May 26, 2010 3:17 PM
Arguments: Tell Me No Lies
Posted by Ed Shanahan
A preview from the June 2010 issue of The American Lawyer
Hundreds of pages in the Federal Register are dedicated to government ethics rules that cover everything from the disposition of gifts worth less than $20 to the government's revolving door. Like Talmudic scholars commenting on the original Five Books of Moses, the Office of Government Ethics and agency ethics counsel have written thousands of pages interpreting these rules.
The regulations do not, however, directly address a crucial principle for honest and effective government: telling the truth. And they shouldn't have to. The ethics of telling the truth should be obvious.
What should one think, then, about a federal statute that actually requires government employees to lie in order to keep their jobs? What about applying such a statute exclusively to the military, a part of our government where telling a lie can lead to the loss of human life? What about an act of Congress that expressly overrides one of the simplest and most effective federal ethics regulations on the books, one from the West Point Honor Code: “A cadet will not lie, cheat, steal, or tolerate those who do”?
The congressionally mandated “don’t ask, don’t tell” policy toward gays in the military does just that. This is a unique rule under which an employee of the U.S. government can suffer discipline and dismissal for a single act: telling the truth. A soldier who speaks the words “I am gay” can be dismissed from the military--not for being gay, but for telling the truth about being gay.
President Barack Obama has asked Congress to abolish this policy, and the secretary of Defense has requested a study on the potential effects of its repeal. (A difficult task, given that the study contemplates interviewing gay soldiers generally prohibited from revealing their sexual orientation.) Congressional hearings have been promised for later this year. Many in Congress, however, oppose repeal of the policy, and our military leaders appear to be divided on the issue.
Before 1993, gays were simply banned from the military. This policy was discriminatory, but at least it was honest. The current policy is still discriminatory, but it discriminates in a unique way, requiring gay soldiers to lie about themselves or be fired. “Don’t ask, don’t tell” thus institutionalizes dishonesty.
Many problems affect our military preparedness--smoking, drug use, alcohol--but it is hard to find credible evidence that homosexuality is one of them. The argument that the burden of tolerating gay soldiers is somehow unique and unbearable is simply not true. The only purpose served by the “don’t ask, don’t tell” policy is to keep other soldiers from confronting their own prejudices.
The policy also demands that soldiers lie to their commanding officers. Distinguishing between prohibited lies, permitted lies, and required lies is an exercise in semantics that the military can do without.
From the vantage point of national security, as well as that of government ethics, one should be concerned about the ramifications of institutionalizing dishonesty in our military. What do we expect to happen when there is something important to lie about? Does the West Point Honor Code apply or not?
History teaches that honesty is essential. In Vietnam, a “don’t ask, don’t tell” approach to bad military news prolonged the war. With respect to Iraq, military intelligence officers in 2002-03 told their superiors what they presumably wanted to hear about weapons of mass destruction. It is a lesson we must avoid repeating in Afghanistan. It is critical that the president and his advisers be honest with the American people and themselves about the facts on the ground and our chances for success. The president must insist that military leaders be honest with him, and not just tell him what he or his political advisers want to hear. Military leaders should, in turn, insist on accurate factual reports from their subordinates.
One cannot prove that teaching soldiers to lie about homosexuality will teach them to lie about other things, but the rationale behind “don’t ask, don’t tell” is worrisome. Essentially, it is “don’t tell the truth, if it makes others uncomfortable.” Abolishing “don’t ask, don’t tell” will not assure honesty in the military, but at least political superiors will not be sending a message to military personnel that dishonesty is sometimes
Furthermore, the policy prohibits some forms of communication, and the military would be better off if that communication was heard. The military should know more rather than less about how soldiers see themselves, and how they see each other. If a soldier is so emotionally disturbed that he cannot deal with a gay comrade, the military should find this out in advance, not in the heat of battle. There are limits to appropriate speech in the military--more so than in civilian life--but these limits should never dictate that soldiers distort or avoid the truth.
Views differ on the morality of same-sex relationships. These questions of morality are a matter for theologians and religious leaders to debate; they are not the business of the U.S. government. Indeed, many religious leaders have denounced the “don’t ask, don’t tell” policy in the military as immoral. The policy discriminates against soldiers who risk their lives for their country, and it does so without any rational basis.
The president should do whatever he can to abolish this policy, including persuading Congress that it promotes dishonesty in the military and thus undermines our national security. In the meantime, the president should seek an opinion from the U.S. Department of Justice as to whether his constitutional authority as commander in chief allows him to implement a temporary moratorium on discharges under the policy. The president and Congress should make it clear that our military leaders and soldiers have the obligation, and the right, to tell the truth.
Richard Painter teaches at the University of Minnesota Law School. He was chief White House ethics lawyer from 2005 to 2007. His book Getting the Government America Deserves: How Ethics Reform Can Make a Difference was published in 2009 by Oxford University Press.
Illustration by Robert Meganck