By William Saletan
If Larry Craig were held to the standard of sexual conduct he imposes on the U.S. armed forces, he'd be out of his job.
Fourteen years ago, in his first term as a Republican senator from Idaho, Craig helped to enact the military's "don't ask, don't tell" policy. It stipulates:
A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations: (1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings … that the member has demonstrated that—(A) such conduct is a departure from the member's usual and customary behavior; (B) such conduct, under all the circumstances, is unlikely to recur; … [and] the member does not have a propensity or intent to engage in homosexual acts.
The policy reappears verbatim in the U.S. Code and in regulations of the armed services. The Air Force, for instance, says any airman will be discharged if he "has engaged in, attempted to engage in, or solicited another to engage in a homosexual act."
According to the report filed by the officer who arrested Craig at the Minneapolis airport in June, Craig stood outside the officer's bathroom stall for two minutes, repeatedly looked at the officer "through the crack in the door," sat in the stall next to the officer, tapped his foot, and gradually "moved his right foot so that it touched the side of my left foot … within my stall area." Craig proceeded to "swipe his hand under the stall divider for a few seconds" three times, palm up, using the hand farthest from that side of Craig's stall. Most of these gestures, the officer explained, were known pickup signals in a room known (and hence under surveillance for) public sex. When the officer took Craig outside and told him so, Craig claimed he had been reaching down with his hand to retrieve a piece of paper from the floor. The officer wrote that no such paper had been on the floor.
Two months later, Craig signed a plea agreement stating that he had "reviewed the arrest report" and that "in the restroom," he had "engaged in conduct which I knew or should have known tended to arouse alarm or resentment." Officially, the charge to which he pleaded guilty was disorderly conduct.
I feel sorry for Craig. I hate the idea of cops going into bathrooms and busting people for coded gestures of interest. I'd rather live, let live, and tell the guy waving his hand under the stall to buzz off. But that's not the standard Craig applies to others. Any gay soldier, sailor, airman, or Marine who admitted to doing what Craig has admitted would, at a minimum, lose his job for violating DADT. In fact, many have been kicked out for less.
Most people think "don't ask, don't tell" means that if you don't announce that you're gay, you can keep your job. It should mean that. But in practice, if you don't tell, the military can—and often does—investigate and interrogate you until you're forced to tell.
Margaret Witt, a major in the Air Force Reserve, is in the process of being discharged for lesbianism. How did investigators find out she was gay? An anonymous tip. They tracked down her former partner, a civilian, and got the woman to admit that she and Witt had lived together. When they interrogated Witt, she confessed. If she hadn't, they could have prosecuted her for "false official statements" and imprisoned her for five years. Last fall, a federal judge conceded that Witt had "served her country faithfully and with distinction" and "did not draw attention to her sexual orientation." Nevertheless, he concluded, she had no constitutional grounds to contest her discharge. If you don't tell, they make you tell.
Six years ago, the Army kicked out Alex Nicholson, an interrogator, under DADT. How did he disclose his homosexuality? He mentioned it in a letter to a friend—in Portuguese. A colleague found the letter, translated it, and outed him. "Nobody asked me if I was gay and I wasn't telling anyone," says Nicholson. "You would think that a private letter that you had written in a foreign language would be sufficiently safe." But you would be wrong.
Last year, the Army discharged Bleu Copas, a sergeant, from the 82nd Airborne. The basis? Anonymous e-mails. The first time superiors asked Copas whether he was gay, the context was informal, and he denied it. The next time, they put him under formal interrogation—"Have you ever engaged in homosexual activity or conduct?"—and he refused to answer. Eventually, to avoid prosecution for perjury, he gave in.
Four days ago, the Stockton, Calif., Record reported the recent expulsion of Randy Miller, a paratrooper who served in Iraq with the 82nd Airborne. His offense? Being in a gay bar—and rejecting a proposition from a fellow soldier, who apparently retaliated by reporting him to the Army. Like Witt, Miller admitted his homosexuality, but only under interrogation. If you don't tell, they make you tell.
Compare any of these cases to Craig's. You cohabit quietly with a same-sex partner for six years. You write a letter to a friend in Portuguese. You deny being gay but are interrogated until you give up. You're spotted in a gay bar rejecting a sexual overture. For these offenses, you lose your career, thanks to a man who stared and extended his hands and feet repeatedly into a neighboring bathroom stall.
Were Craig's gestures ambiguous? Not by his own standards. He signed off on the arrest report. Under DADT, he'd have to prove that what he did was "a departure from [his] usual and customary behavior," that it was "unlikely to recur," and that he did "not have a propensity or intent to engage in homosexual acts." But the Idaho Statesman reports three other incidents, from 1967 to 2004, in which Craig allegedly made similar overtures. On the Statesman's Web site, you can listen to an interview in which one of the men describes his tryst with Craig in a public bathroom. These accounts, combined with Craig's arrest report, would easily get him thrown out of the Army if he were a soldier.
Has Craig's arrest chastened him about DADT? Not a bit. Two weeks ago, in a letter to a constituent, he reiterated his support for the policy. "I don't believe the military should be a place for social experimentation," Craig wrote. "It is unacceptable to risk the lives of American soldiers and sailors merely to accommodate the sexual lifestyles of certain individuals."
Now you know why Craig is trying to withdraw his guilty plea. The cardinal rule of "don't ask, don't tell" isn't heterosexuality. It's hypocrisy. The one thing you can't do is tell the truth.
In that sense, Craig is honoring the policy in his own life. But that's the only sense. I don't think what he did should cost him his career. I'd like to cut him some slack. But first, I'd like to restore the careers of a few thousand other gay Americans who have done a lot more for their country.