“An Exemplary Officer”

In another stunning judicial smack on “Don’t Ask, Don’t Tell,” a federal judge orders Air Force to reinstate Major Margaret Witt, a physical therapist from Spokane.

Come what may, Air Force Major Margaret Witt, a Spokane physical therapist, made history today when a federal judge in Tacoma handed her a stirring victory in a six-year legal challenge to her suspension by the U.S. Air Force. According to the Associated Press, Witt was in tears this afternoon as U.S. District Judge Ronald Leighton not only issued a 15-page opinion vindicating her, but also choked up while praising her efforts that, he said, marked her as a “central figure” in a civil rights movement to end discrimination against gays and lesbians.

Judge Leighton’s decision today is also a major win for the American Civil Liberties Union (ACLU) of Washington that led her legal challenge.

One of the poetic ironies of the case is that Leighton was, in a sense, reversing himself. In 2006 Judge Leighton rejected Witt’s argument that the Air Force violated her constitutional rights by pursuing administrative discharge proceedings against her under the 1993 law known as “Don’t Ask, Don’t Tell.”

Major Margaret Witt

Witt appealed to the Ninth Circuit which returned the case to Judge Leighton after agreeing with Witt that a more substantive review of the particulars of her case was warranted. Specifically, Judge Leighton was instructed to “determine whether the specific application of DADT to Major Witt significantly furthers the government’s interest” in military unit cohesion, morale and discipline.

“The evidence before the Court is that Major Margaret Witt was an exemplary officer. She was an effective leader, a caring mentor, a skilled clinician, and an integral member of an effective team. Her loss within the squadron resulted in a diminution of the unit’s ability to carry out its mission. Good flight nurses are hard to find.”–U.S. District Court Judge Ronald Leighton.

And it was this fact-finding process, conducted in Judge Leighton’s courtroom, that led to his remarkable ruling today. Here is how Judge Leighton saw it, from a central part of his ruling today:

“The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion. To the contrary, the actions taken against Major Witt had the opposite effect.

“The 446th AES is a highly professional, rapid response, air evacuation team. It is comprised of flight nurses and medical technicians who are well-trained, well-led and highly motivated. They provide a vital service to our fighting men and women around the world. Serving within that unit are known or suspected gay or lesbian service men and women.

“There is no evidence before this Court to suggest that their service within the unit causes problems of the type predicted in the Congressional findings of fact referenced above. These people train together, fly together, care for patients together, deploy together. There is nothing in the record before this Court suggesting that the sexual orientation (acknowledged or suspected) has negatively impacted the performance, dedication or enthusiasm of the 446th AES. There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds.”

Witt joined the Air Force as a 2nd Lieutenant in 1987. She was promoted to Major in 1999 and beginning in 1995 she was assigned to active reserve duty, as a flight nurse, with an 40th Aeromedical Evacuation Squadron (AES) consisting of more than 150 flight nurses and medical technicians. The AES’s job is to convert cargo aircraft to flying intensive care units to transport wounded soldiers. Witt was highly decorated and, in Judge Leighton’s words, “she was acknowledged by her fellow flight nurses to possess superior job skills, a calm demeanor under pressure and the ability to coalesce her subordinates into an effective, proficient team.”

In 2003, Witt became involved in a romantic relationship with a woman whose husband sent an email to the Air Force chief of staff, stating that Witt was involved in a sexual relationship with his wife. The Air Force did not pursue adultery charges against Witt, but chose to move for her discharge through DADT.

The essence of Judge Leighton’s ruling is that the stated broad objectives of DADT (unit cohesion and so forth) cannot withstand constitutional scrutiny unless the evidence in specific cases shows that knowledge of the officer’s homosexuality is actually causing a harmful effect on morale, cohesion, discipline, etc. This was the exercise that the Ninth Circuit instructed him to conduct.

“The evidence before the Court,” Judge Leighton concluded today, “is that Major Margaret Witt was an exemplary officer. She was an effective leader, a caring mentor, a skilled clinician, and an integral member of an effective team. Her loss within the squadron resulted in a diminution of the unit’s ability to carry out its mission. Good flight nurses are hard to find.”

Judge Leighton then summarized the conflict between DADT and Margaret Witt’s constitutional rights, and further explained his decision:

“For the reasons expressed, the Court concludes that DADT, when applied to Major Margaret Witt, does not further the government’s interest in promoting military readiness, unit morale and cohesion. If DADT does not significantly further an important government interest under prong two of the three-part test, it cannot be necessary to further that interest as required under prong three. Application of DADT therefore violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution. She should be reinstated at the earliest possible moment.”

Today’s ruling comes at a pivotal time in the history of the controversial “Don’t Ask, Don’t Tell” law. Both President Obama and Joint Chiefs of Staff Chairman Admiral Mike Mullen have spoken out against the law. And, still, the U.S. Justice Department continues to defend decisions made to expel soldiers under the law. Just this week, a solid phalanx of U.S. Senate Republicans blocked an effort in the Senate to repeal DADT as part of a defense authorization bill. Two weeks ago, a federal judge in California found that DADT violates both the First and Fifth Amendments to the U.S. Constitution.

Witt’s attorneys said they expect the government to appeal today’s ruling.

–CFJ