the effect of a chilling effect on the commanders, because they 
will look at precedent and cases that were settled not in the 
court of law but in the court of public opinion, and I 
mentioned two.
    The Kelly Flinn case should have been open and shut in the 
court of law. But in the court of public opinion, she 
manipulated public opinion. The commanders were not given 
support by the Air Force. In fact, attached to my testimony is 
a letter from someone I did not know who wrote to me and said 
how disappointed they were.\1\ They were ready to prosecute 
that case. They had every right to. The commander had every 
right to pursue it. But without support from the top level, 
well, the floor fell out and Kelly Flinn became an example of 
somebody using special status to get special favors.
---------------------------------------------------------------------------
    \1\ Letter to Senator Brownback from Ms. Donnelly appears in the 
Appendix on page 100.
---------------------------------------------------------------------------
    Something similar happened in Syracuse. Again, you talk 
about immediate and disruptive, that was a very disruptive 
case, a woman who was carrying on very openly with one of her 
commanders in the chain of command, and there was favoritism, 
the perception and reality of favoritism. When the men reacted, 
predictably, and they were openly upset. They let it be known 
they were upset. What happened? The commander who tried to 
enforce the rules had the rug pulled out from under him. He was 
punished. Twelve heads rolled. Two investigations ensued. The 
commander was ultimately found to be correct, but the woman 
involved did not receive any punishment and all the men were 
punished instead.
    So with those kinds of precedents, most of them more in the 
court of public opinion than in the court of law, what is a 
commander to do? The attorney for someone involved in a blatant 
affair will say, well, it is not prejudicial to good order and 
discipline and it is not service discrediting. If a couple 
involved in adultery said to their commander, ``We did not go 
on `60 Minutes'. So our case is in a third category where 
neither stipulation applies.'' What is a commander to do? I am 
afraid that the atmosphere that is being created, of lowering 
the standard, will indeed have that effect.
    I had several suggestions that I did not get a chance to 
mention before. I think that if anything is to be done, we need 
a clear statement that the military is not the same as the 
civilian world. The Supreme Court has upheld this concept in at 
least seven cases. The military defends individual rights, but 
it must be governed by different rules. There needs to be more 
support for field commanders who have the right and the 
responsibility under the UCMJ to enforce these rules. We must 
stop these consultations, these insider consultations with 
outside groups. Everybody needs to know what the rules are, and 
they need to defend those rules aggressively.
    We need to do something about living conditions that 
increase sexual tensions, also, and this goes back to what Bob 
Maginnis mentioned earlier--coed tents, coed training. I saw an 
article in the paper the other day. In Bosnia, all kinds of 
rampant sexual activity is going on, and when asked, someone 
said, well, it is not really associational, it is more 
recreational. Where are the commanders? Who is supervising what 
is going on here? Is this the way we do business in the gender-
integrated military? And what does this mean for good order and 
discipline?
    I think we have a military now that is very much on the 
brink of a very serious problem and it is not just the hardware 
issues. Yes, we have shortages in people and our planes and 
ships, but we could build 600 ships quicker and a whole missile 
defense system and squadrons of airplanes. We could do that 
easier than we could rebuild the very character and integrity 
and culture of the military once it is destroyed. That is why 
we are here today and that is why we appreciate your concern, 
Senator.
    Senator Brownback. That is a true statement. The rebuilding 
of character is a very long process.
    Mr. Heimbach, specifically on the question that I asked, do 
you believe the insertion of those words, ``immediate, obvious, 
and measurably divisive,'' will result in more or less adultery 
disciplinary actions being taken?
    Mr. Heimbach. I think that is very easy to answer. It will 
result in less disciplinary action on adultery. That is the 
obvious answer to your question. But I think there is a lot 
more to discuss as to why it would be less. We should also take 
a hard look at what will no longer be subject to discipline 
here.
    We have to remember that adultery is an inherently 
dishonorable and dishonest act. We are not even talking here 
about sexually permissive conduct between unmarried people. We 
are talking about the institution of marriage. We are dealing 
with commitments made in marriage and either being honest or 
dishonest with regard to commitments that are made in marriage, 
either violating a commitment to one's own family, or violating 
the marriage commitments and relationships of someone else's in 
the sort of conduct covered by these adultery standards.
    To illustrate the significance of what is being proposed in 
these new regulations, we need only remember that adultery is a 
form of cheating and of lying. It is dishonest and 
dishonorable. If we inserted cheating and lying in the place of 
adultery in the administration's proposal, how would that come 
across? Cheating and lying are wrong only if they are directly 
prejudicial. It would say cheating and lying are punishable 
only if they include conduct that has an immediate and obvious 
and measurably divisive effect on unit or organizational 
discipline or morale.
    In other words, it says that cheating and lying are allowed 
unless proved to have caused directly prejudicial affect. 
Cheating and lying do not really matter to the performance of 
your military duties.
    But, cheating and lying are always inherently contrary to, 
corrosive to, the very core ethic of military character. How 
can any compromise be permitted? The offense is not in the way 
other people feel about it. The offense is in the act itself. 
Anyone who finds out about it should be offended, whether they 
actually take offense or not. I am very concerned that the 
change proposed puts the offense on the effect, not on the act 
itself.
    Senator Brownback. Colonel Maginnis, the same question. Do 
you believe those words are going to result in more or less 
disciplinary actions being taken?
    Colonel Maginnis. Well, I think it is less, Senator. The 
investigations that I did, Desert Storm and otherwise, it was 
not obvious when you walked into a command. You know, there 
were not people running up to you to say, well, so-and-so is 
sleeping with so-and-so. Unfortunately, you really have to 
protect their identity within a command where there is 
attribution and where there is risk to careers and so forth, 
especially if it is a senior person, and that is what I focused 
on in the Pentagon. We had people that were seriously concerned 
about their own safety and their own viability in the 
organization.
    So it is not going to necessarily be obvious. I had to 
pursue very vigorously evidence on many general officers 
because they were very good at hiding it. Generals, sergeants, 
lieutenants, do not want the world to know about their affairs, 
and we are experienc-

ing that in this country, that if you try to hide something, 
eventually, it is going to find you out.
    Measurable, I can tell you that during Desert Storm, some 
adultery cases that I was involved in, directly and 
indirectly--in investigating--that you have to understand the 
operations of, say, a tactical operations center and the trust 
and the confidence they have in one another, and it is hard to 
measure, and this is subjective experience that tells you, 
those people are not talking. They are not communicating the 
information. They do not trust one another. Now, I cannot give 
you on a 1-to-10 scale on how it hurt that unit, but I know as 
a professional that it did, and those that I work with agree.
    Those are the tough things. When you put words in here, 
quite frankly, most lawyers have no idea what that means in 
terms of a military context, and I suspect, based on those that 
wrote these regulations and the guidelines, they had no idea of 
the difference between a track, a tank, and a bomb. But they 
have to understand that when you are in that type of 
environment, it is absolutely critical that you understand the 
dynamics of a military operation, that trust, that camaraderie, 
that confidence. One incident can blow that completely away.
    I did want to mention, as well, the Army, quite frankly, 
tried to hide some of its own data on this issue. A year ago, 
it was exposed by an ARI researcher, Army Research Institute, 
that the Army asked a series of questions. Well, it pulled out 
several of those questions and they had the link between views 
about adultery and views about sexual harassment. Because the 
results, based on what the researchers said, were very 
embarrassing, they retracted them and then completely destroyed 
data which showed a nexus between heightened degrees of sexual 
harassment in coed units and views about adultery and family 
relationships and respect for the marriage relationship.
    We cannot afford to have that sort of research done by our 
Pentagon and then all of a sudden try to change the very 
element that is, quite frankly, defending the marriages that 
are represented by most of the military members today.
    Senator Brownback. Is that information available now?
    Colonel Maginnis. They destroyed the data, sir. I have 
copies of the articles in which it was reported and the 
researcher is an anthropologist at Walter Reed, and I am sure--
--
    Ms. Donnelly. I have the data, also.
    Colonel Maginnis. She would be more than glad to talk to 
you.
    Senator Brownback. I would like to see that data, if we 
could get that.
    Each of you, did the General Counsel at the Department of 
Defense ask you, consult with you, before making these proposed 
changes? Have any of you been consulted since then by the 
General Counsel's Office, the Department of Defense?
    Ms. Donnelly. No, Senator, other than what we read in the 
newspapers. When I received the information----
    Senator Brownback. Dr. Heimbach, were you consulted?
    Mr. Heimbach. No, Senator.
    Colonel Maginnis. No, sir.
    Senator Brownback. Ms. Donnelly, have you been consulted 
since that time by the General Counsel's Office, Department of 
Defense?
    Ms. Donnelly. I did file statements with the Department of 
Defense at the hearing that was scheduled for October 1.
    Senator Brownback. Have you been consulted? Has anybody 
called you from the General Counsel's Office to ask for your 
input, why are you concerned about these things?
    Ms. Donnelly. No, and I am not aware of any other 
organization that has been called, either.
                  CLARIFICATION NOTE FROM MS. DONNELLY
    My answer to this question was intended to refer to other 
organizations that were not consulted by the DoD. The Army Times 
reported that DoD did talk to one individual I know, Prof. Charles 
Moskow, during the policy-making process. The name of Prof. Moskos was 
not included, however, on the list of people and organizations that 
received letters from General Counsel Judith Miller dated July 3, 1997.

    Senator Brownback. Mr. Heimbach.
    Mr. Heimbach. No, I have not.
    Senator Brownback. Colonel Maginnis.
    Colonel Maginnis. No, sir, in spite of many articles that I 
have written on this particular topic that I am sure they must 
have read.
    Senator Brownback. That strikes me as strange in and of 
itself, why people that have been very forthright in their 
comments and their views towards this and very clear in what 
they think the impact will be have not been consulted by the 
General Counsel's Office, not sought out to ask why you think 
this if, indeed, they are representing the case to be 
differently than what you are representing it to be.
    I would hope that that communication would take place and 
that if there are people in the audience that are watching that 
are associated with the General Counsel's Office or the 
Department of Defense, that they would seek your input into 
this and present to you why they think that the case is 
different than what you claim for it to be.
    This is a corrosive issue, and when you get something that 
is out there of this nature, of this divisiveness, and then we 
are not having the consultation going back and forth as to why 
different people are interpreting this differently, all of a 
very respected nature, one would think that the dialogue would 
be going on and at least there would be some understanding back 
and forth and that they would say to you, here is why we do not 
think that these are real changes of any noteworthiness. I am 
concerned about that and will be seeking answers from the armed 
forces individuals that I do consult with about those issues.
    Do any of you have any further recommendations either to 
make to this Subcommittee or to others about what should be 
done in this particular case? What do you think ought to 
happen? Ms. Donnelly, you have mentioned some. Do you have any 
further suggestions?
    Ms. Donnelly. Just to add this. In addition to having a 
heightened understanding of why the rules are different, why 
they must remain that way, and what it would cost the military 
if they were changed, I think we need a broader overview of 
gender integration in the military. There are many living 
conditions and training and other conditions that heighten 
sexual tensions that also encourage indiscipline rather than 
discipline.
    In addition to the housing arrangements that I mentioned, 
coed training, of course, which you have shown a leadership 
role on, we have pregnancy policies that actually subsidize 
single parenthood because there is no penalty no matter how 
many times a person becomes pregnant. It does not matter if 
they are married or single. They do not have to name the 
father. It is like in the civilian world. If you subsidize 
something, you get more of it. When we tolerate and encourage 
and turn a blind eye to that kind of indiscipline, then 
everything that has been said here by those on my left becomes 
a serious problem and everybody sweeps it under the rug.
    There has been a lack of candor. Dr. Leora Rosen's data, as 
was mentioned before, was ``deep-sixed,'' if you will, and I 
think that is outrageous. You need to know what the problem is 
before you can solve it, and the Pentagon has been closing 
their eyes to these problems far too long.
    Senator Brownback. Dr. Heimbach, do you have any 
suggestions of what should take place here by the Department of 
Defense?
    Mr. Heimbach. Yes, I will mention a couple. Overall, I do 
not believe the proposed changes are responding to a real need, 
at least not a real need that is coming out of the military 
services and out of military experience. It is coming out of an 
agenda that is derived from a very contrary ethical perspective 
that is very subjective, very feeling-based, and that is 
absolutely incompatible with a cohesive, well-disciplined, 
well-ordered military service. So I do not believe any change 
is needed, and certainly nothing will be improved by what is 
proposed. I would urge that they not be adopted.
    In addition, I would propose that the claim these changes 
are simply deferring to actions already decided by the courts 
be viewed as disingenuous. The military services are very good 
at resisting court efforts to impose their judgment on military 
disciplinary standards and the courts have characteristically 
deferred to the military on matters they insist are required to 
maintain the unique order and the unique discipline of the 
military services.
    If there are lower court decisions moving towards a feeling 
based interpretation of adultery, I think the military services 
should be urged to resist or at least challenge that.
    I think that we should be very, very conscious of the 
contrary ethic that is involved, and how utterly harmful it is 
to the military. On one hand, you have a therapeutic ethic, 
which is the feeling-based, self-oriented, self-fulfillment-
based ethic. On the other you have ethic of self-sacrifice, 
which is so obviously the ethic on which the existence and 
success of military services depend.
    We need to be zealous in defending and maintaining the 
right moral perspective and not allowing it to dissolve. We 
must realize that that is the real stake involved here and not 
be distracted by the minutiae of one particular change. It is 
part of a much larger change being forced onto the military 
services externally and from a very contrary ethical 
perspective that is absolutely incompatible with their success.
    Senator Brownback. Colonel Maginnis, any specific 
recommendations that you would make in regard to these changes?
    Colonel Maginnis. Sir, a Marine sergeant said this: 
``Integrity is like a bubble. It does not matter if you poke it 
with a pin or hit it with a hammer. The bubble will break. 
Integrity is black and white. You either have it or you do not 
have it.''
    Those that commit adultery, obviously, in the military lack 
integrity. I would not trust them in combat and I do not think 
others should, as well.
    The big picture, what Dan Heimbach pointed out, is 
absolutely essential. We can make all the rules in the world, 
but they are not going to change these fundamental issues here 
because we have to have leaders of character. We have to have 
an organization that strives to promote character, because all 
the rules are not going to keep you in line. They are only 
going to show you maybe where you should not go.
    Separating the sexes, certainly, in basic as much as we can 
and in other situations, I think the 14 percent female decision 
is politically inspired, not dictated by military necessity, 
and those decisions should be based solely on military 
necessity.
    The climate of discipline is undermined by a variety of 
things that are going on. My statement includes about six of 
those things, sex being one of them. And unfortunately, this 
particular regime has abandoned what I think is common sense 
with regard to military necessity, not paying attention to the 
fundamentals that make a military great. Our military today is 
very different than it was when I was in, and that is only 5 
years ago, sir. We could not do what we did in Desert Storm and 
we probably are going to get much worse unless something 
radically happens, and it is not because we do not have enough 
money, it is because we lack the character to be the type of 
military we absolutely must be.
    Senator Brownback. You all put forward very good 
statements, and your comments are very troubling. I hope that 
the military takes a good look at the statements that you have 
put forward and responds and asks themselves, are these sort of 
things happening? Are they going to lead in the direction that 
you have pointed out?
    I am glad you have contained your comments to the military 
questions in front of us, because that is what I wanted to 
focus on and get some input from you. I want to get responses 
back from Secretary Cohen regarding some of your comments here 
today and we will be seeking that from him and his responses to 
the comments that you have made that are contrary to some of 
his representations. This is very troubling, that there would 
be a strong difference in the interpretation of these words 
that are being put forward and the ultimate actions that will 
come from it.
    Thank you for coming. The record will remain open for 3 
days after the hearing, if you would like to add additional 
comments to what you have put forward or if there have been 
other additional questions that other Members may wish to 
submit. I appreciate very much you being here. The hearing is 
adjourned.
    [Whereupon, at 3:27 p.m., the Subcommittee was adjourned.]

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