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>> the president has made clear that this fundamental and

justice should not be tolerated. secretary gates has set into motion a study group to determine what needs to be done to implement repeal of this law. and they have called for a comprehensive examination and to this issue deserves no less. when it comes to repeal, the question is not whether but how and when. the president and our civilian and military leadership and the pentagon has stated the need for repeal. the majority of americans, see the appeal as not only as a national security interest but in standing with the principles of america. i understand and support the position of the civilian and military leadership that comprehensive analysis should accompany any decision of this importance. it should include outreach to service members and their families to ensure that we

understand all perspectives on the issue. the purpose of this hearing as for the witnesses to help the subcommittee understand what you want to learn and how you plan to become better informed about any possible challenges surrounding the field of do not region of don't ask, don't tell. since the department does not pull service members before making personnel decisions, which need to know what type of information you are seeking that would allow the department and implementation of process that could be helpful. well i appreciate the intent of this review, i believe the evidence would suggest a quicker solution is possible and necessary. public opinion supporting a pill -- repeal is strong. as the call for service negros, a policy that removes members of the volunteer force, many with critical skills, -- as the call

for service grows, a policy that removes members of the volunteer force, many with critical skills, is not ideal. the 1993 study of the strategy needed to successfully implement the repeal provides it can be quickly updated to today's environment. in my view, this blueprint should include a moratorium on discharges while the department decides how to implement repeal. i was disappointed that the secretary saw a moratorium as destructive and i feel there is a way to stem the tide of these painful and unnecessary discharges, especially those instigated by third parties and avoid subjecting the confusion

about the direction of this policy. sound positive leadership camp and will be the key -- can and will be the key to ensure readiness and unit cohesion cannot suffer as a result. to assist us in understanding the repeal process, we are fortunate to have the top personnel official at the department of defense to fill secretary's dietz -- secretary gatess'. and the hon. j. johnson, a general counsel of the department of defense. welcome to each of you and i want to thank you for being here. we recognize the difficulty of your presence here today and

that you really have not had a chance to embark on this study but it is important and i think it will be helpful for us to hear from you but also for you to hear the views of the members of the subcommittee. >> i jr. and welcoming witnesses, all three of whom are appearing before us for the first time. unlike most hearings, when we receive testimony from tax -- task forces at the completion, we will have the opportunity to examine and assess the scope of the work of a study group just beginning. this also gives us the opportunity to shape the group's work ethic. we have heard clearly from the senior leadership at the department of defense in each of the services of the importance of the study and the necessity of doing nothing to repeal change or suspend current law until the study completes its work. i fully support this approach.

for the poor, i believe until this committee in congress have had the opportunity to review and assess recommendation of the study group and those of the department of defense which we expect at some point after december, to us and then, we should not rush suddenly into action. a series of issues are to be examined as well as requirements for evidence to be presented to congress before congress could make an informed judgment about the repeal of section 654. i ask unanimous consent of the letter and attachment be entered into the record. thank you.

by further ask the staff to distribute the letter to members of the subcommittee, some of whom may not be familiar with it and to the witnesses. the central focus of the letter is the fourth paragraph, reflecting the fact that the responsibility for deciding this issue rests with congress, not the president, the secretary of defense or the chairman of the joint chiefs. the fourth paragraph reads ultimately won responsibility of this committee is to ensure that it improves the readiness of the armed forces. no action to change the law should be taken by the administration or by this congress until we have full and complete understanding of the reasons why the current law threatens or undermines the readiness and any significant way. whether a change in law will approve -- will improve this and measurable ways and what affects and military readiness, cohesion, morale, good order, and discipline are entailed with

the change in the law. given the mandate from the secretary of defense, i am concerned the citigroup will focus itself solely on the third requirement, the implications of change and not present congress with evidence to decide of the first two fundamental issues, white current law threatens or undermines readiness in any significant way and whether repeal of the current law would improve readiness and measurable ways. if the study does not address these issues, its overall credibility and usefulness for the congressional decision making process will be significantly undermined. i would ask during the course of the hearing for you to commit to us that they're fully and objectively exploring the first fundamental issues raised by mr. mckeon and present that in

their final report. this is a difficult issue but want your predecessors have had to deal with. a central argument of the proponents for the repeal of section 654 is that repeal is a military necessity because in time for, the military services need every willing and able person to serve. the discharge of more than 13,000 people because of section 654 since 1993 has hurt military readiness. your predecessor addressed this issue in july of 2005. and the fourth year of the global war on terrorism. when he testified before this committee, "this is not a significant factor in our attrition experience and the lost generally occurs early in somebody's service." i would like to hear from you

whether you agree or disagree with that assessment and whether you agree with the advocates for repeal of section 654 that feel it is a military necessity. i would further like to hear with the discharge of personnel under section 654, especially during the time of war, has negatively impacted the readiness of our military services in any measurable or significant way. based on the data recently provided to this committee by the department of defense and the military services, i would guess that your objective assessment would be that you agree with the previous statement. during the fiscal year 1995 through 2008, eight of those years of being wartime years, the military service separated more than 1.9 million people, 8300 of those, less than one- half of 1% was the result of section 654. that is about a hundred people

being discharged per year. unless you contradict me, that is not a significant loss from an overall the 0 d manpower perspective. moreover, your data shows that this charge of personnel under six -- under section 64 has not affected the ability of military service is to recruit or retain high-quality people in numbers that meet or exceed requirements. according to department data, fiscal year 2009 was the best year for recruiting in the active duty, national guard, and reserve forces in the history of the all volunteer force. nor has section 654 inhabited the ability of the army, marine corps, or army national guard to increase manpower significantly while fighting two wars. furthermore, the department data undercuts the assertions that

section 64 must be repealed because in times of war, this nation needs to attract and retain all the qualified people it can who want to serve. for example, both the navy and air force had made significant manpower reductions during the last 10 years totaling some 77,000 personnel. to achieve such reductions, they used measures not only to reduce the numbers of new recruits but also to entice and force people to leave this service. in short, both services in times of war for the good of service reasons, have denied service to tens of thousands of persons who otherwise qualified to serve and wanted to serve. such actions only reinforce the congressional funding in 1993 that there is no constitutional right to serve in the military. the department data for the last 10 years reduce the argument

that the repeal of section 64 is a military necessity and supports the statement that current law appears to be working well. if you disagree with regard to the conclusion, we would like to hear from you today on this point. before closing, i would like to come back to some critical questions raised from the letter and ask for assurances from mr. johnson to that the committee adjust them in detail. a critical area that needs to be examined is the impact of the repeal of section 654 on military family readiness. as the chairman, it was pointed out that if mama is not happy, nobody is happy. family readiness today equis to military readiness put a whole families feelmá%y@ and we real of section 654 that will have an a direct impact on

military culture. tied closely to military family readyness and culture is the issue of eligibility of benefits. specifically mr. murphy's fwoil reappeal section 654 would not require dependant benefits to be required if such should be in violation of defense of marriage act. such prohibition would extend to any benefit such as veteran's benefits for which married military spouses or dependants or survivors are eligible. knowing that family readiness is a major factory in maintaining the all-volunteer force he asked for a limitation on benefits created by the defendant of marriage acts. ms of its effects on cohesion, morrell, could order and discipline. enactment of this limitation creates a wide diversity of

situations. how would this affect family readiness, morrell, and cohesion. to successfully repeal section 654 in a matter -- in a matter project in a manner -- in a manner that does not affect cohesion, the marriage act would have to be repealed or amended. information from the department of defense, i am concerned that the department of defense may be creating obstacles in achieving that objective. specifically, we understand the citigroup -- the study group carried out on an attempt to repeal the 654. if accurate, i believe the study group will prejudice from the outset the perceived credibility in other activity of

the result recommendations. i say this because the 1993 effort raised significant concerns about the comprehensiveness and objectivity. more recently, the prejudgment as well as lack of original work was evident in a november to cousin not report that used data collected by the palm center to support the repeal of section 654. we understand that rand is a well-recognized and competent research entity in many areas. however, given their history on this issue, i believe that even if there were able to produce a product that was comprehensive and objective, and the study group agreed, it would never be seen as such by others and will ultimately poisoned the overall success of the citigroup efforts. to minimize potential criticism, the instruments used should be designed to not cook the books, i would strongly recommend that the department relied primarily if not

exclusively on its own civic an in-house survey and study capabilities than any external survey not done by the department be done by reputable organizations that have not previously done survey or analysis work on this issue and that you engage both opponents and proponents section 654. i appreciate the patience of the witnesses and my colleagues for this long opening statement. given the limited ability to question the service chiefs, i thought it is necessary to get some of the more critical issues out on the public table an order to ensure this study group can address them in this hearing. i look forward to your testimony. >> thank you. secretary stanley, do you want to begin? once again, thank you for being

here. >> good afternoon. i am honored to be here to represent men and women in uniform. i have been on the job for just about two weeks. i had to assure you that i hit the ground running. this being the first hearing, and i am looking forward to your questions. we prepared a joint statement that i believe you have. myself, mr. johnson and general ham, i will turn it over to them for opening comments. >> thank you. in ms. j johnson, general counsel for the department of defense. as the secretary pointed out, we have our prepared written statement. i would just like to say in summary that secretary gates has appointed general hamm and me to cochair this working group. the goal of our working group is

to assess the impacts of the repeal of 654 should the congress decide that that is the course of action it should take and to develop an implementation plan should there be repeal and to understand all of the issues associated with a repeal. we are at the outset of that process. we are just beginning at this stage we are committed to conducting an objective, thorough, and comprehensive assessment of the repeal of 654. some of the guiding principles we have said are as follows: we should enlist the views and opinions of a broad array of people within the service as

well as congressman has pointed out, military families. we believe that is important. i know secretary gates believes that is important. we have asked working group members to set aside their personal opinions regarding repeal or not repeal and to go about their work in a objective and comprehensive fashion. frankly, in my experience, that is the best way in which members of the u.s. but terry go about their work. if we are all asked to set aside our personal opinions and do the best we can in a objective way. we intend to solicit the views of organizations and groups that are familiar with the issue. not just within the active-duty force but organizations that have spent a considerable amount of time studying the policy, studying the potential for repeal, and that includes

groups that have a diverse range of opinions on the issue. we are determined to do that. we are also determined to conduct our review in any way that minimizes disruption to our activities on the front lines. we are engaged in two wars at the time. that is one of the guiding principles that secretary gates has given to us. we all look forward to your questions. new >> members of the committee, thank you for allowing us to come here today. when i was informed that secretary gates account had selected me to coakley this group, i will admit to feeling humble, honored, and a little bit nervous at the same time. i can also tell you i feel a strong obligation, consistent with our terms of reference to ensure that we have broadened

our presentation in the engagement of the force and their families. to that end, which built a team that includes a wide variety of rank, age, a military specialties. the coast guard is included. we have members from the national guard and the service reserves. key in our effort is to ensure the enlisted force has a prominent role. seated behind me is the fleet master of the united states navy who is the senior enlisted leader for the department of defense working group. he reports to nobody but mr. johnson and myself and has full access to all that we do. all of us in uniform who are privileged to participate in this effort understand the special trust and confidence placed in us by you, our department's senior leaders, and most importantly, our fellow service members and their families. we shall do our very best everyday to merit that trust. thank you. >> thank you.

i appreciate your opening comments. i know we have a number of members here so we will stick with the five minute rule. we will likely be interrupted by foot along the way but we will do the best we can. mr. johnson, you have a 4:00 engagement. >> i have say invitation to come see them at 4:30. >> i want to clarify the objectives of the working group. the objective of the working group is the not facilitate repeal when it states the assessment of the implications of such a repeal should it occur. what does that say to you?

you did try to clarify that but i am wondering, is there anything you want to add in terms of clarifying what you believe the objective of the city is? >> secretary gates said one month ago that the question in terms of the guidance we have the president is the issue of not whether but how best. secretary gates believes that if the congress and the president's determined that repeal of the law is appropriate, we should go about that and a careful and deliberate fashion and thing to the issues associated with repeal. that is what he has appointed us to do. should repeal occur. i hope to have answered your question. what aspects of the military environment that secretary keeps considered critical to the successful implementation of repeal that require research, a study kemar can you clarify what

aspects require that? that is my basic question. what do you want to know and how are you going to find out? >> the aspects that come to mind immediately are some of the things he said in terms of reference that were made public yesterday. first of all, readiness. impact on readiness. we are engaged and to conflicts right now -- in two conflicts right now. i assume everyone would want to know what the impact either way would be on recruiting and retention. as i mentioned earlier, we are interested in assessing the impact on what we call family readiness. the way i would sum it up is to say the impact on readiness and

family readiness and recruitment and intention -- and retention. >> have you had a chance to think through, and i know this may be premature, how you intend to get that information? we anticipate there might be some surveys but i would also wonder about face-to-face interviews that might be helpful, as well. we have all had discussions here and the questions that are asked of returning troops, which may or may not be valid down the line, and i am wondering if there is an anticipation of a lot of face-to-face discussion or if it would be done more under service and how we would reach out to families. what do you think is likely to be the vehicle for this? >> the issues that you have addressed are exactly but we're thinking about. in principle, what we are

envisioning at the direction of the secretary of defense is a wide average to get a wide variety of views put it in that effort, which envisioned a survey instrument of the force and of their families to get their sense on the issues. we absolutely agree with you that that survey must be enriched by personal contact. focus groups, if you will. some of them targeted to specialized groups and families within the department of defense, active reserve and guard. that personal interaction is very important. turkey, we envision the average for social needs. -- thirdly, we envision the out reached for social needs. >> to you anticipate that focusing on whether or how?

or a combination of both? >> it really is on how. as you indicated, we do not poll the force on should we do this or should we not do that. in this regard, it is more important for us as we survey the force and conduct these focus groups and reach out to groups is to understand the implications of repeal should it occur so that necessary policy adjustments, if required, can be foreseen and envisioned. it is how. >> thank you. mr. wilson. >> thank again, i thank all of you, and first time here. good luck. and mr. johnson and general, i'm concerned the duration given to you by the secretary of defense will not result in your study group examining two fundamental questions, whether current law threatens or never

mines readiness in any significant way and two, whether reappeal of current law would improve readiness in any measureible ways. would the two of you commit to us today that you will exam these two questions and provide the secretary of defense with your findings and recommendations regarding them. and general, in your personal view, do you believe these questions should be examined? if examination of these two issues is not in your current charter, would you reject or object to them being added either by the secretary of defense or congress? >> i think congressman, let me start. i think if we do a comprehensive and thorough job, a necessary component of that would be to look at the two questions you raised. >> thank you. >> congressman, i would agree. if it was clear to me in the

terms of reference and in our discussion with the secretary of defense that military readiness and effectiveness must retain primacy, that is what you expect of us and what the nation expects of us and we will clearly exam that as directed in the terms of reference. >> looking at your backgrounds, and very impressed. i am not surprised, the high integrity both indicated. thank you very much. dr. stanley, taken as a whole, the department data over the past 10 years with regard to recruiting and retention and practices of the navy and air force to reduce manpower the levels in wartime refutes the argument that the repeal is in deficit -- is a military necessity. the statement that current law appears to be working. the you agree with this assessment, why or why not?

>> in my opening statement, i said i have been here a couple of weeks. i am not new to this discussion. as i join the secretaire, my marching orders were clear. i am open-minded. the secretary of defense has given me orders here that basically layout exactly what we are expected to do which is to study. make an assessment. to a review. to look into the questions or the issue you are racing right now. agreeing or disagreeing with the general would be part of the process of exactly in the we have in the assessment. >> your background is such that i take what you say very accurately. i would like to have your personal use on whether the repeal of section 654 is a military necessity and to,

whether you agree with general conway that current law that section 64 is working. >> my personal view is that we should carefully study the implications of repeal should that occur before we make a change. i believe that is precisely what secretary gates has charged mr. johnson and myself would doing. >> thank you. based on the department provided -- the information provided by department, it does not seem to have had any effect on the ability of military forces to recruit and forces and numbers that meet or exceed service requirements. moreover, section 64 is not inhibited to the army, marine corps from rapidly expanding manpower levels while fighting

to separate wars. to you agree with the assessment that section 654 is no significant hindrance to successful retention during wartime? >> what i hope the assessment or the review that we do will be deleted and to that question. i cannot answer that question right now but i will say that i know that as we go forward, we will be able to answer more accurately in the future. i am sure that we will. again, thank you for your efforts and i wish you well as to pursue this issue. i yield the balance of my time. >> thank you. thank you, madame chair. thank you for being here. we appreciate your work at this important time in our history. i want to assure you that i think your work is not only important but it will be used.

i know there are people who are opposed to changing this policy. the policy will be changed. even some of those people who are opposed to the change recognize that it will be changed and there is a generational thing going on here. america is changing. the world is changing. your work will be put to good use. whether it is this month, this year, next year, i did not know. if you do a good job, which will provide guidelines to your country and military and we appreciate your work. if i wanted to ask mr. johnson, you probably heard a question i have asked about 17 times. the split of authority between night circuit in the first circuit. -- ninth circuit and the first circuit. the current policy is working well has been said. i have to ask what the definition of working well is when you have different sections of the country under different

legal opinions about exactly what the region and authority of that law is. that is not my definition of working well. the question is how have you in the military responded to the ninth circuit. what do you doing differently and the states in light of the ninth circuit opinion which is not being appealed? >> as we have discussed in the past, the decision in the ninth circuit creates what we call a split in the circuit. the rule of law there is different than the rule of law and all of the other circuits. we in the department of justice have been very actively working through that split in the circuit should be applied and implemented throughout the force. we have put out guidance to our lawyers to inform them of the

decisions. i certainly have and we continue to work through how to address whatever pending cases exist within the ninth circuit versus the other circuits. it is something we are actively looking at at the department of justice. >> one of the service secretaries made the comment last week that they were applying the law nationally the same and consistently. when i said a week ignoring the net circuit, there was a that a bit of backpedaling. it is a terrible problem for you to be in. the second part of that question is what are you doing with regard, not at the legal level, i mean you can certainly take every case to the courts and loose at the district court level who will site the night circuit over and over again or you can some direction to the commanders and legal authorities

throughout the state's to say there is now a category of gay and lesbian service members that if they meet these following criteria, they indeed can surf even though we know they're gay or lesbian. have you made those kinds of statements? >> otherwise you will have a series of litigation's. >> the case, as you know, requires an intermediate a level of constitutional scrutiny to the policy. we have to balance that against applying the law as the congress has given to us under we say consistently within the department of defense that we applied the law and faithfully implement the law in a fair and as balanced the way possible. we have to balance that against the rule of law for the night

circuit. it is a complex exercise. we are working through it right now with the department of justice. >> there has been no different direction given to base commanders that a certain number of cases or criteria, there is no reason to move ahead because the would be overturned in the ninth circuit. >> not right now in any formal way. it is something i am actively thinking about. >> one quick question in my remaining seconds, you say recommended a proper stages of the uniform code of military justice is one of those under consideration that prohibits acts between men and women. >> we are undertaking the -- a comprehensive approach. we would likely focus on that. the ucmj is not the main focus

of the review. >> to buy. >> thank you. mr. murphy is next. >> thank you. you mentioned that you were nervous serving as cochair. i am sure you were nervous as an 18 year-old infantryman are paratrooper. we're not going to be asking you to jump out of any airplanes now or in the future. we appreciate your service to our country. this is an issue that the american people deeply value. i want to echo that what we are talking about is that this is a hearing not to discuss if we're going to repeal don't ask, don't tell. it is clear that secretary gates

and barack obama are going to repeal the law. the question is how the services implement the repeal to make sure there is no disruption to the force. i am grateful that you volunteered to co-chair this working group. we should move forward with care. we should also understand that this review cannot be an excuse for july. a repeal must be a dual track process. the working group of the services must figure how to implement the changes but it is the duty of congress to change the law. there is no reason why these things cannot happen simultaneously. the 2010 defense authorization act did not become law until october 28, to test nine. the 2009 became law in 2008. my point is that if we repeal don't ask, don't tell and the fiscal year 2011 defense bill,

it will not likely become law until at least seven months from today. secretary gates stated that the working group should finish work by december 1 of this year. congress could -- could put pill language and this year's authorization act. the statute could be changed at the end of this year but full repeal would not take effect until sometime in 2011. would you agree that this would give your working group ample time to complete its study and to prepare the services for implementation of the findings? >> i think that the approach you have just outlined, there are some aspects of it that we should carefully consider. there are some intriguing aspects to it.

i want to be sure in our view that we hit all the right issues and make of the adequate assessments. i would think that our review might inform what this congress wants to do. our work is due to the secretary of the -- secretary of defense on february. that they will touch upon how the congress decides to go about repeal. or one to think about and carefully studied the approach you have outlined but as i see it, our work would not just the implementing regulations but it may -- may well be a relative to how you fashion a legislative approach.

i would not undertake to tell congress about what to do with their time table. >> you did not oppose congress to taking action. >> i am not here to oppose or support any particular congressional action. we are here to do an exhaustive and comprehensive review of the repeal of the policy. opponents of the repeal argued that allowing open service members would harm morale in units that my experience in the army and stories that i hear from young american heroes point to the exact opposite. one company commander who happened to be gay currently serving his second deployment and afghanistan wrote me a letter that exemplified how don't ask, don't tell harm's have broken up his relationship with his partner, but also how don't ask, don't tell made it

impossible for him to confide in his battle buddies. he had thought of suicide but i had no one to turn to. in fear of losing his job, he wote to me and i quote gay soldiers should have the right to go to a commander or first sergeant or battle buddy and i have to worry about the don't ask, don't tell policy. it shackals the hands of leaders like me and prevents us from giving our all for our troops and the supportive leadership they deserve. the don't ask, don't tell policy throws up walls between battle buddies. there are an estimated 60,000 gays and lesbians serving and they are the ones most impacted. how are they going to take into account the views of this officer without violating don't ask, don't tell? >> i don't know if we can get that response in as we continue and perhaps you can ask it

again, ok? >> mr. phlegming? >> yes, thank you madam chairman just to comment before i ask questions, i realize that the president wants this policy, but he is not aa king. we will have to vote on that. so i don't think that our president can decide unilaterally that we will unilaterally that we will reappeal don't ask, don't tell. repeal don't ask, don't tell. my question is is the primary purpose of the military to be a force for social change or to protect americans? >>