[Senate Hearing 105-767]
[From the U.S. Government Publishing Office]
S. Hrg. 105-767
ARE MILITARY ADULTERY STANDARDS CHANGING? WHAT ARE THE IMPLICATIONS?
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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
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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?
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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.
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\1\ The prepared statement of Ms. Donnelly appears in the Appendix
on page 23.
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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.
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\1\ The prepared statement of Mr. Heimbach appears in the Appendix
on page 35.
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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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