Enabler Watch

by Palm Center | September 25, 2019

Although former defense secretary James Mattis didn’t include anything in his book Call Sign Chaos about the role he played in reinstating the military’s transgender ban, he was asked about it during a Time Magazine interview. He started off by saying that “it’s an issue that’s right now in the courts and I have to be very careful about saying things that would then be taken into the courts,” but then he immediately dived into events that are very much at issue in the courts. 

Mattis’s answer went back to June 2017 and his take on why he ordered a delay in new enlistments by transgender applicants just one day before they were to begin. This was one year after DOD established open service for those already in uniform. According to Mattis, he had no choice but to delay and order additional review because service chiefs told him they hadn’t even been consulted on whether transgender people should be allowed to enlist:

“It was absolutely a study because when I came in and I asked the Joint Chiefs to bring up their concerns about anything that I needed to work on. These are the decisions that are pending and one of the points was where to start bringing in transgender to our basic training. And we’re not ready. I said, ‘What do you mean you’re not ready? Do you have any guidance on what the expectations are? Well, where was your input?’ They said we didn’t have input.”

This wasn’t true. Accession (new enlistment) policy was written in final form in June 2016 at the same time as the policy that protected currently serving personnel. DTM-16-005 set out in advance the exact enlistment standard that would apply across DOD on the effective date of July 1, 2017, one year later. The Department of Defense also issued an Implementation Handbook that covered every aspect of transgender policy that commanders might need to know, including how to prepare for any concerns about modesty and privacy in showers and living quarters. All decisions about how to implement transgender policy, including in the basic training environment, were 100% in the hands of military leaders.

Yet Mattis felt free to rewrite history with an unsupported assertion that DOD needed to review the entirety of transgender policy because “No one asked us.” This is the same person who inaccurately testified to Congress that his predecessor Secretary of Defense, Ash Carter, had prohibited military leaders from ever reporting a problem related to transgender service. Mattis produced this after-the-fact excuse in an effort to undermine statements by every member of the Joint Chiefs in 2018 that inclusive policy had not harmed military cohesion or discipline. Mattis’s testimony was unbelievable on its face—DOD policy has never, and would never, prohibit commanders from reporting and acting on problems within their units. It is also belied by the policy itself, which set up formal mechanisms for the purpose of reporting any problems that could arise (Service Central Coordination Cells of medical, legal, and policy experts to advise field commanders).

But here’s the kicker. It should be easy to disprove Mattis’s efforts to paper over a controversy that began with a tweeted ban from President Trump and was followed shortly thereafter by Mattis’s own pledge to “carry out the President’s policy and directives.” The truth is that military leaders were consulted on inclusive policy, and they were given authority to implement it in a manner that serves readiness. They found inclusion works, and policy did not prohibit them from saying otherwise.

But just as Mattis has been President Trump’s enabler on the transgender ban, federal judges are acting as Mattis’s enabler in the lawsuits challenging that ban. The most recent court ruling on how much information the Trump administration must disclose about its discriminatory policy concluded that everything that happened before Mattis’s study is (at least for now) irrelevant. According to the court, we don’t need to know why Mattis ordered a study, or whether he misrepresented the reason for that study with some convenient revision of history from the summer of 2017:

“Plaintiffs contend that Defendants have improperly withheld documents relating to the decision to delay implementation of the Carter Policy and the pre-Tweet review process. According to Plaintiffs, Defendants attempt to avoid claims of animus by alleging that, even before the President’s 2017 Tweet, then-Secretary of Defense Jim Mattis had already initiated an independent review of the Carter Policy. Plaintiffs contend that they are entitled to documents relating to the scope and purpose of the pre-Tweet review of the Carter Policy. The Court disagrees and concludes that Plaintiffs’ discovery requests should focus on the development of the Mattis Plan, not on the development or delay of policies which came before.”

It is a problem that administration officials feel free to mislead—and to do so in ways that don’t even meet a military “laugh” test. It becomes far worse when judges throw them a life preserver and protect them from being exposed. The court’s conclusion that “the Mattis Plan should be judged on its own merits” allows Mattis to paper over the machinations and motivations that connected careless tweets to a reversal of what to that point had been successful policy. Mattis is the only person who would vouch by name for the report used to justify a return to the ban. He shouldn’t be shielded from having to defend everything that led to it.

 

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