12:48: The hearing is adjourned. Thanks for following along. We'll be back tomorrow morning for Day Two.
12:47: Johnson weighs in. "I do not view Wikileaks as journalism," says it is on a different legal level than a newspaper.
Levin concurs with that view in his closing remarks.
12:45: McCain up again, asking about Wikileaks. Mullen calls the leak "reprehensible."
When McCain asks Mullen if he believes Congress should take any action to address the issue of the leak, Mullen says: "It's out of my lane. But I feel very strongly that this is an individual who should be held accountable for his actions."
12:41: Brown asks Johnson, the lawyer: If we don't do something, is there imminent fear that the courts will act and we will not be able to implement this policy as the military wants to?
Johnson says have is not here to comment on the constitutionality of a law. But he adds that the timing of the courts' actions is uncertain. When a lower court previously issued a ruling on a case involving the policy, it prompted a flurry of questions about the legal ramifications for servicemembers, Johnson said. "That was a very uncertain action which I hope to never repeat."
12:39: Brown asks Johnson about his job and appointment.
Johnson was appointed to the job of Pentagon general counsel by Barack Obama. He served from 1998-2001 as the general counsel of the Air Force and has also been a successful attorney in private practice. Here's his bio.
12:35: Brown up again. He says that he has attended many funerals of servicemembers or visited them at Walter Reed Medical Center and has never wondered "if they're straight or gay."
"It never crossed by mind," he said.
12:32: Johnson says he does agree with McCain that matters of sexual orientation and race are "fundamentally different" but notes that leading military officials -- at the time -- also predicted negative consequences for racial integration of the Arned Forces.
12:29: Lieberman says that lawmakers "base a lot of our decisions" on studies with much smaller sample sizes than the one used in the DADT survey.
12:28: McCain has more questions, but his time has run out. There will be a third round of questions, Levin says.
12:25: "It's not voting, sir. It's asking their views," McCain replies with some frustration.
12:24: Mullen replies: "The report has spoken to, in great part, their views of whether this can be successfully done or not."
12:22: McCain, beginning his second round of inquiries, notes that he would have liked to ask Gates additional questions. He says he was "taken aback" by Mullen's and Gates's statement that the survey was not intended to be a "referendum" on whether the policy should be changed.
"I never made a major decision in the military without going around to ask the enlisted people," McCain said.
12:21: Levin disputes the charge that Congress is addressing DADT because of a "campaign promise" by the president. Levin says that Congress is addressing the issue because there is a "discriminatory" policy in place.
12:20: Gates has now left, but there will be additional rounds of questions for lawmakers who want to ask the remaining witnesses.
12:19: Sen. Evan Bayh offers a history lesson, noting that there were probably gay Americans "serving at Valley Forge."
12:12: These are the kinds of numbers about the Marine Corps to which lawmakers and officials are referring:
Of those who had worked with a service members believed to be gay or lesbian, over 50 percent of Marine respondents said that that belief affected their unit's combat performance. It's under 40 percent for servicemembers overall.
75% of Marine Corps respondents to the survey said they do not currently serve with someone they believe to be homosexual. That's 10% higher than respondents overall.
12:08: Graham, always direct. "Why do the Marines think the way they do?" he asks Mullen, "a Navy guy."
Mullen adds that Army combat troops have similar objections to the policy and says that new young members of the military may have not encountered homosexual servicemembers before. "They're 18-24, trying to figure out their own selves," and says that Marines have a "lack of exposure" to gay and lesbian persons, Mullen responds.
12:08: Mullen tells Graham that the current policy is "corrosive over time" and "undermines our ability to do what we have to do."
12:05: Graham asks what leads to discharge from the military under the current law.
Johnson notes that about 85 percent of separations are based on statements by servicemembers who say that they're gay.
12:04: Correction -- Republican Sen. Lindsey Graham -- a longtime McCain ally -- has just arrived to ask questions.
12:01 p.m. ET: The last questioner: Democratic Sen. Kay Hagan of North Carolina. She asks if servicemembers who were previously discharged because of their sexual preference will be allowed to re-enlist if the law is changed.
Johnson responds that they should be able to be considered for re-enlistment like everybody else and that their sexual orientation will not be a factor.
11:56: Mullen, in response to a question from Udall, calls the opinion of the service chiefs "absolutely critical." He says he has "incorporated their inputs" with his advice to Gates and the president.
"I haven't grown up in a military where unanimity among us" is sought, Mullen points out.
The service chiefs testify here tomorrow. Here's the full list of witnesses.
11:53: Democratic Sen. Udall next up. We're in the home stretch of first-round questioning; Gates is scheduled to leave at noon. "This is not a done deal once we act," Udall points out.
11:49: Sessions says Johnson was "clearly" in support of repeal when he took the position.
In an interview with the Washington Post this week, Johnson declined to discuss his personal views but emphasized that the report "is by no means a piece of advocacy."
As for Johnson's counterpart on the study, Gen. Ham reportedly told lawmakers in a closed meeting that he personally opposes homosexuality.
11:43: Murmurs from some objectors in the audience when GOP Sen. Jeff Sessions of Alabama makes this statement: "On matters like sex or race, you can't have discrimination on those bases, but this deals more with actions of an individual rather than who they are as a person."
He calls Obama's support of repeal "a political campaign commitment."
11:42: Speaking about the integration of African Americans and women into the military, Mullen says: "Categorically, in my experience, we are in a much better place as a military because of those steps taken when they were taken."
11:40: McCaskill asks if there would be questions asked about sexual orientation during the recruitment process. Gates says "no, there would be no need for that."
11:37: Sen. Claire McCaskill, D-Mo., says she's "disappointed" with some of the rhetoric around the debate, but she heaped praise on Gates. "I watched you under President Bush and I think you called it balls and strikes," McCaskill said. Says Gates "set a great example" serving under two presidents of two different parties.
Gates has served as the Secretary of Defense since December 2006; he was nominated by President George W. Bush and continues to serve under President Barack Obama. He served as CIA director from 1991-1993, under Bush's father.
He was confirmed by a 95-2 vote in 2006.
11:34: Wicker asks Johnson if he can commit to defending the government's current position on the Don't Ask law until that position is changed.
11:33: Johnson and Ham didn’t know each other before Gates tapped them to complete the study. You can read more about the two authors of the report in this piece by the Washington Post's Ed O'Keefe.
11:30: Sen. Wicker now asking questions, echoing concerns about the 'whether' vs. 'how' approach to the DADT survey. "The 'should' question needs to be decided by the questions or the courts," says Gates.
11:20: Another new senator asking questions now -- Sen. Chris Coons of Delaware.
11:16: Chambliss asks Mullen to elaborate on his statement that known gays and lesbians have served under his command. "What was the law at that time?"
"If the conduct was exposed, they were discharged," Mullen said, adding that he was responsible for some discharges. He adds -- when asked -- that those discharges did not have a major negative effect on morale.
11:14: Republican Sen. Saxby Chambliss is next up to ask questions.
11:13: Johnson: "We should assume that we may lose some of our chaplains" if DADT is repealed.
11:10: Gates says he disagrees with the report's idea of giving new access for family counseling for the non-married significant others of both straight and gay servicemembers. He is concerned that extending counseling to the partners of single servicemembers would dilute the quality of existing services to married spouses.
11:09: Newly-elected Sen. Joe Manchin from West Virginia, a Democrat, calls himself "the new person on the block" as he begins his questions.
11:07: Johnson: "Predictions in surveys ... are valuable, and are of limited value" because they are generally based on beliefs. That's why the experiences of people who have actually served with gay and lesbian servicemembers are so important, he said.
11:05: Thune asks Gates if he would be in favor of adding the service chiefs to the list of officials who certify proposed legislative language. "No, I would not," Gates said.
11:03: Gates, on the timing of repeal during a time of war: Looking ahead "I don't see the world getting to be a safer, easier place to live in where our troops are under less stress."
11:02: Sen. John Thune of South Dakota now asking questions. He is often discussed as a possible Republican candidate for president.
11:00: We've just returned from a five-minute break.
10:52: Webb asks about estimates of what percentage of servicemembers are gay and lesbian.
Johnson says that the resultsare "imprecise" because "we cannot ask that question under the current law" but that the percentage of gay men in the military is lower than in the general population, while the percentage of lesbian women in the military is highter.
10:50: Sen. Jim Webb, D-Va., noted that he voted against moving forward on DADT legislation before the survey was released because he thought the study results should be carefully considered.
"I believe you have really done the job here," he tells the report's writers. Calls it "the most crucial piece of information we have" in objectively addressing this law.
10:48: Mullen praises military leadership and expresses confidence that leaders will be able to implement a change: "We are better led at every level ... than we have ever been led."
Making the change "makes us better. It doesn't make us worse," Mullen said.
10:47: Collins calls Mullen's remark that war facilitates change rather than holds it back an "excellent point."
10:42: Sen. Susan Collins, R-Maine, echoed a point that has been made by Gates: that troops are generally asked what they think about policy issues (No one surveys the military about whether America should fight a war.)
A little bit of laughter when Collins quotes one troop's response to questions about serving with gays and lesbians: "We have a gay guy in the unit. He's big, he's mean, and he kills lots of bad guys."
10:41: Sen Ben Nelson, D-Neb., is next up. As we noted this morning, Nelson is one of many Democrats on the panel facing a tough re-election in 2012. He asked Gates and Mullen about the "integrity" issue of asking servicemembers to lie on the job.
We wrote this morning:
Of the 27 members of the Senate Armed Services Committee, several are facing challenging re-election bids in 2012. On the Democratic side, Sens. Claire McCaskill (MO), Bill Nelson (FL), Ben Nelson (NE), Jim Webb (VA) and Joe Manchin (WV) are up in ‘12. On the Republican side, Sen. Scott Brown (MA) -- who won his seat in a special election to the generally Democratic state -- must run again in 2012 for a full term. Also, another Republican on the panel, Sen. John Thune (SD), is a potential ‘12 presidential contender.
10:38: Brown is one to watch on this issue. He told NBC this week that he planned to "keep an open mind" about the report. He is up for re-election in 2012.
10:34: Sen. Scott Brown, Republican of Massachusetts, now asking questions. He asks Gates why the survey response rate was under 30 percent. Gates defers to the survey authors.
Johnson replies that the 28 percent response rate is about normal based on previous historical response rates.
From the report: "The 103-question web-based survey was designed to take approximately 30 minutes to complete. The survey was released on July 7, 2010, and was available online through August 15, 2010."
10:28: Gates notes the "intimacy" of those in combat is very different than that of those in intelligence operations.
10:28: Sen. Jack Reed now asking questions.
10:26: There are a few protesters in the audience (silent, so far). One man is dressed in a hot pink jacket in the style of a military coat. He has a sign that says "McCain is a bigot." Photographers eager to get snapshots of him.
10:25: Gates: I would not sign any certification until I was satisfied, with the advice of the service chiefs, that we had mitigated risks.
10:23: Inhofe said that some troops in the field believed that their input did not matter because lawmakers and military leaders in Washington had already decided that repeal was inevitable.
10:20: Inhofe asks Mullen about the effect of repeal on retention and recruitment. "Exposure and understanding," will help alleviate servicemembers' concerns over time, Mullen said.
"Once exposed, it ... did not affect unit readiness," Mullen said of the survey's findings about sexual orientation.
10:19: Sen Inhofe, R-Okla., just said of DADT "it has worked."
10:17: Lieberman notes that only a small minority of servicemen and women have said they want their unit to know about their sexual preference -- and that harassment is against military code regardless of whether it comes from a straight or gay servicemember.
"Standards of conduct will not change one bit," Mullen said.
Lieberman called the policy "a stain on the honor" of the U.S. military.
10:15: Mullen: "We're an institution that values integrity but then asks other people ... to lie about who they are the whole time they are in the military. That's what doesn't make sense to me."
10:14: Sen. Lieberman is up. He notes that the late Sen. Byrd, who strongly favored the ban in the mid 1990s, was instrumental in the decision to address a repeal.
10:10: McCain veers away from DADT to ask Gates about Wikileaks, asking if he's held anyone responsible for the "egregious" breach of national secutiry. Gates replies that the oncoming criminal investigation complicates that effort.
"Not yet," Gates answers the question upon pressing by McCain.
10:08: An argument you're hearing frequently from supporters of repeal this morning is that servicemembers who say they have served with gays and lesbians have largely said that their sexual orientation did not affect their unit's cohesion or trust.
From the study:
When asked “in your career, have you ever worked in a unit with a co-worker that you believed to be homosexual,” 69% of Service members reported that they had.
When asked about the actual experience of serving in a unit with a co-worker who they believed was gay or lesbian, 92% stated that the unit’s “ability to work together” was “very good,” “good,” or “neither good nor poor.”
If troops object to repeal, Gates points out, "they can't just up and leave" because they have contracts and service obligations to fulfill.
10:06: McCain says he couldn't disagree more with Gates' judgment about "mitigating" concerns over time.
When we send young people into combat, McCain said, "we think they're mature enough to fight and die ... I think they're mature enough to make a judgment about who they want to serve with."
10:04: McCain asks Gates about the concerns of combat armed troops about repeal. "You conclude that those concerns ... are 'exaggerated.' How are they exaggerated?"
Gates replies that he does not recall using the word 'exaggerated' because he takes those concerns very seriously. "If we are allowed to do this on our terms, I think those concerns can be mitigated," he said.
9:58: Gates: "It is my worry about the unpredicability of the situation of the courts .. that gives me the sense of urgency about this."
9:54: Levin asks Mullen if he has seriously considered the concerns of the service chiefs before reaching their conclusions.
"Very carefully, yes sir," said Mullen. Gates agreed, as did the authors of the report. Ham did note that the report's conclusions do not reflect the opinions of the service chiefs though.
9:53: Some scheduling debate happening. Levin announced that Gates would do 5-minute rounds of questioning. McCain objected, saying "you're not giving members sufficient time to ask questions" and that additional hearings might be needed if Gates would not stay for longer. Gates volunteered to stay at the hearing for longer than planned - until noon. And question rounds will now be 6 mins.
9:49: Johnson is now making his opening statement.
He echoed Gates' argument that repeal should not take place via the courts, but by Congressional action, so that it is done "on our terms, by our timetable."
9:44: Mullen directly addressed McCain's criticism that he, as the Chairman of the Joint Chiefs, is not directly in charge of troops. "I have commanded three ships, a carrier battle group and two fleets," Mullen said. "And I was most recently a service chair myself. For more than 40 years I have made decisions that affected and even risked the lives of young men and women."
Here's what McCain told NBC earlier this week: ""I'm paying attention to the commandant of the Marine Corps. "I'm paying attention to the other three service chiefs who have serious concerns. They are the four guys who are directly in charge. In all due respect, the Chairman of the Joint Chiefs is not directly in charge of the troops."
9:39: Mullen, on the issue of combat troops' concerns about repeal:
"War does not stifle change; it demands it. It does not make change harder; it facilitates it."
I do not believe "that simply acknowledging what most of our troops already know to be true about some of their colleagues threatens our ability to fight and win this nation's wars."
9:36: Speaking about his personal experience serving alongside homosexual service members, Mullen says that society was previously not "as accepting or as tolerant as it is now." But, he added, "America has moved on."
While some servicemembers may "want separate shower facilities... ask for different berthing ... or even quit the service," Mullen said, "we'll deal with that. But I believe and history tells us that most of them will put aside personal proclivities for something larger than themselves and for each other."
9:35: Mullen: "I've been serving with gays and lesbians my whole career."
9:33: Adm. Mullen now speaking. He called repeal "the right thing to do" and said that the survey results back up his belief that servicemembers can "accomodate such a change."
"What was my personal opinion is now my professional opinion," Mullen said.
9:31: Gates also argued that the repeal should come by "legislative means," not through the courts. A legislative repeal would allow for "a well-prepared and well-considered implementation" that would avoid an "abrupt" change if the courts declare the policy unconstitutional first, he said.
9:26: Gates, in his opening statement, is addressing the concern that combat troops are much more wary about repeal, a wariness shared by the chiefs of each branch of the service (particularly the Commandant of the Marine Corps.)
He notes that the perspective of the service chiefs (who testify tomorrow) "deserve serious attention and consideration."
But, he said, those concerns "do not present an insurmountable barrier to a successful repeal."
"An abundance of care and preparation is required if we are to avoid a disruptive - and potentially dangerous - impact on the performance of those serving at the tip of te spear in America's war," Gates added.
9:23: McCain's conclusion is the key point you can expect to hear from Republicans who are wary of changing the policy during a time of war:
"This is a complex and important issue that could have significant repercussions for our force – a force that is engaged in its tenth straight year of sustained combat, but a force that is performing exceptionally well. At this time, we should be inherently cautious about making any changes that would affect our military, and what changes we do make should be the product of careful and deliberate consideration."
9:21: "The closer we get to servicemembers in combat, the more we encounter concerns about whether DADT should be repealed," McCain just said. He also cited that less than 30 percent of the military responded to the survey.
9:16: Sen. John McCain, the top Republican on the committee, is now making his opening statement. McCain has taken issue with the strategy taken by the Defense Department in conducting the study. (NBC's Ken Strickland spoke to McCain about those objections earlier this week. Read more about what the Arizona senator said then here.)
This morning, McCain said that, while the military "could" implement a repeal as it has capably implemented other reforms, the study did not address the question of "whether" the ban should be repealed.
"That key issue was not the focus of this study," McCain said. "It is, however, the fundamental question that must be answered by the Congress," not by the president or the courts.
9:13: Here is the actual text of the law, which states that a member of the armed services will be “separated” from the force if it is found that he/she has:
1. “has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts,” unless the member demonstrates, among other things, that “such conduct is a departure from the member’s usual and customary behavior” and “under all the circumstances, is unlikely to recur”;
2. “has stated that he or she is a homosexual or bisexual, or words to that effect,” unless the member demonstrates that “he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts”; or
3. “has married or attempted to marry a person known to be of the same biological sex.”
9:08: The hearing is underway. The committee chairman, Sen. Carl Levin, D-Mich., said in his opening statement that repeal of the "discriminatory" policy is "the right thing to do."
"We can end 'don't ask, don't tell' and maintain our military strength, respect our troops and families, allow patriotic Americans to serve their country without regard to sexual orientation, and uphold the principle that service and advancement in our military are based on merit alone," he said.
9:05: One part of the survey that you can expect to hear about from Republicans who oppose repeal of the 17-year old "Don't Ask, Don't Tell" policy is the comparatively high percentage of combat and Marine Corps servicemembers who voiced concerns about repeal.
While the study found that about 70 percent of respondents overall believe that the impact of repeal would be positive, mixed, or of no consequence at all to their units, there were noteworthy differences in the responses of members of various branches of the armed services. Among respondents in the Marine Corps, fully 50 percent said that it would be difficult or very difficult for military leaders to “enforce good order and discipline” if the ban is repealed. Almost 40 percent of Marine Corps respondents said repeal would make them consider leaving the service earlier than they have previously planned.
9:00: The Pentagon report (available here) took nine months to complete and included responses from more than 115,000 active-duty and reserve troops (about 28% of those solicited). About 45,000 spouses of servicemembers responded to the spousal survey.
Here's the major conclusion of the report:
We conclude that, while a repeal of Don’t Ask, Don’t Tell will likely, in the short term, bring about some limited and isolated disruption to unit cohesion and retention, we do not believe this disruption will be widespread or long-lasting, and can be adequately addressed by the recommendations we offer [in this report.] Longer term, with a continued and sustained commitment to core values of leadership, professionalism, and respect for all, we are convinced that the U.S. military can adjust and accommodate this change, just as it has others in history.
8:50 a.m. ET: Good morning. First Read is in Dirksen Senate Office Building this morning to live-blog two days of hearings on the military's "Don't Ask, Don't Tell" policy. Appearing before the Senate Armed Services Committee today will be Defense Secretary Robert Gates, Chairman of the Joint Chiefs of Staff Adm. Mike Mullen, and the authors of a new Pentagon report on the policy: Pentagon general counsel Jeh Johnson and Gen. Carter Ham, the commander of the U.S. Army, Europe.
The proceedings are about to get underway, so check back in this space frequently for updates.