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Witt trial wraps up as plaintiff testifies, Justice Department argues “adultery” | Hunter of Justice

Witt trial wraps up as plaintiff testifies, Justice Department argues “adultery”

by on September 21, 2010  •  In Constitutional law, Military

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Former Air Force Major Margaret Witt testified Monday in the case she brought seeking reinstatement after her discharge under the DADT policy. The case is important because it established the principle that the government has to demonstrate – on an individualized basis – that each such discharge is actually necessary to preserve unit cohesion and morale. Several days of testimony last week from former colleagues in her unit established that her presence created no morale problems. (More background here.)

As expected from their trial brief, Justice Department lawyers sought to discredit Witt because she became involved with a married woman. The married woman was a civilian, as was her husband. A 2002 Executive Order (EO 13262) limits discharges based on heterosexual adultery to situations in which there is a negative effect on the unit or a misuse of command authority.

From the Seattle Post-Intelligencer:

A decorated Air Force Reserve flight nurse discharged for being gay took the witness stand at her federal trial Monday and told the judge it "kills me" not to be able to care for wounded soldiers while the country is at war. Former Maj. Margaret Witt has sued the Air Force in hopes of being reinstated. No one in her unit or any of her patients ever expressed concern about her sexual orientation, she told the judge.

"It's what I've spent over half my life training to do," Witt testified, her voice breaking. "I miss being able to be the one that that soldier looks at and I can do something for him. I'm not complete, and it kills me to not be there."…

Witt joined the Air Force in 1987 and later became a flight nurse, helping to care for and evacuate soldiers wounded in Afghanistan. She was suspended in 2004 when the Air Force investigated her for violating "don't ask, don't tell." She was discharged three years later, while just short of becoming eligible for a full pension.

Her lawsuit challenged the constitutionality of "don't ask, don't tell." In 2008, a three-judge panel of the 9th U.S. Circuit Court of Appeals considering the case held that the military couldn't discharge someone for being gay unless it demonstrated the firing was necessary to further military goals.

The case returned to U.S. District Court in Tacoma, where Judge Ronald B. Leighton must determine whether Witt's firing met that standard. Leighton heard testimony last week from several of Witt's former colleagues, who said they didn't care about her orientation and that her firing actually hurt morale in their squadron, based at what is now Joint Base Lewis-McChord near Tacoma…

In pointed cross-examination, Justice Department lawyer Peter Phipps noted Monday that Witt had engaged in an adulterous relationship with a married civilian woman in 2003. The woman, now divorced, is still Witt's partner, but the Air Force argues that Witt's disregard for policy in committing adultery set a bad example for others in the unit and justifies her dismissal.

"You agree that adultery is not consistent with high standards of integrity, correct?" Phipps asked. "Yes," Witt responded.

The government also argues that Witt acknowledged being homosexual to some of her close friends in the unit, forcing them to choose between loyalty to her and to Air Force policy. Her firing eliminated a risk to unit cohesion, a legitimate military goal, DOJ lawyers say.

Witt's attorneys insist that the government has no evidence proving Witt's firing was necessary to further any military goal. In fact, they argue, there's no evidence that allowing gays to serve openly would hurt unit cohesion, or even any evidence that troops perform better if they get along socially.

Elizabeth Kier, a University of Washington associate professor of political science who has studied the issue, followed Witt on the stand Monday. She summarized research in the field: "There is no significant positive relationship between social cohesion and performance, and high levels of social cohesion can undermine military effectiveness."

Closing arguments are expected by Wednesday. It is not clear when Leighton will rule.

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