SANTA BARBARA, – Last week, the Palm Center released a report authored by four retired flag officers that called for the repeal of the “don’t ask, don’t tell” policy on gays in the military. The report marked the first time that a flag officer in all four service branches thoroughly analyzed the current policy and recommended ending the ban on open service by gays, lesbians and bisexuals.

Following its release, Dixon Osburn, co-founder and former executive director of the Servicemembers Legal Defense Network (SLDN), wrote a critique of the Palm Center report at The Bilerico Project.  Osburn, who left SLDN last year, is considered by many to be a true hero for his tireless efforts on behalf of service members who have been adversely affected by the rules governing gay service, and the Palm Center hopes that Osburn will continue to play a valuable role in the national conversation about “don’t ask, don’t tell” as he has for so many years.

In his blog post, Osburn argues that several of the study group’s recommendations are “as bad as the cure [sic], and may significantly undermine efforts to achieve full equality under law.” His main critique is that the group urges Congress to repeal the current law banning openly gay service but to “return authority for personnel policy under this law to the Department of Defense.” Osburn worries that, “by returning authority to regulate gays to the Pentagon, the Palm Center Study Group proposal allows the Pentagon to reinstitute a regulatory ban on gays in place of the law.”  Osburn’s blog post makes several other points. He writes that the flag officers did not seek to reverse Article 125 of the Uniform Code of Military Justice, which punishes service members for engaging in consensual sodomy, regardless of their sexual orientation.

He critiques a section of the report that, according to Osburn, “prohibits acts committed for the purpose of satisfying sexual desires,” and another which he says “recommends prohibiting sexual conduct [that is] ‘prejudicial to good order and discipline and unit cohesion.’” And he objects to a section that states that “telling” should be allowed but considered “personal and private,” because he worries that this language does not make it sufficiently clear that “public telling” should be permitted.

Finally, Osburn writes that the officers’ report is as troubling politically as it is substantively, because there is already a bill in Congress that would require a policy of non-discrimination. He suggests that the presence of more than one approach for Congress to consider does damage to his and other activists’ efforts to overturn the ban. While praising some of the report’s findings, he writes that “the recommendations flowing from the report… have the potential to set fourteen years of progress on ‘don’t ask, don’t tell’ back on its heels.”

The mission of the Palm Center, an academic think tank that is part of the University of California’s Institute for Social, Behavioral, and Economic Research, is to inform public policy conversations with state-of the art academic research to enhance the quality of public dialogue about critical and controversial issues. As a research organization, the Palm Center does not advocate policy or align itself with a particular political candidate or party and it does not seek to affect the political strategies that various interest groups may deploy in order to achieve their objectives. The purpose of the flag officers’ study group was to facilitate a thorough, open, and unbiased assessment by senior military officials of the role played by “don’t ask, don’t tell” in contributing to military readiness. It would have significantly undermined that objective if staff members of the Palm Center had
sought to influence the officers’ report by pressing them to reach specific recommendations that comport with the political position or approach of any one individual or group.

Osburn’s blog post made some incorrect and misleading assertions which are based on misreading, misinterpreting, or taking out of context certain sections of the report.  First, there is no section that “prohibits acts committed for the purpose of ‘satisfying sexual desires.’” Rather, the report recommends that any policy that is implemented establish standards which are “neutral with respect to sexual orientation” and suggests prohibitions against “inappropriate” sexual contact. Second, there is no recommendation “prohibiting sexual conduct ‘prejudicial to good order and discipline and unit cohesion.’” Rather, the report endorses regulations that “preclude misconduct” that is prejudicial to good order, discipline and cohesion.

Finally, the recommendation to “eliminate” the “don’t tell” clause of the current policy does not leave unclear the officers’ desired action for rules regulating disclosure. The report explicitly recommends eliminating the “don’t tell” restriction and, to ensure that gays and lesbians are not required to state their orientation, it states that the “prerogative to disclose sexual orientation” should remain “a personal and private matter.”  While some people, like Osburn, had objections to aspects of the flag officers’ recommendations, others, such as the Washington Post editorial board, found the report to be of great merit. The Palm Center is pleased and honored that the report is helping to inform a robust and healthy debate on the status and direction of gay service. Let the conversation continue.