U.S. Department of Defense
Office of the Assistant Secretary of Defense (Public Affairs)
Presenter: General Counsel for Department Of Defense, Jeh Johnson
March 25, 2010
DOD News Briefing with Jeh Johnson from the Pentagon
MODERATOR: Just by the way, for those that might not know who our general counsel is, Mr. Jeh Johnson, as the secretary indicated, has advised him and put together the proposed rules changes that the secretary has approved.
And so Mr. Johnson has agreed to spend some time -- a little bit of time, brief amount of time -- to answer any more in-depth questions that perhaps you didn't get a chance to get to with the secretary.
So, thank you, Mr. Johnson.
MR. JOHNSON: Yes, sir.
Q Mr. Johnson, one thing I noticed -- (off mike) -- this regulation is there any way to follow up on the ruling from the 9th Circuit in the Witt v. Air Force case? I think the secretary mentioned that case during special testimony in February. Why is that absent here, and is it going to be addressed later on?
MR. JOHNSON: Well, first of all, that's a specific case decided in the 9th Circuit. As I mentioned in my congressional testimony a couple of weeks ago, we and the Department of Justice continue to work through how to proceed, given that decision in that case. It's something that I'm in active discussions with the Department of Justice about right now.
Q As the secretary said, this will apply to current cases. How many current cases are there? And also, presumably, some of these could be thrown out, under these more -- tighter rules, couldn't they?
MR. JOHNSON: I don't have a number for current cases. Last year, there were 428 separations. So you can make certain assumptions about how many cases there are at any -- at any one time.
And it is possible that a case that was initiated utilizing the old regs, the initiating authority might have a different view based on the new regs.
Q Does that mean that all -- if you've got a case right now that's, let's say, is relatively far along in the investigation process, all the information that they've found in that investigation will be completely thrown out, and you'll have a new officer in charge? Because I mean --
MR. JOHNSON: I wouldn't look at it that way. I think that the way to look at it is, with regard to open cases, the person conducting the case, the person handling the inquiry or running the separation, should take a look at the record and assess it against the new regulations, to determine whether it is proper to proceed, given the new regulations.
So it does not involve simply disregarding all of the existing evidence that has been accumulated to date.
Q So if something was initiated under what would now be considered unfair standards and not -- wouldn't have been initiated going forward, but there's already evidence against that service member that was gained during the investigation, what happens to all that evidence? Is it -- I don't --?
MR. JOHNSON: It would have to be assessed against these new rules. It has to be assessed against what constitutes credible information -- and these are examples, mind you -- what constitutes credible information, what constitutes a reliable person and so forth.
Q Jeh, does anybody -- someone leading the investigation recusing themselves if they don't rise to the level that is now stipulated?
MR. JOHNSON: The new rules require that to initiate an inquiry, it has to be a general or flag officer and, to conduct the inquiry, has to be at the lieutenant commander -- lieutenant colonel/commander level.
Q And if someone below that level's conducting that and it's an active or open case, do they need to recuse themselves and --
MR. JOHNSON: You'd have to get -- unless the service member elects otherwise, you have to have a new initiating authority under these rules --
Q Mr. Johnson --
MR. JOHNSON: -- if it's not that level.
Q Mr. Johnson --
MR. JOHNSON: Yes, sir.
Q -- Two quick things. You mentioned the 428 from last year. Do you have a sense for this year, going forward, what percentage of the people who otherwise might have been or would have been discharged who now won't be discharged?
MR. JOHNSON: I think at this point that would be -- that would be speculation. We made an effort along the way to try to make that assessment and found it was very speculative.
I will say that we know from the track record that most of these cases are initiated by the service member's own statement.
Q And just --
Q (Inaudible) --
Q -- One other thing, if I may.
MR. JOHNSON: Sure.
Q You're -- what you're going to end up with, especially from the open cases, potentially, are people who are known to be homosexual, or may or may not have admitted it during the course of proceedings, who will now be allowed to stay in the military. Have you considered that and what the impact of that would be? Or is it -- is it a sort of a mini-moratorium, then?
MR. JOHNSON: I don't regard this as a moratorium. It is simply taking the open cases and reassessing the open cases against the new standards. That -- that's a process, but it -- the case continues to move forward under the new standards. It will require that somebody goes back to reassess against the new standards, but the case will continue to proceed. It's not a moratorium, so.
Q But you'll have people who have been separated from their normal duties, presumably, during this process, who will -- a large number of people know that they have been -- I don't know what the correct phrase would be, but accused of being homosexual. And then the case is dropped for technical reasons and they return to their normal duties, which -- (inaudible).
MR. JOHNSON: There are new -- I would not characterize it that way. There are new standards for what constitutes credible information, what constitutes a reliable person. If there is compelling evidence that a person has engaged in homosexual conduct, I would not expect that these new regs would make a difference.
Q Can you just give us a little bit of information about what constitutes a reliable person now?
MR. JOHNSON: It's right here in the -- in the revised regulations, at page nine.
MR. JOHNSON: And these are examples. "A reliable person is someone who would be expected, under the circumstances, to provide accurate information. Examples of a person who may not be a reliable person are" -- and then we give three illustrations.
It's important to emphasize that these are examples. They're not intended to be exhaustive.
The other thing I'll point out is that you have here two sets of regulations: one for enlisted, one for officers. And the services have their own regulations, which now have to be conformed in accordance with these.
Q Jeh, if I can just follow-on on your answer a moment ago, you said that if there was compelling evidence that someone had engaged in homosexuality, that we should assume that they would stay in. But my understanding from the beginning with "Don’t Ask, Don’t Tell" was that homosexuality itself was not an issue; the issue was the openness of it. Why then, if someone is homosexual, but not talking about it, not being asked about it, abiding by the regulation to date -- the regulation to date -- why would the conduct itself be an issue?
MR. JOHNSON: The law says that upon a finding of homosexual conduct -- and the law defines what constitutes homosexual conduct -- a person should be separated. The law does not require that a person be separated simply for homosexuality; it's homosexual conduct. And in these regs, we have revised the standards for which an inquiry or separation proceeding to determine whether a person has engaged in homosexual conduct should be separated.
Q And reading these rules -- for example, discouraging the use of hearsay or overheard statements -- does that -- should I take away to mean that in these past cases, that that type of evidence has been used? And I find that somewhat shocking, because in covering military tribunals that was a big issue, for example, on the Hill, was that the military tribunals were -- at one point, the Bush administration was considering allowing hearsay, and every lawyer said that that --
MR. JOHNSON: I would not -- I would not make a comparison between a separation proceeding under this law and a military commission's prosecution. Those are two very fundamentally different exercises.
Q Right. No, I understand that, but my point being, I mean, should we look at the past cases that have happened -- I mean, that seems to be a level or a standard that's very basic in a regular court, a rule of law.
Should we look at old cases and say that they --
MR. JOHNSON: Hearsay -- first of all, hearsay is not excluded under these revisions. They’re -- the definitions of the circumstances under which hearsay evidence or first-hand evidence can be used are refined here, but hearsay is not excluded. And these are just examples.
Q And that, to me, that's a little bit surprising that you would allow that in a court of law. I mean as a lawyer, is that common that hearsay is allowed as evidence in regular court cases?
MR. JOHNSON: Well, we're talking about here an administrative process. This is not a court process.
Q So it's more lenient.
MR. JOHNSON: It's -- I wouldn't characterize it as more lenient or more strict. It is an administrative process.
The federal rules of evidence or the military commission's rules do not apply to this type of proceeding. And in a federal court proceeding, hearsay is admitted under certain circumstances. There are lots of exceptions: state of mind, for example, or business records exceptions, statements against interest, things of that nature. I'm a lawyer. I used to be a trial lawyer before I came here.
Q (Off mike.)
Q Jeh, I --
MR. JOHNSON: Yes, sir. You had your hand up.
Q What is the main purpose of this change? If the regulations about and the rules about homosexual conduct remain the same, why would it make any difference whether it was a Lieutenant Colonel or a General who is overseeing it?
MR. JOHNSON: Well, I think what the secretary said was he wanted to place this authority with a general or flag officer for a more consistent application of the law by a more senior officer who will probably bring a different type of perspective to the -- to the application of the law and to the application of the discretion that's involved in bringing these types of cases. And he decided, in consultation with the chiefs and the service secretaries, that this was the appropriate level.
Q Yeah, I was wondering, on the idea of this discouraging overheard, and the credible -- as opposed to -- you've got the flag officer; that is a very clear, objective change. You've got ones excluded in terms of lawyer-client and other privileges. The middle area is the credible evidence. And, as shown by your other answers, it's the stickiest area in terms of what specifically is changing today.
I was wondering if you could talk about what specifically this does to these overheard statements, and is it just -- what legally has changed, and what in practice has changed?
MR. JOHNSON: Well, the old regulations and these new regulations don't attempt to define exhaustively the circumstances under which an inquiry or a separation proceeding should begin. They give examples of what constitutes credible information or what constitutes a reliable person.
I would not want to craft a set of regulations that, for all purposes, outlines every single circumstance under which something is credible or somebody is reliable. In the course of human conduct, you can't envision every single circumstance under which one of these types of situations could arise.
These are simply examples, and they're, I think, fairly specific examples in plain-spoken English. The old regs provided some fairly clear examples of what constitutes credible information in plain- spoken words, and we tried to do the same here, and just with, you know, different words, suggesting the under-oath requirement, for example, and suggesting that a reliable person should not be some -- it's spelled out more specifically.
We tried to state here at page nine that there are circumstances under which somebody may not be considered a reliable person if they have a motive to seek revenge against the service member in question, or have a -- have a prior history of conflict with that service member. So these are illustrations and examples.
Q I guess, if I can just follow up, I don't quite see where in here the actual language used by the secretary about discouraging overheard statements is implemented. Can you point to that?
MR. JOHNSON: Well, I think the -- I think the words on the page are pretty plain, at page eight, about what constitutes credible information. And you can see here what existed under the old rules that are struck, and what's existed under the -- what is existing now under the new rules.
And again, the -- we're trying to leave the people who conduct these inquiries and proceedings a certain amount of flexibility. These are examples.
Q To follow on that, if we're talking about overheard statements or rumors or whatnot, are junior officers still obligated to tell their commanders about those sorts of things? Do they face potential penalty if they're the ones who forward what would be considered hearsay?
MR. JOHNSON: The regulations themselves do -- these regulations do not require a service member to tell a commander or a senior officer something of this nature.
Q Would they face any sort of penalty if they were to forward some -- what would be their --
MR. JOHNSON: Under these regs, there is no penalty for failing to report such information.
There are other circumstances within the military where service members do have obligations to report certain things they learn, but these regs do not require that.
Q And just to go back for a second to the situations of open cases, if a case was started, on what would be considered unreliable information now, but during the course of the investigation over the last few months and a officer were to come out and say, "Yes, I am gay" and admit -- you know, admit their homosexuality, when that case is reopened now, that's something that could still be admissible, if --
MR. JOHNSON: That's a good question. And we'll have to work that through.
Q Well, I mean, that speaks to the core of the open cases here. If someone, over the course of the investigation, was confronted and was honest, you know, this doesn't really get them out of trouble.
MR. JOHNSON: Like I said, that's a good question and we'll have to work that through.
Q Could you clarify something? Maybe I just missed it. Rating the level of the -- you know, the fact finder and the investigator, what was the level before? Was it any officer at any rank before?
MR. JOHNSON: Any commander could initiate an inquiry.
MR. JOHNSON: And that could be as low as, say, an 0-4.
Q And is there any way you can characterize -- you know, when you look at some of these regs, I'm struck by, you know, the information that was able to be gleaned about somebody. Say even from the 428 cases from last year, is there any sense of how much of those cases were based on some of these things in the last -- I'm looking at the summary of changes, the things about the lawyers, the clergy, the psychotherapists -- how much of the information from those sources typically were used to --
MR. JOHNSON: As I said, most cases are initiated by the members -- by the members' statements -- we call them statements cases -- most cases. I couldn't give you any greater specificity about last year's cases than that.
Q Just to clarify and follow up on that, any commander could initiate an inquiry as low as 04 under the previous regulations.
But what about approval? Was it (in audible)--
MR. JOHNSON: The -- with regard to officers, under the old regulations and these, this hasn't changed; the authority to separate is with the service secretary, with regard to officers.
With regard to enlisteds, I believe that the separation authority resides at the -- generally resides at the general court-martial convening authority level, which could be a colonel, for example. Now it's raised to 0-7.
Q Okay, and then another question on -- okay.
And on the review that you're doing, that's due on December 1, there's this question of benefits. The Defense of Marriage Act prohibits benefits going to same-sex partners.
Why does -- why do you and why does Defense Secretary Gates feel it necessary to address this issue of benefits?
MR. JOHNSON: I think it's naturally part of a comprehensive review of the impacts of repeal of 10 USC 654. I don't regard as part of my mandate a review of the Defense of Marriage Act or the wisdom of the Defense of Marriage Act.
We're looking at the impact of the repeal that the president has called for of 10 USC 654.
Q But then is it the assumption that benefits then would be extended to same-sex partners if --
MR. JOHNSON: I make no assumptions at this point. It's a work in progress under way. Our report is due December 1st.
Q Have you broken down how you're going to do this study, for example, how you're going to reach out to people that are either in the field or have been in the field, how you're going to --
MR. JOHNSON: That's something we very much want to do. General Ham and I are now working through, with our working-group teams and with public affairs, how we can not only systematically engage the force. That's one of our terms of reference, systematically engage the force.
But General Ham and I want to do a lot of travel to bases, speak to -- speak to groups of service members, enlisted and officers.
And we also are looking at ways to solicit information from gay and lesbian service members, consistent with the law. And we're looking at mechanisms for doing that. I'm confident that we are going to find the mechanism for doing that, consistent with the law, because we think that should be part of this process.
Q (Off mike) --
STAFF: We've got time for about one more, but maybe somebody else, if it's on the 45-day review. We're not here to talk about the working group but the 45-day review.
Q Yes, it is. If I can -- actually, Secretary Gates actually last summer to look into these recommendations. What took so long?
MR. JOHNSON: You're correct; he announced last summer that he asked me to look at these regulations to see whether they could be revised, consistent with the law. I did that.
And then we decided to take those recommendations within the last 45 days, get advice and input and advice from the services and from the service chiefs. We did that. It was a very inclusive process. And after receiving all that information, I made my recommendation to the secretary in a timely manner, on the 45 days. And we had further discussions with the services, and this is the end product.
Q Can I get one other clarification? Because I sense some -- I'm sorry. I'm really confused, between the answer to my question and Yochi and the gentleman over there. Is it a question of conduct or is it a question of identity? Then it --
MR. JOHNSON: The law says that a service member -- if there is a finding of homosexual conduct -- that's what the law says -- quote- unquote --
Q So it's possible --
MR. JOHNSON: -- hold on, let me finish, let me finish -- a finding of homosexual conduct, the member should be separated.
The law does not prohibit homosexuality in the United States military. It -- the law says that upon a finding of homosexual conduct -- and the law defines what homosexual conduct is -- a person should be separated.
Q So if a person declares that they're a homosexual, but says they don't engage in conduct, and there's no evidence that they do, they could still be in the military?
MR. JOHNSON: If you read 10 USC 654, there is a way in which statements are treated as homosexual conduct. It's in the statute. It's in the words of the statute.
Q I see.
Q So the secretary made reference to the new regulation being some lessons learned from the past. What are those lessons learned?
MR. JOHNSON: Lessons learned are -- the experience we've had with the application of this law -- as I said, many cases are initiated by statements, other cases are initiated by a third person. And what the secretary asked me to do, among other things, was to look at the circumstances under which a member is separated as a result of a statement coming from a third party -- in other words, a member who is serving honorably, hasn't made his or her own statement, and a third person shows up and says, "I think that person is gay or lesbian," and an inquiry is initiated that way. He asked me to look at what are the circumstances under which that could happen, and is there a way to refine that, to refine the definitions under which that might happen.
And we looked at it, and we found that, within the confines of the existing law, we can make certain revisions, consistent with the experience we've had over the last 17 years.
MODERATOR: This is a good place to bring this to an end, so --
Q I'm not finished --
MODERATOR: Hang on a second, Dan.
That's a good place to bring this to an end.
As we -- as you do your stories though, we had planned for you to have a little bit more time before we did this session.
So if you -- as you go through the revised regulations, if you have any technical questions that you'd like to try to get answered, if you contact Cynthia Smith in the press office, we'll certainly get with the general counsel's office. We'll try to get you any of those answers that you might have.
So thank you very much for coming today. Appreciate it.
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