BILL CLINTON was honing his sound bites. In October 1991, the Democratic primary candidate was talking at Harvard's Kennedy School of Government. If elected, he told one student questioner, he would issue an executive order allowing lesbians and gay men to serve in the armed forces. It seemed innocuous enough: one of a half-dozen Democratic contenders making a statement to woo liberal voters. But within a few months, Clinton emerged as the presumptive nominee -- and his promise to "lift the ban" became one of the most prominent pledges of his campaign. It touched off a national debate about whether gay soldiers hamper military effectiveness, while drawing massive support for Clinton from lesbian and gay voters.
After he took office, though, he never quite delivered on his promise. Faced with opposition from Congress and the Joint Chiefs of Staff, Clinton was unable to lift the ban. Instead, he brokered the compromise known as "don't ask, don't tell, don't pursue." These reforms were widely viewed as less stringent than the old policy, under which servicemembers could be discharged simply for being gay. Instead, gay and lesbian members of the armed forces would be discharged only for conduct, such as sodomy, that violated military law. "President Opens Military to Gays," the Washington Post trumpeted in July 1993.
Hardly, responds Stanford law professor Janet Halley in Don't: A Reader's Guide to the Military's Anti-Gay Policy (Duke University Press, 1999; $14.95). Far from allowing lesbians and gay men to serve in the military as long as they do not engage in prohibited conduct, the new policy empowers commanders and hearing boards to investigate members whom they suspect have a "propensity" to engage in "homosexual acts." Halley, a leading scholar in lesbian and gay legal theory, shows how the term "propensity" enables the military and the courts to conflate the concepts of homosexual behavior and homosexual orientation, using one as evidence of the other whenever advantageous. Under this system, the military has discharged members who have stated they are gay but have not engaged in and do not intend to engage in homosexual acts.
It's easy to discharge servicemembers under this policy because, once accused, they must prove they have no propensity to engage in homosexual acts -- and it's almost impossible to prove a negative.
To make matters worse, Halley points out, the policy allows the military to investigate any bodily contact that a "reasonable person" would say demonstrates a propensity. This standard is flawed, she argues, because some might deem it "reasonable" to make judgments based on fears and prejudices about homosexuality.
So much for "don't pursue." "Don't ask" doesn't fare much better: Halley exposes it as a hollow promise. While military officers can't ask servicemembers if they're gay, it's permissible to ask if they've ever told anyone they're gay. Moreover, "don't ask" is fragile, because Congress didn't codify it. It's merely an administrative regulation, and a future administration can do away with it.
The discussion of "don't ask" illustrates Halley's ambivalence about Clinton. She credits him for fighting hard to retain "don't ask," but calls him "delusional" for failing to realize "how meager his victory was."
Economical at 132 pages, Don't suffers from a certain denseness. Halley has a habit of defining complicated concepts only once, requiring readers to flip back. And her language occasionally verges on the impenetrable ("A semiotic imbrication of status with conduct and conduct with status occurs at every relevant procedural moment").
The book also is too short to provide more than a glimpse of historical context. Granted, Halley set out to write about policy, not history. But without knowledge of the important contributions of lesbian and gay soldiers, or of the military witch-hunts that have ruined the careers of both straight and gay personnel, readers may not fully understand why Halley finds the new policy so unjust.
This omission is doubly unfortunate because Halley is as strong at recounting facts as she is at analyzing policy. Her accounts of the negotiations between the legislative and executive branches and the genealogy of the "propensity" clauses are among the most fascinating sections of Don't.
Perhaps her most incisive comment, though, is the book's title. It captures the new policy's message to gay servicemembers -- and Halley's counsel to officers and courts who would enforce the new rules.
