face the need global demands we do and none are charged with the leadership roles we bear. true enough. but many of them fight i do not recall a single instance where the fact that one of them might be gay ever lead to poor performance on the field. my sense is that good order and discipline was actually reinforced and reemphasized. it is clear to me that our troops expect the same. they expect that would ever change we make to the current policy will be accompanied by rigorous training and high standards of conduct. in fact, the report indicates that one of the factors distressing to those who oppose

repeal are fears the new policies will not be implemented fairly, evenly, and dispassionately. let me be clear. nothing will change about our standards of conduct. nothing will change about the dignity, fairness, and equality with which we treat our people. and nothing will change about the manner in which we deal with those who cannot abide by the standards. the military is a meritocracy, where success is based on what you do, not who you are. there are no special classes, no favored groups. we may wear different uniforms, but we are one. there are some for whom this debate is all about gray areas. there is no gray area here. we treat each other with respect or we find another place to work, period. that is what leadership will

prove vital. leadership matters most. troops that believe they have served in the unit with gays and lesbians rate that in a performance high across virtually all dimensions, but highest in those units that are well lead. indeed, the practical differences between units in which there were troops believed to be gay and lesbian and those in which no one was believed to be so completely disappear in effectively lead commands. my belief is if and when the law changes, our people will make that change in a matter persistent with the oath they took. as one marine officer took it, if that is what the president orders, i can tell you by god we are going to excel above and beyond the other services to make it happen. brinkley, that is why i believe that in the long run repeal of this law makes us a stronger military and improves our ranks. it will make us more representative of the country research. it will restore to the

institution the energy it must now spend in pursuing those who violate the policy. and it will better align the organizational the use we claim with those we practice. as i said in february, this is about integrity. our people sacrificed a lot for their country, including their lives. none of them should have to sacrifice their integrity as well. it is true there is no constitutional right to serve in the armed forces, but the military service all the people of this country, no matter who they are or what to believe. and everyone of those people, should they be fit and able, ought to be given the opportunity to defend it. finally, i believe now is a time to act. i worry that unpredictable actions in a court could strike down the law at any time, precluding the orderly implementation plan we believe is necessary to mitigate risk. i also have no expectation that

challenges to our national security are going to diminish in the near future, such that a more convenient time will appear. we find the argument that war is not the time to change to be into spectacle with our own experience since 2001. war does not stifle change. it demands it. it does not make change harder. it facilitates it. there is greater uncertainty today in our forces, which are indeed under stress. and now the chiefs are concerned about this. so am i.. but i do not believe the stressors currently manifesting themselves in the lives of our troops and their families -- link the deployments, suicide, and health care -- are rendered insurmountable or any graver by this single policy change. nor do i believe in simply acknowledging what most of our troops already know to be true about some of their colleagues threatens our ability to fight and win this nation's wars. quite to the contrary.

today's young readers are more attuned to combat effectiveness than any of the last three decades -- tempered by war, bonded through hardship. the men and women of the united states armed forces are the brightest and most capable they have ever been. if there is a better opportunity for a better generation to affect this sort of change, -- to effect this sort of change, i do not know of it. with all due respect to chairman and senator mccain, it is true that i am not in charge of troops. i have commanded three ships. i commanded a carrier battle group into fleets. i was most recently the service chiefs. more than 40 years, i have risked the lives of young men and women. you do not have to agree with me on this issue. but do not think for one moment that i have not carefully considered the impact of the advice i give on those who will have to live with the decisions that device in forms.

i would not recommend repeal of this law if i did not believe in my soul that it was the right thing to do for our military, for our nation, and for collective honor. thank you. >> thank you very much, and maryland. general hamm. >> won a was appointed as" share of this review, i was not thrilled. when i found out about it, and was honored to participate in a subject that has great importance to our men and women in uniform. i anticipated the task would be complex, tough, sometimes unpleasant, and uncomfortable. i now realize i underestimated those factors. after nine months of study, i am convinced that if the law changes, the united states military can do this, even in a

time of war. i do not underestimate the challenges in implementing a change in the law, but neither do i underestimate the ability of our extraordinarily dedicated service men and women to adapt to such changes and continue to provide our nation with the military capability to accomplish any mission. i came to this conclusion not only as a code-share of the department of defense review, but perhaps more importantly as the commander of u.s. army forces in europe. i was cognizant every day of this review that i might have to actually lead the changes included in our report as a serving commander. i am confident that if this law changes i and the leaders with whom i served can do just that. thank you. >> thank you very much. mr. johnson? >> mr. chairman, senator mccain, thank you very much for the opportunity to testify here today. by now, you have had the

opportunity to read the report have co-ampe and i authored. we hope it speaks for itself. our basic assessment is that our military can make this change, provided we do so in an orderly and reasonable manner, in accord with the recommendations for implementation we offer in our report. this morning, i would like to take a moment to talk to you not in my capacity as co-author of this report, but as the lawyer of the defense department. i want to repeat and elaborate upon what secretary gates and and mullen have said, and ask that the congress not leave our military state on this issue in the hands of the courts. i offer no view about the constitutionality of "don't ask, don't tell," or a prediction about the outcome of the litigation that is under way. but regardless of how you feel about "don't ask, don't tell,"

or gays serving openly in the military, the fact that there is increased litigation in the courts on matters of gay-rights is undeniable. since 2003, when the supreme court decided lawrence versus texas, the courts have become increasingly receptive to gay- rights clams. within the last year alone, federal district courts have declared california's gay marriage ban, the federal defense of marriage act, and "don't ask, don't tell" all unconstitutional. we have repealed the lower court decisions on "don't ask, don't tell," but after years during which "don't ask, don't tell" was upheld in the courts, the constitutionality is in litigation once again. we in the department of defense face the possibility that we must repeal "don't ask, don't tell" not on the terms and timetable of the president, congress, and department of

defense, but on the terms and timetable of a court and a plaintiff. we got a taste of the possible future in october and november, in the log cabin republicans case. on monday, october 11, we had a lot and a policy in place that required separation of members of the military who were found to have engaged in homosexual conduct. on tuesday, october 12, a federal district judge in california issued an order to the secretary of defense to suspend enforcement of that law on a worldwide basis. eight days later, on october 20, the appellate court issued a temporary stay of the injunction while considered whether to grant a more permanent state. on monday, november 1, the ninth circuit agreed to keep the state in place during the appeal in that court. on friday, november 5, the log cabin republicans asked the supreme court to reverse the state.

on friday, november 12, the supreme court denied the request. thus, in the space of eight days, we had to shift course on a world wide enforcement of the law twice, and in the space of a month face the possibility of shifting course for different times. -- four different times. this legal uncertainty is not going on soon. the log cabin republicans case is on an expedited schedule. more lawsuits are being filed. our plea to the congress is to not leave the fate of this law to the courts. as secretary gates has stated, if repeal of this loss occurs, it should be done by the elected representatives and the political branches of government, not by the courts. indeed, in the course of our review, we learned of other nations that acted to change their policies on gays in the military to head off adverse outcomes in court.

from where i sit at the lawyer for the department of defense, the virtue of the legislation pending before the senate is that if passed, repeal of "don't ask, don't tell" will be done on our terms and our timetable, upon the advice of our military leadership. as the working group report makes clear, there are many issues that must be addressed in connection with any repeal of "don't ask, don't tell." the core messages to be delivered as part of education and training, same-sex partner benefits, birthing and billeting, -- berthing and billeting, and others. the secretary will not sign the certification of the current legislation until we have written new post-repeal policies and regulations and have begun our education and training of the force. in other words, that repeal is

brought about in a responsible and orderly manner. in all likelihood, this will not be possible if repeal is imposed upon us by judicial fiat. for these reasons, we urge the senate act now on the pending legislation. thank you. >> thank you very much, mr. johnson. we have got a very large number of senators here, and secretary gates has got to leave at 11:30. the others are able to stay later than that. in order that we would all have a chance where he is here, i think our first round will need to be limited to 5 minutes, and then we will have a -- >> chairman, i object to that. >> i agree it is a very small time. >> i suggest we have another hearing or reconvene in the afternoon. five minutes is not sufficient time for anything, frankly, but statements by the members. >> we have had runs of 5, 6, and

seven minutes for many hearings. in fact, that is our tradition. in any event, i am trying to give every member here an opportunity will secretary gates is here. there will be a second round, a third round, and a fourth round with admiral mullen, general ham, and mr. johnson. if we need secretary gates back for an additional hearing, we will ask him back. but i have to accommodate his schedule as well as give an opportunity to every member of this committee while he is here to asking questions. >> my only response is this is obviously a transcendently important issue, and to allow our members five minutes with the secretary of defense is simply not adequate to have us have the much-needed information the secretary of defense can provide. so all i can do is say you are

not giving the members sufficient time to ask questions, which is maybe not the intent, but certainly the effect. maybe in the lame-duck session we are in we could have another hearing as soon as possible so that all members can have ample opportunity to get the information they need to make a very important decision. >> mr. chairman, if it will help, i can do some arranging wednesday until noon. >> we hope that helps and we hope another hearing with you will not be necessary. we have the other witnesses as long as necessary. if we have need of another meeting with secretary gates, we will consider that. for the first, a 5 minute run to give all our members the opportunity while he is here. it is important for all of our members to have that opportunity. let me proceed here.

i think we just want to get going, unless there is something. >> doing the math, if you extended it to 30 minutes, you could change that to a six minute round. >> will accept that recommendation. i will now have a six-minute first round. thank you for that recommendation. we accept a six minute first- round, given that secretary gates is able to say an extra -- able to stay an extra half hour. let me start with you, admiral mullen. you have told us that the nation should not change our policy, and we should allow gay and lesbian service members to serve in the military without having to conceal their sexual orientation. you have stated deposition both personally and professionally now in a very eloquent way. you have also urged us, as have

the others, to carefully consider the views of the service chiefs, even where they might differ. have you carefully and seriously considered the views of all of the service chiefs, even where they might differ in reaching your own professional conclusion? >> i have spent a great deal of time with the service chiefs on this issue. since the beginning of the year, i could not tell you the number of sessions. but one of my goals certainly was, throughout this process, not one of influence. but it was one of debate and discussion, and making sure that everybody understood where everybody else was on this and we could take, in particular, when we got the report -- take the report, look at it, assess,

probably more than anything else, the risk that is associated with it, obviously understand what is in the report but obsess you risk. -- but assess the risk. each of us reached our own conclusions, not just from a service perspective, but this is also the joint chiefs. i asked them for their cues from the joint perspective as well. we received that. all of that was taken into consideration are arriving where i am with respect to the risk level tied to potential implementation of this. >> do i understand from your answer that you have carefully considered the views of the service chiefs before you reached your own professional opinion? >> very carefully. >> secretary gates, you also urged us to consider the views carefully of the service chiefs, and i fully agree with you. have you done that in reaching

your own conclusion? >> yes sir, i have. >> general ham, have you carefully consider the views of all the service chiefs before reaching your conclusion in this report? >> i have, but it is important to note that the report from mr. johnson and myself is not fs' use.ve of the cheeki >> we understand there will be differences and we will hear from them tomorrow. but with your views, you touched base with palo stakeholders and people who have their own point of view inside the military. have you touched base with the service chiefs and consider their views? >> yes, mr. chairman. >> mr. johnson? >> absolutely, senator. during the comment period leading up to the report, we

took account of what we heard and in places revised our own assessment in response to viewpoints expressed to us by the chiefs. >> there has been revision of this assessment based upon the views of the chiefs? >> yes, sir. >> general ham, can you, assuming we change and repeal the policy of "don't ask, don't tell," can you as commander of the u.s. army europe effectively implement a new policy allowing gay and lesbian service members to serve in the military without concealing their sexual orientation consistent with the standards of military readiness, military effectiveness, unit cohesiveness, and recruiting and retention in the armed forces? >> mr. chairman, i am confident that i can. >> in terms of passing legislation now, the matter has

been before this committee almost a full year. starting in february, we have had hearings on this matter. we have raised questions with the service chiefs. they have testified on this before, and will again tomorrow. you indicated, secretary gates, that it is important that we act now, this month, i believe. and you have given us the reason it is primarily because the courts are involved now in this matter. you have also said we should not act -- i believe your words were -- in haste. would you consider our acting this month, given the amount of time and we have already put into it, but given the fact that we have had this report now for just a couple of days -- would you consider our acting this month to be hasty?

-- itl, it's certainly certainly would be expeditious. as senator mccain has said, this is a very important matter, and frankly, my sense of urgency would not be as great were it not for what we went through in october and november that mr. johnson described in his opening statement, which frankly was a very difficult time for us, where in essence overnight we were told that the law had changed and that we could not enforce it. we had done no training, no preparation, nothing whatsoever. and it is my worry about the unpredictability of the situation with the court's, particularly this coming spring,

the gives me a sense of urgency about this. the timetable obviously has to be based on the will of the senate. >> would you consider that we have deliberated on this issue this year? >> i would like to see -- i am sorry? >> you have urged us to be delivered, and i agree we need to be delivered. we are a deliberative body. we have had testimony during the year including a separate hearing on "don't ask, don't tell," where we have asked the opinion of service cheeks, where you have testified as well. on the other hand, you have urged us to be delivered to. you have also urged us to act this month -- you have urged us to be deliberative. you have also urged us to ask this month. >> i am very concerned about the courts.

frankly, i do think it needs to be deliberate. the reality is i had expressed the hope in february that there would be no legislation until after the review was done, so that the review and what we learned could inform the legislative process. now, i think the report is pretty stark. it is pretty clear in its conclusions, agree or not with them. i think it is pretty straightforward. therefore, i think that absorbing the lessons learned and the recommendations and analysis of the report is doable within the timeframe that you have before the congress adjourns.

so i believe that at least based on the information in the report that the congress is in a position to act, because it now has this information in hand. frankly, i do not think it is that complicated to absorb. i think the key issues have been described quite clearly in your opening statement, in senator mccain pep opening statement, and in the opening statements of the four of us. the think those are the critical issues. >> senator mccain, thank you. >> general ham, i think you for your hard work on the issue. is it your personal opinion that this law should be repealed? >> senator mccain, i have given this a lot of thought. we certainly can. it is my personal view that i am

very concerned about the timing of the courts. personally, i think it is time to move from debate and discussion to decision and implementation. yes, sir. i think it is time to change. >> secretary gates, this survey says nearly 60% of respondents from marine corps and army combat arms said they believe there would be a negative impact on their unit's effectiveness in this context. among marine combat arms, the number was 67%. nearly 60% of the army combat armed soldiers and 66.5% -- a two-thirds of the marine corps armed force expressed concerns about repeal. you have said you conclude that those concerns of members -- of service members about deterioration of military unit cohesion are "exaggerated." how are they exaggerated?

>> i do not remember using the word exaggerated, because i take those concerns very seriously, and frankly share the view of the chiefs -- the reports evaluation of risk, particularly in the combat arms, is perhaps too sanguine. i believe that with proper time for preparation, for training, whether it is before deployments or after deployments, however it works out -- if we are allowed to do this on our terms, i believe those concerns can be mitigated. i think to repeat one of the things admiral mullen said in his opening statement, the experience of those who have served with someone they believe to be gay or lesbian was very different, even in combat arms, than those who had never done so.

i would point out that in the example with the marine corps, you also have -- most of the marines in combat are 18 to 25 years old. most of them have never served with women, either. so they have had a very focused, very limited experience in the military, and it has been a tough one. but i think that with time and adequate preparation, we can mitigate their concerns. >> i could not disagree more. we send these in people into combat. we think they are mature enough to fight and die. i think they are mature enough to make a judgment on who they want to serve with and the impact on their battle effectiveness. mr. secretary, i speak from personal experience. within the combat units of the army marine corps, the numbers are alarming. 12.6% of the overall military

force responded to a survey saying it would leave the military sooner than they had planned. 21.4% of army combat troops indicate they would leave the course earlier. marine corps, that number jumps to 32%, nearly a third of all marine corps combat arms force, which is probably why the service chiefs, particularly the tip of the marine corps, are less sanguine than you are about this issue. also, if they left this 12.6% of the military -- they left earlier, that translates into 200,000 or more women who would leave -- men and women who would leave the military earlier than they had planned. do think it is a good idea to replace 265,000 troops across the force in time of war, that we should be undertaking a challenge at this time? >> first of all, the experience of the british, the canadians,

and some of the others has been that in their surveys prior to enacting a change in their laws and rules, there were substantial numbers that said that they would leave. in the event, those numbers were far smaller than the surveys have indicated. i think once again i go back to the point that people who have had experience serving with gays and lesbians have had a different view of these things, and i think there will be true in a lot of our force. again, i think the training and so on will help mitigate these consequences. frankly, i think that while there are some concerns that you will probably hear tomorrow about some of our special operations forces, where there

are limited numbers of people, and where any loss is potentially of concern for the force as a whole, i do not think any of us expect that the numbers would be anything like what the service suggests, just based on experience. also, you have the reality. they cannot just up and leave. they have enlistment contract. officers have contracts in terms of the amount of time they have to serve. it is not like they can just say, "i am out of here." they are going to have to complete their obligation. i believe that during that time their concerns can be mitigated. i think one of the encouraging aspect of this has been the relatively positive responses of spouses. as the saying goes, you enlist the soldier -- you realize the family.

the positive response of the spouses has been important. >> we are very deeply concerned about wikileaks, the impact it has had on identifying people who were cooperating with us in afghanistan and iraq. some leaders have said they have blood on their hands. so far, all we know is that one private first class was responsible for this. you have began an investigation since july. have you held anywhere -- and the individual responsible for the wikileaks? the taken any disciplinary action whatsoever with this incredible breach of national security? >> i would answer in two ways, senator. first, to a certain extent, our ability to go down that path is limited by the fact that we have criminal proceedings under way

that limit our ability to conduct an independent investigation well that a criminal investigation is going on. by the same token, beginning in august, we directed a number of steps to take -- >> my time has expired. have you held anyone responsible is my question. >> not yet. >> senator lieberman? >> thanks to all of you. in his opening comments, senator mccain said that the survey report that you put out yesterday, general ham, mr. johnson, did not answer the question of whether the law should be repealed. it did answer whether if the law is repealed that it will not compromise military effectiveness, unit cohesion, or morale. that is critically important. the question of whether the law should be repealed is for congress.

i want to briefly say that to me, in reaching a judgment on that question, we are on the front lines of a turning point in american history. we have these in every generation. this country from the beginning was defined not by its borders, but by our values. the declaration of independence says we are all in doubt by god with those equal rights to life, liberty, and the pursuit of happiness. and every generation has realized those rights better, because there were not realized at the beginning in 1776 for women, poor people of color, etc.. in our time, one of the great transitions occurring is the growing readiness and understanding among the american people that you simply -- it is just wrong and un-american to discriminate against people based on their sexual orientation. one of the great examples, and i

think a heroic example of this change of public opinion, is the great man whose chair i am occupying today, who served on this committee until his death, senator robert c. byrd, who strongly supported don't ask don't tell in 1993, and in our deliberations this year played a critical role, offered legislation to guarantee real due process and deliver to process in removing this law. he basically said, in voting for the change, that it was wrong. it was not consistent with our values, and it was not good for the military. the military, the u.s. military, has a proud tradition of leading in reflecting the best values of america. in this case, i think the u.s. military is behind the american people and behind the private sector.

and it is because the law constrains you from reflecting our best values, the 1993 law which says the commander in chief of the military does not have the latitude to and this is given their tory policy. i think that is why it is so important we do this as quickly as possible. and if we do it in this lame duck session, the deliver to a process that the amendment and hour law provides is full of due process. in fact, there is no time limit on the certification required from the president, secretary of defense, and chairman of the joint chiefs of staff. that is up to those three honored individuals. i think that admiral mullen said it well. success in america in the military is not based on who you are, but what you do. that is true of american life generally, and this is our opportunity to change that.

i want to ask just a couple of questions. the first is this. why do i say this policy has been bad for the military? the record shows that almost 14,000 service members have been tossed out of the military over the last 17 years not because there were dead soldiers, not because they violated the code of conduct -- not because there were bad soldiers, not because they violated the code of conduct, but because they were gay. in that sense, admiral mullen, do you feel we lost some critical military personnel, or that some who are gay or lesbian may have not enlisted in the military because of fear for what that would mean for them personally? >> i do not think there is any question about that. it with the issue of recruiting and retention, the report itself look specifically at the risk level with respect to that. it also flex areas that -- flags areas where we need to focus as leaders. one of the things i struggle

with is that we have lost upwards of 13,000 individuals. by implication alone, there are those that would choose not to come into have to go through that. in addition to that -- this is a very fundamental to me -- is this issue of integrity. we are in institutions and values integrity and ask other people to join us, work with us, fight with us, die with us, and lie about who they are the whole time they are in the military. that does not make sense to me. while they are here and able to do that, even in the policy we have, they are individuals who go to extraordinary spain -- go through extraordinary pain to sustain that lot. >> let me read you to me one of the more interesting and important statistics in the survey. only 15% of gay and lesbian service members currently who responded to the rand survey said they would want their sexual orientation to be known

in their unit. only 15%. here is a quote from one of those to the interviewer. "i think a lot of people think there is going to be this big outing of people flaunting their gayness, but they forget that we are in the military. that stuff is not supposed to be done during duty hours, regardless of whether you are gay or straight." that is the quote from a service member. just to make clear, if "don't ask, don't tell" "is repealed, the military code of conduct will apply to gay members of the military as well as straight members. just as a man who may sexually harassed a woman is subject to discipline, so too would a game number of the military who subjects another person of the same gender be subject to disciplinary action. >> the standards of conduct will not change one bit. the leadership requirements to

enforce those will not change at all. i fully agree with you. >> i wanted to say finally that i appreciate your comment about the integrity in the military. we're going to a tough time in american life. the american people have lost confidence in some of the great institutions of our society. the government, the we are a part of. the business community. probably the one central institution in our country the american people still have trust in is the american military, because it is committed -- individuals committed to one another. their mission focus is not who you are, but what you do. i think "don't ask, don't tell" is a stain on the honor of the u.s. military that we have a capacity to remove in this session of congress, and i hope we will. thank you, mr. chairman. >> senator in half -- inhoffe?

>> in 1993 and 1994, under the clinton administration when this was installed, i was critical. i did not think it worked. now that time has gone by, 16 or 17 years, there is no one saying now -- it has worked. i really believe it has worked. let me just get into it and ask the same question senator mccain asked in perhaps a little different way. right now, we have probably the best attention and recruitment percentages everywhere except the army guard, and there are other reasons for that. something that has concerned me is how this would affect that. when you look at the report, under question 71b, and you take the positive and very positive and negative and very negative -- the question is, "would

effect -- would it affect your unit effectiveness?" it is to 1 1/2 to one that they would have a negative effect -- it is 2.5 to one that they would have a negative effect. the other question is how is this going to negatively impact recruitment or retention. there is another thing that could be used. 23.7% would either leave or think about leaving, admiral mullen, the service. this is from the report. also, 27% of the military members surveyed said that repeal would not be -- the repeal would not be willing to recommend military service to anyone else. about 50% of the people who go into the military do so at the recommendation of someone who is already in it. are you concerned at all about what is going to happen to our attention and recruitment?

>> senator, the report properly flagged these issues. it is certainly something if implemented we have to focus on. i have not met a soldier, sailor, airman, marine, or coast guard member in my whole life who did not think at one point or another about whether there were going to stay or go. from my point of view, that focuses us on exposure and understanding. the report indicates how many, once exposed, it did not affect, including the combat arms, the marines as well. it did not affect unit readiness. that is the reality of exposure. there are clearly those, as the secretary of defense said, who have not been exposed. >> i understand your question, but you're taking up my time with your answer. let me ask one further question. why do you think only two-thirds

of the people who responded to this service? >> by every indication, it was an extraordinarily positive response, when you talk about 28% of the four moderate thousand service there were sent out to the men and women in uniform and the 150,000 to our families. that is more than statistically significant in all the key categories. >> i disagree with that and have talked to people in the field who said we did not respond because the decision was made. i think senator mccain already covered that. and quickly get this in, because i think tomorrow is the hearing with the service chiefs, but i think it is important to get it in the record. i think it is an important matter of keeping faith with those currently serving in the armed forces of the secretary of defense review be completed before there is any legislation to repeal. obviously, that did not happen. this legislation came through in

the form of an amendment back on march 27. admiral watkins says his concern is that less lead to changes -- if their input as the matter, where respond to it? general casey -- i remain convinced it is critically important to get a better understanding of where our soldiers and families are on the issue. it is important that repealing the law before completion of the review will be seen by men and women of the army as a reversal of their commitment to hear their views. they believed last january that before any decision was made that we would hear their review. halfway through this, the legislation amendment came right down party lines to go ahead and do that. this is what we hear in the field. a general of the marine corps -- now is the wrong time to overturn "don't ask, don't tell." u.s. troops remain in the thick of war in afghanistan. there is risk involved and i am

trying to determine that risk. this is not a social thing. this is combat effectiveness. that is what the country pays marines to do. i know they are coming up tomorrow and we will have a chance to ask them. brief answer -- do you think they are right or wrong? >> i think there is an opportunity to hear them before legislation passes, as they have asked in the past. >> secretary gates? >> i would just say there was another person who said something along those lines in terms of the review, and that was me before this committee in february, when i urged there be no legislation until the review had been completed. >> all right. lastly, i have heard several times that whatever happens here now is not all that significant because there is a final step, and the final step is that the repeal provision contained within the house and senate

would work as follows. once the law is enacted, repealed, and so forth, and the president, chairman of the joint chiefs, and secretary delivered to congress the recommendation based on these assumptions that come out of this report. that is not going to happen until that takes place. and yet, have we to this process, secretary gates and chairman mullen, and of course the president has made it clear, you have already made up your mind. have you already made up your mind so that this step is not going to be necessary? >> absolutely not. the certification process is a critical piece of the legislation. speaking for myself, i would not sign any certification until i was satisfied with the advice of the service chiefs that we had in fact mitigated, if not eliminated to the extent possible, risks to combat

readiness, to unit cohesion and effectiveness. >> even though you stated, "i fully support the president's decision"? >> that is exactly right. >> thank you very much, senator inhofe. senator reid? >> admiral mullen, there is a question and conference going back and forth. let me put a question this way. you seem to be saying that there is a high correlation between those who have served with individuals and who believe that unit cohesion will not be affected, and that there is a very low correlation between those who have never served with them and the question of cohesion. in other words, they feel it will be irreparably harmed. which of the conclusion i think

you're getting at, -- which leads to the conclusion i think you are getting at. the results are if you have the opportunity to serve with individuals you know or suspect to be gay, you do not have significant concerns about overall cohesion in the unit. is that your conclusion? >> yes, sir. >> and that is the conclusion of the study as you look at the correlation numbers? >> yes, sir. the study laid that out. additionally, the study found that should the law change, the difference between those who are actually deployed and in combat, their concerns were lower than those who were in combat arms but not deployed, because they are very specifically focused on the mission in combat at the time. >> i think that is important to emphasize again. let me understand it fully. those units that were surveyed,

there were deployed in combat -- their responses were less concerned about unit cohesion with the introduction of gay personnel? >> what the report shows specifically with those who were in combat situations, or had been in combat situations -- on this issue, they found their cells much more focused on combat and expressed less concern about the policy than those who were combat arms who were not deployed at the time. it is very clear that there were focused on succeeding in combat and succeeding in their mission. >> this survey data complement's the best proxy we have for this question, which is the experience of us -- of our closest allies. where do comment on what you are heard from the british sheets of service in terms of their royal marines -- would you comment on what you have heard from the

british cheeps of service in terms of their moral marines this -- the british cheifs of service in terms of their royal marines serving side by side with us? >> when i talked to my counterparts in the u.k. and australia specifically, the theme of from both cheeks -- chiefs was a lot of resistance up front before it changed, and then it was implemented without an issue in their own country. >> and you have had no comments from the field of our commanders who are working with these units questioning their combat efficiency? my impression when i go into afghanistan is they are eager for the help. they are impressed with their performance. is that fair? >> that are focused on -- their

priorities are not focused on this issue very specifically. >> general ham, you have conducted 95 forums at 51 basis. u.s. conducted 140 smaller focus group sessions. you handed out 400,000 questionnaires and received a significant number back. ultimately, there is a judgment about whether you feel the voice of the troops, the young men and women and their families, have been heard. i think you are ideally suited to make that judgment. is that your judgment? >> senator, it is. through the administration of the survey, that provided a statistically sound and analytically rigorous information across a wide spectrum of categories. but it was the personal engagement, face-to-face, that mr. johnson and i and other

members of our team conducted -- the on-line in box and other mechanisms that allowed service members and their families to voice their views. that gave us great conduct's -- great context and some of the things we addressed in the survey. >> mr. johnson, you stressed the pending impact of court cases which are unpredictable. but it seems there is a growing willingness of courts to step in and make decisions based on constitutional theories about the inadequacies of "don't ask, don't tell." as he said in your remarks, that adds another dimension that did not exist last february, when we started talking about how we do this. do we do it legislatively? do we do a survey? obviously, is that another factor we have to consider?

>> absolutely, senator. all three branches of government are very actively involved in this issue right now. >> secretary, in your opening remarks, you mentioned you had the experience in 1992 in the central intelligence agency. my perception would be you face some of the same issues, which were initially opposition within the ranks and within the public. but you ensured that policy was carried out. within the agency, there are analysts who were removed from small unit activities in the field and field operation. did you notice, as we have had this policy in place now for over a decade, any significant difficulties in getting field operators to accept it? they are the counterpart if you will to the forces in our military. >> no.

in fact, the policy direction i made in 1992 has now been in place a year longer than "don't ask, don't tell," and in talking to my successors, it has not presented a problem. but i would say just to be clear, as i said in my opening statement, that the circumstances and the intimacy, particularly of those in combat compared with those working for cia, is very different. >> thank you very much, mr. secretary. >> thank you, senator reed. senator brown? >> thank you, mr. chairman. secretary, we spoke privately. i appreciate that time. to speed the process, i have a couple of follow-ups to you and potentially the other members of the panel. given what senator inhofe said

about the participation, i can tell you from first him conversations when i visited afghanistan and spoke to members of the guard and reserve, half with through the process when the committee took certain actions, they felt it was a done deal. as a result, they did not participate in the survey. 28% does not seem like a high number of participation, regardless of the total number. it reflects the nature and total amount of service that have gone forth. is there anything additionally you can shed in terms of your understanding as to why the participation still was only at 28% and not hire? -- higher? >> let me ask general ham or mr. johnson to address the statistical significance of the numbers. >> senator, 28% overall response rate is well within the normal

historical range of department of defense service of military personnel. when we worked with the company which administer the survey, we wanted to make sure that the proportional number of surveys were distributed based on historical response rates by each service. in fact, each community within each service has historical response rates. we tried to account for that in the distribution of the service. having said that, there was some concern about the slowness, if you will, of the response rate from the senior enlisted leaders of the service, the secretary of defense -- many would send out e-mails encouraging service members and families to respond. i am comfortable that the response rate overall was within norms, and probably more importantly, that each category

that we analyzed had a statistically significant number of responses. >> mr. secretary, just for the benefit of the people that are listening and also for the committee, let us assume for argument's sake that we move forward and we say we are going to accept the report and are ready to move on and take that next step and repeal "don't ask, don't tell." could you explain what the process would be in your mind? a lot of the concerns i personally have a somebody still serving in the military confided in me privately -- the one to make sure the battle readiness and military effectiveness of our men and women serving is not affected. do you envision starting with the non-combat units, the guard and reserve, moving up that way and implementing down the road? how would the certification process work? what is your thought process in actually moving forward with that while not jeopardize and

retention, battle readiness, and effectiveness? >> first of all, i think the key, as the report makes clear, is training. both leadership training and training of the entire force. that is better than 2 million people. whether we would begin with one segment or not, i think we have not addressed that issue yet. but i would tell you that my personal approach to this would be that until all the training has been completed, until the service chiefs are comfortable that the risk to unit cohesion and to combat effectiveness of a change had been addressed to their satisfaction and to my satisfaction, i would not sign the certification. in other words, my view is that

before the certification is signed, everything has to be done to get ready. it is not something that i would start, that i would certify, while it was still in process, as it were. >> that could be four months or four years. i think this will take it to implement. i think people will watching to make sure we are not slow rolling the process. in needs to be completed. >> is it your testimony that you will not certify and so you feel the process can move forward without any damage to the safety and security of our men and women?

>> absolutely. >>, any further questions? >> it seems to be whether to allow the gays to serve openly. permitting them to serve a cannot openly undermines the basic values of the military, honesty, integrity, and trust. when that is undermined, it is undermined everywhere. they are expected to say that we did not want a by prevent you will not let me tell the true. how do we square this?

i think those that are legitimate concern that this will affect readiness and national security. yet we have the report that scene seek the somewhat overwhelming in certain areas, saying it is time to change the law. can you help me understand how we move to something where it is possible to tell the truth? i hear everyone saying that you have served the people who are ok. if he knew they were gay and the tenants and the men, were you lying or was honesty and low commodity? >> you had hit it.

you have hit at the core issue. i cannot square it. certainly, i think it does undermine who we are. we are an institution that is those significantly founded and based on integrity. >> i think you have already sent about the core values of honesty integrity and honor. they need to curtail. undermine those values?

>> yes. thank you prepare who is next burd? >> senator collins is next. thank you burda i apologize for my brief absence in trying to do a homeland security hearing. this is such a critical issue. i want to begin by thanking them by doing an excellent job spils. i want to thank you secretary gates for your thoughtful statement. i want to go through some of the

objectives that we have been hearing. could this day event? our troops were not asked whether they do not believe do not pass to not tell should be repealed. our troops are not asked whether they should be deployed to afghanistan. the fact is is given the extensive feedback that they did, and that they received,.

it does convey a sense of what service members think about repealing the law. even if a juror? not included. -- even if it does not included purd. does it fairly represent the views of our forces? skyp>> i believe it does.

the you are not close to ask the question. we did put out a 103 questions survey. they can predict the consequences of appeals for them invariably, the input we got was whether to repeal the current law or not. that was always a topic of discussion. a lot of that is reported. believe that we did hear

whether we could do this predicament. >> presumably, and there has been widespread enlarge percentage of subsurface members experiencing negative views, and you would have reported that, correct? >> as he stated, if the answer we got back was no we cannot do that, i would have had an obligation to do that to report it. says theal mollullen objection be here is that we can not implement this kind of change in the midst of a war. at by e-mail an excellent -- i i

made an excellent point that wartime facilitates change in some way. in fact, wasn't president truman's 1948 order to integrate our forces actually fully implemented during the korean war? >> it was. in fact, it says that when in necessitated integrated unit, army field officers placed white and black soldiers side- by-side. >> i find it somewhat ironic in the years that this list past

that there is a great deal of discussion in a lot about combat effectiveness at a time when we learn not at war. we are on our 10th year right now. we understand what it takes in combat and what combat effectiveness is better than we did back then by virtue of that experience. we have changed dramatically since 2001 burda it is in a position to facilitate e.ditional change for th i believe this makes us better and not wars. >> thank you.

>> i like to begin by clarifying an exchange that you had about the importance of the steady in terms of moving forward. i call an exchange the you and i had on february 2 of this year. and made it very clear that this survey was going to be vital in terms of evaluating whether we should move forward. i have held firm on that position. this was not a full committee.

i believe it is strong to listen to the people that are serving to consider their views. this is really an incredible piece of work. i was privileged to be able to sit down on a couple of issues to give my views about how important it is to listen to all different services purdah i believe you have really done the job. it is a three under 43 page report. this was done without the sizing and men and women in uniform. that is vitally important.

i would like to say that this report is probably the most crucial piece of information in terms of objectively moving forward. do we have any idea what percentage of the united states military today is [unintelligible] >> we do. it is imprecise. we cannot ask that question under the current law. they did some work in this regard. the estimate is that the population of about the same as the general population,

somewhere in the 2%/3%. lesbians are probably a higher percentage in the military then in the population. >> i like to follow on to a question that was asked earlier about the decision that he made in 1992 at the cia in order to eliminate this issue. there are elements in the cia to perform functions that are pretty similar to military functions, are there not? >> yes, some of them. >> have you heard of any foreseen circumstances based on your decision and those units? >> not one.

when we look at the disparity, with respect to combat units, i take a point in the steady at about the percentage of people who have served alongside gay members and having a higher percentage of a higher comfort level. do you have a different leadership approach? what are you contemplating? >> the report did a terrific job in flagging those areas. it goes back to what the secretary of defense says. until we have mitigated that, we

will do better than anyone else. i would not certify and so we have mitigated that it was -- we did not have the exposure from a training standpoint. >> i like to conclude by expressing my respect and appreciation for the work that general him and mr. johnson did on this survey -- missed -- general ham and mr. johnson did

on the survey. >> we are glad to take a five minute recess. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010]

>> i believe you are next. >> thank you burda secretary gate, and he said -- he said there less sanguine about the repeal. we have heard that in testimony. they told the committee a few months ago that the current law has supported the requirements of the marine corps. i would like to get a comment. how should we played the fact that there is not a consensus among the service cheese with regard to the issue? >> that you hear from ben tomorrow wrote despite their differing views that they do

have high regard for the implementation plan that has benefited get the you have to take seriously the views of the chief. if we take the steps that are recommended, can the concerns that they had the and just in the risks that they see been mitigated? our view is clearly that a camp. you can hear directly from then tomorrow.

they would he be there on his judgment on this for th there to pieces the need to be discussed prepared the first is the risk of the court's taking this out of our hands. i do not see it a better place prad if not now, when is a worth why pleasure. >> the current legislation

requires them to certify. pills consistent with the standards. is there any reason why they should not be also required that is consistent with military readiness? >> i think it came up this summer. i think he'd get to the point where you have 89 people. why not the vice chairman? i said earlier that my idea of when i think i could certify would depend heavily on the advice of the chief on whether

we have mitigated the concerns. the survey report has a section which discusses some of the main issues. the first one states that 44 is term of service members who have been deployed say effectiveness in a field in fireman's would be affected negatively by repeal. my question has to do with the risk level that you attach to that. it seems it is very vote for

repeal when you have 44% of the troops that are deployed. >> it is pretty complex burda there was a very much concerned teen figure. it says under intense combat, what would it be? as many with other experiences, when asked the question had the served in combat, it is rated

very highly. it is a matter of a gay member been in the genus prada -- unit. >> can you add to that? >> i would echo what general hamid said proposal -- ham said. predictions in surveys of what will happen or what you will do our valuable. ebay are of limited value. predictions are often reflected of attitudes. that is one reason why we also put a lot of emphasis on asking people about their actual experience of serving the people

they believe to be gay or lesbian. even in the combat units when people reported that they have the experience, the experiences reflect high numbers in terms of how it functions. >> my time is expired. you have nearly half of those still have been deployed to say it to be a very negatively affected. timmy that is really the bottom line issue. >> thank you. >> thank you very much for giving me the opportunity. and very honored to be here to hear the support and discussion.

i want to thank you for the work that you have done. i'm trying to get up to speed as quickly as possible. if this were to be repealed, is it all universal at one time? would they use their best judgment? is there going to be a mandatory implementation of one time? >> i think the question of whether there would be sequencing for different kinds of the units, whether the services would proceed at the same pace, this is something i

think very few offers a good implementation plans in terms of training and leadership and what needs to be done. i would give great weight to the views of the service in terms of how to proceed. it calls for 100 billion. do you have a cost associated to the implementation? >> it is probably minimal there is one part that i disagree with. that is the idea of looking into

a new benefit for single members of the services that have basically a begin of their or a gay and lesbian partner prepare. they are concerned about this partly because of the cost in the open ended overglazes of us. we are trying to deliver the store married members.

>> would cause them to deliver a moral message? would that cause a problem? >> we send a lot of time focused on the community. it is our vehicle that if repeal is brought about this would not require a chaplain to change what he preaches prevent the duty is to care for all. he could council and a particular service member on the issue of homosexuality.

we hear a lot of concern about if it will require me to change my read this -- my religious beliefs. the answer is no. >> there are definitely some pretty strong views. i would not presume that everyone will stay in the academy. i also heard that it takes years to their obligation to pay for all. i anticipate we would have just as many. we feel repeal is the right thing to do. >> general ham, if i may.

there were concerns about combat readiness. in a military, how did they handled the situation? they are a small force. they have the opportunity that if there is a service member here has different religious views, they can move that from one unit to another without major disruption. that will be an impractical solution.

do they have a do not ask do not tell 1. >> i have the highest respect. they do not have global responsibility. they can have same-sex partners in continue to serve. >> thank you. >> this has been a difficult issue. we say thank you for the work you have done. thank you for your service. and you say 10 that he served

alongside gays. you knew they were gay. i do not think there is any question. we know we have gay and lesbian members serving in every branch of the service. they serve with valor. is that correct? >> you said they served under your command. can you tell us a time frame? when would they have certaiservd under your command? >> 10 years later in the mid-80 earlynd mid-90's and 2000's. up through 2004-2005. >> in those first commands when new their word gay and lesbians serving, what was the blog?

y were notuals, ther allowed to serve. if the conduct was exposed, they were discharged. >> will be responsible for discharging a number of those? >> absolutely. >> did you discharge everyone union was get that time? >> essentially, it is a kind of defense. this is before did not ask do not tell. it you were known to be gay or lesbian and it was brought forward, and then had to be brought forward in the context system. they were discharged, and every single one. i did this. i saw this. >> did that happen impact on morale? -- have an impact on morale?

>> at the time, it was not noticeable. secretary gates, had you read the report? yes. i want to read from paragraph two. it is part 6. here is what this said. there is an important caveat. if they were to add him to divide these sentiments we heard expressed, and on-line communications, our sense is that the maturity and views expressed were against repeal.

you are basing this on a 28% response to this. do you think we ought to repeal this? can we implement it? looking at this section, it is pretty clear that the authors say that a majority of those that they interviewed across the spectrum were opposed to repeal. does that change your opinion as to whether not this lot to be repealed? >> they came to many of the forms.

there were motivated to express an opinion it was important. it is not statistically and important. the surveying was more reliable in terms of gauging the 04 obvious. >> i am surprised by that. what it yet to an assisted by a dozen members of the military? your response was basically the same. i did nothing that'll happen. >> what did they resigned over

the next short amount of time. what are you going to do? >> it did not say it was not important. very few people can leave immediately. people would be around for the rest of reenlistment predell as you heard, the experience would dramatically lower the numbers. if they are given the complementary, i would have second thoughts. >> i describe the difference between what i told was

significantly significant and the importance of the individual views. >> thank you. >> colletti thank you for the compelling testimony. there was a concern that was forced by the court. you will not have the opportunity to professionally implement the change. it is from action to sit. the massachusetts.

would you share with us what harm might be caused by having a court ordered repeal of this policy? what kind of differences might this produce? >> it the decision were to be similar to the district court order that was handed in october, we would have zero time to prepare. there is no time to train or prepare. that is the worst imaginable outcome. it has very high risk to the forest.

it is more phased in. >> i would endorse what the secretary said. this is a report. this raises the risk of being able to mitigate that in a way to prepare it to be much more disturbing. i found this compelling. many allies currently allow the service and those who are openly ks in lesbians. -- gay and lesbians. what could we learned from their experiences?

>> it is an important part. there are lessons learned from countries 11 through this. i have gotten no the fact that this is in issue. >> this is the end about bayous and integrity.

there currently by this policy required to consult aspects of who they really are. are there any other parallels are lessons to be learned from racial immigration from a different time when the armed forces were asked to undertake what was perceived to be a difficult and socially driven changed? it has been a very positive impact on military professionalism and service. >> first of all, it is worsth noting that most of the injured patient to place during the -- to place during the war.

we have to be honest and straightforward about this. the social changes have not been particularly easy. the integration was taking place over five years. we had serious racial problems within the services. it has been a number of years since we have admitted women into the armed forces. we have a continuing problem of sexual assault predic these are human beings we are dealing with. i think the report is honest saying there will be some disruption purdah. this is a matter of leadership and training.

thank you very much. i want to close by saying i draw great confidence from today's testimony in the ability of u.s. leaders of the forces to implement any change we might recommend. thank you. >> thank you. >> thank you. let me ask you about a couple of statements he made in a prepared statement to this committee. you comment on why we did not ask the question to the military members. do you think changing this law would be a bit idea? do you support this change? there determining whether the law should be changed. and justification of that

decision, you say the president has made his position on this matter clear. on the second page. when discussing the various forms of litigation that are occurring, you say it is important that this change come via legislative means informed by the review just completed. would you understand if i said that it seems that you are saying that the other two branches are sort of painting this congress into a corner? i'm the one hand, the president has made a decision. we did not take april survey of military attitudes. we assume the decision would be made.

we as remembers how they would respond. on the other hand, we are seeing although this is technically a legislative decision, the court is closing in on you. you really do not have much choice there. would you understand it if i sell a contradiction? >> make a couple of things clear. the president cannot change this law. but that is correct what the president did was say that he would like to see this law repealed. there are not enough fingers and toes in this room to count of the times are president has said that he wanted to see a lot change. he expressed his view that he wanted it changed. he cannot say anything about it. the only way to the change is if

congress acts are the courts overturn it. the executive branch is the odd man out. the action is either in the courts are in the congress. with respect to pulling these services, i did not spend a career in the military. i cannot think of a single precedent in american history of doing a referendum on a policy issue. are you going to ask them if they want 15 months to wars? this is not the way our military has ever worked in our entire history. the question needs to be decided by the congress or the courts. >> were you troubled at the answer we might have received?

d think the law should be changed? >> what would have been the harm in giving that information to the body they look knowledge in your statement is the ultimate decisionmaking form? >> i think during a referendum on a policy matter is a very dangerous path. >> do you think the answers to the question would have been different if we ask them out right? >> i think as they had testified. there, through the many questions and the survey, you view of they clear vi

four said the change. i think what it has highlighted are those areas of the forests that are clearly going to need the greatest attention and focus in terms of training and leadership. part of my consideration is gone back to the consideration one with the love we would do. >> i do not have a clock confronted me. >> i have not been given nuts. to secretary k. and to mr. johnson, leland knowledge --

will you acknowledge that there is considerable difference of opinion out there as to what the lower courts have actually said about do not ask cannot tell in regard to supreme court precedents the will you commit to this congress that until such time as the law is changing, that you intend we will defend the litigation. >> it is my job to defend the law as the congress to give this to it.

it is our obligation to defend the lollapalooza -- law. i've was saying that there is definitely more of litigation activity. i suspect there is a trend that is taking place. >> to acknowledge the role of the legal department is still too zealously defend the not ask did not tell stat sheet? >> absolutely.

>> i have an awful lot of competent the de -- comments. >> i think it shows them the military of leadership in the country. i will be honest with you. i was not a member of the senate spur th

i had some of those partisan tendencies. i assumed that he may not call the strike. i think he called it. now use certification president obama prad i think you represent the highest tradition of civilian leadership that we may have ever had. i want to congratulate you for that. i think he can serve two parties. we can always stay focused on what your function is, to defend this country and showed the honor. i want to congratulate you. i think this is been a challenging one.

i want to remind everyone about the timeline of the integration of our services. he did something that was beyond controversy over any integrated the armed services. it is more than a dead a letter -- a decade later that congress into the civil rights act. i would ask anybody that can comment on this what the acceptance is a change in these policy compared to the expectant that was in the military that president truman integrated the troops? >> let me try to answer that. i spent a considerable amount of time looking at that racial integration th there were surveys done of the military then.

the sample sizes were much smaller. the opposition to racial integration ran very high it was like 70% or 80%. you are dealing with much larger numbers. by 1945, soldiers were about 700,000. this is before integration have been accepted in civilian society. >> i think at the time they went into critic, and a black person cannot stay in the same hotel with white people. is that correct? >> by 1953, 95% of army units were integrated. it was much more intense and the opposition to gays serving

openly today in the military. >> i understand one of the common concerns of the members was a theory that some people would be kidding special treatment. if this policy is repealed, would lead to a special set of benefits? >> theirs and not be any special class, that everybody be treated the same. >> what a but on the recruitment process? will there be any questions asked? will there be any special

tracking in terms of us trying to have some sort quota or intent to distinguish from one member to the other based on sexual orientation? >> now. people would be evaluated and promoted on the same basis that they are today. that is their competence and fitness for duty and talent. there is no consideration for any changes. >> we have had our challenges. categorically, we are in a much

better place as a military because of the steps taken. a correct my time is up. thank you for your service. >> thank you. this is a difficult discussion. it was predicted it would pass some destructive effect on the military. i believe it probably has. it has probably not been good for morale. i am inclined that do not as to not tell has been effective. i fully recognize that good people can disagree on that subject. i would say that i think the courts are quite clear on

matters like sex or race. you cannot have discrimination. this does more with actions. . .

several references have been

meanade that the courts are on their way to overturning this law. the solicitor general ardently opposed this policy and even going on the harvard campus. they rendered an opinion, it is 14 defendants challenging the law halt. the representatives did not want to appeal the case they lost to the supreme court. i conclude that this was likely

to uphold the statute. they want to have the case appealed and -- said that the california one would be a bad one, they agreed to wait until the california case came forward. you wrote a case that acquiesced in the court of appeals, in case a through the lower court to take hearings on how that individual would impact the military personnel.

this would eliminate the ability to enforce the statute. he said that this would allow the department of defense to demonstrate that the discharge was appropriate. this was not the legal opinion. i gave the solicitor general 20 minutes to answer that question. i believe that the record is clear that the department of justice and you are acquiescing as counsel and you did not take the first circuit case because

you wanted to have a cloud over the legality of this matter and you did not want a clear decision and then he would have an additional argument to overturn this statute. you are now the co-chairmen of the commission. what was your vision about this issue? you are for repeal of the law, were you not? >> i have two responses. first, on this case, we spent a lot of time thinking about

whether or not to recommend this and ultimately we did not petition for two reasons. we did not think it was a good idea to push this issue to the supreme court. the factual record was basically her own allegations. second, we recognize that we would have the opportunity to revisit the issue on appeal. >> that case could have already been decided by now had you taken what i would consider to

be the appropriate position which was to have supported the appeal. >> the first circuit case, it was up to the plaintiff to appeal. >> why didn't they choose to appeal? >> in that case, the court decided to hold us to run intermediate level. that is the first time they have done that. the courts have held that we should be held to an intermediate level versus the level of scrutiny that we typically got in these matters of the military. the other thing that i would like to add is that at the outset of this opinion, it was

clear to me. first of all, i worked with the secretary of defense. it was clear to me from the outset that if we felt that doing this would be bad, i should report this to the secretary of defense and he would help pull the support that. >> i would just say that clearly the case should have been appealed and i believe he could have gotten an opinion from the supreme court that would have affirmed this statute. there is no history legally that would have suggested otherwise. we would have some of our top military leaders who would say that the reason to change this is a legal decision, never mind the statute.

>> let me begin by thanking you for the thorough and if lawful way in which you have conducted this review and the way that you have explained the conclusions. your comments were very heartfelt and will be remembered. the study confirms what many of us have heard for years, don't ask don't tell can be disrupted without hurting the military rate. many have agreed that this forces the gay service members to live a lie.

we have learned that they can destroy morale and order. i listened to add ramallah and others who have served. those lies affect straight service members as well who have knowledge about their fellow service members and they are called upon to hold close. it is clear to me that we are on the right track. the vast majority of americans believe that we should appeal a harmful law. we have learnt that our service members support moving forward. i am not a statistician, i don't think many senators are statisticians.

>> you have shared with us the breadth and width of this study compared to previous surveys that is surrounding immigration of the armed services 50 or so years ago. i think that we should listen to secretary gates. he said it did this week and on numerous occasions during this hearing that an appeal by a federal judge would be much more disruptive and damaging than a conscious throw approach to appealing this legislation. the best way to move forward is for the senate to make clear

this is the will of the senate. secretary gates, this is not a done deal once we act. the process must be certified. secretary gates, you would sign off. you made it clear that it would take into account everything that was learned in the survey. my congratulations to you and my gratitude to you for taking on this very difficult subject. >> some have said that this is not a failed policy and if there is any failure, this is on the part of the case service members to -- who did not keep their sexuality a secret.

personal e-mail has been searched and they were used against him. would you agree that the air force would have retained him if not for these zero events? would you agree that they suffered a loss with his discharge? >> i am not familiar with the details of the case but in general, this is very important that we retain anyone who has talent and is in fact contributing despite their sexual orientation. to agree that that case represents the action that is associated with the current law,

i consider that to be both action and energy and leadership and focused on iran sector. i know that there has been adjustments to the execution policy that secretary gates has made over the course of the next year to get at the kinds of things that you described and they would be executed in a more balanced and fair way and that is what it sounds like you are speaking to. that kind of action would not be taken now based on the changes that have been made even in the current law. >> i direct an additional question to you. i know that despite your years

of experience, it has been suggested on a number of occasions and even here this morning that somehow the views of the service chiefs on the appeal are somehow more informed than your own. would you speak to that point of view one more time. >> i would agree with the secretary of defense that this is absolutely critical. i spent a lot of time with the service chiefs on this. i have incorporated their input into my device. orion will say that all of us,

all six of us agree that the implementation plan that is laid out in the report is a very solid way ahead, typically. they will also say that if the law changes, they will lead the way in implementing it. the growing up in the military where unanimity is something that we seek in order to execute a policy, we do what we are told to do. >> i would note for the record that your testimony earlier this year and your testimony in the thoughtfully crafted and well delivered -- thank you for your leadership. >> thank you very much, senator. >> thank you, mr. chairman.

i would like to say thank you for your time and testimony. the commander in chief has stated explicitly that he would like don't ask don't tell repealed. you have both gone on record in the court of appeals. it is the responsibility of congress to make this change of the law. i support moving forward and i personally believe that this is the right thing to do. this discharge of highly qualified service members is unnecessary. i wanted to go over a question has to do with the professionalism in our armed forces. the listened and the oath of office that our men and women take as the into the armed forces is not just a political ideology or party.

are there any findings into said there would be a departure from that commitment? >> no. we heard loud and clear from the most junior service members to the most senior that if the law changes, they will make that happen. >> since the implementation in 1993, over 13,000 service members have separated due to their sexual orientation. will the service members that have been discharged under that provision be allowed to return without prejudice? i enter stand that most service fares have been discharged, they

are seeking an honorable discharge and a half and we enlist code which makes it unlikely that they would be accepted back. i understand that this code means not suitable or desired for continued service even if the separation is under honorable circumstances. the working group recommended that service members be allowed to reapply. i am curious what that code actually would mean in this case. >> what we're recommending is that the service members that was separated pursuant to the policy be permitted to invest like anyone else. if there is an indication that they were separated for reasons of, sexual conduct, that might be considered for reimbursement in all of their respects.

>> do you think any people will? >> we spoke to a number of service members who are gay and lesbian who said they would welcome the opportunity to seek reimbursement. >> well, as i have said, this unnecessarily creates a barrier that impedes our service from rising to the highest levels of responsibility. i think that -- what steps will be taken to make sure that they are treated under the same general principles of military equal opportunity policies while at the same time not elevating them into a special status that

would receive special treatment? >> there is no plan to put anything in place. i would not expect anything along those lines. >> i would like to tell you that i think you for this -- i thank you for this hard work. i appreciate you working on this. >> senator gramm. >> thank you. thank you for what you're trying to do for the country. there are some strong opinions in the study. the numbers are pretty astounding to me in terms of the people who say they would feel

comfortable with the policy change. when you look at combat units, the numbers are pretty strong that the policy might be disrupted. we have to balance what we would do. could you explain how the system actually works in the army, navy, air force, and marine corps? what kind of evidence is used to discharge someone? what would lead it to discharge? i think that there has been some substantial regulatory changes. we are pretty impressed with the air force decision. it would help to know exactly what kind of events would lead to discharge. the changes have cleaned up some of the abuses in the past. >> i would be happy to do that.

as we noted in the report, possibly 85% of separation where a member himself makes a statement. the law is repealed, obviously. someone says, i am gay and that is irrelevant. >> in general, this is not a situation where people are hounded day in and day out. we're trying to prevent that. the rich literature changes that you have made has limited the discharges to situations that you just described. we can debate among ourselves if we want to take the final step. the changes have been substantial in terms of the type of evidence you would use. admiral mollen, what has led to

your change in thinking? >> well, fundamentally for me, senator gramm, it has been the mismatch of an institution that i have been raised in my whole life, the values of integrity. we have thousands of men and women were willing to die for their country and we ask them to lie about who they are every single day. i fundamentally think that that is wrong. >> i and the stand. >> i worry that this is corrosive over time. this is particularly during a time of war where we are focused so heavily on emissions that this undermines in ways our

ability to do what we need to do because of the leadership focus turned down -- leadership focus. >> i will ask a question that is tough for a navy guy to answer, why did the marines think the way they do? the commandant of the marine corps is in a different place. there is a difference of opinion and that needs to be known and understood. >> it is not just the marines,

this is also in the army as well. some are trying to figure out their own cells. it is that combination of things and the focus with an awful lot of marines in afghanistan for me, it is that focus. i'm not sure if it is that different than it is the exposure. >> i don't know how the courts will come out on this.

can you may be supplied to the committee in the event that this is struck down, some of the things that you would like congress to do. maybe you should send us some information, the game plan for congress and a way for congress to get in and handle the transition if this ever did happen. i don't think that we will lose but who knows. you have served longer and with more sacrifice than i have so i certainly defer to your leadership. i've not heard a lot of people

say that i wish this policy would change. i understand that civilian leadership in our country make policy and that is the way it should be. if you ask the question, are you comfortable with the dawn ask, don't policy, and should be changed, what kind of response do you think that you will get? >> it is hard to know. i think you could get answers on both sides. one of the reason why this is so important because six months ago we were just talking about anecdotal evidence. we did not have anything that was comprehensively done. we are much better informed. >> the question was not asked that way. >> we are not asking you to turn

the war into a referendum. you do what you are told. this is a pretty significant change. passing a statute, repealing the study was a bad mistake. we should be listening, not dictating. i hate them not asking the military to make its own rules. i am asking us to listen a little bit better and asked better questions. >> thank you. i stated that the secretary would be out of here by noon. we will have a second round. the senator is willing to put

his questions first in your around. >> thank you, mr. secretary. i would like to begin by thanking all of you for your service to our country. of the last 8 years, one of my pleasures has been to serve in -- has been to serve on this community. i would like to say to my colleagues that while i have a difference of opinion on some issues, i know that some are heartfelt and trying to do the right thing in this country. i come from a state that honors our military. the american legion is headquartered in indianapolis.

there is a north-south axis of streets going through the north- south axis of our city. we care about the national security. this is part of my dna. this is where national security has to come first. if you have competing values, you take care of national security first. as i and stand your testimony, mr. secretary, we can make this change without impairing our nation's security. is that the reading of this study? >> the way i would answer that question is to say i would not sign the certification if i did

not think that we were safeguarding national security. >> other nations have made this change and some of the concerns that my colleagues hold did not come true in terms of retention or morale. is that also a correct reading? >> yes, sir. >> in fact, when we integrated the armed forces, some of these were concerns but these were also not realized. >> as i indicated earlier, the organizational integration took place between 1948 and 1953. we did have racial problems for a number of years after that. to disciplined and training and professionalism, i think they have largely been eliminated. >> our national security has not been harmed. >> it has been enhanced.

>> at ramallah income my your change of my friend, i cannot help but think that if we did pulling back in the day, you would have found an opinion about the racial integration. we would not have been degraded the armed forces following that line of logic. here's the point that i am making. i've always held that our nation is strongest when we pursue our nation's security consistent with our values to the extent that we can. there seems to be something fundamentally wrong. we asked men and women to lay down their lives for our country but they cannot be honest about who they are. there something fundamentally wrong about that.

if we can restore our nation's security without putting them or our country, institutionalizing hypocrisy, i think america is stronger and we are a more just and secure country. that is the issue that comes from this. it has been an honor working with you. >> in your testimony to my colleague, i indicated that to the extent that we know, to%-3% to serve in the armed forces are gays and lesbians. is that correct? >> yes, sir it is. >> there's no reason to believe that that has changed over time. >> the best we can do is to try to get an assessment of where we are. >> in all likelihood, there were gay americans that get as burr, valley forge, normandy beach,

iraq and afghanistan today. and all likelihood, that is probably true. >> that is very reasonable assumption. >> there are probably gay americans buried for in arlington ceremony. people have laid down their lives for our country. >> i think that that would be a reasonable assumption. >> what do we say to them or their families? they have laid down their lives but if we knew who they were, they probably would not be buried there, they would be he drummed out of the armed forces. >> my response to that would be based on the oath that we took that we support and defend the constitution of the united states. that means we follow the law. we have to do that. >> i guess my point is that if

there americans were willing to lay down allies for our country, makes that kind of sacrifice, and we can enable them to be that kind of patriot without harming our national security, is that better for them, for us, for our country? i want to thank you for your service. it has been a pleasure serving with you. >> thank you, senator. >> i don't have any additional questions, i just want to comment as to why i am here. we are here because the president made a promise. that is not why i am here, that is not why the majority of us are here. i'm here because we passed a law in 1993 which we believe is

discriminatory. it has changed since then. maybe we should respond to those changes. there's the attitude of our people, the acceptance of gays. i am here because we have men and women who have died for this country who are gay and lesbian. we should not discriminate against them, we should honor their service and patriotism the way we do of any american who is willing to put on the uniform of this country. that is why i'm here, not because of some campaign promise a president obama. my conscience tells me that the time is to allow men and women to serve their country and to do so without having to reveal their sexual orientation.

>> thank you, mr. chairman. i regret that i did not ask additional questions of the secretary of defense. we would like to point out that in 1993 and the time of the enactment of don't ask don't tell, but general powell was asked about the issue and comparing this to the racial integration of the military. he said that sexual orientation is different from their pigmentation of one's skin. i think that that was an important statement. i am taken aback by the statement that we will not have a "," -- that we will not have a

"referendum," on men and women in the military. everything i ever learned about leadership, everything i ever practiced about leadership, every great leader i've ever known always consulted with their subordinates for their opinions, no matter what the issue. certainly, this issue deserves the leaders taking into consideration the views of their subordinates. that does not mean that they are dictated by the subordinates. i never made a major decision in the military without going around and talking to the enlisted people, the ones that would be tasked to carry out the mission. i am almost incredulous to see

that on an issue of this magnitude, we would not at least solicit the opinion of the military about whether it should be changed or not. those might be rejected, those opinions for the sake of the security of the country might be discounted. to somehow say that we will not have a referendum, this is not a referendum. that is not what leadership is. leadership is getting the opinions of your subordinates and therefore carry out your mission. to say we did not need to ask their opinion and whether it should be repealed are not violates my view on one of the fundamental principles of leadership. the secretary said he had concerns about the benefits that would be allotted to would be

eligible for. >> one of the things that i pay attention to and every leadership position i have been in is -- what motivates what they think and how they think. clearly, they're the reason that any of us is able to accomplish any mission. what i think the report has spoken to in great part is there a opinion on whether this can be successfully done or not. from my perspective, very much by implication of where they are. >> i think that this is an incredibly bad precedent to ask them do essentially vote a

policy. >> they are expressing their opinion. this is whether they would agree or disagree on the change. the same way he would ask about any policy or course of action. for you to sit there and say you would not want to ask them their opinion, that to me makes this a bit unrealistic. >> i disagree with the approach that we would go out and ask them for their opinions on this. >> but >> you would not ask them

your opinion. >> we have a great part of their opinions on the result of this survey. >> i don't know why we simply didn't ask them why they felt about it just as you would any other course of action. every great leader i have known have said what are your opinions on this issue. it would be important to include for the record, this survey, those who served in combat and those are homosexual, mostly negative in the army. most of deployed in a combat environment since 9/11, they completed this mission in a field environment or to see if

don't ask, don't tell was repealed and there was a gay service members in their unit. 57% would agree in the army, the marine, 66.5%. those deployed in the combat units since 9/11. army combat, very negatively. it should probably not surprise us to hear the views of the commandant of the marine corps in his testimony to mark and perhaps the other service chiefs. can i continue? >> we will have a third round. >> thank you, mr. chairman. thank you to the witnesses. on the survey, i just want to get a few things on the record.

as i understand it, you had an independent group sent out a survey to over 400,000 members of the military. is that correct? this is more than 100,000 that responded. >> it was 115,000. there was a poll by pure research nationwide on civilian attitudes and the sample size was 1200 people for the whole country. this was a sample size of 115,000. >> we based a lot of our decision on samples and our standing which is a lot smaller than what we have had here. my understanding is that 20% is

actually a pretty high percentage response to a survey questionnaire sent out. >> this is average. >> did they give you any indication of a margin of error and reflecting the views of the military? >> given the size of the respondent pool, the margin of error is less than 1% which is lower than what you normally get any kind of survey. >> ok. >> secondly, i want to go now to this question that you have been asked about and the negative impact of don't ask, don't tell on military effectiveness. one the things that we have lost or wasted when the military had to discharge 13,000 people is the money that we invested in

training them. i saw one estimate that was as high as $500 billion. i don't know if you have a credible number but do you agree that the implication of this policy over the past years has meant that we have lost the services of a lot of troops that we invested a lot of money to train what we needed them to do? >> i think the number is about right but i don't have a financial impact. clearly, we to invest a certain amount of time, money, resources, in to people that we train to carry out these missions. >> i assume it is correct that among the 14,000 was a significant number of troops that we call mission critical. translators, intelligence analysts, perhaps health care

personnel, is that right? >> yes, sir. i agree. >> let me go back to president truman for a couple of questions. when he ended racial segregation in the military, he did so by executive action. >> that is correct. >> he was able to do so because there was no longer as there is in this case that prohibited him from doing so. >> that is correct. >> while it is true that president obama made clear in his campaign that he would act to end this policy in the military, the fact is that he cannot do it himself. congress must take action to give the president essentially the same latitude for executive

action that president truman had from his time. >> yes. i agree with that way of looking at it. >> in terms of the question about what impact looking at the numbers, during truman's time, it was an army that was there because they were conscripted. i suppose any impact would have been seen in reenlistment rates. is there any evidence on the impact of the racial desegregation order by president truman on reenlistments in the military. >> yes, there might be evidence to that effect in the report. i don't recall any offhand. as integration was occurring and this is reflected in the report, there were studies that

indicated that the combat effectiveness of integrated units in the korean war was just as good as it was for segregated units. if i could add, i happen to agree with senator mccain that matters of sexual orientation and race are fundamentally different which is why in this report will not push the racial integration factor too hard. i do think that this is relevant in that in the 1940's the some of our most revered heroes in the world war ii. general eisenhower, general nimitz, general marshall, negative consequences for unit cohesion if there was racial integration. there were limited surveys which were done which indicated a very strong opposition to racial

integration. we did this and it took some time, not without incident, but we did it. the chairman says that our military is stronger as a result. >> thank you. >> >> thank you, mr. chairman. >> i have a couple follow-up questions in the testimony as well. i also agree with senator mccain, we should have asked the question, do you favor the repeal of don't ask, don't tell. you ask everything else but everything went right through the jugular. as someone who has served for 21 years, i was a lieutenant colonel in the jag.

i think that we missed a good opportunity. it certainly would be nice to see where everyone's heads are at. i think it would have gotten more of a response, potentially. that being said, i visited this time. i had him opportunity to visit walter reed. i still cannot get out of my mind the one time i saw a soldier who lost both his legs at doing crunch is trying to get his torso strength so that he could have a viable and fulfilling life. men and women have not only given their lives but also their lives. i've been to many funerals in my home state for the soldier. one thing in never ask is if they are gay or straight. this never crosses my mind,

actually. this is very uncomfortable, this whole situation. i know for a fact that there are good people on both sides of these issues. i want to try to zero in for our viewers and for the people in the audience, a couple of things regarding the legal part of it. first of all, has there been any instance where a soldier has said that for the purposes of only getting out of the military, and do you have any records or documentation of people trying to avoid this service as a result of that action? >> yes. there are very strong indications, particularly

during time when the economy happens to be strong. service members would make statements. when i was the air force general counsel, we had a litigation where a service member had right after ask -- or after we pay for his medical education, he declared he was gay. then be sued him to get the money back. that was in 1999 or 2000. very often, there are cases where the service member is in his tour of duty, the completion of training, the completion of education. the implication is a pretty strong one that the mere making statements to get out of the military. you cannot do that. >> i know that once you sign the contract, there's a question about what if to under 50,000

decided that they wanted to get out. they cannot get out. they have a contractual obligation. unless they do something that wants them being discharged, they have to fulfill their military contract. >> this this an accurate statement? >> yes. >> who do you work for? >> i am a senate has confirmed president and i serve at the pleasure of the -- but i'm a lawyer for the secretary of defense. i take this pretty seriously. my political loyalty is to the president and the obama administration. my professional and fiduciary duty is to the secretary of defense and to me that is a

higher occupation. >> it says they want to do away with this policy. you are representing him and those actions to do that. there is a line of questioning from a couple of senators who say that you were zealous enough in actually defending the position of the present law right now. do you have any comment on that? >> well, at the outset of this, the secretary made it very clear to both of us that he was very concerned that before we move forward, we have to have a comprehensive assessment to know what the views of the force were and dramatically in gauging the force. he wanted to be informed by our review before me and for the opinions he has expressed today. he expressed support for repeal in february. i believe that at ramallah and

said the same thing. he wanted to know the views of the force and to have this report done. in terms of defense of litigation, we have made the strategic judgment not to push the case to the supreme court back then on that record. i believe that was in the best interest of the department of defense. >> man have the courtesy of one final question? >> we will have a third round. if this is ok. >> thank you. >> on a legal part of it, you kind of touched on this. i just want to make sure i understand. it is your opinion that if in fact we don't do something that there is imminent fear were concerned that the courts will in fact act and as a result we will in turn not be able to implement it in the manner in

that the military and the department of defense does do you have a professional opinion as to what the timing is? is it this week? is it next year? >> well, i'm not here to express an opinion on the constitutionality of the law. that is for the courts bee. in terms of timing, i think that we are in a very unpredictable environment. we got a case of that in october. all of a sudden we got a court order which requires the secretary to shut down this policy worldwide. we were faced with a situation where we had to get the word out and immediately what came

back was a barrage of questions that we deal with in this report. that was a very uncertain situation which i would like to and never repeat. this is on expedited appeal track. >> what does that mean? >> it means that this is briefing to the ninth circuit and this will be done i believe by march. they have not told us when they will have an oral argument in the case. i expect it will be in the first half of 2011 and we can have a decision very shortly after that. >> thank you. >> thank you, mr. chairman. i am sorry that the secretary of i am sorry that the secretary of defense is not here.