[Senate Hearing 111-899]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 111-899
 
THE REPORT OF THE DEPARTMENT OF DEFENSE WORKING  GROUP  THAT  CONDUCTED 
 A  COMPREHENSIVE  REVIEW  OF  THE  ISSUES  ASSOCIATED WITH A REPEAL OF 
 SECTION 654 OF TITLE 10, U.S.C., ``POLICY CONCERNING HOMOSEXUALITY IN 
                           THE ARMED FORCES''

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


                                HEARINGS

                               before the

                      COMMITTEE ON ARMED SERVICES
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               ----------                              

                         DECEMBER 2 AND 3, 2010





         Printed for the use of the Committee on Armed Services

THE REPORT OF THE DEPARTMENT OF DEFENSE WORKING GROUP THAT CONDUCTED A 
COMPREHENSIVE REVIEW OF THE ISSUES ASSOCIATED WITH A REPEAL OF SECTION 
654 OF TITLE 10, U.S.C., ``POLICY CONCERNING HOMOSEXUALITY IN THE ARMED 
                                FORCES''




                                                        S. Hrg. 111-899

THE REPORT OF THE DEPARTMENT OF DEFENSE WORKING  GROUP  THAT  CONDUCTED 
 A  COMPREHENSIVE  REVIEW  OF  THE  ISSUES  ASSOCIATED WITH A REPEAL OF 
 SECTION 654 OF TITLE 10, U.S.C., ``POLICY CONCERNING HOMOSEXUALITY IN 
                           THE ARMED FORCES''

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


                                HEARINGS

                               before the

                      COMMITTEE ON ARMED SERVICES
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                         DECEMBER 2 AND 3, 2010

                               __________

         Printed for the use of the Committee on Armed Services





        Available via the World Wide Web: http://www.fdsys.gov/

                               __________

                  U.S. GOVERNMENT PRINTING OFFICE
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                      COMMITTEE ON ARMED SERVICES

                     CARL LEVIN, Michigan, Chairman

JOSEPH I. LIEBERMAN, Connecticut     JOHN McCAIN, Arizona
JACK REED, Rhode Island              JAMES M. INHOFE, Oklahoma
DANIEL K. AKAKA, Hawaii              JEFF SESSIONS, Alabama
BILL NELSON, Florida                 SAXBY CHAMBLISS, Georgia
E. BENJAMIN NELSON, Nebraska         LINDSEY GRAHAM, South Carolina
EVAN BAYH, Indiana                   JOHN THUNE, South Dakota
JIM WEBB, Virginia                   ROGER F. WICKER, Mississippi
CLAIRE McCASKILL, Missouri           GEORGE S. LeMIEUX, Florida
MARK UDALL, Colorado                 SCOTT P. BROWN, Massachusetts
KAY R. HAGAN, North Carolina         RICHARD BURR, North Carolina
MARK BEGICH, Alaska                  DAVID VITTER, Louisiana
ROLAND W. BURRIS, Illinois           SUSAN M. COLLINS, Maine
JEFF BINGAMAN, New Mexico
EDWARD E. KAUFMAN, Delaware
CARTE P. GOODWIN, West Virginia

                   Richard D. DeBobes, Staff Director

               Joseph W. Bowab, Republican Staff Director

                                  (ii)

  
?

                            C O N T E N T S

                              ----------                              

                    CHRONOLOGICAL LIST OF WITNESSES
The Report of the Department of Defense Working Group that Conducted a 
Comprehensive Review of the Issues Associated with a Repeal of Section 
654 of Title 10, U.S.C., ``Policy Concerning Homosexuality in the Armed 
                                Forces''
                            december 2, 2010

                                                                   Page

Gates, Hon. Robert M., Secretary of Defense......................     6
Mullen, ADM Michael G., USN, Chairman, Joint Chiefs of Staff.....     9
Ham, GEN Carter F., USA, Commander, U.S. Army Europe, Co-Chair, 
  Comprehensive Review Working Group.............................    12
Johnson, Hon. Jeh C., General Counsel, Department of Defense, Co-
  Chair, Comprehensive Review Working Group......................    12

  To Continue to Receive Testimony on the Report of the Department of 
  Defense Working Group that Conducted a Comprehensive Review of the 
  Issues Associated with a Repeal of Section 654 of Title 10, U.S.C., 
        ``Policy Concerning Homosexuality in the Armed Forces''
                            december 3, 2010

Cartwright, Gen. James E., USMC, Vice Chairman of the Joint 
  Chiefs of Staff................................................    83
Casey, GEN George W., Jr., USA, Chief of Staff of the Army.......    86
Roughead, ADM Gary, USN, Chief of Naval Operations...............    88
Amos, Gen. James F., USMC, Commandant of the Marine Corps........    90
Schwartz, Gen. Norton A., USAF, Chief of Staff of the Air Force..    93
Papp, ADM Robert J., Jr., USCG, Commandant of the Coast Guard....    94
Appendix A.......................................................   163
Appendix B.......................................................   421

                                 (iii)


THE REPORT OF THE DEPARTMENT OF DEFENSE WORKING GROUP THAT CONDUCTED A 
COMPREHENSIVE REVIEW OF THE ISSUES ASSOCIATED WITH A REPEAL OF SECTION 
654 OF TITLE 10, U.S.C., ``POLICY CONCERNING HOMOSEXUALITY IN THE ARMED 
                                FORCES''

                              ----------                              


                       THURSDAY, DECEMBER 2, 2010

                                       U.S. Senate,
                               Committee on Armed Services,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:04 a.m. in room 
SDG-50, Dirksen Senate Office Building, Senator Carl Levin 
(chairman) presiding.
    Committee members present: Senators Levin, Lieberman, Reed, 
Bill Nelson, E. Benjamin Nelson, Bayh, Webb, McCaskill, Udall, 
Hagan, Begich, Bingaman, Manchin, Coons, McCain, Inhofe, 
Sessions, Chambliss, Graham, Thune, Wicker, LeMieux, Brown, 
Burr, and Collins.
    Committee staff members present: Richard D. DeBobes, staff 
director; and Leah C. Brewer, nominations and hearings clerk.
    Majority staff members present: Jonathan D. Clark, counsel; 
Gabriella E. Fahrer, counsel; Jessica L. Kingston, research 
assistant; Gerald J. Leeling, counsel; Jason W. Maroney, 
counsel; Michael J. Noblet, professional staff member; John H. 
Quirk V, professional staff member; and William K. Sutey, 
professional staff member.
    Minority staff members present: Joseph W. Bowab, Republican 
staff director; Christian D. Brose, professional staff member; 
Michael V. Kostiw, professional staff member; David M. Morriss, 
minority counsel; Lucian L. Niemeyer, professional staff 
member; Diana G. Tabler, professional staff member; and Richard 
F. Walsh, minority counsel.
    Staff assistants present: Jennifer R. Knowles, Kathleen A. 
Kulenkampff, Christine G. Lang, and Brian F. Sebold.
    Committee members' assistants present: Christopher Griffin, 
assistant to Senator Lieberman; Carolyn Chuhta, assistant to 
Senator Reed; Nick Ikeda, assistant to Senator Akaka; Jeffrey 
Fatora, assistant to Senator Bill Nelson; Patrick Hayes, 
assistant to Senator Bayh; Gordon I. Peterson, assistant to 
Senator Webb; Tressa Guenov, assistant to Senator McCaskill; 
Jennifer Barrett, assistant to Senator Udall; Roger Pena, 
assistant to Senator Hagan; Lindsay Kavanaugh, assistant to 
Senator Begich; Joanne McLaughlin, assistant to Senator 
Manchin; Halie Soifer, assistant to Senator Coons; Anthony 
Lazarski, assistant to Senator Inhofe; Sandra Luff, assistant 
to Senator Sessions; Clyde A. Taylor IV, assistant to Senator 
Chambliss; Jason Van Beek, assistant to Senator Thune; Erskine 
Wells III, assistant to Senator Wicker; Brian Walsh, assistant 
to Senator LeMieux; and Scott Schrage, assistant to Senator 
Brown.

       OPENING STATEMENT OF SENATOR CARL LEVIN, CHAIRMAN

    Chairman Levin. Good morning, everybody. The committee 
meets this morning to receive testimony on the Department of 
Defense's (DOD) comprehensive review of the issues associated 
with the repeal of Don't Ask, Don't Tell (DADT). We will hear 
from Defense Secretary Gates and Chairman of the Joint Chiefs 
Admiral Mullen, as well as the Co-Chairs of DOD's Working Group 
on this issue, DOD General Counsel Jeh Johnson and General 
Carter Ham. Tomorrow we will hear from the Vice Chairman of the 
Joint Chiefs and the Service Chiefs on this report.
    To examine this issue, DOD launched an unprecedented effort 
to seek the views of our troops and their families. Mr. 
Johnson, General Ham, your approach and the report that you 
have delivered are evenhanded and respectful. You were given a 
very tough job and your performance is of great value to our 
country.
    Today's hearing is part of the committee's own review of 
this issue, which has been before us for nearly a year. 
Secretary Gates and Admiral Mullen testified at a hearing on 
this policy on February 2, 2010. Each of the Service Chiefs 
were asked for their views during annual hearings on the 
defense budget in February and March, and on March 18, 2010, 
the committee heard testimony from outside experts in support 
of and in opposition to the policy.
    Both the House of Representatives and this committee have 
approved legislation that would repeal the statute underlying 
DADT if the President, the Secretary of Defense, and the 
Chairman of the Joint Chiefs certify to Congress that all of 
the following conditions have been met:
    First, they've considered the recommendations contained in 
the Working Group report and the report's proposed plan of 
action;
    Second, DOD has prepared the necessary policies and 
regulations to implement a repeal of DADT; and
    Third, the implementation of these policies and regulations 
is consistent with the standards of military readiness, 
military effectiveness, unit cohesion, and recruiting and 
retention.
    Upon such certification, repeal would take effect after 60 
days, a period during which Congress could review DOD's action.
    This provision is included in the National Defense 
Authorization Act (NDAA) for Fiscal Year 2011, approved by this 
committee, and it is my hope that the Senate will shortly take 
up this legislation.
    The requirement for the certification by the President, the 
Secretary of Defense, and Chairman of the Joint Chiefs is a key 
element of this legislation, as it ensures that a repeal of 
this policy would be conducted in an orderly manner, with 
adequate opportunity to prepare for a change. This 
certification requirement, as well as the 60-day period before 
repeal takes effect, were included at the initiative of our 
late esteemed colleague, Senator Byrd.
    Attitudes in the Nation and our military have shifted in 
the years since the adoption of DADT in 1993. The report before 
us provides important new evidence that the time for a change 
has come. It demonstrates that for the vast majority of our 
troops this change would be no big deal. They believe we can 
open our military to service by gay and lesbian servicemembers 
who would no longer have to conceal their sexual orientation 
and that we can do so without reducing our military 
effectiveness. A large percentage of troops say that they have 
already served with gay and lesbian coworkers who were 
effective members of their units.
    Secretary Gates has spoken eloquently on why decisions such 
as this are not subject to a referendum of servicemembers, and 
I would add that if referenda were the basis for decisions on 
who can serve, President Truman would not have racially 
integrated the Armed Forces in 1948, when, as the Working 
Group's report points out, 80 percent or more of servicemembers 
opposed racial integration.
    In this case, while there has been no referendum, the 
Working Group's review gives us persuasive evidence that repeal 
is not a problem for most troops. As the Co-Chairs wrote in 
this report, ``If the impact of repeal was predominantly 
negative, that would have revealed itself in the course of our 
review.''
    A change in policy, while needed, will not be without its 
challenges. The report provides important and useful 
recommendations to address those challenges. I support these 
recommendations which focus on the importance of leadership, 
training, and education.
    But in my view, one of the most striking findings of this 
report relates to the experiences of servicemembers themselves. 
An overwhelming 92 percent of troops who have worked with a gay 
or lesbian coworker say there was no negative effect on their 
unit. The message here is that when troops have actually worked 
with someone that they believe is gay or lesbian, they learn 
that those troops can get the job done.
    As the report states, ``Both the survey results and our own 
engagement of the force convinced us that when servicemembers 
had the actual experience of serving with someone they believed 
to be gay, in general, unit performance was not affected 
negatively by this added dimension.'' The report also states 
that, ``Much of the concern about open service is driven by 
misperceptions and stereotypes about what it would mean if gay 
servicemembers were allowed to be open about their sexual 
orientation and we conclude that these concerns about gay and 
lesbian servicemembers who are permitted to be open about their 
sexual orientation are exaggerated and not consistent with the 
reported experiences of many servicemembers.'' In other words, 
real world experience is a powerful antidote to the stereotypes 
that are a major source of the discomfort that some feel about 
ending DADT.
    Repeal of this policy would bring our military in line with 
some of our closest allies, including Great Britain and Canada. 
DOD's review found that resistance to openly gay and lesbian 
servicemembers among troops in those countries was much higher 
at the time they changed their policies than it is in our 
military today. But they changed their policies and, as the 
Working Group found, ``the actual implementation of change in 
those countries went much more smoothly than expected, with 
little or no disruption.''
    Most important, ending this discriminatory policy is the 
right thing to do. DADT is an injustice to thousands of 
patriotic Americans who seek only the chance to serve the 
country they love without having to conceal their sexual 
orientation. Anyone who believes that maintaining this policy 
is necessary to preserve our military's fighting effectiveness 
should read this report.
    Time and time again throughout our history, our military 
has overcome obstacles to reflect the diversity of American 
society, and in doing so our military has helped strengthen the 
fabric of our society while keeping us safe.
    We can end DADT and maintain our military strength, respect 
our troops and their families, allow patriotic Americans to 
serve their country without regard to sexual orientation, and 
uphold the principle that service and advancement in our 
military are based on merit alone.
    Again, I thank the witnesses for their impressive work, and 
I call upon Senator McCain.

                STATEMENT OF SENATOR JOHN McCAIN

    Senator McCain. Thank you, Mr. Chairman. Let me also thank 
our distinguished witnesses for their service to our Nation. I 
know that many people in DOD and in our armed services devoted 
countless hours in the preparation of this report, especially 
General Ham and Mr. Johnson. I'd like to thank them for their 
hard work.
    Today's hearing will consider a complex and often emotional 
subject, the proposed repeal of the current law, commonly 
referred to as DADT, which evokes strongly-held and legitimate 
differences of opinion among many Americans. It's no different 
among the U.S. military, as the Pentagon's report demonstrates.
    However, I think we can all agree on a few facts as we 
begin this important hearing. We can all agree that our 
military today is the most effective, most professional, and 
arguably the most experienced force that our Nation has ever 
had. We can all agree that we appreciate and honor the service 
of every American who wears the uniform of our country, as well 
as their families, especially during this time of war, 
regardless of whether they are straight or gay.
    Finally, I think we can all agree, and I certainly would, 
that this capable, professional force of ours could, I 
emphasize, could, implement a repeal of DADT if ordered to, 
just as they so ably and honorably do everything else that is 
asked of them.
    What I want to know, and what is Congress' duty to 
determine, is not can our Armed Forces implement a repeal of 
this law, but whether the law should be repealed. 
Unfortunately, that key issue was not the focus of this study. 
It is, however, the fundamental question that must be answered 
by Congress, not by the President or the courts, but by 
Congress. It is a question that must be answered carefully, 
deliberately, and with proper consideration for the complexity 
of the issue and the gravity of the potential consequences for 
our military and the wars in which we are engaged.
    DOD has had 10 months to complete this report and the RAND 
study that accompanies it. Together these reports and 
supporting documentation contain over 1,500 pages of data, 
material, and analyses. The members of this committee received 
it 36 hours ago and my staff and I are still going through it 
and analyzing it carefully, including the more than 72,000 
comments that our servicemembers provided to the Working Group.
    What I can say now, however, is that in addition to my 
concerns about what questions were not asked by this survey and 
considered in this report, I'm troubled by the fact that this 
report only represents the input of 28 percent of the force who 
received the questionnaire, and completely leaving out numerous 
servicemembers in combat areas. That's only 6 percent of the 
force at large. I find it hard to view that as a fully 
representative sample set, but I'm nonetheless weighing the 
contents of this report on their merits.
    What appears clear at this time is that the survey and 
anecdotal data underlying this report do not lead to one 
unequivocal conclusion, which is no surprise considering the 
complex and difficult nature of this issue. So, for example, I 
recognize that of those surveyed who report having worked with 
a gay servicemember, 92 percent said their unit's ability to 
work together was not negatively affected. Among those in Army 
combat units, 89 percent of respondents felt that way, as did 
84 percent of respondents in Marine combat units.
    However, we also learn that of those surveyed, 30 percent 
of the total, 43 percent of the Marines, 48 percent of Army 
combat units, and 58 percent of Marine combat units, believe 
that a repeal of the law would have a negative or very negative 
impact on their units' ability to work together to get the job 
done.
    Furthermore, 67 percent of Marines and nearly 58 percent of 
Army combat units believe that repeal of the law would have 
negative consequences on unit cohesion in a field environment 
or out at sea.
    This is supplemented by comments like these: ``I believe 
this is not the time for us to make huge changes in the 
military. We're at war and our men and women overseas do not 
need any more distraction. This issue should be addressed at 
the appropriate time. That time is not now.''
    I remain concerned, as I have in the past and as 
demonstrated in this study, that the closer we get to 
servicemembers in combat, the more we encounter concerns about 
whether DADT should be repealed and what impact that would have 
on the ability of these units to perform their mission. These 
views should not be considered lightly, especially considering 
how much combat our force is facing.
    Additionally, I am concerned about the impact of a rush to 
repeal when even this survey has found that such a significant 
number of our servicemembers feel that it would negatively 
impact military effectiveness.
    As we move forward with our discussion on this matter, I 
hope that everyone will put aside political motives and 
agendas. I also hope that everyone on both sides will refrain 
from questioning people's integrity. Finally, I hope that 
everyone will recognize that this debate is focused on our 
military and its effectiveness, not on broader social issues 
being debated in our society at large.
    This is a complex and important issue that could have 
significant repercussions for our force, a force that is 
engaged in its 10th straight year of sustained combat, and a 
force that is performing exceptionally well. At this time, we 
should be inherently cautious about making any changes that 
would affect our military and what changes we do make should be 
the product of careful and deliberate consideration.
    I'm not saying that this law should never change. I am 
simply saying that it may be premature to make such a change at 
this time and in this manner without further consideration of 
this report and further study of the issue by Congress. For of 
all the people we serve, one of our highest responsibilities is 
to the men and women of our armed services, especially those 
risking their lives in combat.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator McCain.
    Secretary Gates.

    STATEMENT OF HON. ROBERT M. GATES, SECRETARY OF DEFENSE

    Secretary Gates. Mr. Chairman, Senator McCain, members of 
the committee: This past Tuesday, DOD released the report of 
the high-level Working Group that reviewed the issues 
associated with the potential repeal of the DADT law and, based 
on those findings, develop recommendations for implementation. 
The report's findings reflect nearly 10 months of research and 
analysis along several lines of study, and report the most 
thorough and objective review ever of this difficult policy 
issue and its impact on the American military.
    First the group reached out to the force to better 
understand their views and attitudes about the potential repeal 
of the DADT law. As I said on Tuesday, and it is worth 
repeating again today, this outreach was not a matter of taking 
a poll of the military to determine whether the law should be 
changed. The President of the United States, the Commander in 
Chief of the Armed Forces under the Constitution, made his 
position on this matter clear, a position I support. Our job as 
the civilian and military leadership of DOD has been to 
determine how best to prepare for such a change should Congress 
vote to change the law.
    Nonetheless, I thought it critically important to engage 
our troops and their families on this issue, to learn the 
attitudes, obstacles, and concerns needing attention, as 
ultimately it will be they who will determine whether or not 
such a transition would be successful.
    This outreach included a survey questionnaire answered by 
tens of thousands of troops and their families, which Mr. 
Johnson and General Ham can address in more detail. In summary, 
a strong majority of those who answered the survey, more than 
two-thirds, do not object to gay and lesbians serving openly in 
uniform. The findings suggest that for large segments of the 
military, with the exception of some combat specialties, the 
repeal of DADT, though potentially disruptive in the short-
term, would not be the wrenching, traumatic change that many 
have feared and predicted.
    Second, the Working Group also examined thoroughly all the 
potential changes to DOD's regulations and policies. As the Co-
Chairs will explain, the majority of concerns often raised in 
association with the repeal--dealing with sexual conduct, 
fraternization, billeting arrangements, marital or survivor 
benefits--could be governed by existing laws and regulations. 
Existing policies can and should be applied equally to 
homosexuals as well as heterosexuals. The key to success, as 
with most things military, is training, education, and above 
all strong and principled leadership up and down the chain of 
command.
    Third, the Working Group examined the potential impact of a 
change in the law on military readiness, including the impact 
on unit cohesion, recruiting and retention, and other issues 
critical to the performance of the force. In my view, getting 
this category right is the most important thing we must do. The 
U.S. Armed Forces are in the middle of two major overseas 
campaigns, a complex and difficult drawdown in Iraq and a war 
in Afghanistan.
    The Working Group concluded that overall, and with thorough 
preparation, there is low risk from repealing DADT. However, as 
I mentioned earlier, the survey data showed that a higher 
proportion--between 40 and 60 percent--of those troops serving 
in predominantly all-male combat specialties--mostly Army and 
Marines, but including the special operations formations of the 
Navy and the Air Force, predicted a negative effect on unit 
cohesion from repealing the current law.
    For this reason, the uniformed Service Chiefs are less 
sanguine than the Working Group about the level of risk of 
repeal with regard to combat readiness. The Service Chiefs will 
have the opportunity to provide their expert military advice to 
Congress tomorrow, as they have to me and to the President. 
Their perspective deserves serious attention and consideration 
as it reflects the judgment of decades of experience and the 
sentiment of many senior officers.
    In my view, the concerns of combat troops, as expressed in 
the survey, do not present an insurmountable barrier to a 
successful repeal of DADT. This can be done and it should be 
done without posing a serious risk to military readiness. 
However, these findings do lead me to conclude that an 
abundance of care and preparation is required if we are to 
avoid a disruptive and potentially dangerous impact on the 
performance of those who are serving at the tip of the spear in 
America's wars.
    I will now outline my recommendations for the way ahead. 
Earlier this year, the House of Representatives passed 
legislation that would repeal DADT after a number of steps take 
place, the last step being certification by the President, the 
Secretary of Defense, and the Chairman of the Joint Chiefs, and 
that the new policies and regulations were consistent with the 
U.S. military's standards of readiness, effectiveness, unit 
cohesion, and recruiting and retention. Now that we have 
completed this review, I strongly urge the Senate to pass this 
legislation and send it to the President for signature before 
the end of the year.
    I believe this has become a matter of some urgency because, 
as we have seen in the past few months, the judicial branch is 
becoming more involved in this issue and it is only a matter of 
time before the Federal courts are drawn, once more, into the 
fray. Should this happen, there is the very real possibility 
that this change would be imposed immediately by judicial fiat, 
by far the most disruptive and damaging scenario I can imagine 
and the one most hazardous to military morale, readiness, and 
battlefield performance.
    Therefore, I believe it is important, as Senator McCain put 
it in his opening remarks, that the question of whether the law 
should be repealed is a matter for Congress to decide. I 
believe the change should come via legislative means, that is, 
legislation informed by the review just completed. What is 
needed is a process that allows for a well-prepared and well-
considered implementation, above all, a process that carries 
the imprimatur of the elected representatives of the people of 
the United States. Given the present circumstances, those who 
choose not to act legislatively are rolling the dice that this 
policy will not be abruptly overturned by the courts.
    I believe it would be unwise to push ahead with 
implementation of repeal before the force can be prepared for 
this change. The Working Group's plan, with its strong emphasis 
on education, training, and leader development, provides a 
solid road map for a successful full implementation of the 
repeal. DOD has already made a number of changes to regulations 
that within existing law, applied more exacting standards to 
procedures investigating or separating troops for suspected 
homosexual conduct, changes that have added a measure of common 
sense and decency to a legally and morally fraught process.
    I would close on a personal note and a personal appeal. 
This is the second time that I have dealt with this issue as a 
leader in public life, the prior case being at the Central 
Intelligence Agency (CIA) in 1992, when as Director, I ordered 
that openly gay and lesbian applicants be treated like all 
other applicants, that is whether as individuals they met our 
competitive standards.
    That was, and is, a situation significantly different--in 
circumstance and consequence--than that confronting the U.S. 
Armed Forces today. Views toward gay and lesbian Americans have 
changed considerably during this period and have grown more 
accepting since DADT was first enacted. But feelings on this 
matter can still run deep and divide, often starkly, along 
demographic, cultural, and generational lines, not only in 
society as a whole, but in the uniformed ranks as well.
    For this reason, I would ask as Congress takes on this 
debate for all involved to resist the urge to lure our troops 
and their families into the politics of this issue.
    What is called for is a careful and considered approach, an 
approach that to the extent possible welcomes all who are 
qualified and capable of serving their country in uniform, but 
one that does not undermine, out of haste or dogmatism, those 
attributes that make the U.S. military the finest fighting 
force in the world. The stakes are too high for a Nation under 
threat, for a military at war, to do any less.
    Thank you.
    Chairman Levin. Thank you very much, Secretary Gates.
    Admiral Mullen.

STATEMENT OF ADM MICHAEL G. MULLEN, USN, CHAIRMAN, JOINT CHIEFS 
                            OF STAFF

    Admiral Mullen. Thank you. Mr. Chairman, Senator McCain, 
and distinguished members of this committee:
    My personal views on this issue remain unchanged. I'm 
convinced that repeal of the law governing DADT is the right 
thing to do. Back in February when I testified to this 
sentiment, I also said that I believed the men and women of the 
Armed Forces could accommodate such a change, but I did not 
know it for a fact.
    Now I do. So what was my personal opinion is now my 
professional opinion. Repeal of the law will not prove an 
unacceptable risk to military readiness. Unit cohesion will not 
suffer if our units are well-led. Families will not encourage 
their loved ones to leave the Service in droves.
    I do not discount for a moment the findings in the Working 
Group survey which indicate resistance to repeal by those in 
the combat arms and irregular warfare communities. I do not 
find these concerns trivial or inconsequential, nor do I 
believe we can afford to ignore them. Given that this 
reluctance arises from the ranks of the very troops upon which 
much of the burden of these wars has fallen, we would do well 
to pay heed and to move forward in a deliberate and measured 
manner.
    Whatever risk there may be to repeal of this law, it is 
greatly mitigated by the thorough implementation plan included 
in the study, the time to carry out that plan, and effective, 
inspirational leadership.
    These are the things I know for a fact. These are the 
things the study tells us. Now let me tell you what I believe. 
I believe our troops and their families are ready for this. 
Most of them already believe they serve or have served 
alongside gay and lesbians, and knowing matters a lot. Those 
who said they knew they were serving with a gay or lesbian 
servicemember were consistently more positive in their 
assessment of the impact of repeal across all dimensions--
cohesion, effectiveness, retention, and even privacy concerns.
    Our families feel the same. Most of our spouses know at 
least one gay or lesbian and very few of them believe repeal of 
the law would have any effect on family readiness.
    This tracks with my personal experience. I've been serving 
with gay and lesbians my whole career. I went to war with them 
aboard a destroyer off the coast of Vietnam. I knew they were 
there. They knew I knew it. What's more, nearly everyone in the 
crew knew it. We never missed a mission, never failed to 
deliver ordnance on target. Readiness was not impaired. What 
mattered most, what made us a crew, was teamwork and focus on 
our combat mission.
    Back then, of course, it was a different time. Society on 
the whole wasn't as accepting or as tolerant as it is now. So 
we didn't speak of such things or of how little it really 
mattered that the sailor next to you was gay. But America has 
moved on and if you look closely at this study I think you'll 
find that America's military is by and large ready to move on 
as well.
    Should repeal occur, some soldiers and marines may want 
separate shower facilities. Some may ask for different 
berthing. Some may even quit the Service. We'll deal with that. 
But I believe and history tells us that most of them will put 
aside personal proclivities for something larger than 
themselves and for each other.
    There's a special warrior bond in combat, a bond formed not 
by common values, as some have claimed, but rather by the 
common threat of the enemy, hardship, and peril. ``Numerous 
soldiers have died more or less willingly,'' writes J. Glenn 
Gray in his book Reflections on Men in Battle, ``not for 
country or honor or religious faith or for any other abstract 
good, but because they realized that by fleeing their posts and 
rescuing themselves, they would expose their companions to 
greater danger.''
    It is those greater dangers that still motivate the heroism 
and comradeship our troops exemplify today. That's why I 
believe the end of DADT will pass with less turbulence, even in 
the combat arms world, than some predict. In fact, it may be 
the combat arms community that proves the most effective at 
managing this change, disciplined as they are.
    It's not only because our young ones are more tolerant. 
It's because they have far more important things to worry 
about. The experiences of other militaries would seem to bear 
that out. Our study looked at 35 other militaries that chose to 
permit open service, including those of our staunchest allies. 
In no instance was there widespread panic, mass resignations, 
or wholesale disregard for discipline and restraint.
    Some will argue we are different. Of course, none of these 
foreign armies face the unique global demands we do and none 
are charged with the leadership roles we bear. True enough, but 
many of them fight alongside us in Afghanistan today and they 
fought with us in Iraq. Gay or straight, their troops patrolled 
with ours and bled with ours. They certainly shared with ours 
the fear, the loneliness, and the horror of combat. I don't 
recall a single instance where the fact that one of them might 
be openly gay ever led to poor performance on the field. My 
sense is that good order and discipline, far from being cast to 
the winds when one of these governments changed the policy, was 
actually reinforced and reemphasized.
    It's clear to me that our troops expect the same. They 
expect that whatever change we make to the current policy will 
be accompanied by rigorous training and high standards of 
conduct. In fact, the report indicates that one of the factors 
distressing to those who oppose repeal are fears that new 
policies will not be implemented fairly, evenly, and 
dispassionately. Let me be clear. Nothing will change about our 
standards of conduct. Nothing will change about the dignity, 
the fairness, and the equality with which we treat our people. 
Nothing will change about the manner in which we deal with 
those who cannot abide by these standards.
    The military is a meritocracy, where success is based on 
what you do, not who you are. There are no special classes, no 
favored groups. We may wear different uniforms, but we are one.
    There are some for whom this debate is all about gray 
areas. There is no gray area here. We treat each other with 
respect or we find another place to work, period. That's why I 
also believe leadership will prove vital. In fact, leadership 
matters most. The large majority of troops who believe they 
have served in a unit with gays and lesbians rate that unit's 
performance high across virtually all dimensions, but highest 
in those units that are well-led. Indeed, the practical 
differences between units in which there were troops believed 
to be gay or lesbian and those in which no one was believed to 
be so completely disappeared in effectively led commands.
    My belief is, if and when the law changes, our people will 
lead that change in a manner consistent with the oath they 
took. As one Marine officer put it, ``If that's what the 
President orders, I can tell you by God we're going to excel 
above and beyond the other Services to make it happen.'' 
Frankly, that's why I believe that in the long run repeal of 
this law makes us a stronger military and improves our 
readiness. It will make us more representative of the country 
we serve. It will restore to the institution the energy it must 
now expend in pursuing those who violate the policy. It will 
better align those organizational values we claim with those we 
practice.
    As I said back in February, this is about integrity. Our 
people sacrifice a lot for their country, including their 
lives. None of them should have to sacrifice their integrity as 
well.
    It is true there is no constitutional right to serve in the 
Armed Forces, but the military serves all the people of this 
country, no matter who they are or what they believe. Every one 
of those people, should they be fit and able, ought to be given 
the opportunity to defend it.
    Finally, Mr. Chairman, I believe now is the time to act. I 
worry that unpredictable actions in the court could strike down 
the law at any time, precluding the orderly implementation plan 
we believe is necessary to mitigate risk. I also have no 
expectation that challenges to our national security are going 
to diminish in the near future or that a more convenient time 
will appear. I find the argument that war is not the time to 
change to be antithetical with our own experience since 2001. 
War does not stifle change. It demands it. It does not make 
change harder. It facilitates it.
    There is, to be sure, greater uncertainty today and our 
forces are indeed under stress. I know the Service Chiefs are 
concerned about this. So am I. But I do not believe the 
stressors currently manifesting themselves in the lives of our 
troops and their families--lengthy deployments, suicides, and 
health care--are rendered insurmountable or any graver by this 
single policy change. Nor do I believe that simply 
acknowledging what most of our troops already know to be true 
about some of their colleagues threatens our ability to fight 
and win this Nation's wars. Quite the contrary, today's young 
leaders are more attuned to combat effectiveness than in any of 
the last 3 decades. Tempered by war, bonded through hardship, 
the men and women of the U.S. Armed Forces are the finest and 
most capable they have ever been. If there is a better 
opportunity or a better generation to effect this sort of 
change, I don't know of it.
    One final word, with all due respect, Mr. Chairman and 
Senator McCain, it is true that as Chairman, I am not in charge 
of troops, but I have commanded three ships, a carrier battle 
group and two fleets, and I was most recently a Service Chief 
myself. For more than 40 years I have made decisions that 
affected and even risked the lives of young men and women. You 
do not have to agree with me on this issue, but don't think for 
one moment that I haven't carefully considered the impact of 
the advice I give on those who will have to live with the 
decisions that that advice informs.
    I would not recommend repeal of this law if I did not 
believe in my soul that it was the right thing to do for our 
military, for our Nation, and for our collective honor.
    Thank you.
    Chairman Levin. Thank you very much, Admiral Mullen.
    General Ham.

   STATEMENT OF GEN CARTER F. HAM, USA, COMMANDER, U.S. ARMY 
      EUROPE, CO-CHAIR, COMPREHENSIVE REVIEW WORKING GROUP

    General Ham. Thank you, Mr. Chairman, Senator McCain, and 
members of the committee.
    I must admit to you that when Secretary Gates appointed me 
as Co-Chair of this review I was not all that thrilled. But as 
I thought more about it I felt honored and humbled to be able 
to participate in a review of a subject that is of great 
importance to our men and women in uniform. I anticipated the 
task would be complex, tough, sometimes unpleasant and 
uncomfortable, and now I acknowledge that I underestimated 
those factors.
    After 9 months of study, I am convinced that if the law 
changes, the U.S. military can do this, even in a time of war. 
I do not underestimate the challenges in implementing a change 
in the law, but neither do I underestimate the ability of our 
extraordinarily dedicated service men and women to adapt to 
such change and continue to provide our Nation with the 
military capability to accomplish any mission.
    I came to this conclusion not only as a Co-Chair of the DOD 
Working Group, but perhaps more importantly as the Commander of 
U.S. Army forces in Europe. I was cognizant every day of this 
review that I might have to actually lead the changes included 
in our report. As a serving commander, I'm confident that, if 
this law changes, I and the leaders with whom I serve, can do 
just that.
    Thank you.
    Chairman Levin. Thank you very much, General Ham.
    Mr. Johnson.

 STATEMENT OF HON. JEH C. JOHNSON, GENERAL COUNSEL, DEPARTMENT 
    OF DEFENSE, CO-CHAIR, COMPREHENSIVE REVIEW WORKING GROUP

    Mr. Johnson. Mr. Chairman, Senator McCain: Thank you very 
much for the opportunity to testify here today.
    By now you have had the opportunity to read the report 
General Ham and I have co-authored. The report is voluminous 
and comprehensive, but we hope it speaks for itself. Our basic 
assessment is that our military can make this change, provided 
we do so in an orderly and reasonable manner, in accordance 
with the recommendations for implementation we offer in our 
report.
    This morning I'd like to take a moment to talk to you, not 
in my capacity as co-author of this report, but as the lawyer 
for DOD. I want to repeat and elaborate upon what Secretary 
Gates and Admiral Mullen have said and ask that Congress not 
leave our military's fate on this issue in the hands of the 
courts. I offer no view about the constitutionality of DADT or 
prediction about the outcome of the litigation that is under 
way. But regardless of how you feel about DADT or gays serving 
openly in the military, the fact that there is increased 
litigation in the courts on matters of gay rights is 
undeniable.
    Since 2003, when the Supreme Court decided Lawrence v. 
Texas, the courts have become increasingly receptive to gay 
rights claims. Within the last year alone, Federal district 
courts have for the first time declared California's gay 
marriage ban, the Federal Defense of Marriage Act, and DADT all 
unconstitutional. We have appealed the lower court decisions on 
DADT, but after years in which DADT was upheld in the courts, 
the constitutionality of this law is now in litigation once 
again. We in DOD face the possibility that we must repeal DADT, 
not on the terms and timetable of the President, Congress, and 
DOD, but on the terms and timetable of a court and a plaintiff.
    We got a taste of that possible future in October and 
November in the Log Cabin Republicans case. On Monday, October 
11, 2010, we had a law and a policy in place that required 
separation of members of the military who were found to have 
engaged in homosexual conduct. On Tuesday, October 12, 2010, a 
Federal district judge in California issued an order to the 
Secretary of Defense to suspend enforcement of that law on a 
worldwide basis.
    Eight days later on October 20, 2010, the appellate court 
issued a temporary stay of the injunction while it considered 
whether to grant a more permanent stay. On Monday, November 1, 
2010, the Ninth Circuit agreed to keep the stay in place during 
the pendency of the appeal in that court.
    On Friday, November 5, 2010, the Log Cabin Republicans 
asked the Supreme Court to reverse the stay. On Friday, 
November 12, 2010, the Supreme Court denied that request.
    Thus, in the space of 8 days, we had to shift course on the 
worldwide enforcement of the law twice, and in the space of a 
month face the possibility of shifting course four different 
times. This legal uncertainty is not going away any time soon. 
The Log Cabin Republican case is on an expedited appeal 
schedule and more lawsuits are being filed.
    Our plea to Congress is to not leave the fate of this law 
to the courts. As Secretary Gates has stated, if repeal of this 
law occurs it should be done by the elected representatives in 
the political branches of government, not by the courts. 
Indeed, in the course of our review we learned of other nations 
that acted to change their policies on gays in the military to 
head off adverse outcomes in court.
    From where I sit as the lawyer for DOD, the virtue of the 
legislation pending before the Senate is that if passed, repeal 
of DADT will be done on our terms and our timetable, upon the 
advice of our military leadership. As the Working Group report 
makes clear, there are many issues that must be addressed in 
connection with any repeal of DADT: education and training, the 
core messages to be delivered as part of education and 
training, same sex partner benefits, berthing and billeting, a 
policy on reaccession, and related changes to the U.S. Court of 
Military Justice and others. The Secretary and Chairman have 
both made it clear that they will not sign the certification 
contemplated by the current legislation until we've written new 
post-repeal policies and regulations and have at least begun 
our education and training of the force--in other words, that 
repeal is brought about in a responsible and orderly manner. In 
all likelihood, this will not be possible if repeal is imposed 
upon us by judicial fiat.
    For these reasons, we urge that the Senate act now on the 
pending legislation. Thank you.
    Chairman Levin. Thank you very much, Mr. Johnson.
    We have a very large number of Senators here and Secretary 
Gates has to leave at 11:30. The others are able to stay later 
than that. But in order to give everyone a turn while he's 
here, I think our first round will need to be limited to 5 
minutes, and then we will have----
    Senator McCain. Mr. Chairman, I object to that.
    Chairman Levin. I'm trying to give----
    Senator McCain. I think 5 minutes is----
    Chairman Levin. I agree, it's a very small time.
    Senator McCain. Then I suggest we have another hearing or 
reconvene in the afternoon. 5 minutes is not sufficient time 
for anything, frankly, but statements by the members.
    Chairman Levin. We've had rounds of 5 and 6 and 7 minutes 
for many, many hearings. In fact, that's our tradition. But in 
any event, I'm trying to give every member here an opportunity 
while Secretary Gates is here. I'm not saying there is not 
going to be a second round. There will be a second round and a 
third round and a fourth round with Admiral Mullen and with----
    Senator McCain. He'll be gone.
    Chairman Levin.--General Ham and Mr. Johnson. If we then 
need Secretary Gates back for an additional hearing, we'll ask 
him back. But I have to accommodate both his schedule as well 
as give an opportunity to every member of this committee while 
he is here to ask him questions.
    Senator McCain. My only response, Mr. Chairman, is this is 
obviously a transcendently important issue, and to allow our 
members 5 minutes with the Secretary of Defense is simply not 
adequate enough for us to have the much-needed information that 
the Secretary of Defense can provide.
    All I can do is say you're not giving the members 
sufficient time to ask questions, which is maybe not the 
intent, but certainly the effect. Maybe we could, in the lame 
duck session that we are in, have another hearing as soon as 
possible, so that all members can have ample opportunity to get 
the information they need to make a very important decision.
    Secretary Gates. Mr. Chairman, if it would help I can do 
some rearranging and stay until noon.
    Chairman Levin. Thank you. We hope that helps, and we hope 
another hearing with you would not be necessary. We have our 
other witnesses here as long as we need them. If we need a 
second round with Secretary Gates, we will consider that at 
that time. But at least for the first round, we're going to 
have a 5-minute round to give all of our members an opportunity 
while he's here.
    This is an important hearing and it's important for all of 
our members to have that opportunity.
    Senator Inhofe. Mr. Chairman.
    Chairman Levin. Let me proceed here. I think we just want 
to get going.
    Senator Inhofe. I'm just saying, doing the math around 
here, since he's extended it by 30 minutes, you could change 
that to 6-minute rounds and still do the same thing.
    Chairman Levin. Thank you very much for that 
recommendation. We'll have a 6-minute first round, given 
Secretary Gates's ability to stay an extra half hour.
    Let me start with you, Admiral Mullen. You have told us 
that the Nation should now change our policy and that we should 
allow gay and lesbian servicemembers to serve in the military 
without having to conceal their sexual orientation. You've 
stated your position both personally and professionally now in 
a very eloquent way.
    You've also urged us, as have the others, to carefully 
consider the views of the Service Chiefs even where they might 
differ. Have you carefully and seriously considered the views 
of all of the Service Chiefs even where they might differ in 
reaching your own professional conclusion?
    Admiral Mullen. I have spent a great deal of time with the 
Service Chiefs on this issue since the beginning of the year. I 
couldn't tell you the number of sessions, but one of my goals 
throughout this process was not one of influence, but it was 
one of debate, discussion, and making sure that everybody 
understood where everybody else was on this. In particular, 
when we got the report, took the report, looked at it, assess 
probably more than anything else the risk that is associated 
with it, obviously understanding what's in the report, but 
assess the risk. Each of us arrive at our own conclusions about 
that and not just from a service perspective. Certainly the 
Service Chiefs have that obligation, but this is also the Joint 
Chiefs, and so I asked them for their views from the joint 
perspective as well.
    We received that, and certainly all of that is taken into 
consideration in arriving at where I am with respect to the 
risk level tied to potential implementation of this repeal.
    Chairman Levin. So do I understand from your answer then 
that you have carefully considered the views of the Service 
Chiefs before you've reached your own professional opinion?
    Admiral Mullen. Very carefully, yes, sir.
    Chairman Levin. Secretary Gates, you've also urged us to 
carefully consider the views of the Service Chiefs, and I fully 
agree with you. Have you done that in reaching your own 
conclusion?
    Secretary Gates. Yes, sir, I have.
    Chairman Levin. General Ham, have you carefully considered 
the views of all the Service Chiefs before reaching the 
conclusion in this report?
    General Ham. Mr. Chairman, I have, but it is important to 
note that the report from Mr. Johnson and myself to the 
Secretary is not reflective of the Service Chiefs' views.
    Chairman Levin. I understand. But before you reached your 
views that you've transmitted, we understand there will be 
differences that the Service Chiefs will have and we'll hear 
from them tomorrow. But I want to know that, in considering 
your views, you've touched base with various stakeholders and 
people who have their own points of view inside the military. 
Have you touched base with the Service Chiefs and have you 
considered their views?
    General Ham. Yes, Mr. Chairman.
    Chairman Levin. Mr. Johnson?
    Mr. Johnson. Yes, absolutely, Senator. During the comment 
period leading up to the publication of the report, General Ham 
and I took account of what we heard and in places revised our 
own assessment in response to views that were expressed to us 
by the Service Chiefs.
    Chairman Levin. There has been, in a number of places, 
revisions of this assessment based on the views of those 
Service Chiefs?
    Mr. Johnson. Yes, sir.
    Chairman Levin. Now, General Ham, assuming we change the 
policy and repeal the policy of DADT, as Commander of the U.S. 
Army Europe, can you effectively implement a new policy 
allowing gay and lesbian servicemembers to serve in the 
military without concealing their sexual orientation, 
consistent with the standards of military readiness, military 
effectiveness, unit cohesion, and recruiting and retention in 
the Armed Forces?
    General Ham. Mr. Chairman, I am confident that I can.
    Chairman Levin. In terms of passing legislation now, the 
matter has been before this committee for almost a full year 
now, starting in February. We have had hearings on this matter. 
We have raised questions with the Service Chiefs. They've 
testified on this before and will again tomorrow.
    You've indicated, Secretary Gates, that it's important that 
we act now, this month, I believe, and you've given us the 
reasons, primarily because the courts are involved now in this 
matter.
    You've also said we should not act, I believe your words 
were, ``in haste.'' Given the amount of time that we've already 
put into it, but given the fact that we've had this report now 
just for a couple days, would you consider our acting this 
month to be hasty?
    Secretary Gates. It certainly would be expeditious. I think 
that, as Senator McCain has said, this is a very important 
matter. Frankly, my sense of urgency would not be as great were 
it not for what we went through in October and November that 
Mr. Johnson described in his opening statement, which frankly 
was a very difficult period for us. In essence, overnight, we 
were told that the law had changed and that we couldn't enforce 
it. We had done no training, no preparation, nothing 
whatsoever.
    It is my worry about the unpredictability of the situation 
with the courts, particularly this coming spring, that gives me 
a sense of urgency about this. But the timetable obviously has 
to be based on the will of the Senate.
    Chairman Levin. Would you consider that we have deliberated 
on this issue this year?
    Secretary Gates. I would like to see--I'm sorry?
    Chairman Levin. You've urged us to be deliberative, and I 
agree we need to be deliberative. We're a deliberative body. We 
have had this matter in front of us now for a year, including 
testimony during the year, including a separate hearing on 
DADT, including many hearings where we've asked the issue of 
Service Chiefs, where you've testified on this I believe as 
well.
    On the other hand, you've urged us to be deliberative. You 
also have urged us to act this month, and I want to know 
whether or not your two urgings are consistent.
    Secretary Gates. As I say, I am very worried about the 
courts, and frankly I do think it needs to be deliberate. The 
reality is I had expressed the hope in February that there 
would be no legislation until after the review was done, so 
that the review and what we learned could inform the 
legislative process.
    Now, I think the report is pretty stark. It's pretty clear 
in its conclusions, agree or not with them. I think it's pretty 
straightforward, and therefore I think that absorbing the 
lessons learned and the recommendations and the analysis of the 
report is doable within the time frame that you have before 
Congress adjourns.
    So I believe that, at least based on the information in the 
report, that Congress is in a position to act because it now 
has this information in hand. Frankly, I don't think it's all 
that complicated to absorb. I think the key issues have been 
described quite clearly in your opening statement, Senator 
McCain's opening statement, and in the opening statements that 
the four of us have made. Those are the critical issues.
    Chairman Levin. Senator McCain.
    Thank you.
    Senator McCain. General Ham, thank you for your hard work 
on this issue. Is it your personal opinion that this law should 
be repealed?
    General Ham. Senator McCain, I've given this a lot of 
thought. We certainly can. It is my personal view that I'm very 
concerned about the timing of the courts, and personally, I 
think it is time to move from debate and discussion to decision 
and implementation. Yes, sir, I think it is time to change.
    Senator McCain. Secretary Gates, this survey says nearly 60 
percent of respondents in the Marine Corps and the Army combat 
troops say they believe there would be a negative impact on 
their units' effectiveness in this context. Among Marine combat 
troops, the number was 67 percent. Nearly 60 percent of the 
Army combat troops and 66.5 percent, two-thirds, of the Marine 
Corps combat troops voiced these concerns about repeal.
    You have said that you conclude that those concerns of 
servicemembers, about deterioration of military unit cohesion 
are exaggerated. How are they exaggerated?
    Secretary Gates. I don't remember using the word 
exaggerated because I take those concerns very seriously and, 
frankly, share the view of the Service Chiefs that the report's 
evaluation of risk and particularly in the combat arms is 
perhaps too sanguine.
    What I believe is that, with proper time for preparation, 
for training, whether it's before deployments or after 
deployments, however it works out, if we are allowed to do this 
on our terms, I believe that those concerns can be mitigated. 
To repeat one of the things that Admiral Mullen said in his 
opening statement, the experience of those who have served with 
someone they believe to be gay or lesbian was very different, 
even in combat troops, than those who had never done so.
    I would point out that most of the Marines that are in 
combat are 18 to 25 years old. Most of them have never served 
with women either. They've had a very focused, very limited 
experience in the military, and it's been a tough one. With 
time and adequate preparation, we can mitigate their concerns.
    Senator McCain. I couldn't disagree more. We send these 
young people into combat. We think they're mature enough to 
fight and die. I think they're mature enough to make a judgment 
on who they want to serve with and the impact on their battle 
effectiveness. Mr. Secretary, I speak from personal experience.
    Within the combat units of the Army and the Marine Corps, 
the numbers are alarming. 12.6 percent of the overall military 
force that responded to the survey say they will leave the 
military sooner than they had planned. 21.4 percent of Army 
combat troops indicate they will leave the force earlier. In 
the Marine Corps that number jumps to 32 percent, nearly a 
third of all Marine Corps combat troops, which is probably why 
the Service Chiefs, particularly the Commandant of the Marine 
Corps, is, in your words, less sanguine than you are about this 
issue.
    Also, if this 12.6 percent of the military left earlier, 
that translates into 264,600 men and women who would leave the 
military earlier than they had planned. Do you think that's a 
good idea, replacing 265,000 troops across the force in time of 
war? Should we be undertaking that challenge at this time?
    Secretary Gates. First of all, the experience of the 
British, the Canadians, and some of the others has been that in 
their surveys prior to enacting a change in their laws and 
rules there were substantial numbers who said that they would 
leave, and in the end, those numbers were far smaller than the 
surveys had indicated.
    Again, I go back to the point that people who have had 
experience serving with gays or lesbians have had a different 
view of these things, and that will be true in a lot of our 
force. Again, I think that the training and so on will help 
mitigate these consequences. Frankly, while there are some 
concerns that you will probably hear tomorrow about some of our 
Special Operations Forces (SOF), where there are limited 
numbers of people and where any loss is potentially of concern 
for the force as a whole, I don't think any of us expect that 
the numbers would be anything like what the survey suggests 
just based on experience.
    Also, you have the reality that servicemembers can't just 
up and leave. They have enlistment contracts. The officers have 
contracts in terms of the amount of time they have to serve. It 
isn't like they can just say, ``well, I'm out of here.'' They 
are going to have to complete their obligation. I believe that 
during that period their concerns can be mitigated.
    One of the encouraging aspects of this has been the fairly 
positive responses of spouses, because, as the saying goes, you 
enlist the soldiers, you reenlist the family. The positive 
responses of the spouses have been important.
    Senator McCain. Mr. Secretary, finally, we are very deeply 
concerned about Wikileaks, the impact that it has had on 
identifying people who were cooperating with us in Afghanistan 
and Iraq. Some leaders have said they have blood on their 
hands. So far all we know is that one private first class was 
responsible for this. Have you begun an investigation since 
July? Have you held any individual responsible for Wikileaks, 
punished anyone, put anyone on leave, or taken any disciplinary 
action whatsoever for this incredible breach of national 
security?
    Secretary Gates. I would answer in two ways, Senator. 
First, to a certain extent our ability to go down that path is 
limited by the fact that we have criminal proceedings under way 
that limit our ability to conduct an independent investigation 
while that criminal investigation is going on.
    By the same token, beginning in August we directed a number 
of steps to take every possible step----
    Senator McCain. My time has expired. I asked if you held 
anyone----
    Secretary Gates.--so that this couldn't happen again.
    Senator McCain. Have you held anyone responsible, was my 
question.
    Secretary Gates. Not yet.
    Senator McCain. Thank you.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you, Senator McCain.
    Senator Lieberman.
    Senator Lieberman. Thanks, Mr. Chairman.
    Thanks to all of you. In his opening comments, Senator 
McCain said that the survey and report that you put out 
yesterday, General Ham, Mr. Johnson, didn't answer the question 
of whether the law should be repealed. It did answer the 
question, in my opinion, that if the DADT law is repealed that 
it will not compromise military effectiveness, unit cohesion, 
or morale. That's a critically important element.
    The question of whether the law should be repealed is for 
Congress. I want to just very briefly say that to me, in 
reaching a judgment on that question, we're on the front lines 
of a turning point in American history. We have these in every 
generation. This country from the beginning was defined not by 
its borders, but by our values. The Declaration of Independence 
says we're all endowed by God with those equal rights to life, 
liberty, and the pursuit of happiness.
    Every generation has realized those rights better, because 
they weren't realized at the beginning, in 1776, for women, for 
people of color, et cetera. In our time, one of the great 
transitions occurring is the growing readiness and 
understanding among the American people, it's just wrong and 
un-American to discriminate against people based on their 
sexual orientation.
    One of the great examples, and I think a heroic example of 
this change of public opinion, is the great man whose chair I 
am occupying today, who served on this committee until his 
death, Senator Robert C. Byrd, who strongly supported DADT in 
1993 and then in our deliberations this year played a critical 
role, offered legislation to guarantee real due process and a 
deliberative process in removing this law. Essentially, said in 
voting for the change that DADT was wrong, it was not 
consistent with our values and it wasn't good for the military.
    The U.S. military has a proud tradition of leading and 
reflecting the best values of America. In this case, I think 
the U.S. military is behind the American people and behind the 
private sector, and it is because the law constrains you from 
reflecting our best values. The 1993 law says the Commander in 
Chief or the military don't have the latitude to end this 
discriminatory policy, and that's why I think it's so 
critically important that we do this as quickly as possible.
    If we repeal DADT in this lame duck session, the 
deliberative process that the amendment and our law provides is 
really full of due process. In fact, there is no time limit on 
the certification required from the President, Secretary of 
Defense, and Chairman of the Joint Chiefs of Staff. That's up 
to those three honored individuals.
    I think that Admiral Mullen said it well to me: ``Success 
in America, in the military, is based not on who you are but 
what you do.'' That's true of American life generally, and this 
is our opportunity to change that.
    I want to ask just a couple of questions. The first is 
this. Why do I say this policy has been bad for the military? 
Because the record shows that almost 14,000 servicemembers have 
been tossed out of the military over the last 17 years, not 
because they were bad soldiers, not because they violated the 
code of conduct, but because they were gay, who they were.
    Admiral Mullen, in that sense, do you think we have lost 
some critical military personnel and in fact some who are gay 
or lesbian may have not enlisted in the military because of 
fear of what that would mean to them personally?
    Admiral Mullen. I don't think there's any question about 
that. To the whole issue of both recruiting and retention, the 
report itself looks very specifically at the risk level with 
respect to that. It also flags areas that, should this change, 
we need to focus on as leaders. One of the things I struggle 
with is that we have lost upwards of 13,000 to 14,000 
individuals. Clearly, by implication alone, there are those 
that would choose not to come in to have to go through that.
    In addition to that, and this is very fundamental to me, 
which is this whole issue of integrity. We're an institution 
that values integrity and then asks other people to join us, 
work with us, fight with us, die with us, and lie about who 
they are the whole time they're in the military. That's what 
doesn't make any sense to me.
    While they're here and able to do that, even in the policy 
that we have, they are actually individuals who go through 
extraordinary pain to sustain that lie.
    Senator Lieberman. Let me read one of the more interesting 
and important statistics in the survey: ``only 15 percent of 
gay and lesbian servicemembers who responded to the RAND study 
said that they would want their sexual orientation to be known 
in their unit.'' Here's a quote from one of those, to the 
interviewer: ``I think a lot of people think there's going to 
be this big outing and people flaunting their gayness. But they 
forget that we're in the military. That stuff isn't supposed to 
be done during duty hours regardless of whether you're gay or 
straight.''
    So just to be clear, Admiral, if DADT is repealed the 
military code of conduct will apply to gay and lesbian members 
of the military as well as straight members, and just as a 
straight member, a man, who may sexually harass a woman is 
subject to discipline, so too would a gay member of the 
military who subjects another person of the same gender be 
subject to disciplinary action?
    Admiral Mullen. Standards of conduct will not change one 
bit. Leadership requirements to enforce those won't change at 
all. So I fully agree with you.
    Senator Lieberman. I appreciate, finally, your comment 
about the integrity of the military. We're going through a 
tough time in American life now and it's a time in which the 
American people have lost confidence in some of the great 
institutions of our society, the Government, and the business 
community. Probably the one institution, central institution in 
our country that the American people still have trust in is the 
American military, because it's committed to a cause larger 
than individuals, because they are committed to one another, 
and they're mission-focused. It's not who you are, but what you 
do.
    I think DADT is a stain on the honor of the U.S. military 
that we have the capacity to remove in this session of 
Congress, and I hope that we will.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you, Senator Lieberman.
    Senator Inhofe.
    Senator Inhofe. Thank you, Mr. Chairman.
    Let me just state this. Back in 1993-1994 under the Clinton 
administration when DADT was installed, I was critical of it. I 
didn't think it would work. Now that time has gone by and we've 
gone what, 16 or 17 years. There's an old saying now that I 
recall, that I've used in the past; if it ain't broke, don't 
fix it. It has worked. I really believe it has worked.
    Let me just ask the same question that Senator McCain 
asked, in perhaps a little different way. Right now we have the 
best, probably the best retention and recruitment percentages, 
over 100 percent everywhere except, I think, just the Army 
Guard, and there are some other reasons for that. This is 
something that has concerned me as to how repeal would affect 
that.
    When you look at the report under question 71.B, the 
question is: ``Would it affect your immediate unit 
effectiveness at completing its mission,'' and it's results 
were a ratio of 2\1/2\ to 1 that they're stating repeal would 
have a negative effect.
    When you look at the other figures, you have to ask the 
question, how is this going to negatively impact the 
recruitment or retention. There's another figure that can be 
used, that 23.7 percent would either leave or think about 
leaving the Service, Admiral Mullen. This is from the report. 
Also, 27 percent of the servicemembers surveyed said that if 
there was a repeal they would not be willing to recommend 
military service to someone else.
    Now, I know there have been studies made. As I recall, it's 
about 50 percent of the people who go into the military do so 
at the recommendation of someone who's already in. Let's assume 
that that's right. Are you concerned at all about what's going 
to happen to our retention and recruitment, Admiral Mullen?
    Admiral Mullen. Senator, the report properly flagged these 
issues and I think that's important. It's certainly something, 
if implemented, we have to focus on.
    I have not met a soldier, sailor, airman, marine, or 
coastguardsman in my whole life, man or woman, who didn't think 
at one point or another about whether they were going to stay 
or go. Then from my point of view, that focuses on exposure and 
understanding and the report, which indicates how many, once 
exposed, it did not affect at the 90 percent level, including 
the combat arms, the Marines as well, that it did not affect 
unit readiness.
    Now, that's the reality of exposure. There are clearly 
those, as the Secretary of Defense said, who have not been 
exposed.
    Senator Inhofe. I understand your answer, but it's taking 
up all my time.
    Let me ask you this one further question. Why do you think 
only two-thirds of the people responded to this survey?
    Admiral Mullen. Actually, by every indication, and you'd 
have to get somebody that does this for a living, it was an 
extraordinarily positive response, about 28 percent of the 
400,000 surveys that were sent out to the men and women in 
uniform and the 150,000 to our families, more than 
statistically significant in all the key categories.
    Senator Inhofe. I certainly disagree with that. I have 
talked to people in the field who have said that: ``We didn't 
respond because the decision was already made.'' I think 
Senator McCain already covered that, so I won't repeat that.
    Let me quickly get this in because I know tomorrow's the 
hearing where we'll have the Service Chiefs, but I think it's 
important to get it in the record here. General Schwartz of the 
Air Force said, ``I believe it is an important matter of 
keeping faith with those currently serving in the Armed Forces 
that the Secretary of Defense-commissioned review be completed 
before there is any legislation to repeal.'' Obviously, that 
didn't happen because the legislation came through in the form 
of an amendment back on March 27.
    Admiral Roughead states, ``My concern is legislative 
changes at this point leading sailors to question whether their 
input matters.'' That's what I've heard in the field: ``It 
doesn't really matter; why respond to it?'' General Casey 
states, ``I remain convinced that it is critically important to 
get a better understanding of where our soldiers and families 
are on the issue. I also believe that repealing the law before 
the completion of the review will be seen by men and women of 
the Army as a reversal of our commitment to hear their views 
moving forward.''
    Clearly they believed last January that before any decision 
was made we would hear their views. Then halfway through this 
legislation, the amendments, came. I might say right down party 
lines, to go ahead and do that.
    This is what we hear in the field. General Amos of the 
Marine Corps stated: ``Now is the wrong time to overturn DADT. 
As U.S. troops remain in the thick of war in Afghanistan, there 
is risk involved. I'm trying to determine how to measure that 
risk. This is not a social thing. This is combat effectiveness. 
That is what the country pays Marines to do.''
    Now, I know they're coming up tomorrow. We'll have a chance 
to ask them. Let me just ask you for a brief answer. Do you 
think that they're right or wrong?
    Admiral Mullen. I think there's an opportunity to hear them 
before legislation passes, as they have asked in the past.
    Senator Inhofe. Secretary Gates?
    Secretary Gates. I would just say there was another person 
that said something along those lines in terms of the review 
and that was me, before this committee in February, when I 
urged that there be no legislation until the review had been 
completed.
    Senator Inhofe. All right.
    Now, lastly, I have heard several times that, whatever 
happens here now is not all that significant because there is a 
final step, and the final step is that the repeal provision 
contained within both the House of Representatives and the 
Senate Armed Services Committee versions of the NDAA would work 
as follows. Once the law is enacted, repealed and so forth, the 
President, Chairman of the Joint Chiefs, and the Secretary of 
Defense deliver to Congress their recommendation based on these 
assumptions that come out of this report, and that isn't going 
to happen until that takes place.
    Yet halfway through this process, Secretary Gates, Chairman 
Mullen, and the President has made it very clear that you've 
all already made up your mind. Have you already made up your 
mind, so that this step is not going to be necessary?
    Secretary Gates. Absolutely not. The certification process 
is a critical piece of the legislation. Speaking for myself, I 
would not sign any certification until I was satisfied, with 
the advice of the Service Chiefs, that we had in fact 
mitigated, if not eliminated, to the extent possible, risks to 
combat readiness, to unit cohesion and effectiveness.
    Senator Inhofe. Even though you fully support the 
President's decision, the question before us is not whether the 
military prepares to make the change, but how we prepare for 
it?
    Secretary Gates. That's exactly right.
    Senator Inhofe. Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator Inhofe.
    Now, Senator Reed.
    Senator Reed. Thank you very much, Mr. Chairman.
    Admiral Mullen, You seem to be saying that there is a high 
correlation between those who have served with gay individuals 
and who believe that unit cohesion will not be affected, and 
that there's a very low correlation between those who have 
never served with them and they feel that unit cohesion will be 
irreparably harmed.
    Which leads to the conclusion I think you're getting at, 
the results are, if you had the opportunity to serve with 
individuals who you know or suspect to be gay, that you don't 
have significant concerns about overall cohesion and unit 
effectiveness. Is that your conclusion?
    Admiral Mullen. True, yes, sir.
    Senator Reed. That is the conclusion of the study, too, as 
you look at the correlation of numbers?
    Admiral Mullen. Yes, sir. The study laid that out. 
Additionally, the study also found that should the law change, 
the difference between those who are actually deployed and in 
combat, concerns were lower than those who were in combat arms 
but not deployed, because they're very specifically focused on 
the mission in combat at the time.
    Senator Reed. That's important to emphasize again. Let me 
understand it fully. Those units that were surveyed that were 
deployed in combat, their responses were less concerned about 
unit cohesion with the introduction of gay personnel?
    Admiral Mullen. What the report showed specifically were 
those who were in combat situations or had been in combat 
situations on this issue found themselves much more focused on 
combat and expressed less concern about the policy than those 
who were combat arms who were not deployed at the time. It's 
very clear that they were focused on succeeding in combat and 
succeeding in their mission.
    Senator Reed. I think this survey data complements the best 
proxy we have for this question, which is the experience of our 
closest allies. I don't know if you want to comment or 
Secretary Gates wants to comment on what you've heard from the 
British chiefs of service in terms of their combat arms, their 
Royal Marines and their SOF, who are operating side-by-side 
with our forces.
    Admiral Mullen. I don't approach this from the perspective 
of a one-to-one comparison because we are different countries, 
and I understand that. But when I talk to my counterparts in 
the U.K. and in Australia specifically, the theme from both 
chiefs was an awful lot of resistance upfront, an awful lot of 
hubbub before it changed, and then it virtually was implemented 
without an issue once the law changed in their own country.
    Senator Reed. You have had no comments from the field from 
our commanders who are working with these units questioning 
their combat efficiency. In fact, my impression in Afghanistan 
is that they're eager for the help, their support, and quite 
impressed with their performance. Is that fair?
    Admiral Mullen. Their priorities are just not focused on 
this issue very specifically.
    Senator Reed. General Ham, you have conducted 95 forums at 
51 bases. You've conducted 140 smaller focus group sessions. 
You've handed out 400,000 questionnaires, received a 
significant number back. But ultimately there is a judgment 
about whether you feel that the voice of the troops, the young 
men and women in the families, have been heard. I think you're 
ideally suited to make that judgment. Is that your judgment?
    General Ham. Senator, it is. Through the administration of 
the survey, it provided us statistically sound and analytically 
rigorous information across a wide spectrum of categories. But 
it was the personal engagement face to face that Mr. Johnson 
and I and other members of our team conducted, the online 
inbox, and other mechanisms that allowed servicemembers and 
their families to voice their views. That gave us great context 
and gave us, frankly, some of the theme that we addressed in 
the survey.
    Senator Reed. Thank you.
    Mr. Johnson, again, you stressed the pending impact of 
court cases, which are unpredictable. But it seems that there's 
a growing willingness of courts to step in and make decisions 
based on the constitutional theories about the inadequacies of 
DADT.
    That, as you said in your remarks, again, adds another 
dimension that didn't exist last February when we started 
talking about how do we do this, do we do it legislatively, do 
we have the survey, et cetera. Obviously, that's another factor 
we have to consider.
    Mr. Johnson. Yes, absolutely, Senator. All three branches 
of Government are very actively involved in this issue right 
now.
    Senator Reed. A final question, Mr. Secretary. You 
mentioned in your opening remarks you had the experience in 
1992 in the CIA, and my perception would be you faced some of 
the same issues, which were initially opposition within the 
ranks, within the public. But you ensured that policy was 
carried out and that within the CIA there are analysts who are 
removed from small unit activities in the field and then field 
operations. Did you notice as we've had this policy in place 
now for over a decade, any significant difficulties in getting 
field operators to accept it, the counterpart to the combat 
forces of our military?
    Secretary Gates. No. In fact, the direction that I made in 
1992 has now been in place a year longer than DADT, and in 
talking to my successors it has not presented a problem. But I 
would say, just to be clear, as I said in my opening statement, 
the circumstances and the intimacy, particularly of those in 
combat, compared with those working for CIA is very different.
    Senator Reed. Thank you very much, Mr. Secretary.
    Chairman Levin. Thank you, Senator Reed.
    Senator Brown.
    Senator Brown. Thank you, Mr. Chairman.
    Mr. Secretary, I know we spoke privately. I appreciate that 
time in order to speed up the process and get additional 
information. I do just have a couple of follow-ups to you and 
potentially the other members of the panel.
    Mirroring what Senator Inhofe said about the participation, 
I can tell you from firsthand conversations when I visited 
Afghanistan and spoke to members of the Guard and Reserve that 
halfway through the process when the committee took certain 
actions they felt it was a done deal, and as a result they 
didn't participate in the survey.
    Twenty-eight percent does not seem like a high number of 
participation, regardless of the total number, as it reflects 
to the nature and total amount of surveys that have gone forth. 
Is there anything additionally you can share in terms of your 
understanding, whether it's anybody, General Ham or Admiral 
Mullen as well, as to why the participation still was only at 
28 percent and not higher?
    Secretary Gates. Let me ask General Ham or Mr. Johnson to 
address the statistical significance of the numbers.
    General Ham. Senator, the 28 percent overall response rate 
is well within the normal range, the historical range of DOD 
surveys of military personnel. When we worked with the company 
which administered the survey, we wanted to make sure that the 
proportional number of surveys were distributed based on 
historical response rates by community. Each Service and, in 
fact, each community within the Services, have historical 
response rates and we tried to account for that in the 
distribution of those surveys.
    Having said that, there was some concern about the 
slowness, if you will, of the response rates. The Service 
Chiefs, senior enlisted leaders of the Services, Secretary of 
Defense, and others would send out reminders encouraging 
servicemembers and families to respond.
    I'm comfortable that the response rate overall was within 
norms and, probably more importantly, Senator, that each 
category that we analyzed had a statistically significant 
number of responses.
    Senator Brown. Mr. Secretary, just for the benefit of the 
people that are listening, and also for the committee, let's 
assume for argument's sake that we move forward and we say, 
okay, we're going to accept the report and we're ready to move 
on and take that next step and repeal DADT. Could you explain 
what the process would be in your mind, because a lot of the 
concerns that I personally have, as someone who's still serving 
in the military, and others that have confided in me privately 
is that they want to make sure that the battle readiness and 
military effectiveness of our troops, is not affected.
    Do you envision starting with the noncombat units, the 
Guard and Reserve, moving up that way and implementing down the 
road? How will the certification process work? What's your 
thought process in actually moving forward with that while not 
jeopardizing retention, battle readiness, and effectiveness?
    Secretary Gates. First of all, the key, as the report makes 
clear, is training of both leadership training and training of 
the entire force. That's better than 2 million people. Whether 
we would begin with one segment or not, I think we haven't 
addressed that issue yet.
    I would tell you that my personal approach to this would be 
that until all the training has been completed, until the 
Service Chiefs are comfortable that the risks to unit cohesion 
and to combat effectiveness had been addressed to their 
satisfaction and to my satisfaction, I would not sign the 
certification. In other words, my view is that before the 
certification is signed everything has to be done to get ready. 
It's not something that I would start, that I would certify, 
while it was still in process, as it were.
    Senator Brown. So that could be 4 months or 4 years, but 
really you just want to make sure that they're at that point 
where you feel comfortable that those issues will be addressed?
    Secretary Gates. That is exactly why I have been very 
careful not to talk about how long I think this will take to 
implement. People will be watching to make sure we're not slow-
rolling the process. By the same token, I've said since 
February this process needs to be thorough, it needs to be very 
careful, and it needs to be completed before the certification 
is signed in my view.
    Senator Brown. Is it your testimony here today that you 
will not certify until you feel that the process can move 
forward without any damage to the safety and security of our 
men and women that are serving, number one, and that our battle 
effectiveness will not be jeopardized?
    Secretary Gates. Absolutely.
    Senator Brown. Thank you.
    I have no further questions.
    Chairman Levin. Thank you, Senator Brown.
    Senator Ben Nelson.
    Senator Ben Nelson. Thank you, Mr. Chairman, and thank you, 
gentlemen, for being here today.
    To me the issue seems to be not whether to allow gays to 
serve in the military, but whether to allow them to serve 
openly. By permitting them to serve, but not openly, undermines 
the basic values of the military: honesty, integrity, and 
trust. When that's undermined anywhere, it's undermined 
everywhere.
    It also seems that our military is expected to say, ``I 
don't want to lie, but you won't let me tell the truth.'' How 
do we square this circle? I think there are those who 
legitimately are concerned that this will adversely affect 
readiness and national security, and yet we have the report 
that seems to be somewhat overwhelming in certain areas saying 
it's time to change the law.
    Can you help me understand how we move to something where 
it is now possible to tell the truth? I say that because I hear 
everyone saying to one degree or another, you've served with 
people who are gay, but if you knew they were gay and you 
didn't turn them in were you lying, or was honesty a mobile 
commodity? Admiral?
    Admiral Mullen. Senator Nelson, you've hit at the core 
issue, from my perspective. I can't square the circle and 
certainly historically have not been able to. Your comment 
about if it exists anywhere, it exists everywhere, that's been 
the case with respect to gay and lesbian servicemembers for my 
whole career, including under this law.
    I think it does fundamentally undermine who we are, because 
we're an institution that is so significantly founded and based 
on integrity. I can't square it.
    Senator Ben Nelson. Secretary Gates, I've seen your public 
comments about the core values of the military: honesty, 
integrity, and honor need to prevail. Doesn't the current 
system undermine those values?
    Secretary Gates. Yes, sir, it does.
    Senator Ben Nelson. Those are the only questions I had, Mr. 
Chairman. I yield back my time.
    Chairman Levin. Thank you very much, Senator Nelson.
    Senator Collins is next.
    Senator Collins. Thank you, Mr. Chairman. I apologize for 
my brief absence. I'm trying to do a Senate Homeland Security 
Committee hearing at the same time.
    But this is such a critical issue, and I want to begin my 
remarks by thanking General Ham and Mr. Johnson for doing an 
excellent job on this report. I want to thank you, Secretary 
Gates, for a thoughtful statement, and you, Admiral Mullen, for 
your very heartfelt and strong statement this morning.
    I want to go through some of the objections that we've been 
hearing from those who argue that we should leave the current 
law in place. Critics of this report state that our troops were 
not asked whether they believe that DADT should be repealed. I 
would point out that our troops aren't asked whether they 
should be deployed to Afghanistan. They're not asked whether we 
should have a war in Iraq. They're generally not asked about 
policy decisions.
    However, the fact is, given the extensive feedback that the 
authors of the report and the task force received, from tens of 
thousands of servicemembers, in the forms of survey responses, 
emails, and townhall meetings, the report in fact does convey a 
sense of what servicemembers think about repealing the law, 
even if a direct question was not included in the survey.
    I was struck by one observation by a special operations 
operator who said at a townhall meeting: ``We have a gay guy in 
the unit. He's big, he's mean, and he kills lots of bad guys, 
and no one cared that he was gay.''
    Mr. Johnson and General Ham, is it fair to conclude that 
your report does incorporate and fairly represent the views of 
our forces?
    Mr. Johnson. Senator Collins, I believe it does. We were 
asked not to, we were not supposed to ask the referendum 
question.
    Senator Collins. Right.
    Mr. Johnson. However, we did put out a 103-question survey 
to 400,000 servicemembers, which we got back 115,000 responses. 
The survey was quite comprehensive in asking in a number of 
different places for servicemembers to predict the consequences 
of the repeal in a variety of contexts.
    I would add to that that in the 72,000 emails and in the 
24,000 face-to-face interactions that we had, invariably the 
discussion and the input we got was whether to repeal the 
current law or not. That was always the topic of discussion. A 
lot of that is reflected in the report in the ``What We Heard'' 
section.
    So we believe that through this very comprehensive exercise 
we went through we did hear the force on the question of 
whether we can do this. Our conclusion is as you see it.
    Senator Collins. Presumably, if there had been widespread 
and large percentages of servicemembers expressing negative 
views, you would have reported that in the report, correct?
    Mr. Johnson. As we stated in the report, if the answer we 
got back from this exercise was in effect no, we can't do that, 
I would have had a professional and fiduciary obligation to my 
client to report that. I know General Ham feels equally as 
strong about that.
    Senator Collins. Admiral Mullen, the second objection that 
we hear over and over is that we cannot implement this kind of 
change in the midst of a war. I thought you made an excellent 
point that the opposite may be true, that wartime facilitates 
change in some ways. In fact, wasn't President Truman's 1948 
order to integrate our forces actually fully implemented during 
the Korean War?
    Admiral Mullen. It was. Actually, it was implemented 
throughout that, I don't think fully until 1953.
    Senator Collins. In fact, on page 83 of the report it says 
that ``When the personnel shortages of the Korean War 
necessitated integrated units, Army field officers placed white 
and black soldiers side by side.''
    Admiral Mullen. Right. Senator Collins, if I could.
    Senator Collins. Yes.
    Admiral Mullen. I find it in my study of this, somewhat 
ironic, that in the year that this was passed--and if you read 
the law in detail, there's a great deal of discussion in the 
law about combat, combat effectiveness, at a time when we were 
not at war. We have been at war. We're in our 10th year right 
now. We understand what it takes in combat and what combat 
effectiveness means better than we did back then, just by 
virtue of that experience.
    We have changed dramatically as a military since 2001, 
which I would argue puts us in a good position to facilitate 
additional change. There couldn't be a better time to do it. We 
are better led, in my experience, at every level than we have 
ever been led. So leaders can do this.
    We are able to take advantage of our ability to change and 
sustain that combat readiness, and I believe making a change 
like this makes us better; it doesn't make us worse.
    Senator Collins. Thank you.
    Chairman Levin. Thank you, Senator Collins.
    Senator Webb.
    Senator Webb. Thank you, Mr. Chairman.
    Secretary Gates, I'd like to begin by clarifying an 
exchange that you had with Senator Inhofe about the importance 
of this study in terms of moving forward into the law. I recall 
an exchange that you and I had on February 2, 2010, you and 
Admiral Mullen came in to testify on this. I made it very clear 
at that time that this survey was going to be vital in terms of 
evaluating whether we should move forward on this law.
    I have held firm on that position. In fact, Senator Inhofe 
is not correct. This was not a full committee vote that was 
strictly along party lines when we had the vote whether to move 
forward before this survey came in. I voted against moving 
forward on this legislation before we got the results of this 
survey, because I believe very strongly that it is important to 
listen to the people who are serving and to consider their 
views.
    As I mentioned to General Ham when he came forward at his 
confirmation hearing not long ago, this is, in my view, an 
incredible piece of work. I was privileged to be able to sit 
down with General Ham and Mr. Johnson on a couple of occasions 
to give my views about how important it is to listen to not 
only all different Services, but the rank structure, the 
occupational structure, and I believe you have really done the 
job here.
    This is a 343-page report. 160,000 respondents and, most 
importantly, this was done without politicizing the men and 
women in uniform, which is vitally important in our society.
    I would like to say that this report is probably the most 
crucial piece of information that we have in terms of really 
objectively moving forward in order to address the law.
    First of all, General Ham, I'd like to ask a question of 
you to begin with. Do we have any idea what percentage of the 
United States military today is gay or lesbian?
    General Ham. Senator, we do. Obviously, it's imprecise 
because we cannot ask that question under the current law. But 
in RAND's update of their 1993 study they did some work in this 
regard, admittedly an estimate. But the estimate is that the 
military population as a whole is about the same as the general 
population, somewhere in the 2 to 3 percent. It is RAND's 
assessment that gay men are probably a lower percentage in the 
military and lesbians are probably a higher percentage in the 
military than in the general population.
    Senator Webb. Thank you.
    Secretary Gates, I would like to follow on to a question 
that was asked earlier about the decision you made in 1992 at 
the CIA in order to eliminate this issue in recruitment and 
advancement in the CIA. There are elements in the CIA who 
perform functions that are pretty similar to military 
functions, are there not?
    Secretary Gates. Yes, there are some.
    Senator Webb. Have you heard of any unforeseen 
circumstances based on your decision in those units, taking 
place in those units?
    Secretary Gates. Not one.
    Senator Webb. Admiral Mullen, a question that occurs to me 
when we look at the disparity in the percentages with respect 
to ground combat units, Army and Marine Corps. I take the point 
in the study about the percentage of people who have served 
alongside gay members having a higher comfort level. But do you 
have a different leadership approach? What would be the 
leadership approach that you're contemplating in terms of those 
types of units?
    Admiral Mullen. I think that the report itself did a 
terrific job in flagging those areas that we really would need 
to focus on. It goes back to what the Secretary of Defense 
said, and I agree completely. Until we've mitigated that to an 
acceptable level, until we've done the training--and in my 
remarks, the Marine who said, if this changes we'll do it 
better than anybody else.
    This has to be, more than anything else, should it change, 
it has to be well-led. We understand where that leadership 
needs to be applied and I would not certify until we had 
mitigated to a point where we were satisfied that we could move 
ahead.
    So we would focus on those all-male combat units who didn't 
have exposure and certainly do it in a way from a training 
standpoint, from a leadership standpoint, that was intense 
enough to achieve the outcome that we wanted there.
    Senator Webb. Thank you.
    I'd just like to again conclude by expressing my respect 
and appreciation for the work that General Ham and Mr. Johnson 
did on this survey. It's really a landmark piece of work in my 
view.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you, Senator Webb.
    We're going to take a 5-minute recess.
    [Recess from 10:53 a.m. to 10:59 a.m.]
    [Reconvened.]
    Senator Thune, I believe you are next.
    Senator Thune. Thank you, Mr. Chairman.
    Secretary Gates, you said the other day the Service Chiefs 
are less sanguine about the Working Group, about the level of 
risk of repeal with regard to combat readiness. We've heard 
that in testimony in front of this committee from the Service 
Chiefs themselves, that they'd like to keep the current policy 
in place.
    Of course, General Amos, the Commandant of the Marine 
Corps, told the committee a few months ago in his view: ``The 
current law and associated policy have supported the unique 
requirements of the Marine Corps and thus I do not recommend 
its repeal.''
    Let me ask you, and I'd like to get a comment from Admiral 
Mullen as well. How should we weigh the fact that to date 
there's not a consensus among the Service Chiefs and yourselves 
with regard to the issue of repeal?
    Secretary Gates. First of all, I think you'll hear from the 
Service Chiefs tomorrow, despite their differing views, that 
they do have high regard for the review and the implementation 
plan that has been put together as part of the review.
    To get to the heart of your question, Senator, I think that 
you have to take seriously the views of the Service Chiefs, as 
I said in my opening statement. The key question is, can the 
concerns that they have be mitigated? Can this be implemented 
without having an impact? If we take the steps that are 
recommended and perhaps others as well, can the concerns that 
they have be addressed and the risks they see be mitigated?
    Our view clearly is that it can. You can hear directly from 
them tomorrow. I think that they will give you their honest 
judgment on this.
    There are two pieces of this that I think need to be 
weighed and that I have discussed with the Service Chiefs. The 
first is the risk of the courts taking this out of our hands 
and having no time to prepare. The second is, if not now, when? 
When we're out of Afghanistan? As I look ahead in the world, I 
don't see the world getting to be a safer, easier place to live 
in where our troops are necessarily under less stress.
    The question of, if not now, when?, I think is a worthwhile 
question to address to them as well.
    Senator Thune. Let me ask you as a follow-up to that. The 
current legislation on repeal requires yourself, Admiral 
Mullen, and the President to certify that repeal is consistent 
with standards of military readiness. Is there any reason why 
the Service Chiefs should not be also required to certify that 
repeal is consistent with military readiness and effectiveness?
    Secretary Gates. I think that this question came up this 
summer and you get to the point where you have eight or nine 
people. If not the Service Chiefs, then how about the combatant 
commanders? If the Service Chiefs, why not the Vice Chairman? 
So you all of a sudden end up with 10 or a dozen people.
    I said in answer to an earlier question, my view of when I 
think I could certify will depend heavily on the advice of the 
Service Chiefs of whether we have, in fact, mitigated the 
concerns that they have addressed.
    Senator Thune. Would you be in favor of adding the Service 
Chiefs to the list of certifying officials when it comes to the 
proposed legislative language?
    Secretary Gates. No, I would not.
    Senator Thune. Let me ask a question and direct this I 
think to General Ham and to Mr. Johnson. The survey report has 
a section which describes some of the main issues associated 
with repeal for servicemembers. The first one they list states 
that 44 percent of servicemembers who've been deployed to a 
combat environment since September 11, 2001, said that 
effectiveness in a field environment or out to sea would be 
affected negatively or very negatively by repeal.
    My question has to do with the risk level that you attach 
to that. It seems the risk level is very low for repeal when 
you have 44 percent of the troops who've been deployed into 
combat who said it would have a negative or very negative 
effect. I guess the follow-up question to that is, are you 
saying that you're willing to accept the negative impact this 
policy change could cause to nearly half of our combat troops 
when we're fighting two wars?
    General Ham. Senator, it is, as all of this is, a pretty 
complex issue. As you cited, that was a very much concerning 
figure to us. But a subsequent question to that says, under 
intense combat what would your sense be, and we saw the 
negative rates drop quite dramatically. As with many of the 
other experiences--responses to the survey, when we asked the 
question, have you served in combat or are you serving in 
combat with someone in your unit who you know or believe to be 
gay, the unit performance is rated very, very highly and the 
matter of a gay member being in the unit is assessed as having 
only a minimal impact, in most cases no impact, in the unit's 
performance.
    Senator Thune. Anything to add to that, Mr. Johnson?
    Mr. Johnson. I would echo what General Ham said. The other 
thing I would add to that, Senator, is, as we note in the 
report, predictions in surveys of what will happen or what you 
will do in the event of something are valuable, but they're of 
limited value, and this is reflected in social science data as 
well. Predictions very often are reflective of attitudes, which 
is one of the reasons why in the report we also put a lot of 
emphasis on asking people about their actual experience of 
serving in a unit with people they believe to be gay or 
lesbian. As you see in the report, even in the combat units and 
in Marine combat units, when people reported that they had the 
experience of serving with somebody who was gay or lesbian, the 
experiences reflect pretty high numbers in terms of how the 
unit functioned, 84 or 87 percent.
    Senator Thune. My time has expired, but I would just again 
point out for the record that you have nearly half of those who 
have been deployed who say that it will negatively or very 
negatively affect combat effectiveness and readiness. That is 
really the bottom line issue here.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator Thune.
    Senator Manchin.
    Senator Manchin. Mr. Chairman, thank you very much. I want 
to say as a West Virginian, I'm very honored to be on this 
committee and to be here to hear this important discussion.
    I want to thank all of you for the work that you've done, 
from Secretary Gates to Mr. Johnson, General Ham, and to 
Admiral Mullen. I appreciate it so much. I know you've put in a 
lot of effort.
    I'm the new person on the block, if you will, so I'm trying 
to get up-to-speed as quickly as possible. To Secretary Gates, 
if this were to be repealed, is it all at one time, or would 
each branch have time to sequence it in, or would they use 
their best judgment if they thought that it would be 
appropriate for them or the readiness that I think the Senator 
from South Dakota just asked about?
    Is there going to be a mandatory implementation all at one 
time?
    Secretary Gates. I think that the question of whether there 
would be sequencing for different kinds of units, whether the 
Services would proceed at the same pace, and so on, this is 
something frankly where the review offers a good implementation 
plan in terms of training, leadership training, what needs to 
be done in terms of regulations, and so on.
    In terms of how those things are actually carried out, I 
would give great weight to the views of the Service Chiefs in 
terms of how to proceed in that respect.
    Senator Manchin. Last week the Co-Chairmen of the Debt 
Reduction Commission issued a proposal that called for $100 
billion in reductions in defense expenditures. Do you have a 
cost associated to the implementation of this plan?
    Secretary Gates. I would say that, first of all, probably 
minimal. There is one part of the report, frankly, that I 
disagree with. That is the idea of looking into a new benefit 
for single members of the Services who have a significant other 
or a gay or lesbian partner, and it would be for both 
heterosexuals and homosexuals, in terms of access to family 
counseling, and a variety of benefits of this kind. You might 
hear from the Service Chiefs tomorrow, their concern about 
this, partly because of the cost and the open-endedness of it. 
Also we're trying to deliver those services to our married 
members of the Services today and there is worry of diluting 
the quality of those services if we created a new benefit for 
all single people who had a special person in their life.
    That one recommendation I did have a problem with, and 
partly because of the cost.
    Senator Manchin. Thank you.
    Mr. Johnson, would repeal cause a chaplain to deliver a 
moral message in a service about homosexuality? Would that 
cause a problem there or create a legal challenge?
    Mr. Johnson. Senator, we spent a lot of time focused on the 
chaplain community and, as reflected in the report, it's our 
view that if repeal is brought about this would not require a 
chaplain to change what he preaches or what he counsels, in the 
religious context. The chaplain's duty is also to care for all, 
so if a chaplain did not feel it was appropriate that he 
counsel a particular servicemember on the issue of 
homosexuality he should refer that servicemember to someone 
else.
    We heard a lot of concern about, will this require me to 
change my religious beliefs or my religious counseling, and the 
answer to that is no.
    Senator Manchin. Did you have any inkling of how many of 
the religious order in the military would not continue to serve 
or wish to opt out early?
    Mr. Johnson. There are definitely some pretty strong views 
within the chaplain community. I would not for a minute assume 
that if the law were repealed every single chaplain would stay 
in the military. I think we should assume that we may lose some 
of our chaplains.
    I also heard from many chaplains that they take very 
seriously their obligation to care for all and so I anticipate 
that we would have just as many who feel strongly that repeal 
is the right thing to do.
    Senator Manchin. General Ham, if I may, on the 40 to 60 
percent that have responded back concerning combat readiness 
and the concerns in the combat units. I'll ask concerning the 
Israeli military; how do they handle this situation?
    General Ham. Senator, first of all they have a very, very 
different culture. They're a conscript force. I found in my 
personal engagement with the Israeli leaders, because they are 
a small force, they have the opportunity that if there is a 
servicemember who has different religious views with regard to 
homosexuality as perhaps their leader does, they can move that 
servicemember from one unit to another without major disruption 
because of the size. That would be an impractical solution for 
us.
    Senator Manchin. What I'm saying is that they're more or 
less combat-ready continuously and they're on the frontlines on 
a continuous basis. Do they have a DADT policy? Is there 
anything such as that in that type of a military, since they're 
on combat alert at all times?
    General Ham. Senator, I have the highest respect for our 
Israeli counterparts, but they don't have global 
responsibilities such as our military does. They do not have a 
specific policy. They do allow servicemembers in the Israeli 
Defense Forces to have same-sex partners and continue to serve.
    Senator Manchin. Thank you, sir.
    I thank all of you.
    Chairman Levin. Thank you, Senator Manchin.
    Senator Chambliss is next.
    Senator Chambliss. Thank you, Mr. Chairman.
    To all of you, gentlemen, this has been a very difficult 
issue. I know you've put your heart and soul into it and for 
that we say thank you for the work you've done, whether we 
agree or disagree with the end result. Thanks for your service 
in this respect.
    Admiral Mullen, you stated earlier in your comments that 
you served alongside gays and you knew they were gay. I don't 
think there's any question in the minds of any of us that we 
know we have gay and lesbian members or individuals serving in 
every branch of the Services; and certainly they serve with 
courage and valor. That's what I heard you say; is that 
correct?
    Admiral Mullen. Yes, sir.
    Senator Chambliss. You said they served under your command. 
Can you tell us a timeframe? When would they have served under 
your command when you knew there were gay and lesbians under 
your command?
    Admiral Mullen. My first command was 1973 and then 
subsequently about 10 years later in the mid-1980s, the mid-
1990s, the late 1990s, the early 2000s, and up through 2004 to 
2005.
    Senator Chambliss. In those first commands, when you knew 
there were gay and lesbians serving under you, what was the law 
at that time?
    Admiral Mullen. Homosexuals, at that time, were not allowed 
to serve. If their conduct was exposed, they were typically 
discharged.
    Senator Chambliss. Were you responsible for discharging a 
number of those that you knew were gay?
    Admiral Mullen. Absolutely.
    Senator Chambliss. Did you discharge everyone you knew was 
gay at that time?
    Admiral Mullen. Essentially, it was a conduct offense. This 
was before DADT, and if you were known to be gay or lesbian it 
then had to be brought forward, oftentimes in the conduct 
system, and they were discharged. I did this and I also saw 
this.
    Senator Chambliss. Did that have an impact on the morale of 
your sailors that were serving under you?
    Admiral Mullen. At the time, no, not noticeably.
    Senator Chambliss. Secretary Gates, have you read the 
report?
    Secretary Gates. Yes, sir.
    Senator Chambliss. I want to quote from page 49, paragraph 
2. It's part 6, ``What We Heard.'' Here's what it says: ``For 
this section of the report, there's an important caveat. If the 
Working Group were to attempt to numerically divide the 
sentiments we heard expressed in information exchange forums, 
online inbox entries, focus groups, and confidential online 
communications between those who were for or against repeal of 
the current DADT policy, our sense is that the majority of 
views expressed were against repeal of the current policy.''
    Now, you're basing your opinion on a 28 percent response to 
surveys that were sent to 400,000 men and women. The question, 
do you think we ought to repeal DADT, wasn't even asked to 
them. The question was, can we implement it? Looking at this 
section of the report, it's pretty clear that the authors of 
the report say that a majority of those men and women they 
interviewed across the spectrum were opposed to repeal.
    Knowing that, does that change your opinion as to whether 
or not this law ought to be repealed?
    Secretary Gates. What the Co-Chairs have told me, Senator, 
is that, particularly when it comes to the email inbox and 
those who came to many of the forums that they held, that these 
were clearly folks motivated to express an opinion. While those 
opinions were important, because they were basically self-
motivated to show up and offer their opinion, what I was told 
was that it was important, but it wasn't statistically 
significant in terms of representing the views of the force. 
That the survey, which was done anonymously, was more reliable 
in terms of gauging the overall views of the force.
    Senator Chambliss. Mr. Secretary, I'll have to tell you I'm 
really bothered by your response to that alongside of the 
response you gave to Senator McCain when he said, ``what if you 
had 265,000 members of the military leave tomorrow or within a 
short period of time?'' Your response there was basically the 
same: ``I really don't think that's important and that's not 
going to happen.''
    What if it does happen? What if those 265,000 resign from 
the military over the next short period of time? What are you 
going to do?
    Secretary Gates. First of all, I didn't say it was not 
important. As I said in response to an earlier question, very 
few people can leave immediately, and so people would be around 
for the rest of their enlistment, for the rest of their 
contract if they were officers. Our expectation is that, as 
you've heard from the authors of the report and from Admiral 
Mullen, based on the survey itself, experience would 
dramatically lower those numbers.
    If I believed that a quarter of a million people would 
leave the military immediately if given the opportunity, I 
would certainly have second thoughts about this. But I don't 
believe that.
    Senator Chambliss. But you do believe the rest of the 
survey is correct?
    Secretary Gates. What I just described to you is the 
difference between what I've been told was statistically 
significant and the importance of the individual views that 
were expressed by people who showed up or who bothered to send 
in emails.
    Senator Chambliss. Thank you.
    Chairman Levin. Thank you, Senator Chambliss.
    Senator Coons.
    Senator Coons. Thank you, Mr. Chairman. I'd like to thank 
Secretary Gates and Admiral Mullen for very compelling 
testimony, and the authors of the study, Counsel Johnson and 
General Ham, for your very hard work and your important 
contributions here today.
    One of the issues that was raised by several of the members 
of the panel today was the concern that if this issue is 
instead forced by the courts you will not have the opportunity 
to thoughtfully, responsibly, and professionally implement a 
change in policy, but will instead be compelled to do so 
brusquely, and that there might be really negative consequences 
to that having been done.
    In response to a question from the Senator from 
Massachusetts, I got a more detailed understanding, Mr. 
Secretary, of how that process might work forward. Would you 
share with us, Mr. Secretary, what harm might be caused by 
having a court-ordered repeal of this policy, what kind of 
differences in the timeline that might produce, and what sort 
of negative impacts that might cause?
    Secretary Gates. If the court decisions were to be similar 
to the district court order that was handed down in October, we 
would have zero time to prepare. That order took effect 
immediately and it was global. No time to train, no time to 
prepare, and, as I said in my prepared testimony, that is the 
worst imaginable outcome as far as I'm concerned and has a very 
high risk to the force.
    Senator Coons. Admiral Mullen, any further comments on the 
potential negative consequences of a court-ordered 
implementation, as opposed to a more phased-in, responsible, or 
timely implementation through the leadership of the Armed 
Forces?
    Admiral Mullen. I would endorse what the Secretary said in 
terms of having time to be able to implement the training, 
leadership, or focus, before we implement the implementation 
plan that's in the report. Certainly, an overnight decision 
from the court significantly raises the risk of being able to 
mitigate that in a way, and it would be much more disturbing to 
the force.
    Senator Coons. Admiral Mullen, I found part of your 
testimony very compelling, that many of our allies, I think it 
was 35, currently allow in their Armed Forces those who are 
openly gay or lesbian, including Australia, Canada, U.K., 
Germany, and France. That, in fact, many of those nations have 
troops currently serving in the field with us today.
    What could we learn from their experiences? Are there 
concerns that haven't been addressed, based on their 
experiences, or do you think that the implementation of a 
change in policy can be better informed by the experience of 
our ally?
    Admiral Mullen. I think that's certainly an important part 
as we would look to, if the law changed, implementation, 
certainly the lessons learned from countries who have already 
been through this. At the same time recognize that these 
countries are not the United States of America. I don't 
correlate one-to-one an experience of another country with 
ours.
    That said, certainly from the field, from the combat areas, 
I've gotten no feedback that this was an issue in countries who 
allow openly gays and lesbians to serve and are fighting 
alongside us.
    Senator Coons. My last question. I found very compelling 
the testimony from several of you that this really is, at the 
end, about values, integrity, and allowing our men and women in 
the Armed Forces to serve openly with honor. Servicemembers who 
are currently, by this policy, required to conceal aspects of 
who they really are and to serve with some tension between 
their personal being and their desire to serve their Nation.
    Are there any other parallels or lessons to be learned from 
racial integration where the Armed Forces were asked to 
undertake what was initially perceived to be a very difficult, 
socially driven change, but ultimately has been, from what I've 
read in this report, a very positive impact on unit cohesion, 
military professionalism, service, and its broader impact on 
our society? Mr. Secretary?
    Secretary Gates. First of all, I think, as Admiral Mullen 
said, it's worth noting that most of the implementation of 
integration took place during the Korean War, during a period 
of combat. We have to be honest and straightforward about this. 
These social changes in the military have not been particularly 
easy. Integration of the forces took place over a period of 5 
years, from 1948 to 1953. But the reality is we had serious 
racial problems within the Services at least through the end of 
the Vietnam War.
    It's been a number of years since we admitted women into 
the Armed Forces and the reality is, as everybody on this 
committee knows, we have a continuing problem with sexual 
assault.
    These are human beings we're dealing with, and the report 
is honest in saying that there will be some disruption. This is 
a matter of leadership, training, and discipline in terms of 
how we implement this.
    Senator Coons. Thank you very much, Mr. Secretary. I want 
to close by saying that I draw great confidence from today's 
testimony in your ability as leaders of our Armed Forces to 
implement professionally, responsibly, and thoroughly any 
change we might recommend to the policy.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator Coons.
    Senator Wicker.
    Senator Wicker. Thank you, Mr. Chairman.
    Mr. Secretary, let me ask you about a couple of statements 
you made in your prepared statement to this committee. On the 
first page, third paragraph, you comment on why we didn't ask 
the question to the military members, ``do you think changing 
this law would be a good idea? Do you support this change?''
    You say this was not a matter of taking a poll of the 
military to determine whether the law should be changed. In 
justification of that decision, you say: ``The President of the 
United States, the Commander in Chief of the Armed Forces, has 
made his position on this matter clear.''
    Now, on the second page, when discussing the various forms 
of litigation that are occurring about this, you say: 
``Therefore, it is important that this change come via 
legislative means, that is legislation informed by the review 
just completed.''
    Would you understand it if I said that it seems that you're 
saying that the other two branches of the Federal Government 
have painted this Congress into a corner on this? On the one 
hand, the President has made a decision, therefore we didn't 
take a full survey of military attitudes; we assumed in the 
survey that the decision was going to be made and we asked the 
members how they would respond to that. Then we're saying, 
although this is technically a legislative decision, the court 
is closing in on you and you really don't have much choice 
there.
    Would you understand it if I saw a contradiction in your 
testimony there?
    Secretary Gates. Let me make a couple of things clear, 
Senator. The President can't change this law. It's just that 
simple.
    Senator Wicker. That's absolutely correct.
    Secretary Gates. What the President did in his State of the 
Union Address was say that he would like to see this law 
repealed. Now, there aren't enough fingers and toes in this 
room to count all the times that a President has said that he 
wanted to see a law changed, so he expressed his view that he 
wanted this law changed. But he can't do anything about it. The 
only way a law can change is if Congress acts or if the courts 
overturn it.
    The executive branch for all practical purposes in changing 
this law, is the odd man out. The action is either in the 
courts or in Congress.
    With respect to polling the Services, I didn't spend a 
career in the military, but I've read a lot of history, and I 
can't think of a single precedent in American history of doing 
a referendum of the American Armed Forces on a policy issue. 
Are you going to ask them if they want 15-month tours? Are you 
going to ask them if they want to be part of the surge in Iraq?
    That's not the way our civilian-led military has ever 
worked in our entire history. The question needs to be decided 
by Congress or the courts as far as I'm concerned.
    Senator Wicker. Were you troubled at the answer we might 
have received if we had simply asked them, in addition to all 
the other questions they were being asked, do you think the law 
should be changed? If the servicemembers are so accepting of 
this, as the members of the panel have suggested today, what 
would have been the harm in giving that information to the 
body, which you acknowledge in your statement is the ultimate 
decisionmaking forum?
    Secretary Gates. In effect doing a referendum of the 
members of the Armed Forces on a policy matter is a very 
dangerous path.
    Senator Wicker. Do you think the answers to the questions 
would have been different had we asked them outright?
    Secretary Gates. I think that, as Mr. Johnson and General 
Ham have testified earlier, through the many questions in the 
survey you get a pretty clear view of the views of the force in 
terms of this change. What the review has highlighted is those 
areas of the force that are clearly going to need the greatest 
attention and focus in terms of training, leadership 
effectiveness, and so on.
    I would say part of my considerations, going back to 
Senator Chambliss's question, in terms of my certification 
would be what we learn during the preparation period with 
respect to recruitment and retention and what additional steps 
we need to take to mitigate whatever consequences that are 
there.
    Senator Wicker. Mr. Chairman, I don't have a clock in front 
of me. Do I have time for an additional follow-up question?
    Chairman Levin. I haven't been given a note, so take 
advantage of it.
    Senator Wicker. Let me ask you this, then. To Secretary 
Gates and to Mr. Johnson: I'll ask Mr. Johnson to answer first. 
Will you acknowledge that there is considerable difference of 
opinion out there as to what the lower courts have actually 
said about DADT in regard to Supreme Court precedents? Mr. 
Johnson, will you commit to Congress that until such time as 
the law is indeed changed that you intend to do your job, in 
this respect, which is to fully and zealously defend the 
government's position in this litigation?
    Mr. Johnson. It is my job to enforce and defend the law as 
Congress gives it to us. Which is why I and DOD recommended 
that we appeal the Log Cabin Republicans case and the Witt 
case, where we got adverse rulings on the constitutionality of 
this law. It is our obligation to continue to defend the law as 
it is given to us by Congress.
    There is a difference of opinion within the courts on the 
constitutionality of DADT, but part of what I was saying in my 
opening statement is there is definitely more litigation 
activity. We used to win all these cases and there is, I 
suspect, a trend that is taking place after the Lawrence 
decision in 2003 that we all need to be mindful of.
    Senator Wicker. Mr. Secretary, do you acknowledge that the 
role of the legal department within DOD is still to fully and 
zealously defend the DADT statute until, and if it is repealed?
    Secretary Gates. Absolutely.
    Senator Wicker. Thank you, sir.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you, Senator Wicker.
    Senator McCaskill.
    Senator McCaskill. Thank you, Mr. Chairman.
    I have an awful lot of confidence in our military, and the 
longer I have served on this committee, the more confidence I 
have. The men and women that serve our military in every 
capacity, are the best in the world because of professionalism, 
because of honor, integrity, and the utmost respect for the 
chain of command.
    I have been disappointed at some of the rhetoric 
surrounding this issue because I think it impugns some of the 
military leadership in this country, especially some of the 
civilian leadership. I would like to remind this country that, 
Secretary Gates, you were selected by President Bush to lead 
DOD. I'll be honest with you; at the point in time you were 
selected, I wasn't a Member of the Senate and I probably had 
some of those partisan tendencies that tend to invade all of 
our thought processes around here. I assumed that you were 
going to not call them balls and strikes.
    I watched you under President Bush and I think you called 
balls and strikes. Now you serve President Obama. You represent 
the highest tradition of civilian leadership of our military 
that we may have ever had in this country. I want to 
congratulate you for that, because I think you've set a great 
example for all that will follow you, that you can serve two 
parties, two Presidents, and always stay focused on what your 
function is. To defend this country and to promote the 
professionalism, integrity, and honor of America's military. I 
want to congratulate you for that.
    This issue has particularly been a challenging one, because 
obviously there is not unanimity of opinion about this very 
controversial subject.
    I want to remind everyone also about the timeline of the 
integration of our Services. My recollection is that President 
Truman did something that was beyond controversial when he 
integrated the Armed Forces in 1948. It was more than a decade 
later that Congress began to seriously look at the Civil Rights 
Act.
    I would ask anybody on the panel that can comment on this, 
what the acceptance is of changing this policy compared to the 
acceptance that was within the military at the time when 
President Truman integrated the troops?
    Mr. Johnson. Senator, let me try to answer that. I spent a 
considerable amount of time in the work on this report looking 
at that period of racial integration. I was surprised to find 
out that actually there were surveys done of the military back 
then. The sample sizes were much, much smaller, like 3,000 or 
4,000 servicemembers then. But the opposition to racial 
integration ran very high. It was 70 or 80 percent, and that's 
reflected in the report.
    In addition, we were dealing with much larger numbers. The 
military then was about 8 million. By 1945, black soldiers were 
about 700,000. This was at a period of time before integration 
had been accepted in civilian society.
    Senator McCaskill. I think at the time that the Armed 
Forces was integrated, a black person couldn't stay in the same 
hotel in the south with a white person; isn't that correct?
    Mr. Johnson. As we say in the report, by 1953, 95 percent 
of Army units were integrated, but buses in Montgomery were 
not.
    My assessment is that the opposition to racial integration 
then was much more intense than the opposition to gays serving 
openly today in the military.
    Senator McCaskill. I understand that one of the common 
concerns of some of the servicemembers that were surveyed in 
this report on the repeal of DADT was a fear that some people 
would be getting special treatment in the implementation. 
Secretary Gates, if this policy is repealed, would it lead to a 
special set of benefits or entitlements for any gay or lesbian 
servicemembers of the military?
    Secretary Gates. One of the important contributions of the 
report and in its recommendations is that there not be any 
special class or special protected class, that everybody be 
treated the same. Everybody would be subject to the same 
discipline and the same standards. Admiral Mullen addressed 
this earlier.
    Senator McCaskill. What about on the recruitment process? 
Is there going to be any questions asked about sexual 
orientation?
    Secretary Gates. No, there would be no need for that.
    Senator McCaskill. Would there be any special diversity 
programs or tracking in terms of trying to have some kind of 
quota or any attempt to distinguish from one member to the 
other based on sexual orientation?
    Secretary Gates. No. People would be evaluated and promoted 
on the same basis that people are evaluated and promoted today, 
and that is their competence, fitness for duty, and talents as 
a military officer.
    But let me ask Admiral Mullen to say a word about that.
    Admiral Mullen. I would only echo that. There's absolutely 
no consideration for any changes along the lines that you would 
suggest.
    The other comment I would make--and there have been a 
couple questions about integration of African Americans and 
women in the military. Yes, we have had our challenges, there's 
no question about that. But categorically, for the last 40 
years, from my experience, we are in a much better place as a 
military because of those steps taken when they were taken.
    Senator McCaskill. My time is up. Thank you all for your 
service.
    Chairman Levin. Thank you, Senator McCaskill.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    This is a difficult discussion. It was predicted that it 
would have some disruptive effect on the military. I believe it 
probably has. It probably has not been good for morale and the 
problems that have arisen from it. I'm inclined to the personal 
view that DADT has been pretty effective and I'm dubious about 
the change, although I fully recognize that good people could 
disagree on that subject.
    I would say that I think the courts are quite clear that on 
matters like sex or race, you can't have discrimination on 
those bases. But this deals more with actions of an individual 
rather than who they are as a person.
    With regard to your statement, Mr. Gates, you say that the 
concerns arising from the legislation do not present an 
insurmountable barrier to repeal, and that you believe it could 
be done without posing a serious risk to military readiness.
    We have an uneasy situation. We are here because, as 
Senator Wicker suggested, the President made a commitment in a 
campaign and he's delivering on that. I'm sure he believes it, 
but he made a political campaign commitment. There has been a 
lack of understanding when he made that commitment, I believe, 
of the serious ramifications and problems that might arise from 
it.
    I do believe that each of you serve at the pleasure of the 
President pretty much. You've been appointed by him or serve at 
his pleasure. We have a right to ask questions about this 
matter and raise questions when we have them, as the report 
itself stated, half the people in the United States military, 
if asked, would say they don't want to change this policy.
    Mr. Johnson, several references have been made, including 
by General Ham and Secretary Gates, that the courts are on the 
way to overturning this law. I have done some research on that, 
not as a result of this hearing, but as a result of the Kagan 
hearing. She was Solicitor General of the United States, who 
ardently opposed this policy, blocking the military from even 
going on the Harvard campus.
    Isn't it a fact that just over a year ago the First Circuit 
Court of Appeals, sitting in Boston, rendered an opinion of 14 
defendants, challenging the DADT law constitutionality, and the 
American Civil Liberties Union (ACLU), who represented the 
plaintiffs in that case, did not want to appeal a case they 
lost, did not want to appeal it to the Supreme Court?
    Now, I conclude from that that the Supreme Court, they 
believed, was likely to uphold the statute. One of the members 
in that case asked to have the case appealed and Ms. Kagan, 
after consulting with DOD before you got there, she said: ``No, 
the California case, the Witt case, would be a better one; 
don't take it to the Supreme Court.'' They agreed to wait until 
the California case came along.
    You wrote a letter in the Witt case in California that 
acquiesced in the Court of Appeals remand of the Witt case to 
the lower court to take hearings on how that individual Witt 
decision would impact the military personnel affected by it in 
a process that would clearly be unacceptable, would eliminate 
the ability to enforce the statute nationwide.
    But you went along with that. You said: ``A remand will 
allow DOD to develop a factual record in the case which will, 
we believe, demonstrate that the discharge was appropriate.'' 
But it was not the right legal opinion, in my view.
    I asked Solicitor General Kagan, I gave her 20 minutes, 
that question and we don't have 20 minutes today to go for it.
    I guess what I'm saying to you is, I believe that the 
record is crystal-clear that the Department of Justice (DOJ) 
and you acquiescing as counsel for DOD did not take the Witt 
case up to the Supreme Court and did not take the First Circuit 
case to the Supreme Court because you wanted to have a cloud 
over the legality of this matter and did not want a clear 
decision from the Supreme Court. Therefore, you would have an 
additional argument to Congress to overturn the statute because 
there's a legal cloud over it. That's my best judgment.
    Mr. Johnson, you're now the Co-Chairman of the commission. 
Your vision about this issue is pretty clear, I think, that you 
were clearly for repeal of the law when you took this position; 
were you not?
    Mr. Johnson. I have two responses, Senator, if I may. 
First, on the Witt case, we spent a lot of time thinking about 
whether or not to recommend that the DOJ petition for cert in 
that case. Ultimately we reached the judgment, along with the 
DOJ, not to petition for cert for two reasons: One, we did not 
think it was a good idea to push this issue to the Supreme 
Court then, at that point in time, on that factual record, 
because the factual record as it existed then was basically her 
own allegations. It was on her own pleading.
    Second, we recognized then that we would have the 
opportunity to revisit the issue on appeal after the trial. So 
I recommended appeal. Now that we've had the trial and DOJ has 
gone along with that, we've appealed that decision.
    Senator Sessions. In the Witt case?
    Mr. Johnson. In the Witt case, yes, sir.
    Senator Sessions. But it was delayed. That case or the 
First Circuit case could have possibly been decided by now had 
you taken what I would consider to be the appropriate position, 
which would be to have appealed them and supported the appeal 
in those cases.
    Mr. Johnson. The First Circuit case, it was for the 
plaintiff in the case to decide whether or not to appeal to the 
Supreme Court, and they declined to do that.
    Senator Sessions. As the ACLU favored, why did they not 
choose to appeal the case they lost?
    Mr. Johnson. I would note about the First Circuit case the 
court decided to hold us to an intermediate level of 
constitutional scrutiny, which was, just as in the Witt case, 
the first time the courts had ever done that. So in both the 
First Circuit and the Ninth Circuit, the appellate courts have 
held that we should now be held to an intermediate level, 
versus the lower, rational basis level of scrutiny that we 
typically got in these matters of the military.
    The other thing I'd like to add, Senator, I work for the 
Secretary of Defense. He is my client. I have a professional 
obligation to my client. It was very clear to me from the 
outset that if we felt that doing this would be bad, I could 
report that and should report that to the Secretary of Defense 
and he would fully support that point of view to the President.
    Senator Sessions. Thank you for sharing those thoughts. I 
would just say that clearly to me the Witt case should have 
been appealed interlocutorily, and I believe you could have 
gotten an opinion from the Supreme Court that would have 
affirmed this statute. There's no history legally that would 
suggest otherwise.
    But it has been allowed to be under a cloud and have some 
of our top military leaders today say one of the reasons for 
changing this policy is the likelihood of a Supreme Court or a 
legal decision that would undermine the statute. I believe had 
it been vigorously defended we would not have that cloud today.
    Chairman Levin. Thank you, Senator Sessions.
    Senator Udall.
    Senator Udall. Thank you, Mr. Chairman.
    Let me just begin by thanking all four of you for the 
thorough and the thoughtful way in which you've conducted this 
review and the way in which you've explained the conclusions 
that have been drawn. Particularly, General Ham and Mr. 
Johnson, you took on an important task. General Ham, your 
comments were very heartfelt and will be remembered as we move 
forward.
    The study I believe confirms what many of us have heard for 
years, and that's that DADT can be overturned without 
disrupting our Nation's military readiness, particularly in the 
medium and the long-term. I think even those who have concerns 
about repeal--we heard about those today, have agreed that DADT 
forces our gay servicemembers to live a lie. They have to lie 
to their fellow servicemembers about their lives, activities, 
families, and what they care about.
    I think we've learned increasingly, that those lies can 
destroy morale and good military order. I listened to Admiral 
Mullen and others who've served. Those lies don't just affect 
gay servicemembers; they affect straight servicemembers as 
well, who have knowledge about their fellow servicemembers that 
they are also called upon to hold close.
    It's very clear to me that we're on the right track. This 
is the 21st century. A vast majority of Americans believe that 
we ought to repeal what's an increasingly harmful law. We have 
now learned that our servicemembers, in large part, support 
moving forward.
    I'm not a statistician. I don't think many Senators are 
statisticians. It's easy to cut at some of the percentages in 
the reports. Again, General Ham and Mr. Johnson, you have 
shared with us the breadth and width of this study. You've 
compared it to previous surveys that, for example, surrounded 
the integration of the armed services some 50-plus years ago, 
and these numbers when you're objective and you honestly 
consider the facts, are very powerful.
    So again, my congratulations to all of you. I did want to 
end my comments, before I move to a question or two, on this 
note. I think we should listen to Secretary Gates. He said this 
week and he's said it here on numerous occasions in this 
hearing that a repeal by a Federal judge would be much more 
disruptive and damaging to morale than a conscious, thorough, 
and stepped approach to repealing this legislation that 
Congress has put in place.
    The best way to move forward is for the Senate of the 
United States to make it clear that this is the will of the 
Senate, therefore the will of the American people.
    I would just end by saying--and, Senator Gates and Admiral 
Mullen alluded to this earlier today, that this is not a done 
deal once we act. The process has to be certified. Secretary 
Gates, you would have to sign off, as well as Admiral Mullen 
and the President of the United States. You've made it clear 
that this would be done in a way that takes into account all 
that we've learned in the survey.
    My congratulations and my gratitude to you all for the very 
professional way in which you've taken on a very difficult, 
emotional, and sensitive subject.
    The question I'd like to direct to you in specific, I'll 
direct this to Secretary Gates and Admiral Mullen. Some have 
said that DADT is not a failed policy and that if there's any 
failure it's on the part of gay servicemembers to not keep 
their sexual orientation a secret. We had Major Mike Almy 
testify earlier this year. You may be familiar with his case. 
He testified to the committee that he never told anyone his 
sexual orientation, and that his personal emails were searched 
without his knowledge and then they were used against him. In 
my opinion, the policy clearly failed Major Almy.
    Would you agree that the Air Force would have retained him 
if not for these events, where in effect he was outed against 
his own will? Would you agree that the Air Force suffered a 
loss with his discharge?
    Admiral Mullen. Senator, actually I'm not familiar with the 
details of the case. But just in general, as you describe it, 
it's very important that we retain anybody who has talent and 
in fact is contributing, despite their sexual orientation. To 
the degree that that case represents the action that is 
associated with the current law as you described it, certainly 
I consider that to be both action, energy, leadership, and 
direction focused on the wrong thing.
    I know that there have been adjustments to the policy, 
execution of policy, Secretary Gates has made over the course 
of the last year, to get at specifically the kinds of things 
that you just described, so that the current law would be 
executed in a more balanced and fair way, and that's what it 
sounds like you're speaking to. That kind of action wouldn't be 
taken now, based on the changes that have been made even under 
current law. It wouldn't stand up for discharge.
    Senator Udall. If I might, Admiral Mullen, I'd direct an 
additional question to you. I know that, despite your long 
years of experience, it's been suggested on a number of 
occasions and even here this morning that somehow the views of 
the Service Chiefs on the repeal of DADT are somehow more 
informed and valuable than your own. Would you speak to that 
point of view one more time here, as my time expires?
    Admiral Mullen. I agree with the Secretary of Defense that 
the consideration of the Service Chiefs in all this is 
absolutely critical, and done so in independent fashion. I was 
asked this question earlier. I've spent a lot of time with the 
Service Chiefs on this and have incorporated their inputs into 
my advice to both the Secretary and the President.
    They can certainly speak for themselves tomorrow. I will 
say that all of us, all six of us, the Vice Chairman and the 
four Service Chiefs, and the chief of the Coast Guard, agree 
that the implementation plan that's laid out in the report is a 
very solid way ahead specifically. They will also say that if 
the law changes they will lead the way in implementing it.
    Having grown up in the military, where unanimity amongst us 
is something that we seek in order to execute a policy, we do 
what we're told to do.
    Senator Udall. Thank you, Admiral Mullen. If I might make a 
personal comment, I would note for the record your testimony 
earlier this year and your testimony this morning and the very 
thoughtfully crafted and well-delivered and passionately 
delivered remarks will long be remembered. Thank you for your 
leadership.
    Chairman Levin. Thank you very much, Senator Udall.
    Senator Hagan.
    Senator Hagan. Thank you, Mr. Chairman.
    I just want to tell all of you here today, thank you for 
your time and your testimony, in particular, Mr. Johnson and 
General Ham, the work that you've done in compiling and 
presenting this report.
    The Commander in Chief has stated explicitly that he would 
like DADT repealed. Secretary Gates, you and Admiral Mullen 
have both gone on record in support of repeal. 
Constitutionally, it is the role and responsibility of Congress 
to make this change to the law, and I support moving forward 
with repeal because I personally believe that it is the right 
thing to do and that the discharge of highly-qualified 
servicemembers is unnecessary.
    I wanted to go over a question having to do with 
professionalism in our Armed Forces. The oath of enlistment and 
the oath of office that our men and women take as they enter 
the Armed Forces is not to a specific political ideology or 
party. Rather, that oath is taken to support and defend the 
Constitution of the United States.
    My question is, are there any findings from the surveys to 
suggest that there would be a departure from that commitment 
once the statute concerning DADT has been repealed? General?
    General Ham. Senator, no. In fact, we heard loud and clear 
from the force, from the most junior servicemembers to the most 
senior, that if the law changes they will make that happen.
    Senator Hagan. Since the implementation of DADT back in 
1993, over 13,000 servicemembers have separated due to their 
sexual orientation. Will the servicemembers that have been 
discharged under that provision of DADT be allowed to return to 
their respective Services without prejudice to their separation 
code?
    I understand that, although most servicemembers have been 
discharged, they've received an honorable discharge, but they 
also have what I understand is a reenlist code of RE-4, which 
makes it extremely unlikely that they would be accepted back 
into the Service by a recruiter. I understand that this 
separation code of RE-4 means they are not suitable or desired 
for continued service, even if the separation is under 
honorable circumstances.
    The Working Group recommended that servicemembers 
discharged under DADT be allowed to reapply for reaccession. 
But I'm just curious about what that reenlistment code actually 
would mean in this case.
    Mr. Johnson. What we're recommending, Senator, is that 
servicemembers who were separated pursuant to the policy be 
permitted to seek reenlistment like anybody else and if there 
is an indication that they were separated for reasons of 
homosexual conduct, that that be set aside and they be 
considered for reenlistment in all other respects if they meet 
the right age, weight, physical requirements, and so forth.
    Senator Hagan. Do you think anybody will, if this policy 
got changed?
    Mr. Johnson. We spoke to a number of former servicemembers 
who were gay and lesbian who said they would welcome the 
opportunity to seek reenlistment.
    Senator Hagan. As I've said, I think that this policy is 
discriminatory in nature and unnecessarily creates an 
institutional barrier that impedes our servicemembers from 
rising to the highest level of responsibility. Senator 
McCaskill mentioned some of this, too, but what steps will be 
taken in the implementation of repeal to ensure that gay and 
lesbian servicemembers are treated under the same general 
principles of military equal opportunity policy, while at the 
same time not elevating those servicemembers into a special 
status as a protected class that would receive special 
treatment?
    Admiral Mullen. There's no plan at all to create any kind 
of special class. Our standards of conduct in how the military 
led would be enforced exactly as they are today. So I would not 
expect anything along those lines to change at all.
    Senator Hagan. Mr. Chairman, I just again want to say I 
thank you for the hard work that all of you have put into this, 
and I appreciate your being forthright in your testimony.
    Thank you.
    Chairman Levin. Thank you, Senator Hagan.
    Senator Graham.
    Senator Graham. Thank you.
    Thank you, gentlemen. Thank you all for what you're trying 
to do for the country. You present to us opinions from the 
military and there are some strong opinions in this study. The 
numbers are pretty astounding to me in terms of the people who 
say they would feel comfortable with a policy change, but when 
you look at combat units the numbers are pretty strong that the 
policy change may be disruptive. So we'll have to balance what 
to do here.
    Jeh, if you could in a one or two-pager, send to the 
committee how the system actually works in the Army, Navy, Air 
Force, and Marine Corps about what kind of evidence is used to 
discharge someone, what type of events that would lead to 
discharge. I think there have been some substantial regulatory 
changes, I've looked at the Air Force regulations and I am 
pretty impressed with them, to make sure that we're making 
rational decisions.
    It would be helpful to the committee to know exactly what 
kind of events would lead to discharge, because the regulatory 
changes you guys have made have cleaned up some of the abuses 
in the past. That would be helpful if you could send that 
information to me.
    Mr. Johnson. I would be happy to do that, Senator.
    [The information referred to follows:]

    Please see the provided correspondence on this issue from the 
Honorable Mr. Johnson to Senator Graham, dated 9 December 2010.
      
    
    
      
    
    
      
    
    
      
    
    

    Mr. Johnson. I note, as we noted in the report, that 
approximately 85 percent of separations under this law are what 
we call statements cases, where the member himself makes a 
statement one way or another, I'm gay. If the law is repealed, 
obviously if somebody says ``I'm gay'' then it's irrelevant.
    Senator Graham. Right. What I'm trying to point out to the 
committee, that generally speaking it's not a situation where 
people are hounded day-in and day-out, that we are trying to 
prevent that, quite frankly. The regulatory changes you guys 
have made has limited discharges to situations where you just 
described.
    We can debate among ourselves as to whether you want to 
take that final step, but the regulatory changes have been 
substantial in terms of the type evidence you would use for 
involuntary discharge. From 1973 to 2010 is a sea change.
    Admiral Mullen, what has led to your change in thinking, if 
you could share with the committee just a bit, about supporting 
the policy change?
    Admiral Mullen. Fundamentally for me, Senator Graham, the 
issue is this mismatch of an institution that I've been raised 
in my whole life, that values integrity in many ways across 
everything we do, and then we have thousands of men and women 
who are willing to die for their country, that we ask them to 
lie about who they are every single day.
    I just, fundamentally, think that is wrong.
    Senator Graham. I understand.
    Admiral Mullen. I worry, Senator Graham, that it is 
corrosive over time. A light switch isn't going to go on and 
it's going to be a disaster. But it is corrosive over time, 
particularly during a time of war when we are focused so 
heavily on our combat missions. It undermines in ways our 
ability to do what we need to do, because of the people side of 
this, because of the leadership focus it takes, et cetera.
    That's fundamentally what's led me to my beliefs and 
conclusions with respect to where we are.
    Senator Graham. I'm going to ask a question that is tough 
for a Navy guy to answer: Why do the Marines think the way they 
do? I say that jokingly and I'm not joking. I respect you very 
much. The Commandant of the Marine Corps is in a different 
place. We'll have him come up and answer for himself here later 
on.
    But there is a difference of opinion on this issue between 
yourself and the Commandant of the Marine Corps and some other 
Service Chiefs. I think that fact needs to be known and 
understood. I'll give you 30 seconds to take a shot at it.
    Admiral Mullen. The Navy and the Marine Corps grew up 
together in many ways, so it's not like I haven't been around 
marines.
    Senator Graham. I know you have. So have I. I'm glad their 
on our side.
    Admiral Mullen. I think the way it's been described both in 
the report--and it's not just the Marines. It's in the Army as 
well, the combat arms piece, they're unique. Typically they 
haven't fought with or integrated with women. They're 18 to 24, 
trying to figure out their own selves at that particular age. 
It's that combination of things and the focus right now, 
obviously, with an awful lot of Marines in Afghanistan.
    For me, it is that focus. I'm not sure it's that much 
different per se than it is that exposure or that lack of 
exposure because of who the Marine Corps is.
    Senator Graham. Fair enough.
    Now, you worry about court challenges, Mr. Johnson and 
Secretary Gates. I don't know how the courts are going to come 
out on this. I'd be surprised, quite frankly, if they strike 
the statute down. But you never know with courts.
    Could you supply to the committee, in the event that the 
courts did strike this policy down, some of the things that you 
would like to see Congress do in that event to make this more 
orderly? Because you're worried about getting a court order on 
Monday and Tuesday you don't know what the heck to do. So if 
that day ever comes, I would suggest that maybe you send us 
some information as a game plan where Congress could weigh in 
and maybe the courts would be sympathetic to a way for Congress 
to get involved to handle that transition if it ever did 
happen.
    I would just make that invitation to you to think ahead. 
Like I said, I don't think we're going to lose, but who knows.
    [The information referred to follows:]

    Please see previous correspondence from Mr. Johnson to Senator 
Graham.

    Senator Graham. The last thing, and I think this is the 
most important thing for me. I've been in the military for a 
very long time. You have served longer and more sacrificially 
than I have, so I certainly defer to your leadership. I just 
haven't heard a lot of people saying in the ranks themselves: I 
wish this policy would change. I understand that civilian 
leadership in our country makes policy and that's the way it 
should be.
    If you asked the question and this was the only question 
you asked, ``are you comfortable with the DADT policy and 
should it be changed,'' what kind of response do you think you 
would get, if that were the only question you asked?
    Admiral Mullen. It's hard to know. I think you'd get 
answers on both sides. One of the reasons this work is so 
important is because 6 months ago or 8 months ago we were just 
talking about anecdotal evidence. We just didn't have anything 
that was comprehensively done, and we do now. I think we're 
much better informed.
    Senator Graham. But you would agree with me, the question 
wasn't asked that way?
    Admiral Mullen. No, sir. But I haven't asked soldiers if 
they'd like to deploy for 15 months at a crack.
    Senator Graham. Don't get me wrong. We're not asking for 
you to turn the war into a referendum, would you like to go to 
Afghanistan and fight. That's never going to be asked of the 
Services. You do what you're told.
    But this is a change, a pretty significant change. The one 
thing, to my Democratic colleagues, passing the statute 
repealing during the study I think was a bad mistake. We should 
be listening, not dictating on this. I'm not asking the country 
to allow the military to make its own rules and take away 
public policy decisions from elected leaders. But I am asking 
us to listen a little bit better and ask better questions.
    I'll leave it with that. Thank you.
    Chairman Levin. Thank you very much.
    Now, we promised the Secretary and I stated that he'd be 
out of here by noon. That was an extension of a half hour. We 
are going to have a second round for the remaining members of 
the panel. Senator Bayh is here now. He is willing to just put 
any questions that he has for you, Mr. Secretary, first in his 
round, so that you can leave, and then he'll ask questions of 
the other members of the panel.
    Thank you.
    Senator Bayh. Thank you, Mr. Chairman.
    Thank you, Mr. Secretary. I just have 1 or 2 minutes of 
preamble and then I'll just ask one or two questions of you. I 
appreciate your courtesy in staying for just a couple moments.
    I'd like to begin by thanking all of you for your service 
to our country. One of the personal joys for me over the last 8 
years has been serving on this committee, the last 2 as 
chairman on the Readiness and Management Support Subcommittee, 
and working with you to try and ensure our Nation's security at 
a pretty difficult time. I want to thank you for that.
    I also want to say to my colleagues on the other side of 
the aisle, while I may have a difference of opinion with some 
of them on this issue, I know their concerns are heartfelt and 
are premised upon trying to do what's right for our country. I 
certainly respect that, even though I may end up at a different 
place at the end of the day.
    I come from a State that honors our military. The American 
Legion is headquartered in Indianapolis, Indiana. My capital 
city, Indianapolis, was designed by Pierre L'Enfant and there's 
a north-south axis of streets radiating off of a circle at the 
middle of our city. There is a huge war memorial on that 
circle. There is an American Legion Mall north of the circle, 
where we have memorials honoring our war dead from every 
conflict we fought as a Nation.
    Honoring our military, caring about our national security 
interest, is part of Hoosiers' DNA. It's part of my DNA. We 
tend to come from a place where national security has to come 
first. If you have competing values, well, you take care of 
your national security first and if some other considerations, 
cultural or otherwise, have to wait, well, that's just the way 
it is.
    But as I understand your testimony, Mr. Secretary, and your 
colleagues' testimony, we can make this change without 
impairing our Nation's security. Is that a correct reading of 
this study and of your professional opinion?
    Secretary Gates. The way I would answer that question, 
Senator, is to say that I would not sign the certification if I 
did not think we were safeguarding national security.
    Senator Bayh. In fact, as I understand your testimony, 
other nations have made this change and some of the concerns 
that my colleagues sincerely hold did not come to fruition in 
terms of retention, morale, or effectiveness in combat and that 
kind of thing. Is that also a correct reading of your 
testimony?
    Secretary Gates. I think so.
    Senator Bayh. In fact, when we integrated the Armed Forces 
in the 1950s, some of these concerns had been raised, but were 
not realized following the integration of the Armed Forces 
along racial lines; isn't that correct, gentlemen?
    Secretary Gates. As I indicated earlier, the organizational 
integration took place between 1948 and 1953. We did have 
problems, racial problems inside the Armed Forces, for a number 
of years after that. Ultimately, through discipline, training, 
and professionalism, they've largely been eliminated.
    Senator Bayh. Our national security has not been harmed by 
the integration of the Armed Forces. I'm sure you agree. I know 
you agree with that.
    Secretary Gates. It's been enhanced.
    Senator Bayh. Correct.
    Admiral Mullen, in your exchange with my friend, Senator 
Graham, I couldn't help but think that if we had done polling 
back in the day, 1948, 1949, you would have found a diversity 
of opinion about the racial integration of the Armed Forces. 
And if a minority of people had objected, following that line 
of logic we wouldn't have integrated the Armed Forces.
    So here's the point that I'm trying to make, and then, Mr. 
Secretary, I'll let you go. I've always felt that our Nation is 
strongest and most secure when we pursue our Nation's security 
consistent with our values, to the extent that we can. Admiral 
Mullen, I associate myself with your comments and I assume, and 
I apologize I wasn't here for all the hearing, the thinking of 
your colleagues. There just seems to be something fundamentally 
wrong when we ask men and women to lay down their lives for our 
country and yet they cannot be honest about who they are.
    There's something fundamentally wrong about that. If we can 
pursue our Nation's security without putting them or us as a 
country institutionalizing hypocrisy, I think America is 
stronger, we are a more just and secure country. That's where I 
come from on this issue.
    General and Mr. Secretary, that's just what I wanted to 
say. If you need to go, thank you. Again, it's been an honor 
working with you.
    General Ham, in your testimony to my colleague, Senator 
Webb, you indicated that, to the extent we know, about 2 to 3 
percent of the people who serve in the Armed Forces are gays 
and lesbians; is that correct?
    General Ham. Yes, sir, it is.
    Senator Bayh. There's no reason to believe that that figure 
has changed over time, is there? There's no way of knowing, but 
I assume that's constant over time.
    General Ham. I don't know, sir. The best we could do was 
try to get an assessment of where are we today.
    Senator Bayh. Sure. But I guess the point I want to make, 
in all likelihood there were gay Americans serving at Valley 
Forge, there were gay Americans at Gettysburg, there were gay 
Americans on Normandy Beach, there are gay Americans serving in 
Iraq and Afghanistan today. In all likelihood that's probably 
true, wouldn't you say?
    General Ham. Yes, sir, I think it's a very reasonable 
assumption.
    Senator Bayh. There are probably gay Americans buried at 
Arlington Cemetery and at Normandy Beach, where I took my young 
sons a couple of years ago. One of the most inspiring things 
you can possibly see are those rows of crosses, the American 
flag flying in the breeze, people who laid down their lives for 
our country. There are probably gay Americans buried there, 
aren't there?
    General Ham. I think that would be a reasonable assumption.
    Senator Bayh. How do we say to them or to their families 
that we've honored their sacrifice, laying down their life, and 
yet if we knew who they were not only would they not be buried 
there, they would have been drummed out of the Armed Forces?
    General Ham. Senator, my response to that would be based on 
the oath that we took, that all of us in uniform take, and that 
is that we support and defend the Constitution of the United 
States. That means we follow the law. So we have to do that.
    Senator Bayh. I guess my point once again is, if there are 
Americans who are willing to lay down their lives for our 
country and make that kind of sacrifice, and we can enable them 
to be that kind of patriot without harming our national 
security, not only is it better for them, it is better for us 
and for our country. We are stronger, more noble, and more just 
with a policy like that.
    Gentlemen, I want to thank you for your service. It's been 
a pleasure serving with you and I think our country is in your 
capable hands. Thank you.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you, Senator Bayh.
    Beginning a second round, I don't have any additional 
questions. I just, though, want to comment as to why I'm here. 
The suggestion was made by one of our colleagues that we're 
here because the President made a campaign promise, that's not 
why I'm here. That's not why I believe the majority of us are 
here.
    I'm here because we passed a law in 1993 which I believe is 
discriminatory. Times have changed since then and it seems to 
me we should respond to those changes, changes in the attitude 
of our people, the acceptance of gay and lesbian people in the 
workplace.
    I am here because we have men and women now serving, men 
and women who have died for this country, who are gay and 
lesbian, and we should not discriminate against them. We should 
honor that service, honor that patriotism, the way we do the 
service and patriotism of any American who is willing to put on 
the uniform of this country.
    Now, that's why I'm here. It's not because of some campaign 
promise of President Obama. It's because my conscience tells me 
it's time now to allow men and women to serve their country and 
to do so without having to conceal their sexual orientation.
    I don't have any further questions. Senator McCain.
    Senator McCain. Thank you, Mr. Chairman. I of course regret 
that I could not ask additional questions of the Secretary of 
Defense.
    I would like to point out that in 1993, at the time of the 
enactment of DADT, General Colin Powell now supports repeal of 
DADT, but at the time he was asked about the issue and 
comparing it to the racial integration of the military. He said 
that sexual orientation is different from the pigmentation of 
one's skin. I think that that was an important statement.
    Admiral, I'm really taken aback at your and the Secretary's 
statement that we won't have a referendum by the men and women 
in the military and that you based this survey, which had 28 
percent return, on how best to implement repeal, rather than 
asking them their views. Everything I ever learned about 
leadership, everything I ever practiced about leadership, every 
great leader I've ever known always consulted with his 
subordinates for their views, no matter what the issue.
    Certainly an issue of this magnitude deserves that leaders 
take into consideration the views of their subordinates. It 
doesn't mean that they are dictated by the views of their 
subordinates. But I never made a major decision in the military 
without going around and talking to the enlisted people, the 
ones that would be tasked to carry out whatever the mission 
was.
    I'm almost incredulous to see that on an issue of this 
magnitude we wouldn't at least solicit the views of the 
military about whether it should be changed or not. Now, those 
views may be rejected. Those opinions for the sake of the 
security of the country may be discounted. But to somehow say 
we're not going to have a referendum--it's not a referendum. 
That's not what leadership is. Leadership is soliciting the 
views of your subordinates and thereby you're able to carry out 
your mission, because you have to rely on them to do so.
    So to say we didn't need to ask their opinion on whether it 
should be repealed or not, violates in my view one of the 
fundamental principles of leadership.
    Now, the Secretary said that he had concerns about the 
benefits that would be allotted to or that people would be 
eligible for Admiral, I'll be glad to hear your response to my 
comment.
    Admiral Mullen. Sir, I've grown up on the deckplates my 
whole life, and certainly one of the things that I pay 
attention to, have paid attention to in every leadership 
position I've been in, are my people, what motivates them, how 
they think, what they think. Clearly, they are the reason any 
of us is able to accomplish any mission, small or big. That's a 
fundamental principle with me.
    I think the report has spoken to, in great part, their 
views of whether this can be successfully done or not and from 
my perspective, very much by implication, where they are on 
this.
    Senator McCain. Then why wouldn't we just ask the question?
    Admiral Mullen. Because I fundamentally think it's an 
incredibly bad precedent to ask them to essentially vote on a 
policy.
    Senator McCain. It's not voting, sir. It's asking their 
views. It's asking their views and whether they would agree or 
disagree with the change, the same way you would ask whenever 
any policy or any course of action were contemplated. You would 
ask the views of others. You wouldn't necessarily accept them.
    But for you to sit there and say, ``well, we wouldn't want 
to ask them their views,'' it makes this whole exercise here, 
that took so much time, effort, and money, a bit of an 
unrealistic situation.
    Admiral Mullen. Sir, I guess I disagree with you.
    Senator McCain. You disagree with asking them whether----
    Admiral Mullen. No, sir. I just disagree with the approach, 
that we would go out and ask them for their views on this 
specifically, although I think we've gotten them.
    Senator McCain. I understand your answer is we would not 
ask them their views on whether this policy should be changed 
or not as the first question.
    Admiral Mullen. We've gotten in great part their views as a 
result of this survey.
    Senator McCain. Obviously we'll go around and around. But 
why we didn't just simply ask them how they felt about it, just 
as you would about any other course of action. Every great 
leader I've known has said, what are your views on this issue.
    Finally, I guess it would be important to include for the 
record this survey: ``Those who served in combat with a 
servicemember believed to be homosexual, effect on unit's 
combat performance. Army, combat arms, 58 percent mostly 
negative. Marines, combat arms, 57 percent mostly negative.''
    Next question: ``Those deployed in a combat environment 
since September 11, effect on unit effectiveness at completing 
its mission in a field environment or at sea if DADT is 
repealed, and working with a gay servicemember in your unit. 
Army combat arms, 57 percent, Marine combat arms, 66.5 percent, 
very negatively or negatively.''
    ``Those deployed in a combat environment since September 
11, effect on unit effectiveness at completing its mission in 
an intense combat situation if DADT is repealed, and working 
with a gay servicemember in their unit. Army combat arms, 40.9 
percent; Marine combat arms, 47.8 percent, very negatively or 
negatively.''
    It probably should not be a surprise to hear the views of 
the Commandant of the Marine Corps in his testimony tomorrow 
and perhaps the other Service Chiefs.
    Mr. Chairman, can I continue or will we just go to another, 
a third round?
    Chairman Levin. We'll have a third round.
    Senator McCain. Okay. Thank you.
    Chairman Levin. Senator Lieberman.
    Senator Lieberman. Thanks, Mr. Chairman.
    Thanks again to the witnesses. On the survey, I just want 
to get a few things on the record, Mr. Johnson and General Ham. 
As I understand it, you had an independent group send out a 
survey to over 400,000 members of the military; is that right?
    Mr. Johnson. Yes, sir.
    Senator Lieberman. So therefore the 28 percent was more 
than 100,000 responded, that is, sent their surveys back in?
    Mr. Johnson. It was 115,000. To just put that in context, 2 
days ago there was a poll from Pew nationwide, on civilian 
attitudes on gays in the military, and the sample size there 
was 1,200 people.
    Senator Lieberman. For the whole country?
    Mr. Johnson. For the whole country. This was a sample size 
of 115,000.
    Senator Lieberman. Let me just say that we base a lot of 
our decisions, probably too many, on samples about political 
questions and our standing that are a lot smaller than the 
number that you had responding here.
    My understanding is, I don't know if the folks who did the 
survey indicated this to you, that 28 percent is actually a 
pretty high percentage response to a survey questionnaire sent 
out.
    Mr. Johnson. It's average.
    Senator Lieberman. It's average, okay.
    Mr. Johnson. But it was very large.
    Senator Lieberman. Did they give you any indication of 
margin of error in reflecting the views of the military 
generally?
    Mr. Johnson. Given the size of the respondent pool, the 
margin of error is less than 1 percent, which is far lower than 
what you'd normally get in any kind of survey or poll.
    Senator Lieberman. Okay. Second, Admiral, I want to go now 
to this question that you've been asked about, and I did 
earlier, about the negative impact of DADT on military 
effectiveness apart from whether we think it's right or wrong.
    One of the things that we lost or wasted when the military 
had to evict 14,000 people from the military because they were 
gay or lesbian is the money we invested in training them. I saw 
one estimate that said it was as high as $500 million. I don't 
know whether you have a credible estimate of that, but do you 
agree that the implementation of this policy over the last 17 
years has meant that we've lost the services of a lot of troops 
who we invested a lot of money to train to do what we need them 
to do?
    Admiral Mullen. I think the number is about right, between 
13,000 and 14,000 servicemembers. I just don't have a financial 
impact. But clearly we do invest in every Service an 
extraordinary amount of effort, time, money, resources into 
people that we train to carry out these missions.
    Senator Lieberman. Right. I've seen some estimates, not of 
numbers, but that among the 14,000 there were a significant 
number of troops that we call mission critical, with mission 
critical skills: translators, intelligence analysts, and 
perhaps health care personnel. Is that right?
    Admiral Mullen. Yes, sir, I agree.
    Senator Lieberman. Mr. Johnson, let me just go back to 
President Truman for a couple of questions. I know you said you 
studied this period. When he ended racial segregation in the 
military, he did so, am I right, by executive action, by 
presidential decision?
    Mr. Johnson. That is correct.
    Senator Lieberman. He was able to do so because there was 
no law, as there is in this case regarding DADT, that 
prohibited him from doing so?
    Mr. Johnson. That is correct.
    Senator Lieberman. I'm picking up from what Chairman Levin 
had to say, while it's true that President Obama made clear in 
his campaign that he would act to end the DADT policy in the 
military, the fact is he cannot do it himself. Congress has to 
take action to give the President essentially the same latitude 
for executive action that President Truman had during his time.
    Mr. Johnson. Yes, I agree with that way of looking at it, 
yes.
    Senator Lieberman. I wonder whether, in terms of the 
question of what impact, one of my colleagues asked you 
projecting from some of the numbers, of the potential hundreds 
of thousands of resignations. During Truman's time, obviously, 
it was an Army that was there because, as you said earlier, 
they were conscripted, they were drafted. I suppose any impact 
would have been seen in reenlistment rates.
    Is there any evidence on the impact of the racial 
desegregation order by President Truman on reenlistments in the 
military?
    Mr. Johnson. There may be evidence to that effect in the 
report. I don't recall any offhand. I do know that as 
integration was occurring, and this is reflected in the report, 
there were studies that indicated that the combat effectiveness 
of integrated units in the Korean War was just as good as it 
was for segregated units.
    If I could add, I happen to agree with Senator McCain that 
matters of sexual orientation and race are fundamentally 
different, which is why in this report we didn't push the 
racial integration chapter too hard. I do think that it was 
relevant, in that, in the 1940s some of our most revered heroes 
from the World War II period--Admiral Nimitz, General 
Eisenhower, General Marshall--predicted negative consequences 
for unit cohesion if there was racial integration, and the 
limited surveys that were done indicated very strong opposition 
within the force to racial integration.
    But we did it. It took some time. It was not without 
incident. But we did it, and I think the Chairman said that our 
military is stronger as a result.
    Senator Lieberman. Amen.
    Thank you. My time is up.
    Chairman Levin. Thank you, Senator Lieberman.
    Senator Brown.
    Senator Brown. Thank you, Mr. Chairman.
    I just have a couple of follow-up questions and I'm looking 
forward to tomorrow's testimony as well.
    I also agree with Senator McCain that we should have asked, 
``do you favor repeal of DADT,'' as one of the questions. 
Because you asked virtually everything else. But it was almost 
like you were right there; you never went right for the 
jugular.
    As somebody who's served and continues to serve in the 
military for 31 years, I started as an enlisted man when I was 
19. I'm a lieutenant colonel now and a U.S. Army National Guard 
Judge Advocate General (JAG) Corps. I find sometimes in the 
military we beat around the bush too much. We don't go and ask 
the real question. So I think we missed a good opportunity.
    It doesn't mean you needed to follow it, but it certainly 
would be nice to see where everyone's heads are at. I think you 
would have gotten more of a response potentially.
    That being said, since my years in the military and since 
being in this position, I've had the opportunity to visit 
Walter Reed. I still can't get out of my mind the one time I 
saw a soldier who lost both his legs, an arm, and most of 
another arm, doing crunches to try to get his torso 
strengthened enough so that he could still have a viable and 
fulfilling life.
    I've seen many other injured men and women who have not 
only given their limbs, but also their lives. I've been to many 
funerals, unfortunately, in my home State for those soldiers.
    One thing I never asked was are they gay or straight. It 
never even crossed my mind, to be honest with you. I just 
wanted to know if they gave their limb or their life with pride 
and with honor for our country.
    So, that being said, this is very uncomfortable, this whole 
situation. But I know for a fact that there are good people on 
both sides of these issues. I see it each and every day, 
whether they're straight or gay.
    That being said, I want to zero in for our viewers, I 
guess, and for the people who are in the audience, a couple of 
things regarding the legal part of it. First of all, has there 
been any instance, and Mr. Johnson and General Ham, maybe you 
can point on this, where a soldier has said for the purposes 
only of getting out of the military, hey, I'm gay?
    Do you have any records or documentation of people trying 
to avoid their service as a result of that action?
    Mr. Johnson. Yes. There are very strong indications, 
particularly during a period of time when the economy happens 
to be strong, that servicemembers would make statements, ``I'm 
gay.'' When I was Air Force General Counsel, we had a 
litigation where a servicemember had, right after we had paid 
for his medical education, declared he was gay. We separated 
him and then we sued him to get the money back. I think that 
was in the 1999-2000 time period.
    Very often there are cases where the servicemember is in 
his tour of duty and completes training and education, he makes 
such a statement and the indication is a pretty strong one that 
they're making the statement so they can get out of the 
military. Obviously, if the law is repealed they can't do that.
    Senator Brown. As someone who is a JAG, I know that once 
you sign that contract, there was a question about what if 
250,000 servicemembers, give or take, decided that they want to 
get out. They can't get out. Let's be real. They can't get out 
because they have an obligation, a contractual obligation, 
where unless they do something that warrants them being 
discharged for conduct or otherwise, they have to fulfill their 
military contract, whether it's 4 or 6 years in an officer's 
case, in my case, it's unlimited.
    Is that an accurate statement?
    Mr. Johnson. Yes, that is correct.
    Senator Brown. Who do you actually work for, just so that 
people know? I know I'm somewhat new, but who do you work for? 
Who's your boss?
    Mr. Johnson. I am a Senate-confirmed presidential 
appointee. I serve at the pleasure of the President, but I am 
the lawyer for the Secretary of Defense. I take this very 
seriously. My political loyalty obviously is to the President 
and the Obama administration, but my professional and fiduciary 
duty is to the Secretary of Defense, and to me that is a higher 
obligation.
    Senator Brown. So if he, in fact, says ``I want to do away 
with this policy,'' are you zealously representing him in those 
actions to do that? Because I know there was a line of 
questioning from a couple of Senators saying, ``well, I don't 
feel you were zealous enough in actually defending the position 
of the present law right now.'' Do you have any comment on 
that?
    Mr. Johnson. At the outset of this assignment the Secretary 
made it very clear to both of us that he was very concerned 
that before we moved forward we had to have this comprehensive 
assessment, to know what the views of the force were, to 
systematically engage the force. That's in our terms of 
reference.
    So he wanted to be informed by our review before he came to 
the views that he's expressed today. He expressed support for 
repeal in February with the huge caveat, I believe Admiral 
Mullen said the same thing, that he wanted to know the views of 
the force and to have this report done.
    In terms of defense of litigation, we made in the Witt 
case, for example, the strategic judgment not to push the case 
to the Supreme Court back then on that record. I believe that 
was in the best interests of DOD.
    Senator Brown. Mr. Chairman, since it's just us three may I 
have the courtesy of one final question?
    Chairman Levin. Actually, we're going to have a third round 
anyway. Sure, if it's all right with Senator McCain that would 
be fine.
    Senator Brown. Thank you.
    Just on the legal part of it. Senator McCain and others 
have touched on this. Being an attorney, I just want to make 
sure I understand. Is it your professional opinion that if, in 
fact, we don't do something that there is an imminent fear or 
concern that the courts will in fact act, and as a result we 
will in turn not be able to implement repeal in the manner that 
the military and DOD wishes?
    That's the first part of my question. Second, do you have a 
professional opinion as to what the timing is with regard to 
court repeal? Is it next week, is it next year? What's your 
gut?
    Mr. Johnson. I'm not here to express an opinion on the 
constitutionality of the law. I have not gone through that 
exercise. That, frankly, is for the courts, the Solicitor 
General, and our Office of Legal Counsel at DOJ they should be 
asked.
    In terms of timing, I think we are in a very unpredictable 
environment. We got a taste of that in October, where all of a 
sudden we had a court order that required the Secretary of 
Defense to shut down this policy worldwide. We were faced with 
a situation, first through our JAG community and then through 
our personnel and readiness community, where we had to get the 
word out. Then immediately what came back were a barrage of 
questions that we dealt with in this report, about what do we 
do with recruitment centers, what do we do with people who 
declare that they are gay in this period of time while the 
appeal is pending, and so forth.
    That was a very uncertain situation which I'd like to never 
repeat. The Log Cabin Republicans case right now is on an 
expedited appeal track.
    Senator Brown. What does that mean, expedited?
    Mr. Johnson. It means the briefing to the Ninth Circuit 
will be done, I believe, by March. They have not told us when 
they will have oral arguments in the case, but I highly suspect 
it will be some time in the first half of 2011. We could have a 
decision very shortly after that.
    Senator Brown. Thank you, Mr. Chairman.
    Chairman Levin. Thank you.
    Senator McCain.
    Senator McCain. Thank you, Mr. Chairman.
    Again, I'm sorry that the Secretary of Defense isn't here. 
We're in a lame duck session. I don't know what our schedule 
will be.
    I, and most Americans, remain concerned, Admiral Mullen, 
about the Wikileaks issue. General Petraeus said: ``This is 
beyond unfortunate; this is a betrayal of trust.'' There are 
source names and in some cases there are actual names of 
individuals with whom we have partnered with in difficult 
missions in difficult places, and obviously that is very 
reprehensible.
    In response to my question, the Secretary of Defense said 
that no one so far has been held responsible except for the 
private first class who is presently incarcerated.
    Can you give us additional information? Is that correct?
    Admiral Mullen. Yes, sir, that is. It is reprehensible and 
I have been very clear that I think it did and continues to put 
lives at stake. The limits of the criminal investigation, there 
has been no one else held accountable.
    Senator McCain. Can't you carry out an investigation at the 
same time that the criminal investigation is going on?
    Admiral Mullen. Yes, sir, in certain kinds of incidents 
that's certainly possible.
    Senator McCain. At least to hold someone responsible for 
this besides a private first class.
    Admiral Mullen. I think, sir, what the Secretary said and 
what we have done is taken significant steps to limit the 
possibility in the future. We just have not gotten to that 
point yet and I don't know how this turns out. We have not 
gotten to the point where that action has been taken.
    Senator McCain. It's been going on since July.
    Admiral Mullen. Yes, sir.
    Senator McCain. Admiral, would you encourage Congress to 
take any punitive action against the leadership and personnel 
of Wikileaks, including asset freezes, travel bans, banking and 
financial sanctions, or any other such measures? Would you 
encourage Congress to act in that fashion, or is that maybe out 
of your area?
    Admiral Mullen. It's out of my lane, but I feel pretty 
strongly that this is an individual that should be held 
accountable for his actions.
    Senator McCain. The people who facilitated it?
    Admiral Mullen. Yes, sir.
    Senator McCain. So you would support some kind of 
congressional action or legislative action, in coordination 
with the administration, to try to see that not only does it 
not happen again, but those who committed this reprehensible 
act, as you and General Petraeus described it, are somehow held 
accountable? I understand that foreign nationalities and all 
those things are aspects of it that are hard to pursue.
    Admiral Mullen. I believe we, as a country, should do all 
we possibly can to make sure something like this doesn't happen 
again, because it does put lives at stake. How to do that, the 
legalities of it, is obviously a very complex issue. But in my 
world, when I have men and women in harm's way and they are now 
exposed because of this, I think we as a country should do all 
we can to make sure that it can't happen again.
    Senator McCain. Mr. Johnson, have you got any thoughts from 
a legal standpoint?
    Mr. Johnson. Yes, I do, Senator. I don't view Wikileaks as 
journalism. My personal opinion is the activity of Wikileaks is 
not media. At least several months ago when this first broke, 
if you look on their web page, it is an open solicitation for 
classified evidence. It's an open solicitation to break the 
law, and a materially false and misleading representation that 
there will be no legal consequences to that.
    Wikileaks is on a different level from conventional 
journalism. As you've seen in the newspaper, an open criminal 
investigation, which I am briefed on a regular basis by DOJ. I 
have some private views which I'd be happy to share with you in 
private about what I think is going on here. But it is very 
troubling and I worry that this organization is out trying to 
solicit others right now for additional information.
    Senator McCain. I thank you.
    Mr. Chairman, I think it's worthy of our attention, along 
with Judiciary and Intelligence and even maybe Homeland 
Security. But this is of the utmost seriousness, and apparently 
it's not stopping.
    I thank you, Mr. Chairman.
    Chairman Levin. My understanding is we do have a briefing, 
I believe this afternoon at 4:30 on Wikileaks. I happen to 
share Senator McCain's feeling that it's not only 
reprehensible, but the people aiding, abetting, or otherwise 
involved, should be held accountable. Anyone who has been 
involved should be held accountable to the extent of the laws. 
If the laws aren't strong enough, we ought to strengthen them.
    Admiral, I share your's and Mr. Johnson's statements 
relative to these leaks. This is not journalism. This is a 
threat to our security and we should act to make sure it 
doesn't happen again and to hold those who have broken the law, 
accountable for that. To the extent that it's consistent with 
the criminal investigation, I happen to agree with Senator 
McCain that the noncriminal investigation can take place at the 
same time, it should take place at the same time.
    We thank all of our witnesses, and we will stand adjourned.
    [Questions for the record with answers supplied follow:]

               Questions Submitted by Senator John McCain

  INSTRUCTIONS GIVEN TO MILITARY PERSONNEL ABOUT REPEAL OF DON'T ASK, 
                           DON'T TELL POLICY

    1. Senator McCain. Secretary Gates and Admiral Mullen, the 
committee is interested in the personal and professional views held by 
military personnel and military leaders. However, over the course of 
the comprehensive review, individuals who expressed opposition to 
repeal have been met with warnings not to speak out publicly. Please 
describe, and provide copies to the committee, of the instructions 
given to flag and general officers and to members of the Armed Forces 
about their authority to express their views publicly or in their 
personal capacities.
    Secretary Gates. I agree with you about the importance of obtaining 
the views of military personnel and leaders on this difficult and 
complicated issue. That is why I directed that systematic engagement of 
the force be a centerpiece of the Department of Defense's (DOD) 
comprehensive review.
    I am not aware of any warnings or instructions given to flag and 
general officers and to members of the Armed Forces about their 
authority to express their views publicly or in their personal 
capacities. I am confident that servicemembers who wanted to express 
their views on this issue had ample opportunities to do so, both 
through the mechanisms provided by the Working Group and through other 
means.
    In March, I commented publicly about a letter published by a senior 
officer that I did not think was appropriate. I also did not think it 
appropriate for military leaders to comment publicly on the content of 
the Working Group's report prior to its completion and release. The 
report is now completed and released, and I am confident that military 
leaders requested to do so by the committee will provide their full and 
candid views.
    Admiral Mullen. Obtaining the views of our military personnel and 
the views of their families was extremely important to me in forming my 
best military advice. For this reason, I supported the engagement of 
the force by the Working Group and I encouraged all members and their 
families to express their frank and candid opinions. The views of our 
force and their families, positive and negative, are captured in the 
report's and its supporting documentation.
    I am not aware of any warnings to military members against 
expressing their views on the repeal of Don't Ask, Don't Tell (DADT). I 
did not provide written or verbal guidance in this area. The Services 
individually may have provided periodic written or verbal information 
about the Working Group as the review progressed.
    I did comment publicly in May 2010 about a letter published by a 
senior officer that I believed inappropriate. I also expressed my 
unease with public comment on the draft Working Group report prior to 
its delivery to the Secretary of Defense. Once the report was released, 
the Service Chiefs and I have spoken publicly and candidly to its 
findings.

CONTINUATION OF SECRETARY-LEVEL APPROVAL FOR ADMINISTRATIVE SEPARATIONS 
                      UNDER 10 U.S.C. SECTION 654

    2. Senator McCain. Secretary Gates, as a consequence of ongoing 
Federal litigation, DOD issued guidance several weeks ago precluding 
any administrative separations under the DADT policy except as approved 
by a service secretary in consultation with the Under Secretary of 
Defense for Personnel and Readiness. What is the justification for the 
continuing applicability of this rule in view of the decision by the 
U.S. Court of Appeals for the Ninth Circuit to stay the applicability 
of the District Court ruling?
    Secretary Gates. As your question notes, on October 21, 2010, I 
issued a memorandum that directed that no military member may be 
separated pursuant to 10 U.S.C. Sec. 654 without the personal approval 
of the secretary of the military department concerned, in coordination 
with the Under Secretary of Defense for Personnel and Readiness and the 
General Counsel of DOD. I issued this memorandum in order to further 
ensure uniformity and care in the enforcement of DADT in light of the 
legal uncertainty that exists surrounding the law and policy. This 
legal uncertainty continues to exist, and, as such, I believe the 
procedures in my October 21, 2010 memorandum remain warranted.

    3. Senator McCain. Secretary Gates, when, if ever, do you 
contemplate that this authority will be redelegated to military 
commanders, and what changes do you anticipate, if any, to the revised 
rules regarding the process for separation placed into effect in April 
2010?
    Secretary Gates. I am not currently contemplating further changes 
to the procedures for separations under 10 U.S.C. Sec. 654.

                  CONSTITUTIONALITY OF THE DADT POLICY

    4. Senator McCain. Mr. Johnson, Secretary Gates and Admiral Mullen 
testified about their fear of Federal litigation regarding the DADT 
policy and, despite the stay issued by the Ninth Circuit, their ongoing 
concern that Federal courts will overturn the policy and issue orders 
affecting the Armed Forces. Have you received any indication from the 
U.S. Attorney General or the Department of Justice that they will not 
continue to defend the existing law and the DOD DADT policy will not 
continue to be defended in response to the challenges?
    Mr. Johnson. I have not.

       survey in the u.s. central command area of responsibility
    5. Senator McCain. General Ham, the manner in which the 
comprehensive review survey was presented to servicemembers currently 
deployed in support of Operation New Dawn and Operation Enduring 
Freedom has not been made clear. It would seem that obtaining the views 
of those who are in theater, living in combat conditions, and who are 
most familiar with the conditions that soldiers, sailors, airmen, and 
marines will face while serving in Afghanistan, Iraq, Kuwait, and 
elsewhere in the U.S. Central Command (CENTCOM) Area of Operations, 
would be a high priority. Please describe the practices followed with 
respect to surveying military members who were deployed in the CENTCOM 
Area of Responsibility (AOR), about to deploy, or who had returned from 
deployment within the previous 6 months.
    General Ham. Obtaining the views of servicemembers who were 
deployed, were about to deploy, or who had recently returned from 
deployment was indeed an important aspect of the Working Group's 
efforts to engage the force. Servicemembers solicited to complete the 
survey were selected at random according to standard practice used by 
the Defense Manpower Data Center (DMDC) to sample the military 
population. The survey sample included servicemembers who were 
currently deployed (to include the CENTCOM AOR), as well as those who 
were about to deploy or who had recently returned from deployment. For 
example, in response to question 6, ``Have you ever been deployed for 
30 days or more,'' 10,114 of the survey respondents answered ``Yes, and 
I am currently deployed''; 75,383 answered ``Yes, but I am not 
currently deployed''; and 29,292 answered ``No.''

    6. Senator McCain. General Ham, how was this rule enforced by the 
Working Group, Westat, and others conducting the survey?
    General Ham. Servicemembers solicited to complete the survey were 
selected at random according to standard practice used by the DMDC to 
sample the military population. The survey sample included members who 
were currently deployed (to include the CENTCOM AOR), as well as those 
who were about to deploy or who had recently returned from deployment. 
For example, in response to question 6, ``Have you ever been deployed 
for 30 days or more,'' 10,114 of the survey respondents answered ``Yes, 
and I am currently deployed''; 75,383 answered ``Yes, but I am not 
currently deployed''; and 29,292 answered ``No.''

    7. Senator McCain. General Ham, do you personally think that the 
views of soldiers and marines serving on the ground in Iraq and 
Afghanistan would be probative?
    General Ham. Yes. The survey included the views of servicemembers 
currently deployed, about to deploy, and those recently returned from 
deployment.

   WORKING GROUP RECOMMENDATION FOR BILLETING OF OPENLY GAY MILITARY 
                                MEMBERS

    8. Senator McCain. General Ham, with regard to proposed policies 
for the living arrangements for gay and straight military members 
living in barracks and tents, the Working Group's implementation plan 
says: ``In most of the Working Group's engagements with the force, a 
large number of servicemembers expressed their discomfort with sharing 
bathroom facilities or living quarters with those they know to be gay 
or lesbian. Leaders at all levels should be aware of the frequency and 
intensity of discussion on this topic, and the broad range of views 
that exists among servicemembers.''
    The report goes on to recommend a prohibition of any special 
preference for openly gay members. The report dismisses separate living 
arrangements for openly gay or lesbian members citing the logistics 
nightmare that would accompany any effort to promulgate policies 
separating living and shower arrangements. However, the report and 
implementation plan offer no guidance on how commanders should resolve 
concerns about living arrangements other than proposing that they 
address concerns about living with a gay member at the local level on a 
case-by-case basis.
    Given that the survey results revealed that over 70 percent of 
respondents would take some type of action if assigned to share a 
shower, room, berth, or field tent with someone believed to be a gay or 
lesbian servicemember, did your review include any type of assessment 
of an increase in workload for leaders and commanders?
    General Ham. The Working Group did not specifically assess workload 
requirements for military leaders and commanders in dealing with issues 
pertaining to living arrangements. The responses to questions 86 to 91 
of the servicemember survey offer insights into servicemember attitudes 
concerning billeting, berthing, and personal privacy. While about 30 
percent of the respondents indicated they would ``take no action'' in 
the circumstances proposed, it seems more important to me that about 25 
percent said they would ``discuss how we expect each other to behave,'' 
and 18 to 30 percent depending on the specific circumstance replied 
that they would ``talk to a chaplain, mentor, or leader.'' To me, this 
conveys the degree of maturity that is resident within the force and 
also indicates their confidence in their leaders and chaplains. We did 
assess that such issues would be manageable in a post-repeal 
environment, in part because we concluded that the number of incidents 
will likely be low, and also because commanders already today deal 
capably with any number of issues pertaining to living arrangements 
that may arise among the servicemembers under their command.

    9. Senator McCain. General Ham, why should we be asking our local 
commanders to take on this additional set of circumstances?
    General Ham. The Working Group was not tasked to determine whether 
the law should change, but to assess the impacts of such change and how 
it could best be implemented in light of those impacts. With regard to 
the recommendation regarding living arrangements in the Working Group's 
report, I believe that commanders, and especially noncommissioned 
officers (NCO), are best equipped to deal, on a case-by-case basis, 
with issues that may arise with specific individuals within their 
units. Commanders today deal capably with any number of issues 
pertaining to living arrangements that may arise among the 
servicemembers under their command.

    10. Senator McCain. General Ham, did the Working Group formulate a 
position on how to educate commanders to deal with such cases?
    General Ham. The Working Group provided suggested education and 
training materials in the recommended education and training framework, 
recommended leadership implementation guide, and frequently asked 
questions and vignettes contained in the Support Plan for 
Implementation. As envisioned by the Working Group, each Service will 
likely develop further education and training materials in a manner in 
keeping with their Service-specific approaches to education and 
training.

    11. Senator McCain. General Ham, what is the recommendation of the 
Working Group regarding whether a military member has a right to know 
if the person he or she is assigned to live with is gay or lesbian?
    General Ham. The Working Group's recommendation is that, consistent 
with current policy, sexual orientation should be considered a personal 
and private matter, and DOD and the Services should not request, 
collect, or maintain information about the sexual orientation of 
servicemembers.

    12. Senator McCain. General Ham, what do you foresee will be a 
commander's or senior NCO's course of action if a straight member 
requests a change of living arrangements solely for the reason that 
their roommate is openly gay? Please address situations where the 
options are few, e.g., submarines, ships with small crews, and combat 
or field training exercises where individuals are required to live in 
confined spaces.
    General Ham. The Working Group's recommendation is that DOD 
prohibit berthing or billeting assignments based on sexual orientation; 
however, commanders should retain the authority to alter berthing or 
billeting assignments on an individualized, case-by-case basis, in the 
interest of maintaining morale, good order, discipline, and consistent 
with performance of mission. What commanders and NCOs do in a 
particular situation will be highly dependent on the circumstances and 
how they believe the situation should best be addressed in a manner 
that promotes morale, good order, discipline, and mission readiness. I 
would anticipate that a commander's or NCO's first course of action in 
most instances would be to talk to the servicemember or members 
involved to understand their concerns or issues and try to resolve 
them. If those issues cannot be resolved, and if the commander or NCO 
determines it would be appropriate in that particular instance, a 
servicemember requesting a different room or berthing assignment could 
be assigned to a different space. However, as your question notes, in 
certain situations a change in living arrangement would not be possible 
because it would be inconsistent with performance of the mission, or 
would otherwise be impractical. In such cases, just as they do today, 
commanders and supervisors have full authority to deny a 
servicemember's request for a change in living accommodations. In all 
instances, mission readiness, unit effectiveness, and good order and 
discipline remain the priority.
    As discussed in the Working Group's report, it should also be 
recognized that commanders already have the tools--from counseling, to 
nonjudicial punishment, to the Uniform Code of Military Justice (UCMJ) 
prosecution--to deal with misbehavior in living quarters, whether the 
person who engages in the misconduct is gay or straight.

    13. Senator McCain. General Ham, since your proposals eliminate the 
commander's option of separate living arrangements for gay or lesbian 
members, what other course of action would he or she have?
    General Ham. The Working Group's recommendation is that DOD 
prohibit berthing or billeting assignments based on sexual orientation; 
however, commanders should retain the authority to alter berthing or 
billeting assignments on an individualized, case-by-case basis, in the 
interest of maintaining morale, good order, and discipline, and 
consistent with performance of mission. What commanders and NCOs do in 
a particular situation will be highly dependent on the circumstances 
and how they believe the situation should best be addressed in a manner 
that promotes morale, good order, discipline, and mission readiness. I 
would anticipate that a commander's or NCO's first course of action in 
most instances would be to talk to the servicemember or members 
involved to understand their concerns or issues and try to resolve 
them. If those issues cannot be resolved, and if the commander or NCO 
determines it would be appropriate in that particular instance, a 
servicemember requesting a different room or berthing assignment could 
be assigned to a different space. However, as your question notes, in 
certain situations a change in living arrangement would not be possible 
because it would be inconsistent with performance of the mission, or 
would otherwise be impractical. In such cases, just as they do today, 
commanders and supervisors have full authority to deny a 
servicemember's request for a change in living accommodations. In all 
instances, mission readiness, unit effectiveness, and good order and 
discipline remain the priority.
    As discussed in the Working Group's report, it should also be 
recognized that commanders already have the tools--from counseling, to 
non-judicial punishment, to UCMJ prosecution--to deal with misbehavior 
in living quarters, whether the person who engages in the misconduct is 
gay or straight.

    14. Senator McCain. General Ham, since your proposed policy would 
not allow commanders to directly inquire about a member's sexual 
orientation, if a military member only suspects their roommate is gay 
or lesbian, will that be grounds for a room reassignment?
    General Ham. The Working Group recommends that commanders should 
retain the authority to alter berthing or billeting assignments on an 
individualized, case-by-case basis, in the interest of maintaining 
morale, good order, and discipline, consistent with performance of the 
mission. If a servicemember has an issue with his or her rooming 
assignment for any number of reasons, including because he or she 
suspects that the roommate is gay or lesbian, the servicemember could 
request a room reassignment. Whether that request is granted would be 
determined at the discretion of the local commander or NCO in the 
individual's chain of command, and only if doing so in that instance 
would be consistent with performance of the mission and would not 
degrade morale, good order, and discipline of the unit.

    15. Senator McCain. General Ham, conversely, should the new policy 
permit an openly gay or lesbian military member to be afforded an 
opportunity to change roommates based on the roommate's sexual 
orientation?
    General Ham. The Working Group recommendation is that policies 
regarding living arrangements would be applied uniformly, regardless of 
the sexual orientation of the person making a request for a room 
reassignment. Any such requests, by either a gay or a straight 
servicemember, would be determined at the discretion of the local 
commander or NCO in the individual's chain of command, and only if 
doing so in that instance would be consistent with performance of the 
mission and would not degrade morale, good order, and discipline of the 
unit.

                        IMPACT ON UNIT COHESION

    16. Senator McCain. Secretary Gates, in the executive summary of 
the report of the comprehensive review, one of the main survey 
questions offered as best evidence of an attitude among servicemembers 
that repeal of DADT will not have a negative impact on their ability to 
conduct their military mission was the following: when asked about the 
actual experience of serving in a unit with a coworker who they 
believed was gay or lesbian, 92 percent stated that the unit's ability 
to work together was very good, good, or neither good nor poor. An 
overwhelming 92 percent of respondents adhere to the current law and 
believe the current policy is conducive to their ability to work 
together.
    Compare this to the survey result where over 60 percent of the 
respondents believed that a change in the policy would have a negative 
or mixed impact on a unit's ability to work together to get the job 
done. Worse than that, over 70 percent of all servicemembers who have 
deployed since September 11, 2001, predicted a negative, 44 percent, or 
mixed, 26 percent, impact on their immediate unit's effectiveness at 
completing its mission in a field environment or out at sea. In light 
of these responses, how can you assess that the results of the 
servicemembers' survey reveal a widespread attitude among a solid 
majority of servicemembers that repeal of DADT will not have a negative 
impact on their ability to conduct their military mission?
    Secretary Gates. As stated in the executive summary of the Working 
Group's report, in general the survey results revealed around 15 to 20 
percent of servicemembers who answered that repeal would have a 
positive or very positive effect, and around 50 to 55 percent of 
servicemembers answered that repeal would have mixed or no effect. 
Around 30 percent of servicemembers said repeal would have a negative 
or very negative effect.
    However, as I stated in my opening statement, the survey data shows 
that a higher proportion, between 40 to 60 percent, of those troops 
serving in predominantly all-male combat specialties, mostly Army and 
Marines, but including special operations formations of the Navy and 
the Air Force, predicted a negative effect on unit cohesion from 
repealing the current law.

    17. Senator McCain. Secretary Gates, the difference in your 
interpretation of most of the survey results as positive for the 
repeal, as opposed to negative, is your assessment of the response 
``Equally as positively as negatively.'' In my view, the respondents 
who chose this answer acknowledged as much a negative impact on various 
readiness and morale factors as a positive one. What is your rationale 
for including this response as indicative of support for a change in 
the policy?
    Secretary Gates. These survey questions asked servicemembers to 
make predictions about the impact of repeal, not to express their 
support for or against a change in policy. I agree with the Co-Chairs 
that a response by servicemembers of ``equally as positively and 
negatively,'' when asked to predict impact of repeal, would support an 
assessment that the repeal can be implemented without posing a serious 
risk to military readiness.

    18. Senator McCain. Secretary Gates, do you agree that if the 
survey results were adjusted to remove those who responded mixed, a 
larger percentage of those surveyed predict a negative impact on 
readiness and effectiveness than those do of a positive impact?
    Secretary Gates. Yes. In general the survey results revealed around 
30 percent of servicemembers who said repeal would have a negative or 
very negative effect, and around 15 to 20 percent who said repeal would 
have a positive or very positive effect. Around 50 to 55 percent of 
servicemembers answered that repeal would have mixed or no effect--
these responses were divided more or less evenly between those who 
answered that repeal would have a mixed effect and those who answered 
that repeal would have no effect.

                     IMPACT OF REPEAL ON RETENTION

    19. Senator McCain. General Ham, according to the report, nearly 20 
percent of servicemembers would probably or definitely intend to leave 
military service at the end of their current obligation if DADT were 
repealed, and a whopping 38 percent of Marine Corps members. In other 
words, according to your survey, 1 in 5 servicemembers would depart as 
a result of the change if it occurred. Given the importance of 
leadership in maintaining unit cohesion and readiness, what percentage 
of those who would probably or definitely leave military service as a 
result of repeal of DADT are military leaders and NCOs, upon whom we 
rely on for military effectiveness in fighting two major wars, and what 
is the impact of their departure?
    General Ham. Your question refers to the responses to question 81 
of the servicemember survey, which asked ``If Don't Ask, Don't Tell is 
repealed, how, if at all, will your military career plans be 
affected.'' The responses to this question, separated by pay grade, are 
contained in Appendix G of the report issued by Westat, the 
professional survey company engaged by the Working Group. The responses 
for officers and for enlisted servicemembers in pay grades E5 and above 
and were very similar, if slightly lower, than the force overall. 
Overall, 24 percent of servicemembers answered ``I will think about 
leaving sooner than I had planned'' or ``I will leave sooner than I had 
planned.'' For personnel in the grades E5 to E7 that number was 23 
percent; for E7 to E9, 23 percent; O1 to O3, 22 percent; and O4 and 
above, 23 percent.
    I believe that while some servicemembers will choose to leave 
military service earlier than they would have otherwise, that number 
will be much lower than 24 percent. My conclusion is based on a number 
of factors, including that the 24 percent figure includes those who 
answered ``I will think about leaving sooner than I had planned,'' that 
survey responses are often a poor prediction of one's actual future 
behavior, and that the experience of our foreign allies indicates that 
far fewer military members actually left military service after a 
change in their policy than had indicated they would. Additionally, 
responses to questions 33 and 82 indicate that other factors are more 
important than DADT to servicemembers as they contemplate their future 
military service. Furthermore, many servicemembers have Service 
obligations that preclude them from leaving the force immediately, even 
if they desired to do so. Still, there is no question but that 
commanders and NCO leaders must monitor the retention situation very 
carefully. The Working Group recommends that DOD conduct a follow-on 
review approximately 1 year after repeal of DADT to ensure retention 
programs remain effective.

         MAJOR ISSUES ASSOCIATED WITH REPEAL FOR SERVICEMEMBERS

    20. Senator McCain. Mr. Johnson and General Ham, according to your 
report and survey:

         44 percent of servicemembers who have been deployed to 
        combat since September 11, 2010, said that effectiveness in a 
        deployed environment would be affected negatively or very 
        negatively by the repeal of DADT;
         34 percent said that trust within the unit would be 
        very negatively or negatively affected by repeal;
         31 percent said that unit readiness would be very 
        negatively or negatively affected by repeal;
         31 percent said that unit effectiveness would be very 
        negatively or negatively affected by repeal;
         30 percent said that concern for members in the unit 
        would be very negatively or negatively affected by repeal; and
         37 percent of servicemembers who usually attend 
        military family programs said they would stop participating in 
        military family programs altogether if DADT were repealed and 
        gay or lesbian servicemembers participated in the program with 
        a partner.

    It is surprising in light of these findings that the Working Group 
concluded that repeal of DADT will present low risk to the United 
States military. In fact, the report characterizes servicemembers' 
concerns about negative impacts of repeal as exaggerated. Please 
explain on what basis you conclude that concerns of servicemembers 
about deterioration of military unit cohesion are exaggerated, and that 
the risks to military readiness are acceptable for our national 
security.
    Mr. Johnson. I agree with the answer provided by General Ham. I 
would also call your attention to the executive summary, as well as 
section XII, ``Our Assessment,'' of General Ham's and my report.
    General Ham. The survey numbers you cite are high and we spent 
considerable time focusing on them. However, these particular survey 
results reflect predictions, and research demonstrates that predictions 
are not always a good indicator of actual future behavior. To me, the 
responses provided by servicemembers who have had the experience of 
actually serving with a gay person are more instructive. Servicemembers 
who report that they have served with a gay person, to include combat 
service, indicate that factors other than a person's personal sexual 
orientation are more important to mission accomplishment. This is 
consistent with information from other nations' militaries and with 
conversations I have had with many of my European counterparts in my 
duties as Commander, U.S. Army Europe. But, the 30+ percent of 
respondents who express concern about the impacts on unit readiness and 
effectiveness indicates that leaders at all levels will be required to 
address this concern during implementation. As a serving commander, I 
think one of the most effective ways which we can do so is to emphasize 
performance rather than sexual orientation.

                COST OF REPEAL OF DON'T ASK, DON'T TELL

    21. Senator McCain. Secretary Gates, the estimated cost of 
implementing a repeal of section 654 of title 10, U.S.C., and the DADT 
policy have not been made clear. One figure put out during the press 
conference was the net annual cost of repeal of $30 to $40 million. 
What is the best estimate of the monetary cost to DOD and to the 
Services for implementing repeal?
    Secretary Gates. The best estimate DOD currently has is what is 
described in pages 150 and 151 of the Working Group's report. This was 
a rough order of magnitude estimate that involved a number of 
assumptions about which of the Working Group's recommendations may be 
adopted, especially those pertaining to benefits. Based on those 
assumptions, the Working Group estimated a gross annual cost of $50 to 
$60 million, plus approximately $20 million in savings, for a total net 
annual cost estimate of $30 to $40 million. As the Working Group report 
notes, this is a rough estimate that will depend in large part on how 
implementation occurs, especially with regard to benefits for single 
servicemembers and for same-sex partners of gay and lesbian 
servicemembers. DOD will continue to study and refine the cost 
estimates as it works further towards implementation.

    22. Senator McCain. Secretary Gates, where would the money come 
from in the fiscal year 2011 budget?
    Secretary Gates. Whether and how much cost DOD and the Services 
incur in fiscal year 2011 will depend in large part on the timing of 
any legislation and any subsequent certification. It will also depend 
on which of the Working Group's recommendations, especially pertaining 
to benefits for same-sex partners, are adopted, and when any such 
policies are implemented. That said, if repeal were to become effective 
in fiscal year 2011, the Working Group estimates that net initial 
implementation costs in that fiscal year would be negligible, if any.

                       BURDEN ON MILITARY LEADERS

    23. Senator McCain. Admiral Mullen, you have extensive operational 
and command experience, including command of three ships. Please 
describe the living conditions as you recall them on USS Noxubee and 
the other ships you commanded, with respect to berthing, habitability, 
and individual privacy.
    Admiral Mullen. Early in my career, naval surface combatants had 
crowded and very basic living conditions. The space demands of a 
fighting ship require common berthing, showering, and living areas.

    24. Senator McCain. Admiral Mullen, if indeed these conditions were 
spartan and lacking in privacy, to what degree do they still exist on 
ships, submarines, other seagoing Navy platforms, and for the many 
individual augmentees assigned by the Navy to duty in Iraq and 
Afghanistan?
    Admiral Mullen. Our individual augmentees in Iraq and Afghanistan 
live in the same conditions as our ground forces, where we give them 
every measure of personal comfort consistent with the theater of 
operation.
    Our naval ships today are far superior to those of several decades 
ago. Our sailors and marines enjoy better equipment, personal comfort, 
and connectivity with their families.
    But while our combatants are much improved, going to sea on a 
warship remains timeless in most ways. Space demands still require 
common berthing, shower, and living areas. Hard work, long hours, 
danger, and a lack of privacy remain facts of a seagoing career, as 
well as the sense of pride, professionalism, and common purpose that 
make an effective crew.

    25. Senator McCain. Admiral Mullen, what would you say to a petty 
officer, sergeant, or junior officer who objects to living under these 
conditions with an openly gay or lesbian individual and is struggling 
to find the words to convey to those sailors who look to him or her for 
an answer as to why they should subordinate their concerns?
    Admiral Mullen. We ask much of our servicemembers, and put them 
into situations where they are living and working, day-in and day-out, 
under conditions that demand them to sacrifice privacy, comfort, and, 
at times, their separate individual interests. At all times, we must be 
attentive to good order, discipline, morale, and maintaining military 
effectiveness. We will always take the steps necessary to preserve 
effectiveness and readiness, consistent with our core values and 
military ethos, and our mission. This is what we do in the military. 
It's what we have always done.
    I have enormous confidence in the ability of our leaders. I do not, 
however, expect leaders to change someone's views about homosexuality. 
I do expect that our standards of conduct and professionalism will not 
change one bit. We hold ourselves and our people accountable to those 
standards and will make exceptions for no one, gay or straight.

                OPINIONS ABOUT THE EXISTING DADT POLICY

    26. Senator McCain. Secretary Gates and Admiral Mullen, to what 
extent has the current law hindered the military's ability, in a 
measurable way, to recruit and retain qualified personnel to meet 
service manpower requirements?
    Secretary Gates. The Services are currently meeting their 
recruiting and retention goals. I cannot say to what extent the current 
law and policy have affected the Services' ability to attain these 
goals. However, it certainly is true that the current law and policy 
have required the Services to separate, or to deny entry to, otherwise 
qualified individuals.
    Admiral Mullen. The Services are currently meeting their recruiting 
and retention goals. I cannot say for certain how the current law 
affects recruiting and retention overall, as we do not ask those 
seeking enlistment or those separating about their sexual orientation 
or their views on sexual orientation. Recruiting and retention are 
impacted by many factors.

    27. Senator McCain. Secretary Gates and Admiral Mullen, to what 
extent has the current law hindered the ability of the Army and Marine 
Corps to expand?
    Secretary Gates. I cannot say for certain how the current law has 
helped or hindered the ability of the Army and Marine Corps to expand. 
However, it certainly is true that the current law and policy have 
required the Army and Marine Corps to separate, or to deny entry to, 
otherwise qualified individuals.
    Admiral Mullen. The Army and Marine Corps have completed their 
growth to the Active Duty end strength levels authorized in the 2008 
National Defense Authorization Act. I cannot say how current law has 
helped or hindered this process.

    28. Senator McCain. Secretary Gates and Admiral Mullen, to what 
extent does the discharge of personnel under section 654 create a 
measurable impact on readiness of the force?
    Secretary Gates. I cannot say for certain what the impact of the 
current law is on the readiness of the force. While over 13,000 Active 
Duty servicemembers have been discharged under the current law and 
policy, these discharges constitute a very small portion of the overall 
number of discharges from the military. However, it certainly is true 
that the current law and policy have required the Services to separate, 
or to deny entry, to otherwise qualified individuals.
    Admiral Mullen. I cannot say for certain what the impact of the 
current law has been on readiness of the force. The number of annual 
separations in recent years has been extremely small (well less than 
four-tenths of 1 percent of all separations). No one likes to see 
talent leave the service, whatever the reason, but we have followed the 
law. It is certainly true that the current law and policy have required 
the Services to separate otherwise qualified members.

    29. Senator McCain. Secretary Gates and Admiral Mullen, to what 
extent do you think the repeal of the current law would improve 
military readiness, cohesion, morale, good order, and discipline?
    Secretary Gates. The Comprehensive Review Working Group's report 
concludes that the risk of repeal on overall military effectiveness is 
low, when coupled with the recommendations offered in the report. I 
cannot say for certain how repeal of the current law would improve 
military readiness, cohesion, morale, good order, and discipline, and 
that was not a focus of the assessment. I do think that, if this law 
were not repealed by Congress, there is the very real possibility that 
this change would be imposed immediately by judicial fiat, by far the 
most disruptive and damaging scenario I can imagine, and the one most 
hazardous to military morale, readiness, and battlefield performance. I 
also agree with what Admiral Mullen has said about the importance of 
personal integrity; a law and policy that requires people to lie about 
themselves seems to me fundamentally flawed.
    Admiral Mullen. I cannot say with certainty how the repeal of the 
current law might improve military readiness, cohesion, morale, good 
order, and discipline. Some of the force believe it will, but others 
believe it won't.
    I do strongly believe the military would be improved if law and 
policy did not ask people to lie about who they are in order to serve, 
as is currently the case. Repeal of the current law would make our 
policy and the manner in which we treat each other consistent with our 
core value of integrity.
    The report of the Comprehensive Review Working Group does conclude, 
and I agree, that repeal of the current law creates low overall risk to 
military effectiveness.

    30. Senator McCain. Secretary Gates and Admiral Mullen, what is the 
nature of the disruptive, short-term effects that might be expected 
upon repeal?
    Secretary Gates. I think this issue is best addressed in the 
Working Group's report, as well as in the testimony provided by the 
Service Chiefs to the committee.
    Admiral Mullen. The report of the Comprehensive Review Working 
Group, the Support Plan for Implementation, and the supporting 
documents provided speak to this. The Working Group has identified the 
concerns of the force, and even provided scenarios to aid leaders in 
walking through issues that will arise should the law be repealed.
    From this work, I expect questions and concerns to arise about 
changes in policy. In many cases, members may believe there will be 
bigger changes or impacts than will actually be the case. Sufficient 
time for education and training will greatly reduce the potential for 
disruption.

    31. Senator McCain. Secretary Gates and Admiral Mullen, to what 
degree and how would repeal of the current law improve military 
readiness?
    Secretary Gates. The Comprehensive Review Working Group's report 
concludes that the risk of repeal on overall military effectiveness is 
low, when coupled with the recommendations offered in the report. I 
cannot say for certain how repeal of the current law would improve 
military readiness, and that was not a focus of the assessment. I do 
think that, if this law were not repealed by Congress, there is the 
very real possibility that this change would be imposed immediately by 
judicial fiat, by far the most disruptive and damaging scenario I can 
imagine, and the one most hazardous to military morale, readiness, and 
battlefield performance. I also agree with what Admiral Mullen has said 
about the importance of personal integrity; a law and policy that 
requires people to lie about themselves seems to me fundamentally 
flawed.
    Admiral Mullen. Please see my answer to question #29.
                                 ______
                                 
             Questions Submitted by Senator James M. Inhofe

                        RECRUITING AND RETENTION

    32. Senator Inhofe. Secretary Gates and Admiral Mullen, when the 
DADT policy was first implemented in 1993, I was staunchly against it. 
As I see it now, the policy approved in 1993 has worked and I do not 
see a need to change something that is not impacting our force. Our 
military is meant for one thing: to fight and win America's wars, not a 
social science laboratory. There is no constitutional right to serve in 
the Armed Forces and the military is a specialized society that is 
fundamentally different from civilian life, characterized by its own 
laws, rules, customs, and traditions, including numerous restrictions 
on personal behavior, that would not be acceptable in civilian society. 
I am concerned about the impact on our military if DADT is repealed and 
the DOD report only strengthened my concern.
    Admiral Mullen, you testified at this committee just over a year 
ago, stating: ``I remain concerned that the pace of current operations 
prevents our forces from training across the entire range of operations 
and erodes our readiness to counter future threats. We must continue to 
institutionalize proficiency in irregular warfare while restoring the 
balance and strategic depth necessary to assure national security. 
Additionally, the demands on our equipment are simply unsustainable. 
Continued operations that are not matched with appropriate resources 
will further degrade our warfighting systems, equipment, platforms, 
and, most importantly, our people.''
    We have the greatest military in the world because we have the 
greatest men and women selflessly serving in that military, fighting 
every day to protect this country and freedom-loving countries all over 
the world. We all agree that recruiting and retention are critical to 
an All-Volunteer Force and I am concerned we will suffer irreparable 
damages to our previous successes. Examples of this are the recruiting 
and retention statistics for the Active and Reserve components for 
fiscal year 2010. Only the Army National Guard was below 100 percent 
but that was intentional in order to stay within end strength 
constraints.
    Roughly how long does it take to get a new recruit trained and 
ready to deploy into combat?
    Secretary Gates. Recruit basic training lasts anywhere from 6 to 13 
weeks, depending on the Service branch. Follow-on training varies 
greatly depending on the Service and the military occupational 
specialty. In general, it takes from about 6 months to 2 years to train 
and deploy a new recruit.
    Admiral Mullen. The data provided by Secretary Gates reflect 
today's force.

    33. Senator Inhofe. Secretary Gates and Admiral Mullen, what 
decrease in retention and recruiting would you consider a significant 
impact, a sustained decrease over a few months or more, on our All-
Volunteer Force?
    Secretary Gates. DOD and the Services closely monitor several 
recruiting and retention indicators every month. We do not have a 
formal definition of what constitutes a significant impact on 
recruiting and retention, but if the Services were not to meet their 
recruiting or retention goals, we would consider that significant. 
Recruiting and retention are affected by a host of factors, of which 
repeal is just one. It is not the assessment of the Working Group or of 
DOD that repeal would cause the Services not to meet their recruiting 
and retention goals. DOD will continue to carefully monitor the 
Services' achievement of their recruiting and retention goals. If we 
observe a downturn in these metrics, we will seek to identify the cause 
or causes and respond accordingly.
    Admiral Mullen. Decreases in recruiting and retention have varying 
impacts, depending on force structure goals and occupational 
specialties affected. We don't have specific decline we consider 
significant, but rather we always monitor our performance.
    Neither the Working Group nor DOD have concluded there will be an 
unmanageable change in recruiting or retention if the law is repealed. 
The Working Group's assessment of the impact of repeal on retention is 
described further in its report. Because our recruiting and retention 
goals are impacted by many factors, we have mechanisms to monitor and 
respond as necessary. We will continue to do so.

    34. Senator Inhofe. Secretary Gates and Admiral Mullen, according 
to your report, 30 percent of those who turned in a survey said 
repealing DADT would have a negative impact on their ability to conduct 
their military mission. The report also states that 23.7 percent would 
leave or think about leaving sooner than planned. What impact would a 
retention drop of 23 percent have on our force?
    Secretary Gates. A retention drop of 23 percent would be 
significant. However, it is not the assessment of the Working Group nor 
of DOD that such a drop will occur. As General Ham has stated in his 
responses to Senator McCain, the 24 percent figure includes those who 
answered: ``I will think about leaving sooner than I had planned.'' 
Also, survey responses are often a poor prediction of one's actual 
future behavior, and the experience of our foreign allies indicates 
that far fewer military members actually left military service after a 
change in their policy than had indicated they would. Additionally, 
responses to questions 33 and 82 of the Working Group's survey indicate 
that other factors are more important than DADT to servicemembers as 
they contemplate their future military service. Furthermore, many 
servicemembers have service obligations that preclude them from leaving 
the force immediately, even if they desired to do so. The Working 
Group's assessment of the impact of repeal on retention is described 
further in its report. DOD will continue to carefully monitor the 
Services' achievement of their recruiting and retention goals, as we 
currently do.
    Admiral Mullen. Such a drop would be significant. However, neither 
the Working Group nor DOD find such a drop to be likely. As you note, 
this number includes those who say they would think about leaving 
earlier. After closely reviewing the report and supporting 
documentation, I believe that survey captured anxiety about change that 
sound leadership and sustained standards of professional conduct will 
address and resolve. Many servicemembers also have service obligations 
that preclude them from leaving the force immediately, even if they 
desired to do so.
    The Working Group's assessment of the impact of repeal on retention 
is described further in its report. Because our recruiting and 
retention goals are impacted by many factors, we have mechanisms to 
monitor and respond as necessary. We will continue to do so.

    35. Senator Inhofe. Secretary Gates and Admiral Mullen, the RAND 
study initially came up with a 7 percent decrease in recruiting then 
modified that to a 4 percent increase by looking at a different time 
frame, from July through September vice April through June. Yet, 
according to your survey, 27 percent of the military members surveyed 
said if repeal occurs, then they would not be willing to recommend 
military service to a family member or close friend. I am not confident 
that we actually know what the impact on recruiting will be but any 
decrease will compound our ability to sustain the force. What is your 
response to my concerns over impacts on recruiting and our ability to 
sustain the force?
    Secretary Gates. Your question refers to question 80 of the 
servicemember survey, which asked, ``If Don't Ask, Don't Tell is 
repealed, how if at all, will it affect your willingness to recommend 
to a family member or close friend that he or she join the military''; 
27 percent answered negatively.
    While I do not doubt the veracity of views expressed in the survey, 
our ability to recruit qualified individuals into military service 
depends on a large number of factors, of which referrals from current 
servicemembers is just one. I agree with the assessment of the Working 
Group, as described in pages 107 to 109 of their report, that risks to 
recruiting are low. DOD will continue to carefully monitor the 
Services' achievement of their recruiting and retention goals, as we 
currently do.
    Admiral Mullen. I recognize the concerns expressed in the survey. 
But as Secretary Gates has identified, our ability to recruit qualified 
individuals into military service depends on a large number of factors, 
of which referrals from current servicemembers is just one. I agree 
with the assessment of the Working Group that risks to recruiting are 
low. Because our recruiting and retention goals are impacted by many 
factors, we have mechanisms to monitor and respond as necessary. We 
will continue to do so.

                    USE OF PERCENTAGES IN THE REPORT

    36. Senator Inhofe. Secretary Gates and Admiral Mullen, according 
to your report, 400,000 surveys were sent to military members and 
115,052, or 28 percent, were returned. As well, 150,000 spouses 
received surveys and 44,266, or 30 percent, were returned. I have been 
contacted or have spoken with military members here in the States and 
overseas. I was told some did not fill them out because they felt the 
decision had been made and others were concerned that if they answered 
against the repeal, they would be tracked down, despite the identity 
safety protocol, and targeted. Have you researched why roughly two-
thirds of those surveyed did not respond?
    Secretary Gates. The response rate for the servicemember survey, as 
a whole and by Service, was in line with typical response rates for 
surveys within DOD. The number of responses to the survey provided a 
margin of error of less than 1 percent. The Working Group used standard 
techniques in administering the survey, based on industry practice. The 
Working Group did not undertake, nor did I feel they needed to 
undertake, additional research into those who did not respond.
    Admiral Mullen. Like Secretary Gates, I understand that response 
rate for the servicemember survey was in line with typical response 
rates for surveys within DOD. The Working Group used standard 
techniques in administering the survey, based on established industry 
practice, and the size of the response to the survey provided a margin 
of error of less than 1 percent. The Working Group did not undertake 
additional research into those who did not respond, nor did the 
professionals administering the survey recommend such an effort. I 
support their analysis.

    37. Senator Inhofe. Secretary Gates and Admiral Mullen, the panel 
assessed that repeal of DADT poses a low risk to military 
effectiveness. I did not see a definition of low risk. How is low risk 
defined?
    Secretary Gates. A thorough description of the panel assessment is 
contained in Section XI of the Working Group's report. The panel did 
not itself provide an assessment of impact to overall military 
effectiveness, but assessed its various components (e.g., unit 
effectiveness, military readiness, unit cohesion, recruiting, 
retention, and family readiness) to assist the Working Group Co-Chairs 
in their overall assessment. I understand that the panel used a 
standard military decision support process regularly used by DOD in a 
variety of complex military decisions and risk assessments. Panelists 
were asked to rate the probability and magnitude of negative impact on 
these various components as low, medium, or high risk using a numeric 
scale; they used their individual professional judgment as to what 
these different levels of risk entailed.
    Admiral Mullen. The panel assessment used by the Working Group is 
best described in their report. They assessed components of unit 
effectiveness, military readiness, unit cohesion, recruiting, 
retention, and family readiness in order to support the Working Group 
Co-Chairs in an overall assessment of military effectiveness. Panelists 
were asked to rate the probability and magnitude of negative impact on 
these various components as low, medium, or high risk using a numeric 
scale; they used their individual professional judgment as to what 
these different levels of risk entailed.

    38. Secretary Gates and Admiral Mullen, the report also states that 
in the short-term, there will be some limited and isolated disruptions 
to unit cohesion and retention, but it will not be widespread or long-
lasting. Can you define short-term, limited and isolated, widespread, 
and long-lasting disruptions?
    Secretary Gates. Those terms are used in the report according to 
their standard, commonly-used definitions.
    Admiral Mullen. The report is an independent product of the Working 
Group. In reading their work, I used the common definitions of those 
terms.

    39. Senator Inhofe. Secretary Gates and Admiral Mullen, the report 
states that 70 percent of military members think that repeal would have 
a positive, mixed, or no effect on unit effectiveness. It also states 
that a significant minority, around 30 percent overall and 40 to 60 
percent in the Marine Corps and in various combat arms specialties, 
said that repeal would have a negative effect. Mixed, according to the 
report, is equally positive and negative. This means those who answered 
mixed feelings felt there would be both positive and negative effects 
if DADT is repealed. Why is the mixed percentage included in with the 
positive and no effect percentages? Additional examples appear on pages 
195 and 210 of the report; it appears the negative impact percentages 
are consistently greater than the positive impact.
    Secretary Gates. I agree with you that negative impact percentages 
are consistently greater than the positive impact percentages. In 
general the survey results revealed around 30 percent of servicemembers 
who said repeal would have a negative or very negative effect, and 
around 15 to 20 percent who said repeal would have a positive or very 
positive effect.
    Around 50 to 55 percent of servicemembers answered that repeal 
would have mixed or no effect--these responses were divided more or 
less evenly between those who answered that repeal would have a mixed 
effect and those who answered that repeal would have no effect. I agree 
with the Co-Chairs that it is appropriate, from the standpoint of 
assessing the impact of repeal, to consider the mixed responses, 
alongside the no effect and positive responses. A response by 
servicemembers of equally as positively and negatively, when asked to 
predict impact of repeal, would support an assessment that the repeal 
can be implemented without posing a serious risk to military readiness.
    Admiral Mullen. I have given careful consideration to the category-
by-category results of the survey as well as the larger body of 
research undertaken by the Working Group, including the comprehensive 
engagement of the force using focus groups to illuminate the causes of 
concern. I agree with the Co-Chairs that a servicemember response of 
equally as positively and negatively, when asked to predict impact of 
repeal, supports an assessment that with proper implementation the risk 
of repeal to overall military readiness is low.

                      MORAL AND RELIGIOUS CONCERNS

    40. Senator Inhofe. Secretary Gates, Mr. Johnson, Admiral Mullen, 
and General Ham, the report states that you heard a large number of 
servicemembers raise religious and moral concerns. The report further 
states that some of the sharpest divergence of views about DADT exists 
among our 3,000 chaplains. The Chaplain Corps is critical to our 
overall military health and wellness. On April 28, 2010, 41 retired 
chaplains sent a letter to President Obama and Secretary Gates, stating 
that ``normalizing homosexual behavior in the Armed Forces will pose a 
significant threat to chaplains' and servicemembers' religious 
liberty.'' The letter warned that reversing the policy will negatively 
impact religious freedom and could even affect military readiness and 
troop levels because the military would be marginalizing deeply held 
religious beliefs. The report simply says the solution to this issue 
can be found in the existing guidance for our chaplains but yet, the 
concern remains. What are we doing to ensure our Chaplain Corps can 
continue to practice their faith and care for their members?
    Secretary Gates. The issue of moral and religious concerns, 
including for the Chaplain Corps, are discussed in Section XII of the 
Working Group's report. Mr. Johnson and General Ham can provide further 
detail on their assessment and recommendations with respect to the 
Chaplain Corps.
    Mr. Johnson. As your question notes, our assessment is that 
existing DOD and Service policies and guidance pertaining to chaplains 
is adequate to accommodate a repeal of DADT. However, in recognition of 
the concerns expressed by chaplains and their endorsing agencies, we 
recommend that DOD should, in the event of a repeal of DADT, direct the 
Services to reiterate the principle that chaplains, in the context of 
their religious ministry, are not required to take actions inconsistent 
with their religious beliefs, but must still care for all 
servicemembers. Evaluation, promotion, and assignment of chaplains must 
continue to be consistent with these long-standing Service policies.
    Admiral Mullen. The Working Group's report examines moral and 
religious concerns, including for the Chaplain Corps. I defer to Mr. 
Johnson and General Ham for an explanation of the report's findings and 
recommendations.
    General Ham. I would note that none of the ecclesiastical endorsing 
agencies that responded to the Working Group stated that it would 
withdraw its endorsements for military chaplains if the law were 
repealed. But, a significant portion of the respondents did suggest 
that a change in policies resulting in chaplains' free exercise of 
religion or free speech rights being curtailed could lead them to 
withdraw their endorsement. Also, in the Working Group's discussion 
groups with chaplains, while many expressed opposition to a change in 
policy, nearly all indicated that they were willing to continue their 
ministry in the military. Only 3 out of approximately 145 chaplains who 
participated indicated they would seek to separate or retire should the 
law be changed. As with all aspects of implementing repeal of this law 
and policy, leadership will matter the most. The Service Chiefs of 
Chaplains will set the tone within their respective Services and 
commanders must actively ensure that the freedom of chaplains to 
minister according to the tenets of their denominational practice is 
protected. Education, training, and leadership will ensure our 
servicemembers and their families continue to receive the spiritual 
support they deserve while simultaneously ensuring the rights of our 
chaplains are guaranteed.

                   2007 UNTIL TODAY--WHAT HAS CHANGED

    41. Senator Inhofe. Secretary Gates and Admiral Mullen, I was 
disheartened when you divulged your personal opinions about gays in the 
military before the conclusion of the review. You are the voice of our 
military and our soldiers, sailors, airmen, and marines, all who listen 
to you. It is my opinion that this created a perception that the 
decision had been made from the President on down, and the inputs of 
your military members did not matter, that the survey was going to be 
used to justify a decision that had already been made. Back in March 
2007, Senator Wyden wrote to you, Secretary Gates, and asked you to 
reconsider DADT. Defense Under Secretary for Personnel and Readiness, 
Dr. David Chu, responded on your behalf, stating that the ``Global War 
on Terrorism is far-reaching and unrelenting,'' and that a national 
debate on changing ``the Pentagon's ban on openly gay servicemembers 
would bring divisiveness and turbulence across our country,'' which 
``will compound the burden of the war.'' What has changed?
    Secretary Gates. The views of servicemembers were taken very 
seriously and factored greatly into the assessment of the Working 
Group. As I stated in my memorandum establishing the Working Group; 
``it [is] essential that the working group systematically engage the 
force. The participation of a range of age, rank, and warfare 
communities in this study including families, in addition to active 
outreach across the force, is a critical aspect that will undoubtedly 
lead to insights and recommendations essential to DOD's implementation 
of any change.'' The Working Group accomplished this in what I believe 
was the most thorough and objective review ever of this difficult 
policy issue and its impact on the American military.
    I would also reiterate what I said in my statement before the 
committee: views toward gay and lesbian Americans have changed 
considerably and have grown more accepting since DADT was first 
enacted. But feelings on this matter can still run deep and divide. For 
this reason, I would ask, as Congress takes on this debate, for all 
involved to resist the urge to lure our troops and their families into 
the politics of this issue. What is called for is a careful and 
considered approach, an approach that, to the extent possible, welcomes 
all who are qualified and capable of serving their country in uniform, 
and that does not undermine out of haste or dogmatism those attributes 
that make the U.S. military the finest fighting force in the world.
    Admiral Mullen. When nominated for my second term as Chairman of 
the Joint Chiefs of Staff, this committee required me to agree that I 
would provide my personal opinion on military matters. When I appeared 
before you on 2 February 2010, I expected to be asked my personal 
opinion on this issue. I chose to provide that opinion in my opening 
statement, in anticipation of that question.
    I have been very careful in fulfilling this obligation to you, and 
have made great efforts to separate my professional knowledge from my 
personal belief.
    Our force has been changing continuously over the 17 years this law 
has been in place. As I said in my testimony, our Nation has become 
more tolerant of openly gay and lesbian people, and I believe our 
military has as well. That is borne out in the survey results of the 
Working Group. What has also become clear to me in recent years--what 
has been made clear to me by many in the force--is the conflict between 
the law and policy, and our core military values.
    What has changed most significantly today is our professional 
understanding of this issue, following the report by the Working Group. 
To my knowledge, this has been the largest and most comprehensive 
assessment of any personnel-related matter in the history of the U.S. 
military. We have listened carefully to our force, and looked 
objectively at this issue. Because of this, I am confident that we will 
sustain our military readiness should Congress repeal the law.

    [Whereupon, at 12:47 p.m., the committee adjourned.]
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