JUDGE DECLARES ‘DON’T ASK, DON’T TELL’ UNCONSTITUTIONAL

By Miriam Raftery
Former ECM intern Joseph Rocha gave key testimony at trial

September 10, 2010 (San Diego) – U.S. District Judge Virginia Phillips ruled yesterday that the U.S. military’s “don’t ask, don’t tell” policy banning openly gay soldiers from serving is unconstitutional, violating the First and Fifth Amendments. The judge found that the policy has a “direct and deleterious effect” on military readiness by hindering recruitment in wartime and requiring discharge of service members who have critical skills or training.

"I am overjoyed that so many veterans and active duty members have been honored with justice. The decision upholds the constitution proving that no patriots blood is any less valuable in the defense of our nation." Joseph Rocha, an award-winning ECM journalism intern who testified at the trial, told ECM in an e-mail this evening. A former Navy dog handler, Rocha underwent 93 counts of abuse at the hands of an officer while serving in Bahrain.

Read our prior coverage and interview with Rocha on his ordeal. View his testimony (pagse 27-34) here.
 

His mentor and best friend, Petty Officer 1st Class Jennifer Valdiva, a Sailor of the Year and second in command of the unit, tried to stop the abuse of soldiers. Instead, Valdiva was threatened with charges to intimidate her into silence. She committed suicide as a result.

Log Cabin Republicans, a gay-rights GOP group, sued the federal government in 2004 to stop the don’t ask, don’t tell policy. The U.S. Justice Department could appeal the ruling, but has not announced yet whether it will do so.
 

U.S. Defense Secretary Robert Gates and Joint Chiefs of Staff Chairman Admiral Mike Mullen have both called for repeal of the don’t ask, don’t tell policy, but have stated that they wanted to wait on implementation pending completion of a military review of the issue (including surveys of troops and their families) due to be completed in December.
 

“I am proud of my son and it makes me sick now to read the Navy documents detailing the abuse he stomached in order to try and save his career,” Joseph’s father, Jose Rocha, wrote in a letter to the U.S. Department of Defense general counsel Jeh C. Johnson and to General Carter F. Ham, commander of the U.S. Army in Europe. “ He is a brave young man and a patriot. I know now first hand that the old ways are not always right and I ask that you encourage your superiors to end “Don’t Ask, Don’t Tell.” Please allow my son, Joseph C. Rocha, and countless like him, to resume their military careers.
 

Rocha gave up a commission to attend the U.S. Naval Academy so that he could speak out about the abuse that he and others endured, knowing that speaking out while in the military could end their careers.
 

Advocates of overturning don’t ask, don’t tell hope the U.S. Senate will now act to repeal the ban.
 

U.S. Senator John McCain has called it “disgraceful” to push for a repeal before completion of the Defense Department’s review.

Rocha told ECM that a Senate vote on repealing DADT is expected within the month, dependant on approval by the President, the Secretary of Defense, and Chairman Mullen by December 1st.