By Mike Dorf
The unbelievably thorough Pentagon Report on the likely consequences of repealing DADT removes the principal argument available to Senators who have resisted repeal. Perhaps that means that one or more Republicans will join with the Democrats to repeal DADT in the lame-duck session. If not, it will be interesting to see what reasons they give for voting against repeal. Here I'll predict a few:
1) Some Republicans will say that it is inappropriate for so momentous a policy shift to be undertaken by a lame-duck body. After all, they'll note, we just had an election in which the voters preferred the Republicans, even though they knew that the Democrats favored repealing DADT. Thus, the argument will be couched as a defense of democracy rather than (or in addition to) a defense of the policy. One tactical disadvantage of this argument is that it only works in December. Once the new Congress is seated next year, anyone voting against repealing DADT (or against cloture on a DADT vote) will need some new argument--and because Democrats will still be in the majority in the Senate, the issue can be brought back for a vote next year, at least in the Senate. Perhaps the Republicans are betting on the all-too-common Democratic tactic of preemptive surrender, whereby Harry Reid et al will not even bother bringing the issue back for a vote in the new Congress, on the theory that it won't come up for a floor vote in the House.
2) I would also look for various Republicans or their allies in the media to argue that the ongoing operations in Iraq, Afghanistan, South Korea, and elsewhere make this an inopportune time to make changes to personnel policy. The report addresses this concern, noting that racial desegregation occurred during the Korean War, at a time when opposition to desegregation was much more widespread among service members than opposition is now to ending DADT. I suspect that the anti-repeal forces will in turn respond with code. They'll say something like the following: Opposition to racial desegregation was based simply in prejudice, whereas opposition to lifting DADT is based in concerns about "privacy" having nothing to do with prejudice. This argument can't withstand scrutiny--because racial bigots had "privacy" concerns also, among other things--but don't expect a lot of scrutiny (except perhaps on The Daily Show).
Arguments 1 and 2 can both be put under the umbrella of "now is not the time" (even as they provide cover for an actual position of "it will never be the time"). I'd also be on the lookout for two additional sorts of arguments:
3) I expect that some number of repeal opponents will try to discredit the report by saying that President Obama came into office wanting to repeal DADT and so he stacked the deck in some way. Perhaps the charge will be couched as follows: Service members from privates to 4-star generals knew that the Commander in Chief wanted to repeal the policy, and so out of a sense of duty they gave the answer that they knew the President wanted to hear. This argument has the advantage of not looking like it's blaming the report writers or the survey respondents. It has the disadvantage of being demonstrably false. Many respondents gave what are clearly candid answers to other questions. E.g., only a fifth of all respondents said that all of the officers over their immediate units are good leaders; fewer than half of Navy and Air Force respondents, and only just over half of all respondents, listed "to serve my country" or "to defend the nation" as a reason why they joined the military. Because the respondents were not simply saying what they thought the higher-ups would want to hear in these other respects, there is no reason to think they would have done that on the DADT-related questions. But the fact that the charge is demonstrably false does not mean that the public will see it demonstrated to be false.
4) Last, I suspect that we will see some creative slicing and dicing of the raw data. Look for a special focus on the Marines, whose attitudes are least supportive of repeal. This too shouldn't be persuasive. To my mind, the most telling responses are to questions 39a, 39b, and 39c (at pages 181-182 of the report). Service members who said they had served in units in which they and everybody else in the unit believed the unit leader to be gay or lesbian reported high levels of unit cohesion (77% good or very good), morale (68% good or very good), and performance (78%). Answers for the Marine Corps were, respectively, 68%, 58%, and 72%. And most of those in all branches who did not answer good or very good to these questions said that cohesion, morale, and performance were "neither good nor poor," with only small percentages choosing "poor" or "very poor." Nevertheless, I'm sure that some ominous numbers can be massaged out of the data if one tries hard enough. And because most people won't actually look at the report or the data, the competing views of the report will largely mirror previously held views.
I'm confident that some version of these (and other) points will be voiced by Republicans who previously said that no change should be made without support from the military. Whether that prevents the lame-duck Congress from repealing DADT remains to be seen.