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Friday, October 29, 2010

“Don’t Ask, Don’t Tell”: A Legal Analysis

Jody Feder
Legislative Attorney

In 1993, after many months of study, debate, and political controversy, Congress passed and President Clinton signed legislation establishing a revised “[p]olicy concerning homosexuality in the armed forces.” The new legislation reflected a compromise regarding the U.S. military’s policy toward members of the Armed Forces who engage in homosexual conduct. This compromise, colloquially referred to as “Don’t Ask, Don’t Tell (DADT),” holds that “[t]he presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion which are the essence of military capability.” Service members are not to be asked about, nor allowed to discuss, their sexual orientation. This compromise notwithstanding, the issue has remained both politically and legally contentious. This report provides a legal analysis of the various constitutional challenges that have been brought against DADT; for a policy analysis, see CRS Report R40782, “Don’t Ask, Don’t Tell”: The Law and Military Policy on Same-Sex Behavior, by David F. Burrelli.

Constitutional challenges to the former and current military policies regarding homosexual conduct followed in the wake of the new 1993 laws and regulations. Based on the U.S. Supreme Court ruling in Bowers v. Hardwick that there is no fundamental right to engage in consensual homosexual sodomy, the courts had uniformly held that the military may discharge a service member for overt homosexual conduct. However, the legal picture was complicated by the Court’s 2003 decision in Lawrence v. Texas, which overruled Bowers by declaring unconstitutional a Texas law that prohibited sexual acts between same-sex couples. In addition, unsettled legal questions remain as to whether a discharge based solely on a statement that a service member is gay transgresses constitutional limits. Meanwhile, in Log Cabin Republicans v. United States, a federal district court held for the first time that DADT is unconstitutional on its face, but it is unclear whether this decision will stand on appeal. Likewise, in Witt v. United States Department of the Air Force, another federal district court recently held that DADT was unconstitutional as applied to a service member who had been discharged for homosexual conduct and ruled that the service member should therefore be reinstated.

In recent years, several Members of Congress have expressed interest in amending DADT. At least two bills that would repeal the law and replace it with a policy of nondiscrimination on the basis of sexual orientation—H.R. 1283 and S. 3065—have been introduced in the 111
th Congress. Other proposed legislation in the 111th Congress includes H.R. 4180, which would protect service members who disclose their sexual orientation to a Member of Congress, and H.R. 4902, which would establish additional research, study, and reporting requirements for the Department of Defense (DOD) working group currently reviewing issues that may arise if DADT is repealed. The working group was established in February 2010 by Secretary of Defense Robert Gates, who simultaneously directed DOD to review regulations regarding DADT and to propose any changes that would allow DOD to “enforce the law in a fairer and more appropriate manner.” Based on this review, Secretary Gates announced revisions to the DADT regulations in March 2010 that will ease certain requirements for discharging service members pursuant to DADT. More recently, both the full House of Representatives and the Senate Armed Services Committee approved amendments to the 2011 defense authorization bill (H.R. 5136; S. 3454) that would repeal DADT if certain conditions are met, although the bill failed to pass the full Senate in a recent procedural vote.


Date of Report: October 21, 2010
Number of Pages: 17
Order Number: R40795
Price: $29.95

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Veterans’ Benefits: Dependency and Indemnity Compensation (DIC) for Survivors


Christine Scott
Specialist in Social Policy

The Department of Veterans Affairs (VA) administers directly, or in conjunction with other federal agencies, programs that provide benefits and other services to veterans and their spouses, dependents, and beneficiaries.

One of the benefits administered by the VA is Dependency and Indemnity Compensation (DIC) for survivors of certain servicemembers and veterans. DIC is a monthly tax-free cash payment to survivors and dependents of servicemembers killed while on active military duty, and for survivors and dependents of certain veterans. Survivors of veterans who die from service-related conditions are eligible for DIC. Survivors of veterans who die from non-service-connected conditions may be eligible for DIC if the veteran was eligible for, or was receiving, disability compensation as totally disabled (a 100% rating) for a period of time (specified in statute) before the veteran’s death.

Several policy issues are associated with DIC, including the DIC offset of Survivor Benefit Plan (military retirement survivor) payments, often referred to as the “widow’s tax”; adequacy of the payments for survivors compared with other retirement systems payments to surviving spouses; the remarriage age of 57; length of time for a totally disabled rating for non-service-connected deaths to qualify for DIC; and maximum DIC payment for parents based on income levels that have not been adjusted for inflation.

This report outlines the eligibility requirements and benefit levels for DIC and related policy issues. Legislation has been introduced in the 111
th Congress related to the issues discussed in this report. Although none of the bills introduced have seen legislative action, an amendment (S.Amdt. 1515) to S. 1390 was adopted on the Senate floor. This report will be updated as needed for legislative changes and additional information.


Date of Report: October 18, 2010
Number of Pages: 13
Order Number: R40757
Price: $29.95

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Thursday, October 28, 2010

Veterans’ Benefits: Pension Benefit Programs


Christine Scott
Specialist in Social Policy

Carol D. Davis
Information Research Specialist


The Department of Veterans Affairs (VA) administers several pension benefit programs for veterans as well as their surviving spouses and dependent children. The most current pension programs available (for those meeting the eligibility criteria on or after January 1, 1979) are the Improved Disability Pension for certain low-income veterans and the Improved Death Pension for certain low-income surviving spouses or children of veterans. There is also a special pension for Medal of Honor recipients. This report describes these programs, including the eligibility criteria and current benefit levels. This report will be updated as needed to reflect legislative activity and changes to benefits or eligibility requirements.


Date of Report: October 18, 2010
Number of Pages: 9
Order Number: RS22804
Price: $19.95

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Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress


Ronald O'Rourke
Specialist in Naval Affairs

The Navy for several years has carried out a variety of irregular warfare (IW) and counterterrorism (CT) activities, and has taken some steps in recent years to strengthen its ability to conduct such activities. Among the most readily visible of the Navy’s current IW operations are those being carried out by Navy sailors serving ashore in Iraq and Afghanistan. Many of the Navy’s contributions to IW operations around the world are made by Navy individual augmentees (IAs)—individual Navy sailors assigned to various DOD operations.

The Navy Expeditionary Combat Command (NECC) was established informally in October 2005 and formally on January 13, 2006. The creation of NECC consolidated and facilitated the expansion of a number of Navy organizations that have a role in IW operations.

The Navy’s riverine force is intended to supplement the riverine capabilities of the Navy’s SEALs (the Navy’s Sea-Air-Land special operations forces) and relieve Marines who had been conducting maritime security operations in ports and waterways in Iraq. The three current riverine squadrons were established in 2006-2007. The Navy’s proposed FY2011 budget requests funding for the establishment of a new reserve component riverine training squadron that is to complement the three existing active component riverine squadrons. The fourth riverine squadron is intended to increase the riverine capacity to conduct brown water training and partnership activities in order to meet combatant commander (COCOM) demands.

The Navy in July 2008 established the Navy Irregular Warfare Office, which works closely with U.S. Special Operations Command, and in July 2010 published a vision statement for irregular warfare.

The Global Maritime Partnership is a U.S. Navy initiative to achieve an enhanced degree of cooperation between the U.S. Navy and foreign navies, coast guards, and maritime police forces, for the purpose of ensuring global maritime security against common threats. The Southern Partnership Station (SPS) and the Africa Partnership Station (APS) are Navy ships, such as amphibious ships or high-speed sealift ships, that have deployed to the Caribbean and to waters off Africa, respectively, to support U.S. Navy engagement with countries in those regions, particularly for purposes of building security partnerships with those countries and for increasing the capabilities of those countries for performing maritime-security operations. A July 2010 Government Accountability Office (GAO) report (GAO-10-794) discusses the APS.

The Navy’s IW and CT activities pose a number of potential oversight issues for Congress, including the definition of Navy IW activities, specific Navy IW budget priorities, and how much emphasis to place on IW and CT activities in future Navy budgets.



Date of Report: October 22, 2010
Number of Pages: 30
Order Number: RS22373
Price: $29.95

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Coast Guard Deepwater Acquisition Programs: Background, Oversight Issues, and Options for Congress


Ronald O'Rourke
Specialist in Naval Affairs

The term Deepwater refers to a collection of more than a dozen Coast Guard acquisition programs for replacing and modernizing the service’s aging fleet of deepwater-capable ships and aircraft. Until April 2007, the Coast Guard pursued these programs as a single, integrated acquisition program that was known as the Integrated Deepwater System (IDS) program or Deepwater program for short. The now-separated Deepwater acquisition programs include plans for, among other things, 91 new cutters, 124 new small boats, and 247 new or modernized airplanes, helicopters, and unmanned aerial vehicles (UAVs).

The year 2007 was a watershed year for Deepwater acquisition. The management and execution of what was then the single, integrated Deepwater program was strongly criticized by various observers. House and Senate committees held several oversight hearings on the program. Bills were introduced to restructure or reform the program in various ways. Coast Guard and industry officials acknowledged certain problems in the program’s management and execution and defended the program’s management and execution in other respects. The Coast Guard announced a number of reform actions that significantly altered the service’s approach to Deepwater acquisition (and to Coast Guard acquisition in general). Among these was the change from a single, integrated Deepwater acquisition program to a collection of separate Deepwater acquisition programs.

The Coast Guard’s management of Deepwater acquisition programs, including implementation of recommendations made by the Government Accountability Office (GAO), is a topic of continuing congressional oversight. Additional oversight issues include cost growth in Deepwater acquisition programs and the execution of individual Deepwater acquisition efforts, particularly those for surface ships.

The Coast Guard’s proposed FY2011 budget requests $1,112.5 million in acquisition funding for Deepwater programs, including $101.0 million for aircraft, $856.0 million for surface ships and boats, and $155.5 million for other items.



Date of Report: October 22, 2010
Number of Pages: 51
Order Number: RL33753
Price: $29.95

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