Don't Ask, Don't Tell Has Made Life "Worse Than Ever" For Gays In Military
February, 1995
SAN DIEGO - Almost every Gay, Lesbian and Bisexual person in the universe by now is aware that the military's policy on homosexuals is "Don't Ask, Don't Tell." It's been 18 months now since President Clinton agreed to that compromise, after unsuccessfully trying to lift the ban entirely.
The new policy was supposed to make life in the military much more bearable for Gays and Lesbians. There would be no more witch hunts. There would be no more inquiries based on conjecture and guilt by association.
So, how is it working out for the Gay and Lesbian military personnel under the new policy? Don't ask.
Robert Nadel was a marine stationed in Okinawa. He was a decorated soldier who served in Operation Promote Liberty and Operations Desert Shield and Desert Storm. By the age of 22, he had been promoted the rank of sergeant.
Nadel now lives in San Diego. He works in a Hillcrest retail store. Nadel was court-martialed and thrown out of the marines because he is alleged to be homosexual.
Nadel's case is puzzling in that the policy clearly states that "no ... DoD (Department of Defense) law enforcement organization shall conduct an investigation solely to determine a service member's sexual orientation." It also makes clear that any investigation that is begun shall begin with "credible information." That is, the information can not be just a rumor that a service member is Gay or Lesbian. Furthermore, the policy dictates that a criminal investigation into sexual misconduct shall not be undertaken "where such misconduct is the only offense involved." The facts of the case seem to point to parts, if not all, of the new policy being ignored.One regulation of the policy that would prove to be very unclear during the Nadel trial is that the investigation can only be started by the service member's commanding officer. The crucial finding that the "service member" could apply to either the alleged "offender" or the "victim" helped the DoD win this case.
In an exclusive interview, Nadel told Update that the official investigation began on March 15, 1994 but that "we know that months before that they were conducting other investigations that tied into mine."
According to Nadel, the CID (Criminal Investigative Division) began the investigation on the sole basis that "somebody said that they thought I was not straight." As a matter of fact, the Naval Criminal Investigation Service (NCIS) declined to investigate the matter at all when it was reported to them. According to information supplied by Tony Clark, one of Nadel's attorneys, the NCIS determined that, under governing DoD regulations, no investigation was warranted. The CID decided to open an investigation nonetheless.
Although the investigation was initiated on March 15, the CID managed to round up, and collect statements from, three marines who believed Nadel might be a homosexual by the end of that same day. All three of these statements were made to officers other than Nadel's commanding officer. None of the statements included accusations of actual sexual misconduct.
One marine told the CID that Nadel had admitted to being Bisexual. The other two said that Nadel had tried to "pick them up." On the basis of these three statements, CID opened an investigation as a suspected sodomy inquiry.
The first time Nadel became aware of the investigation was on April 12, when Sgt. Jose Abrante, who was in charge of the investigation, summoned Nadel to his office. According to testimony in court by Abrante, Nadel was not told at that time that he had the right to refuse to come to the interview.
It was at that time that Abrante informed Nadel that he was being investigated for sodomy, even though still no allegations of sodomy had ever been made against him. Also at that time, Nadel waived his right to an attorney. He later found out however, when hewent to seek legal counsel at Camp Hansen's Legal Services office on Okinawa, that he could not be appointed a military attorney until official charges were preferred against him.
Essentially, the right he waived was never even his to waive. Nadel was questioned for approximately three hours that day. At that point, the DoD was still not in possession of any evidence that Nadel had committed any act of sexual misconduct. On April 14, the DoD got the break they were waiting for.
Michael Timperio, who was a marine in another unit, reported an incident concerning Nadel to a gunny sergeant in Nadel's unit. According to Tony Clark, Timperio never wanted to press charges. He simply wanted to inform someone in Nadel's unit that because of his experience with Nadel, he believed Nadel might be Gay. Because the officer he reported it to knew there was an ongoing investigation concerning Nadel, he took Timperio to the CID and had him talk to Abrante. It was because of this statement by Timperio, that formal charges were eventually preferred against Nadel. The CID asserted that this statement by Timperio was unrelated to any other investigation, but also admitted that the only reason the gunny sergeant brought Timperio to CID to report the charge was because he knew Nadel was already under investigation.
Nadel was brought in for questioning again on April 15. Again he was given a rights waiver to sign, relinquishing his right to an attorney (which he technically still did not have since at this point charges had still not be preferred against him).
During this second interrogation, which also lasted close to three hours, Nadel admitted to touching Timperio's penis and to masturbating in front of him. "I admitted to that because I didn't think there was anything wrong with what I had done. There was nothing wrong with what I had done ... as long as you don't you use intimidation, force, coercion. I never forced anybody to do anything. Anything I may have done was consensual." The charges were formally preferred on the afternoon of June 3, 1994. Nadel's trial took place on August 9 through 11. He was found guilty of two counts of indecent assault and one count of indecent exposure, all stemming from the one incident with Timperio.
Clearly, the final outcome was sealed by Timperio's accusation and Nadel's admission, but how the CID got to that point is the crux of the appeal that Clark is filing on Nadel's behalf.Nadel told Update, "Over 25 people were questioned during my investigation. Just about everyone in my platoon, all my friends, [were questioned]. They just went after me like an attack dog" Abrante himself admitted during testimony that he attempted to identify others who were homosexual and had associated with Nadel. Is that legal under the new regulations? Don't ask.
To add insult to injury as it were, the trial counsel for the DoD asked one witness during the suppression hearing if he was Gay. The judge sustained the objection, but Clark said that "it is telling that even some USMC judge advocates feel free to violate the homosexuality regulations' clear prohibition against such questioning."
According to Clark, there were many abuses during the investigation. He said that twice during the April 15 interrogation of Nadel, Nadel asked to speak with an attorney before answering any further questions. Both requests were ignored by Abrante and he continued questioning Nadel. The investigation itself was started by someone other than Nadel's commanding officer. That is against policy. The judge in the case dismissed that technicality by saying that the policy can be interpreted to mean that the investigation can be started by the "victim's" commanding officer as well, although there is strong implication to the contrary in the regulations.
The initial investigation started on the basis of one officer accusing Nadel of being a Bisexual and two others saying he had "hit on them." Clark wondered how this could possibly be considered credible information to start a sodomy investigation. The most flagrant violation of all, according to Nadel, was the allowance of Timperio's charges at all. The regulations state, "Investigations shall be limited to the factual circumstances directly relevant to the specific allegations." Timperio's statement had nothing to do with the specific allegations that started the original investigation.
Add to that that Timperio testified in court that he would never have made a statement to CID if he hadn't been led there by the gunny sergeant. It seems clear to Nadel and his defense counsel that the DoD asked and pursued. So how could the judge rule in DoD's favor? Don't ask. Clark was nonplused. "I don't know how the judge managed to rule the way he did." The judge said during his ruling that even if there had never been an investigation, Timperio's statements to CID were "inevitable." Clark is adamant in his belief that without the investigation, Timperio would never have filed a complaint, pointing to Timperio's own testimony as verification of that belief.
"The outcome was pretty much pre-ordained," said Clark. He added that if there had been a verdict of not guilty, "people would question the judge (a marine himself) who let him off."
Clark was emphatic about the motives of the CID. "The evidence of a 'witch hunt' by the CID on Okinawa could hardly be clearer. The Nadel and Haack [another marine who was investigated around the same time as Nadel] investigations both began in the same way - with one marine accusing another of being Gay. CID used these simple allegations of possible sexual orientation, not misconduct, as an excuse to launch a full-scale inquisition, the purpose of which, as CID's own files show, was to identify as many suspected Gay service members as possible.
Before these investigations were terminated, CID had interrogated or interviewed more than 20 marines and one air force member, and had solicited the witnesses to provide broad-ranging rumors, suspicions and allegations of homosexuality against more than 25
other service members. Plainly, but for the intercession of higher military authorities, CID would have continued its unauthorized and illegal dragnet and aggressively pursued investigations against as many of these 'suspects' as possible."
The case now goes to the Navy/Marine Court of Military Review. After that, the Court of Military Appeals will most likely be asked, by one party or the other, to take a look at it. The final destination, of course, could be the Supreme Court. But that could take years.
For now, in early 1995, Nadel is still listed on active duty, but he does not get paid. He also does not have an honorable discharge. What that means is that he has no access to the GI Bill, a financial loss of about $18,000.
"Don't Ask, Don't Tell" was supposed to bring a new era of compromise and tolerance for Gay, Lesbian and Bisexual service members. Clark said the opposite has occurred. "It's pretty clear that as a result of the new policy, life is worse now for Gays then it was before. Now, both sides are polarized." He added that the backlash will probably continue. "[DoD] uses the new policy as a tool of oppression."
So, what of this now not-so-new policy? Can Gay, Lesbian and Bisexual military personnel expect any relief? Will someone in the Clinton administration or in Congress intervene? Can the aggressive weeding out of Gays in the military be abated? Don't ask.
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