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Case 2:04-cv-08425 Trial Day 2 Vol 1

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION-RIVERSIDE HONORABLE VIRGINIA A. PHILLIPS, JUDGE PRESIDING

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PHYLLIS A. PRESTON, CSR License No. 8701 Federal Official Court Reporter United States District Court 3470 Twelfth Street Riverside, California 92501 stenojag@aol.com REPORTER'S TRANSCRIPT OF COURT TRIAL PROCEEDINGS Riverside, California Wednesday, July 14, 2010 8:30 a.m. - 10:30 a.m. LOG CABIN REPUBLICANS, a nonprofit corporation, ) ) ) Plaintiff, ) ) V. ) ) UNITED STATES OF AMERICA, and ) ROBERT M. GATES, SECRETARY OF ) DEFENSE, in his official ) capacity, ) Defendants. ) ________________________________)

DOCKET NO. CV 04-8425 VAP Court Trial Day 2 A.M. Session Pages 232 - 298

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1 2 For the Plaintiff: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 For the Defendants:

APPEARANCES WHITE & CASE LLP BY: DAN WOODS EARLE MILLER AARON KAHN DEVON MYERS RACHEL FELDMAN 633 W. Fifth Street, Suite 1900 Los Angeles, California 90071-2007

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch BY: PAUL FREEBORNE JOSHUA GARDNER RYAN PARKER SCOTT SIMPSON United States Attorneys 20 Massachusetts Avenue, NW Washington, DC 20001 and UNITED STATES ARMY Litigation Division MAJOR PATRICK GRANT MAJOR JENNIFER BOTTOMS Litigation Attorneys 901 N Stuart, Suite 400 Arlington, Virginia 22203

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JOINT EXHIBITS 104 305 306 312 321 330 2 WITNESS FOR PLAINTIFF:

I N D E X

PAGE

NATHANIEL FRANK DIRECT EXAMINATION BY MR. WOODS (Resumed). . . . . . 23 CROSS-EXAMINATION BY MR. FREEBORNE . . . . . . . . . 41 REDIRECT EXAMINATION BY MR. WOODS. . . . . . . . . . 60

ADMITTED 5 6 7 17 18 22 23

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WEDNESDAY, JUKY 14, 2010, RIVERSIDE, CALIFORNIA ---o0o--THE CLERK: CV 04-8425 VAP, Log Cabin Republicans

versus United States of America. Counsel, please state your appearance. MR. FREEBORNE: Your Honor, good morning. Paul

Freeborne on behalf of the United States and Secretary Gates. We have the usual team we had yesterday, Mr. Gardner, Mr. Simpson, Mr. Parker, Major Grant, and we have an addition which is Major Jennifer Bottoms. THE COURT: MR. WOODS: Good morning. Good morning, Your Honor. Dan Woods With

for White & Case for plaintiff Log Cabin Republicans.

me today are my colleagues Earle Miller and Aaron Kahn at counsel table, and seated up in front are Devon Myers and Rachel Feldman. THE COURT: All right. Thank you. Good morning.

We were going to take care of some

evidence issues this morning. MR. WOODS: Yes, Your Honor. At this time, Your

Honor, we intend to offer portions of Exhibit 104 which is in volume 5 of the exhibits. These are the Government's From this set of

verified responses to interrogatories.

responses to interrogatories, Your Honor, I do not propose to offer all of them but only some of them, and the numbers that

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I propose to offer into evidence are Nos. 1, 2, 3, 5, 6 and 7, and I provided that information this morning to counsel for the Government. THE COURT: 1, 2, 3, 5, 6, 7. No objection, Your Honor. 1, 2, 3 -- I'm sorry, let

MR. GARDNER: THE COURT: me start over.

All right.

The portions of Exhibit 104 which consist of

interrogatories and responses to them, 1, 2, 3, 5, 6 and 7, are ordered admitted. MR. WOODS: Thank you, Your Honor.

Since we seem to be making progress, let me try some additional exhibits that I'd like to offer that I hope will not present any problems. the exhibit binder, Your Honor. THE COURT: MR. WOODS: Your Honor. Which exhibit number? The first one would be Exhibit 305, These are all in volume 10 of

These are statements made by President Obama,

Your Honor, in June of 2009 as published on the White House official website. THE COURT: admission? MR. WOODS: THE COURT: 305? MR. WOODS: There is. It is on page 2, Your Honor. Yes, Your Honor. Is there a particular part of Exhibit And they're offered for what, as an

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It begins at the bottom of page 2, the bottom paragraph, which the President says as follows: "And finally, I want to As I said before

say a word about 'Don't Ask, Don't Tell.'

-- I'll say it again -- I believe 'Don't Ask, Don't Tell' doesn't contribute to our national security. In fact, I

believe preventing patriotic Americans from serving their country weakens our national security." MR. GARDNER: We object on relevance grounds. If I

may be heard, Your Honor?

The President's statement has no

bearing upon whether or not "Don't Ask, Don't Tell" was facially constitutional. THE COURT: It is simply irrelevant.

That objection is overruled and Exhibit

305 is ordered admitted, but we don't need the entire -- the entire exhibit is ordered admitted, but you're really only offering the specific excerpt that you pointed to which is on page 2. So it's Bates No. 4000. MR. WOODS: THE COURT: MR. WOODS: That's fine, Your Honor. All right. The next one, Your Honor, would be

Exhibit 306, which is a similar document from the President's statements published by the White House official website. THE COURT: document? MR. WOODS: On page 2, last two paragraphs, for "We are moving ahead on 'Don't And what particular excerpt from this

which the President says:

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Ask, Don't Tell.'

We should not be punishing patriotic We

Americans who have stepped forward to serve this country.

should be celebrating their willingness to show such courage and selflessness on behalf of their fellow citizens, especially when we're fighting two wars. We cannot afford to cut from our ranks people with the critical skills we need to fight any more than we can afford -- for our military's integrity -- to force those willing to do so into careers encumbered and compromised by having to live a lie." THE COURT: Any objection? Same objection. And this So

MR. GARDNER: THE COURT:

The objection is overruled.

is Bates -- Bates stamped 3996, the last two paragraphs.

Exhibit 306 is ordered admitted, but the only two paragraphs under consideration are the last two paragraphs on page 2, which is Bates stamp No. 3996. MR. WOODS: 312. The next one, Your Honor, is Exhibit

312 is the official transcript of the Senate Committee We have, in

on Armed Services hearing on February 2, 2010.

the exhibit we've provided Your Honor, skipped 52 pages of it that were not relevant to the issues in the case. So what we

have before you is the entire discussion of "Don't Ask, Don't Tell" at that hearing that is there and in context. The

particular statements that we focus on in this particular

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document are the statements that are made by Admiral Mullen, Chairman of the Joint Chiefs of Staff, beginning at page 58 and running onto page 59. THE COURT: 53. MR. WOODS: That's correct, Your Honor. Less we Well, what I have here begins on page

ever be accused of not including all the relevant material, we have included for you the entire discussion of "Don't Ask, Don't Tell" that day at that senate hearing. THE COURT: MR. WOODS: Oh, I see. I think it's all relevant, but the

point that's most important in this document begins at the bottom of page 58 and the statements of the Chairman of the Joint Chiefs of Staff, Admiral Mullen. THE COURT: MR. WOODS: But you don't have the first 52 pages? Correct. Two objections, Your Honor. One,

MR. GARDNER:

this is entirely irrelevant what Congress is currently doing today in terms of moving toward "Don't Ask, Don't Tell" as to whether or not back in 1993 "Don't Ask, Don't Tell" was unconstitutional facially. More importantly, I want to focus on Admiral Mullen's statement there beginning on page 59. Admiral

Mullen says, Mr. Chairman, speaking for myself and myself only, it is my personal views. Your Honor, this isn't the

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admission of a party opponent.

This is hearsay.

He's not

speaking on behalf of the DOD -THE COURT: Excuse me for interrupting you, but

that might be as to -- I haven't read this whole excerpt yet; that is, the whole exhibit, but that's several pages into the excerpt, so I don't even know if that refers to that one paragraph or everything that follows. Certainly not

everything that -- I don't know if it refers to everything that precedes it. MR. GARDNER: Well, you heard Mr. Woods say all That's what I'm

he's really focused on is page 58 and 59. focused on right now. unequivocal.

And on page 59 Admiral Mullen is

He's not stating the DOD's position, he's Those personal views are not the They're inadmissible hearsay.

stating his personal views.

statement of a party opponent.

And they're offering them clearly for the truth of the matter asserted. THE COURT: Well, that sentence may -- the words

that you quoted don't necessarily refer to everything on page 58 and 59. MR. GARDNER: Well, Your Honor, I mean I can read

as well as you can read, and what this says is, these are my personal views, which, by the way, raises a larger question, a larger problem. THE COURT: My point is, in the course of stating

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one's views on behalf of an organization, one may insert a sentence in the middle saying, and by the way, my personal views are. MR. GARDNER: are inadmissible. THE COURT: And as to that one sentence it might be We agree. And those personal views

inadmissible, but that doesn't mean that this entire document is inadmissible, and that's the flaw in your argument. MR. GARDNER: Except, Your Honor, they're not As Mr. Woods said,

seeking to admit the entire document.

these words on pages 58 and 59, which is -THE COURT: Exhibit 312. MR. GARDNER: Well, then we have larger problems, No, I think he's moving into admission

because there is all sorts of testimony in here from non-party DOD whatsoever, and that's clearly -- so if Mr. Woods is intending now to dump in this entire document, which is completely irrelevant to the constitutional -THE COURT: Would you please speak more slowly. Sure. To the extent Mr. Woods wants

MR. GARDNER:

to introduce this entire Exhibit 312 which contains statements by non-DOD employees, personal statements by DOD employees, it's ripe with hearsay problems. THE COURT: MR. WOODS: Mr. Woods. First of all, Your Honor, I don't think

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that we need to include in every discussion of every exhibit the Government's position that no evidence should be admitted, and yet we keep hearing it over and over and over. THE COURT: that. it. MR. WOODS: I believe so, too, Your Honor. They've There can be a standing objection to

The Government's position, the Court's well aware of

preserved their record in motions in limine and other things that -THE COURT: MR. WOODS: What is your response, other than that? My response, Your Honor, is that the

statement of Admiral Mullen, whether he is speaking officially for the Department of Defense or for himself only are still party admissions. This is the Chairman of the It's no

Joint Chiefs of Staff expressing his personal view.

different, Your Honor, than, for example, your last trial. The chairman of Disney sat in that chair and said, well, my personal view was that we really did take advantage of that English company. That's still a party admission whether he

couches it as a personal view or his official Disney view or something else. It is a statement out of court that is certainly reliable, since it's made under oath in front of the United States Senate, and it is an admission. It is one of the

greatest admissions of all time when the Chairman of the

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Joint Chiefs of Staff says, I cannot escape being troubled by the fact that we haven't placed a policy which forces young men and women to lie about who they are in order to defend their fellow citizens. So that sentence is not preceded by It's not

the sentence that he's speaking for himself only. clear that that's his personal view. of the United States Senate.

He is talking in front

It is admissible under Federal

Rule of Evidence 804(b)(3) as a statement against interest, and it is admissible under Federal Rule of Evidence 803.8 as a public record. MR. GARDNER: statement -THE COURT: How is it not a public record? How is it not a public record? It's not a public record nor a

MR. GARDNER:

Because a statement made before Congress isn't a public record. I mean, if this Court wants to take judicial

notice -THE COURT: I'm sorry. If this Court --

MR. GARDNER: THE COURT: transcript -MR. GARDNER: THE COURT:

Is it the Government's position that a

Your Honor -The document we're talking

Excuse me.

about is the February 2nd, 2010 hearing before the Committee on Armed Services Department of Defense authorization for

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appropriations for the fiscal year 2011 and to receive testimony relating to the "Don't Ask, Don't Tell" policy, and it's a transcript of the hearing before that committee. And it's the Government's position this is not a public record? MR. GARDNER: THE COURT: No. The Government's position is --

No, it's not the Government's position;

isn't that what you just stated? MR. GARDNER: be clear, Your Honor. record. The Government's position -- let me The document itself is a public

The statements contained within that document -THE COURT: Just a moment. And please slow down

when you speak.

There are two bases on which this document One of them is the public

is being moved into evidence. records -MR. GARDNER: THE COURT: Yes.

-- basis.

So you want to address that? The

MR. GARDNER:

I'm trying to, Your Honor.

document itself is a public record, but that doesn't mean that every hearsay statement within that document becomes admissible. stands for. That's what hearsay within hearsay actually So there is a second hurdle here. The fact that

the document itself may be admissible in evidence doesn't mean the statements, the hearsay statements, the out-of-court statements, may be admissible. Mr. Woods seems to find a

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second exception to the hearsay rule to get that into evidence. Again, I think the second exception he talked It is a little

about was a statement against interest.

unclear to me how Mr. Mullen's personal views are a statement against interest. THE COURT: There's really no -- in the document

that's been provided, my review of it shows that other than the testimony of Admiral Mullen, and then there's a short -and the comments of the senators on the committee, there's a short bit from Secretary Gates who, of course, is a party. believe that you stated a moment ago that there is testimony from others. MR. GARDNER: THE COURT: I believe -I

Can you point to me where that is,

because apart from the senators and this, I don't really see any. MR. GARDNER: I know that plaintiffs have included It's not on this day.

multiple days of the testimony. THE COURT: Right.

So it's not in this exhibit.

MR. GARDNER: Honor.

Well, let me confirm that, Your The two statements by

That appears to be the case.

non-senators are Secretary Gates -- it is undisputed that Secretary Gates is speaking on behalf of DOD. That would be

an admission of a party opponent under 801(d)(2). THE COURT: So are you withdrawing your statement

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that there is testimony from anyone else? MR. GARDNER: Other than the senators, Secretary

Gates and Admiral Mullen. THE COURT: The senators aren't testifying, they're

members of the committee. MR. GARDNER: THE COURT: Correct.

So the only issue really is the

testimony of Admiral Mullen? MR. GARDNER: THE COURT: Correct.

So what you said earlier was incorrect? That it is not the statement of a

MR. GARDNER: party opponent -THE COURT:

Excuse me.

What you said earlier, just

so I understand what's really in the document, is that there really is no testimony from anyone other than Admiral Mullen and that short statement by Secretary Gates, because earlier, part of the basis for your objection you stated was there was hearsay statements from others. MR. GARDNER: THE COURT: Mm-hmm.

There isn't. And, yes, you're right, Your Honor.

MR. GARDNER: That's correct.

It doesn't change the basis that these

aren't -- that Admiral Mullen's testimony is in a personal capacity -THE COURT: Based on the one sentence that you read?

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MR. GARDNER:

Yes, based on the one sentence I

If I may, Your Honor, this is a more broader issue,

that generally speaking, we bring in witnesses to explain foundational issues about documents. So we can all guess as

to which part of Admiral Mullen's testimony were his personal views versus more general views. That's why we have Plaintiffs want

witnesses take the stand, to explain this.

to dump documents into the record without having a witness explain what Admiral Mullen thinks. We can all read it, but

that's why this kind of testimony or this kind of evidence really isn't appropriate. THE COURT: Although, of course, the Government's

sole exhibit in this case is the legislative history which consists of the same statement. MR. GARDNER: Because by law, when this Court is

looking to facial constitutionality of the statute, it looks at the statute and the legislative history that supports it. We're not calling senators who testified in 1993 to explain what it says. It says what it says, and the Court has to

reach a legal conclusion as to the relevance of that. THE COURT: And the Court will reach a conclusion

as to the relevance of this and the effect of the statement that you pointed to, which may or -- the Court has to read the entire context, read the entire testimony to reach a conclusion as to the effect of the sentence that you pointed

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to.

This Exhibit 312 is ordered admitted. Next? MR. WOODS: Yes, Your Honor. Exhibit 321 is next. This is dated

This is another statement by President Obama. May 27, 2010. House website.

Again, this one is from the official White And this one the president admits that

repealing "Don't Ask, Don't Tell," quote, will help make our Armed Forces even stronger, end quote. THE COURT: All right. There's a lot of other There's a two-page document

extraneous material on the page. that is included.

It is really only the first page. That's right, Your Honor. I don't care

MR. WOODS:

about the second page, which is just what also comes off the printer when you print something from the government website. THE COURT: font smaller? MR. WOODS: sorry. larger. THE COURT: No, I'm sorry. That's just a weak I'm wearing my glasses today, too. I'm Is there any way that you could get the

If you'd like, Your Honor, I could try to make it

attempt at humor because every one of these pages it seems is a harder and harder eye examination. MR. WOODS: promise. The next one you will like better, I

We'll get to it.

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MR. GARDNER: THE COURT:

We object on relevance grounds.

On? Relevance.

MR. GARDNER: THE COURT:

321 is ordered admitted, but none of It's the first

the other extraneous matters on the pages. page that's ordered admitted. ordered admitted. MR. WOODS: THE COURT: MR. WOODS: Correct, Your Honor. Next?

It's just the statement that's

Exhibit 330, Your Honor. Did you say 330?

MR. GARDNER: MR. WOODS: THE COURT: MR. WOODS: Twitter account. THE COURT: MR. WOODS: THE COURT: what's the basis --

330, yes. Let me ask, how is this authenticated? This is from Admiral Mullen's personal

And how do we know that? How do we know that? Well, let me ask the Government,

Well, let me ask you, do you have an objection? MR. GARDNER: Yes. We do have a relevance

objection, and I actually do have an authentication objection. I have no idea where this comes from.

Unfortunately, I'm not a Twitter friend with Admiral Mullen, so I don't get these direct feeds. I believe Mr. Woods does.

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If they want to elicit testimony from Admiral Mullen, call Admiral Mullen to the stand. But these kind of Twitter --

these Twitter statements, it's irrelevant, there is no authentication, and there's a foundation issue. THE COURT: Let's take them up one by one. Let's

take up authentication. MR. WOODS: First of all, if they want to bring Please do.

Admiral Mullen to explain this, go ahead.

Earlier on in this case I talked about depositions of Secretary Gates and Admiral Mullen and I was rebuffed by the Government. Now they want to tell me -Okay. Now I'm going to ask you to slow

THE COURT: down, please. MR. WOODS:

I'm sorry, Your Honor, but I'm sorry to

hear the Government talking out of both sides of its mouth. If they want to bring a witness, they could have brought a witness. They chose not to bring a witness. This document,

Your Honor, is another admission by the Chairman of the Joint Chiefs of Staff -THE COURT: I understand how it would be an

admission, but, Mr. Woods, could you please just discuss authentication. MR. WOODS: Yes. Admiral Mullen likes to

apparently what they call tweet. THE COURT: I'm familiar with what a tweet is.

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MR. WOODS: THE COURT: want to try to focus. the authentication. MR. WOODS:

And one of our lawyers -I'm sorry to interrupt you, but I just So set the record, make a record as to

So his Twitter entries or tweets are And both, one of the lawyers

publicly available, Your Honor.

in our office and one of our experts, had signed up to receive these messages from him. THE COURT: So wouldn't -- pardon me for

interrupting you again, but wouldn't you have to put that witness on the stand to explain -- to set the -- to authenticate the receipt? MR. WOODS: I can do that later next week, Your

Honor, if that's the only issue with this document. THE COURT: Well, I think without a stipulation as

to authentication, I think you would have to do that to authenticate the receipt of it. Since it's a bench trial, it

could be received into evidence subject to authentication, as to the authentication or foundation, so we can move to the hearsay issue. MR. WOODS: issue, Your Honor. Okay. The hearsay issue is not an

It's another admission by the Government

against the Government's interest by the Chairman of the Joint Chiefs of Staff who says in this document to the entire world, quote, allowing homosexuals to serve openly is the

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right thing to do.

Comes down to integrity.

This is another admission, Your Honor, against the Government's position in this case as the Witt factors are concerned. This goes right to the heart of the Witt factors

and our First Amendment issue. MR. GARDNER: Again, we deal with the foundation

issue, and I understand the Court's 104 conditional admission determination. We do have a relevance issue here once again. And

And we do have the personal views issue here once again.

to be clear for the record, I'm not suggesting that we would put on Secretary Gates. Again, our position is there is no What I'm suggesting

testimony or exhibits that are relevant.

is that if they want to get evidence into the record, they need a sponsoring witness to do so. THE COURT: It's that simple.

Well, as to whether it's a personal It

view, what it shows is not someone named Mike Mullen. shows Admiral Mike Mullen, the Joint Staff.

That is taking

this as a proffer for a later authentication by a witness. But taking the document on its face, it does not look like the statement of the person, Mike Mullen. made in an official capacity. conditionally as an admission. It looks like it's

So I would admit it It appears to be an

admission, the conditional nature of the admission of -- I'm using admission in two different ways. The conditional

nature of admitting it as an exhibit is subject to the

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authentication by a witness.

So, on that basis, 330 is

ordered admitted subject to later authentication. MR. WOODS: Thank you, Your Honor. And that's all

of the exhibits we will try to get in through this process this morning. THE COURT: ready? MR. WOODS: THE COURT: Yes. All right. So in just a moment I'm Five minutes All right. So you have a witness

going to take a brief recess before we begin. before we begin with the witness. MR. WOODS: right up. THE COURT: All right. Oh, that's right.

I have Professor Frank and he'll be

He has to continue.

Just a five-minute recess. (Recess)

THE COURT:

Good morning. Good morning, Your Honor.

THE WITNESS: THE COURT:

You do not need to be sworn in as a

witness today because you were sworn yesterday, so your testimony is still given under penalty of perjury. Do you understand that? THE WITNESS: THE COURT: All right. Yes, I do.

Thank you. You may continue.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exhibit 2?

MR. WOODS:

Thank you, Your Honor.

What I would just like to do first, Your Honor, is offer into evidence the list of publications that's part of Professor Frank's report, Exhibit 2. yesterday. evidence. We looked at it

I think it's simpler if we just admit it into I'm not, obviously, trying to introduce the entire

report but just the two pages of his publications. THE COURT: MR. WOODS: THE COURT: That's page 24 and 25? Correct. Any objection to pages 24 and 25 of

MR. FREEBORNE: THE COURT:

No objection, Your Honor.

They are ordered admitted. Just with one caveat, so we know

MR. FREEBORNE:

what's being offered, I know Dr. Frank has published many articles. These are the articles that he had published up to

the time of his expert report, I take it? MR. WOODS: Yes.

DIRECT EXAMINATION (Resumed) BY MR. WOODS: Q. Professor Frank, moving on, yesterday we had some Have any of the

discussion about peer review of work.

articles that you have published been fact checked? A. Q. Yes. And what do you understand the process of fact checking

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to involve? A. In certain magazines, journals, and newspapers there are

fact checkers or fact checking departments which go through every major assertion or assertion that the fact checker believes might be contestable and is not pretty uniformly accepted and they verify the facts. Q. Which of the publications listed on pages 24 and 25 of

Exhibit 2 were fact checked? A. Almost all of them except for the Huffington Post ones Lingua Franca,

because that's a blog.

The New Republic, The New York Times, The Washington Post, The L.A. Times. Q. Thank you. You mentioned yesterday, Professor, in the

context of the question about possible relaxation of bans on gay service in times of war and need an individual named Kim Waldron. A. Q. on? A. She spoke to a journalist, I think in 2005, to explain Can you identify who Kim Waldron was, please?

She was a U.S. Army spokesperson. And what information that she provided are you relying

the FORSCOM regulation that had been circulating which indicated that the military sent gay people who had avowed their homosexuality from the Reserves or Guard to war despite having come out. Q. Did this journal publish statements by Ms. Waldron?

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A. Q. A.

Yes. And what were the statements? She explained that the regulation indeed indicated that

if the statement of homosexuality -- I'm paraphrasing because I didn't memorize the statement -- but had been made shortly before mobilization, in those cases the service member would be mobilized anyway and the possible inquiry into the homosexual conduct would be delayed. MR. FREEBORNE: inquiry. I'm going to object to this line of

It calls for a legal conclusion. THE COURT: The objection is overruled.

BY MR. WOODS: Q. In the same subject area yesterday, Professor, you

mentioned some work done by the Congressional Research Service. A. Q. Yes. Can you tell us, first of all, what is the Congressional Do you recall that?

Research Service? A. Q. It's a research arm of the U.S. Congress. And do you recall a report about the subject of whether

homosexuals were sent to combat after being at least suspected of being homosexuals? A. There was a report that addressed the issue of

homosexuality in the military broadly that included that subject, yes.

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Q.

What was the approximate date of that report, if you

recall? A. The first one I recall seeing was from 1993. It's been

subsequently updated several times. Q. And what, if anything, did the Congressional Research

Service report about deploying homosexuals? A. It said that suspected homosexuals were sent to war

which put them in a difficult situation because they were sent to war and often discharged upon return which undercut the military's rationale that known gays harmed cohesion. Q. On the subject of discharging homosexuals after

returning from war, you said yesterday that gays were fired upon returning from the Gulf War in 1991. From the materials

that you have studied, do you have an estimate as to the number of homosexuals who were discharged from the service after returning from deployment in the Gulf War in 1991? A. I don't know a figure that's pegged specifically to There are DOD discharge I

those who came back from the war.

figures from that year which were in the several hundreds. don't remember that exact figure. Q.

And by the way, has the number of discharges pursuant to

"Don't Ask, Don't Tell" increased or decreased after the attacks on our country on September 11th, 2001? A. After increasing many years in a row under "Don't Ask,

Don't Tell," they've decreased almost every year but one or

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two following 9/11. Q. A. And do you have an opinion as to the reason for that? Yes. Consistent with historical discharge figures as

well as comments from gay service personnel and others that the military retains known or suspected homosexuals during times of war when it needs personnel. Q. And are homosexuals still being discharged under "Don't

Ask, Don't Tell" today? A. Q. Yes, as far as I know. You also mentioned yesterday in the discussion we had

about various occupations where there might be shortages of personnel, a lack of medical treatment specialists, do you recall that? A. Q. Yes. And do you recall, Professor, whether there is a Senate

report about the lack of qualified medical treatment specialists? A. Q. Yes, there is. And what was the date of the Senate report to which

you're referring? A. Q. A. 2003. What was the gist of the Senate report on this subject? It was a report by Senator Leahy and Bond that noted

that many returning veterans who were injured in the Reserves and Guard were untreated for extended periods of time because

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there were insufficient medical personnel and that that harmed their morale and their physical health. Q. And when you studied the occupations of people

discharged pursuant to "Don't Ask, Don't Tell," did you find that medical treatment specialists had been discharged pursuant to the policy? A. Q. Yes. There were several hundred of them.

Now, going on with this question about occupations that

we began yesterday, I believe you said yesterday that there were discharged individuals in 161 occupations as defined by the Department of Defense? A. Q. That's right. Have you seen any report or study that characterized or

classified any of those occupations as critical? A. Q. Yes, I have. Can you describe to the Court what report you're

referring to? A. A Government Accountability Office study from 2005

reported that at least 750 some service members were discharged under "Don't Ask, Don't Tell" who had critical specialties. And that's defined, among other things, by

those for which there is an enlistment or recruitment bonus offer because of the critical shortage and the critical need of those personnel. Q. And who defined these occupations as critical, as you've

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just used that term? A. The Government Accountability Office, but I believe it's

based on military definitions. Q. And can you identify some of these critical occupations,

Professor? A. Yes. Language interpreters, communication and

navigation specialists, medical treatment personnel, weapons engineering personnel. Q. And, again, you just mentioned language skills. Are

some languages considered more critical or more important than others in the military? A. Q. A. Yes. Can you explain that to the Court, please? Languages such as Arabic and Farsi, which are needed for

translation both of intelligence and for actual engagement with personnel on the ground, are considered critical and are also considered especially difficult for Americans in particular to learn. They are more different from English

than other languages, and the course work, for instance, at the Defense Language Institute is much longer than for a romanced language. Q. From your research and study, did you find a shortage of

people with language skills in those particular languages? A. Q. Yes. And did you also find in comparing the data that people

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with those language skills that are scarce were discharged pursuant to "Don't Ask, Don't Tell"? A. Q. A. Yes. Can you offer the Court any numbers along those lines? There were several hundred personnel with language At least 60 of them were Arabic speakers.

skills. Q.

We had started to talk yesterday, Professor, about Were you part of

financial costs of "Don't Ask, Don't Tell."

a Palm Center report about the financial costs of "Don't Ask, Don't Tell"? A. I edited a report. I was not a member of the

commission. Q. Well, when you say "the commission" what are you

referring to? A. A Blue Ribbon Commission set up by the Palm Center in, I

believe 2005 to assess the costs of enforcing "Don't Ask, Don't Tell." Q. A. And who served on the Blue Ribbon Commission? Coit Blacker; William Perry, who was former Secretary of

Defense; I believe Lawrence Korb; Aaron Belkin, the Director of the Palm Center. Q. And what role, if any, did you play with the Blue Ribbon

Commission and the Palm Center work on this study? MR. FREEBORNE: THE COURT: Objection, asked and answered.

Sustained.

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BY MR. WOODS: Q. What was the conclusion of the -- I'm sorry. What was the purpose of this report, Professor? A. The purpose was to assess the actual costs of enforcing

"Don't Ask, Don't Tell" given a hypothesis that a GAO report had misstated those costs or that they were incomplete based on the title of the GAO report which stated as much, that they were incomplete. Q. And did this report from the Palm Center analyze the GAO

report about the financial cost of "Don't Ask, Don't Tell"? A. Q. It analyzed the GAO report and other data. And what was the conclusion of the Palm Center report as

to the financial cost of "Don't Ask, Don't Tell"? MR. FREEBORNE: Your Honor, I'm going to object to He

the extent this is not the subject of his expert opinion. is just simply regurgitating what was found. object on that basis. expertise. MR. WOODS: THE COURT: So we would

It is well outside the scope of his

He is not offering an economic opinion. Well, then, his opinion is limited

to -- well, actually, you haven't asked him to state what his opinion is. You've asked him to state the conclusion of the

Palm Center report. BY MR. WOODS: Q. I can do it this way --

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 correct? report?

THE COURT:

I guess my question -- so the objection

is to a question that you haven't asked, but I think you're going to ask that question. I'll rule on the objection. MR. WOODS: Let me try it this way: The report is Well, ask the question and then

Exhibit 10 for identification, Your Honor. offer it into evidence at this time. THE COURT:

I'm happy just to

The Palm Center report, not the GAO

MR. WOODS: THE COURT:

Right.

I'll offer them both.

He didn't offer the Palm Center report,

His testimony is he worked on the -- he worked on So you're offering it as -- it's the basis for Because he

the report.

an opinion he's going to offer on the GAO report?

can testify about what his opinion is, if he has one, on the GAO report, but you don't offer the underlying evidence. MR. WOODS: BY MR. WOODS: Q. Do you have an opinion, Professor Frank, about the I'm happy to do that.

accuracy of the GAO report? MR. FREEBORNE: scope of his expertise. THE COURT: may respond to that. MR. WOODS: Well, he is not giving an accounting or All right. Now, that's the issue. You Objection, Your Honor, outside the

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economic opinion.

What his opinion is, I believe, as stated

in his report, is that the Palm Center report considered different issues in reaching its conclusions than what the GAO considered. THE COURT: Aren't you asking him for his opinion That's the opinion

regarding the accuracy of the GAO report? that you're seeking to elicit. MR. WOODS: THE COURT: Well, maybe rather

--

Because as I understand his testimony,

his testimony is that the work that the Palm Center did that he's going to opine on is the accuracy of the GAO report, correct? MR. WOODS: No. We're only talking about the So let me try it this

methodology used in the two reports. way -THE COURT:

Because I'm going to sustain the

objection to the last question. BY MR. WOODS: Q. A. Q. You've read and studied the GAO report? Yes. What did the GAO report take into account in its

methodology in determining the financial cost of "Don't Ask, Don't Tell"? MR. FREEBORNE: of our objection. Your Honor, this is the very heart

Both studies were driven by different

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economic assumptions as most cost analyses are.

Dr. Frank is

very forthright that he was not involved in developing -THE COURT: Just state the basis. The basis for

your objection is outside the scope of his expertise? MR. FREEBORNE: Absolutely. And specifically, he

is not equipped to talk about economic assumptions that were behind -THE COURT: I think you stated your objection, it's

beyond the scope of his expertise as a historian. MR. FREEBORNE: THE COURT: described it. BY MR. WOODS: Q. Did the Palm Center report reach a different conclusion That's right.

Well, all of his training as he has

The objection is sustained.

than the GAO report? A. Q. Yes. And what factors did the GA -- I'm sorry -- did the Palm

Center report take into account that the GAO report did not take into account? MR. FREEBORNE: Same objection, Your Honor. I

believe you just ruled on this very question. THE COURT: Well, this is a slightly different

question, because this question doesn't ask him about what the flaws were in the GAO report. They ask him if the Palm

Center report took into -- what the differences are between

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the two without saying the first one was flawed. objection is overruled. THE WITNESS:

The

The Palm Center determined -- gave a

credit to the military for time served which the GAO report had not, thereby lowering the cost estimate based on that credit. And at the same time it was able to identify costs

that the GAO report acknowledged it didn't identify thereby raising the net costs assessment. BY MR. WOODS: Q. We also talked briefly yesterday about foreign Since the United States enacted "Don't Ask,

militaries.

Don't Tell," Professor, has any other foreign country followed its lead and enacted a similar policy? A. Q. No. You mentioned yesterday the moral waivers and you also

mentioned that other standards for recruitment had been relaxed. A. Q. A. What standards were you referring to?

In addition to moral waivers? Yes. There were educational standards, weight standards, and

there was additional reliance on reserve troops and IRR troops who are known to be less ready than active duty troops. Q. Let's focus on what you just said. IRR troops are known

to be less ready.

What is the basis of your opinion about

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that, Professor? A. One of the studies we discussed yesterday by Michael You're

Boucai -- I'm sorry, that's about the moral waiver. asking about the IRR.

I believe this was a conclusion in

Government reports or reports of testimony by the military to Congress, but I don't remember exactly the basis of that conclusion. Q. And you mentioned that the education standards were How were they changed?

changed. A.

There was a reliance on people who scored in a lower

sector, I believe the bottom third, of the possible educational tests during years after 9/11. Q. Now, Professor, have you studied and analyzed the

incidents of harassment of or violence towards homosexuals after the enactment of "Don't Ask, Don't Tell"? A. Q. I've studied reports of harassment. And with respect to the reports of harassment that

you've studied, have you reached any opinions about whether harassment of homosexuals in the military increased, decreased, or didn't change after the enactment of "Don't Ask, Don't Tell"? A. I have opinions about reports of harassment that I

distinguish from actual harassment. Q. A. And what does the research show? That reports of harassment went up after "Don't Ask,

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Don't Tell" was implemented. Q. A. And do you have any opinions as to the reasons for that? Yes. I believe the emphasis on sexual orientation and

the presence of homosexuals in the military contributed to this because the law said, for the first time policy, I should say that there were gays in the military at the same time the law said they were an unacceptable risk to cohesion. And this gives an indication to people that there is an element of danger in their midst and raises suspicions about that, and so it emphasized that a greater focus on

suspicions about sexual orientation in a negative light -with a negative light. Q. You also, Professor, researched and studied paramilitary

organizations that allowed homosexuals to serve openly? A. Q. Yes. Can you describe the types of paramilitary organizations

that you're referring to? A. Fire departments, police departments, intelligence

agencies. Q. And can you describe some of the studies that have been

done on the subject of police departments, fire departments, and such organizations allowing homosexuals to serve openly and any impact it may or may not have on performance? A. Yes. The RAND study, one of the GAO studies, and some

of the Palm Center studies --

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THE COURT:

What was the middle one you just said,

the RAND study, the -THE WITNESS: The GAO, G-A-O. -- looked at what

happened in some of these organizations that allowed gays to serve openly or that changed their policy to allow them to serve openly and found consistently that there had been no problems with cohesion and morale, and in fact, concluded from this that even though there was, in some cases, expressions of homophobia and anti-gay sentiment, that there was still no impact on readiness of those organizations as a result of letting gays serve openly. BY MR. WOODS: Q. Are you aware of any study of such organizations that

concluded that open homosexual service was a detriment in any way? A. No. In terms of overall readiness, no. There are

complaints in some of those organizations that this is not something people wanted, but that doesn't rise to detriment or readiness. Q. Now, did the Palm Center also prepare a report in July

2008 about "Don't Ask, Don't Tell"? A. The Palm Center put together a panel of retired officers

in 2008 who conducted research for a report. Q. And how many members were on this panel of retired

officers?

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A. Q. A.

Four. Do you know who they were, by chance? General Alexander was one of them. Hugh Aitken,

A-I-K-E-N, I think was another one. remembering the name correctly. Q. A.

Jack Shanahan, if I'm

And what was the purpose of this project? To take testimony from people on all sides of the issues

of gays in the military, assess the research, and draw some conclusions about the necessity and effectiveness of "Don't Ask, Don't Tell." Q. And was the work on this project done by the panel of

the four retired officers? A. The research was conducted by the panel with the

assistance of Palm Center staff who wrote up most of the report. Q. A. Q. And were you involved in the preparation of that report? Yes. What was the conclusion of this report of the panel of

retired officers? A. That there was no basis for the assertion that allowing

gays to serve openly created an unacceptable risk to the military and that the Congress should return authority over this issue to the Pentagon and that the Pentagon should end discrimination. Q. And after this report was completed, were there people

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who provided comments about it? A. Q. A. Yes. Can you describe that for the Court, please? General John Shalikashvili, former Chairman of the Joint

Chiefs of Staff, endorsed the report as, I believe he said one of the most thorough assessments of gays in the military in 16 years. THE COURT: Staff's name? THE WITNESS: Yes, let me try. Could you spell former Joint Chiefs of

S-H-A-L-I-K-A-S-H-V-I-L-I. THE COURT: BY MR. WOODS: Q. Professor Frank, are you aware of any research, study, Thank you.

report, analysis, data, or information that indicates that "Don't Ask, Don't Tell" furthers an important government interest? A. Q. No. You understand what the stated interests for "Don't Ask,

Don't Tell" are, I take it? A. Q. Yes. And are you aware of any research, study, report,

analysis, information, or data that shows that "Don't Ask, Don't Tell" significantly furthers any such government interest?

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A.

No.

There is information that asserts that, but not

that shows it. Q. And are you aware of any information, research, study,

analysis, or report that shows that "Don't Ask, Don't Tell" is necessary to further any government interest? MR. FREEBORNE: legal conclusion. THE COURT: MR. WOODS: Sustained. Thank you, Professor. No further Your Honor, objection, calls for a

questions at this time. THE COURT: Thank you.

Cross-examination. CROSS-EXAMINATION BY MR. FREEBORNE: Q. A. Q. Dr. Frank, good morning. Good morning. We met previously, but again, my name is Paul Freeborne. Dr. Frank, on direct there was reference made to your book Unfriendly Fire. A. Q. A. Q. I'm sorry, on direct? On direct examination by Mr. Woods. Yes. Just to be clear, Unfriendly Fire was not peer reviewed, Do you recall that?

correct? A. Correct.

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Q.

I would like to now turn to your discussion of the

historical record that led to the enactment of "Don't Ask, Don't Tell." Now, you would agree that Congress held

extensive hearings regarding the policy, correct? A. Q. Yes. But on direct you testified that opponents of the policy

were not heard in equal proportion to those who favored the policy. A. Q. Do you recall that testimony?

Yes. Gay and lesbian advocates testified before Congress,

correct? A. Q. Yes. In fact, discharged service members testified before

Congress, correct? A. Q. Yes, partly because open gays couldn't. In fact, Tracy Thorn testified, right? She was one of

those discharged service members? A. Q. A. Q. I believe Tracy is a male. We can find Mr. Thorn's testimony at JX344, 560? I'm sorry, are you asking me a question? Well, I'm pulling it up just for the record for the

Court's convenience. A. Okay. THE COURT: number again? Is that an -- I mean, what is the

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MR. FREEBORNE:

JX344 has been admitted into

THE COURT:

344.

It's book 11. It's legislative history and we've

MR. FREEBORNE:

pulled up the relevant page. THE COURT: You blew it up. Thank you.

MR. FREEBORNE: THE COURT: BY MR. FREEBORNE: Q.

It's in book 11. Thank you.

I can see that.

Margarethe Cammermeyer testified before Congress,

correct? A. Yes. MR. FREEBORNE: at JX344, 646. And for the record, that is found

We'll pull that up.

BY MR. FREEBORNE: Q. Now, you're aware that one of plaintiff's experts in

this case, besides yourself, is Dr. Lawrence Korb? A. Q. A. Q. Yes. And Dr. Korb testified before Congress in 1993, correct? Yes. In fact, Dr. Korb testified before the Senate Armed

Services Committee regarding the experience of foreign militaries? A. Q. Yes, I believe that is one of his subjects. And Congress heard from a number of individuals on that

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subject, correct? A. Q. Yes. And you're aware that Congress heard over five hours of

testimony regarding the experience of foreign militaries? A. I haven't counted the hours but that sounds like it

would be right. Q. During the hearings Congress heard from Dr. Charles

Moskos on that subject? A. Q. Yes. Congress also heard from Dr. David Segal on that

subject? A. Q. Yes. And yesterday you made reference to Dr. Judith Stiehm.

Do you recall that? A. Q. A. Q. Yes. And Congress heard from Dr. Stiehm, correct? Yes. Congress also heard from Lieutenant General Calvin

Waller? A. Q. Yes. Now, one of the documents that you rely upon regarding

the experience of foreign militaries is the 1993 GAO report? A. Q. That's right. But you understand that Congress was presented with a

GAO report during the 1993 hearings on "Don't Ask, Don't

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Tell"? A. I believe that's right. I'm just trying to remember the

dates, because the Congressional hearings were in the first half of 1993, and so the GAO report could only have been in Congress if it was also in the first half of 1993. which month. Q. I don't intend this to be a memory test. Let's pull up JX344 at 899. That's the GAO report that you were referencing in your direct testimony? A. Q. Yes. Now, you're aware that General Powell and Admiral I forget

Jeremiah specifically addressed the 1993 GAO report on foreign militaries? A. Q. A. Q. A. In the hearings? Yes. That sounds right. Not sure? I don't recall those specific addresses. MR. FREEBORNE: Let's pull up JX344 at 755, John.

Let's pull out the relevant statement. THE COURT: Did you say at 755? 755 is the statement, Your Honor.

MR. FREEBORNE: THE COURT: BY MR. FREEBORNE:

Thank you.

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Q.

You will note that in the last paragraph that we've

pulled up, in the joint statement, General Powell and Admiral Jeremiah state, "While these studies are interesting, I believe it is misleading to draw parallels to our own case. Our policy is based on the cultural heritage and legal framework of this country. The subject of privacy and

deployment, an important bone of contention for us, is a non-issue for many countries. Few countries have the

operational tempo and worldwide deployment commitments that we do. No country has as high a proportion of its service

members billeted together on military installations and deployed aboard ships or overseas at any time as does the United States. Our policy must ensure the effectiveness of The new policy does that."

this Country's Armed Forces. Do you see that? A. Q. A. Q. Yes.

And you're aware of that testimony? Yes. Sir, and ultimately after being presented with

information on both sides of the issue concerning the applicability of the foreign military experience, Congress agreed with the views expressed by General Powell and Admiral Jeremiah; fair to say? A. I don't know if Congress as a body agreed with the I understand that they voted in that direction.

views.

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Q.

Let's look at JX3 which is the Senate Armed Services

Committee report. MR. FREEBORNE: And, John, if you could pull up

page 288, beginning with "No other nation..." Your Honor, just for the record, JX3 has also been admitted into evidence. THE COURT: Who is speaking? It is just the committee report,

MR. FREEBORNE: Your Honor. BY MR. FREEBORNE: Q.

There we see the statement, "No other nation in the

world requires the members of its Armed Forces to serve under the conditions that face the Armed Forces of the United States. There is no other nation which has the international

responsibilities, overseas deployments, degree of field exercises, daily operating tempo, and frequency of circumstances in which the service members must live in conditions of little or no privacy. The committee concludes

that while the foreign experience is worth monitoring, it does not provide a relevant basis for permitting gays and lesbians to serve openly in the Armed Forces of the United States." Do you see that? A. Q. Yes. And you recall that from your research, right, sir?

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A. Q.

Yes. Now, on direct you also referenced a number of times the Do you recall that?

1993 RAND report. A. Q. Yes.

Now, the RAND report also discussed foreign militaries,

right? A. Q. Yes. As well as the experience of paramilitary organizations

you just went through with Mr. Woods? A. Q. That's right. And Congress had the RAND study for its consideration

when it enacted "Don't Ask, Don't Tell" in 1993, correct? A. When it enacted it, I believe it was released in July

which was the period during which the hearings ended, so for most of the hearings I don't believe they had it, but when they enacted it, yes. Q. It was part of the record. So we're talking about the

same terms, it was part of the legislative history? A. Q. Yes. Now you also referenced the Crittenden Report and the

PERSEREC report in your direct testimony? A. Q. A. Q. That's right. Now, you allege that both were suppressed, right? That's right. But you don't dispute that Congress received both of

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those reports in the legislative record during the 1993 hearings, do you? A. Q. No, I don't dispute that. And the PERSEREC report, that didn't address any impact

on unit cohesion, correct? A. Q. It did address cohesion. Is it fair to say any study -- any emperical study of

whether or not allowing gay and lesbian service members to openly serve in the military, whether that would have any impact on unit cohesion, that was pushed to another day? A. Well, one of its conclusions was that there was no basis I don't

for the gay ban, so -- it addressed cohesion.

remember in what particular way it addressed cohesion, but you're right that it wasn't the focus of the PERSEREC report; that was security risks. Q. A. Q. Security risks? Right. Dr. Frank, you also discussed the privacy rationale in

your direct testimony. A. Q. A. Q. Yes. Do you recall that? Yes. And you made reference to General Powell's testimony in

that regard? A. Yes.

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Q.

Let me show you which again is a copy of the Senate

report which has been marked as JX3. MR. FREEBORNE: page 277 of the report. testimony. Here it is General Powell who is speaking, Your Honor. BY MR. FREEBORNE: Q. And there we see General Powell states before the And, John, if we could pull up I'd like to look at General Powell's

committee, "The majority of our young men and women are required to live in communal settings that force intimacy and provide little privacy. It may be hard to contemplate to

spend 60 continuous days in the close confines of a submarine; sleeping in a foxhole with half a dozen other people; 125 people all living and sleeping in the same 40 by 50 foot open berthing area, but this is exactly what we ask our young people to do." And that was the testimony that you referenced with Mr. Woods? A. Q. Yes. I see that.

Now, you understand that General Powell provided other

testimony on the privacy concerns? A. Yes. MR. FREEBORNE: And, John, if we could pull up

page 283 of the Senate report which again has been marked as

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JX3. BY MR. FREEBORNE: Q. There we see that General Powell further explained that,

"It is very difficult in a military setting where you don't get a choice of association, where you don't get a choice of where you live, to introduce a group of individuals who are proud, brave, loyal, good Americans, but who favor a homosexual life style, and put them in with heterosexuals who would prefer not to have somebody of the same sex find them sexually attractive, put them in close proximity, and ask them to share the most private facilities together, the bedroom, the barracks, latrines, and showers. I think that I think it

is a very difficult problem to give the military.

would be prejudicial to good order and discipline to try to integrate that in the current military structure." Do you see that? A. Give me one second. I just want to look at it again.

Yes, I see that. Q. And you disagree with General Powell's judgment in that

regard, correct, sir? A. Q. A. Q. A. Yes. Dr. Frank, you've never served in the military, correct? Correct. You've never seen a foxhole? Only in the movies.

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Q. A. Q.

You've never been aboard a submarine? No, ships only. And perhaps outside of a video, you've never seen the

living conditions of combat; fair to say? A. Q. A. Q. Correct. Colin Powell had that experience, right? Yes, he did. Now, you testified, and make sure I have this right,

that General Powell's 1993 testimony lacked logic, in your view, because he failed to acknowledge that service members must sacrifice privacy in the military every day? A. No, that's not right. He did acknowledge that service

members sacrificed privacy every day. Q. Right. And so you failed, as I understood your

testimony yesterday, to appreciate -- you believe there is an internal inconsistency in General Powell's testimony; is that correct? A. Q. Those are your words, but, yes. But to be clear, Dr. Frank, you would acknowledge that

some people in the military have a desire not to serve with gay people because they feel it is an invasion of their privacy? A. Q. Yes, some people have that desire. And you're not comfortable concluding that some people's

feelings and desires are somehow irrational?

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A.

I think it depends on whether the feelings are boiled

down to their most elemental basis. Q. But to be clear, you're not comfortable concluding that

some peoples feelings and desires are irrational, correct, sir? A. I think there are some feelings that are irrational if

the feelings are based on misinformation. Q. But as a categorical matter, you're not comfortable

concluding that some people's feelings and desires are irrational, correct? A. I know I said that in my deposition. I said something

to that effect.

Thinking about it further, I do think that

it needs to be divided into feelings that are just boiled down to a matter of taste and feelings that are based on misinformation. Q. Now, when you were given an opportunity to correct the

deposition transcript of your deposition -- that was taken back in March, correct? A. Q. A. Q. Right. You didn't make a correction then, did you? Make a correction? You were given an opportunity to review the transcript;

fair to say? A. Q. Yes. And you didn't make the correction that you just noted?

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A. Q.

It is not a correction.

There was no mistake.

Sir, in addition to General Powell, you're aware that

Congress heard from other service members or heard from service members regarding the privacy rationale that General Powell spoke of, correct? A. Q. Yes. In fact, Congress went out on site visits and talked to

service members individually? A. Q. Yes. And one of the service members was First Class Ginger I believe you reference First Class McElfresh's

McElfresh.

testimony in your book Unfriendly Fire? A. Q. Yes. Now, I direct your attention to page 522 of JX344. And I

just want to reference that for the record.

specifically, First Class McElfresh's statement, "And when you ask me to step into a shower or sleep six inches away from someone or spend 24 hour duties with someone, you are asking me to expose a part of my sexuality. thing I have left in this military. That is the only

And if you ask me to

share that with a homosexual, then you have taken away that last little piece of dignity that I have, that I can possibly preserve for myself. of it." Do you see that? It is no longer there. I am stripped

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A. Q.

Yes. And you're not prepared to say that First Class

McElfresh's feelings are irrational, are you? A. Well, I'm not prepared to say that what she feels is No, I'm not.

irrational except that -- okay. Q.

Now, yesterday with Mr. Woods you referenced a statement

by Dr. Moskos in which he was alleged to have said, "Fuck unit cohesion." A. Q. Yes. And to be clear, Doctor Moskos said the policy was Do you recall that testimony?

grounded in the privacy rationale, right? A. Q. Yes. All right. Let's talk about your testimony regarding

the suspension -- excuse me. Yesterday with Mr. Woods you testified on direct that the military suspended discharged proceedings for a number of gay troops during the first Gulf War? A. Q. A. Q. No, I don't believe I used the word "suspend." Again, what is your testimony? That the military relaxed enforcement of the policy. But that belief is based on a few Wall Street Journal

articles I believe you testified to? A. Q. A. Based on more than that. But it's based on that at least in part? That's one part of it.

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Q.

And the Wall Street Journal articles were written by

Wade Lambert? A. Q. A. Q. That's right. And Stephanie Simon? I don't recall that name, but that sounds right. Now, with regard to these articles, you're aware that

Congress investigated the allegations in those articles during the 1993 hearings? A. Investigated -- I'm not aware that Congress investigated

them. Q. Let's take a look at page 164 of JX344. And pull up Dr. Burrelli's statement. And you're familiar with Dr. Burrelli, correct, sir? A. Q. Yes. This is a fairly lengthy passage. Let me try to read it

slowly.

"As noted in my testimony, there have been

allegations and unsubstantiated reports that the Department of Defense had knowingly deployed homosexuals to the Persian Gulf or had sent known homosexuals on other military-crisis assignments. As I stated, these are allegations" --

"allegations" is italicized -- "that have neither been proven nor refuted. My discussions with DOD officials, prior to the

publication of CRS report No. 93-52 F and since the Senate Armed Services Committee hearing, lead to the conclusion that

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it is not DOD policy to deploy known homosexuals.

In other

words, homosexuals are not protected and were not protected during Desert Shield/Storm, from exclusion under stop-loss procedures. Under stop-loss procedures implemented by the

Secretary of Defense, as carried out by the Army National Guard, for example, only certain voluntary separations were suspended. These did not include separations for

homosexuality (which are involuntary)." Do you see that? A. Q. Yes, I do. And if you look at footnote No. 2. MR. FREEBORNE: out for us. BY MR. FREEBORNE: Q. There you can see the specific reference is made to the And, John, if you could pull that

Wall Street Journal article? A. Q. Yes. That formed the basis for your opinion in that regard,

right, sir? A. No, that formed a small part of the basis for my

opinion. Q. Okay. But you have no reason to dispute Dr. Burrelli's

findings in that regard, do you, sir? A. His findings don't speak to my -- directly to my He's talking about policy and he's talking about

opinion.

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under stop-loss. Q. A. Q. A. Q. Let's turn --

That was not the --

-- assessment I offered. I'm sorry. I'm sorry, I'm finished. Let's turn to page 165. Let me read that into the

record. THE COURT: This is still 344? It is. Page 165.

MR. FREEBORNE: BY MR. FREEBORNE: Q.

And there we see Dr. Burrelli found, "Conversely,

although homosexual rights advocates have stated that known homosexuals were deployed, they have been unable to provide verifying evidence of such claims. matter of dispute." Do you see that? A. Q. Yes. Let's just talk about polls quickly. You reference Thus, the issue is a

polls in your direct testimony. A. Q. Yes. But you're the first to recognize that polls aren't

predictive of behavior? A. Q. A. Polls are not perfectly predictive of behavior. You also reference the Zogby poll. Yes. Do you recall that?

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Q.

Now, according to that poll, 58 percent of service

members believe that permitting service members to openly disclose their sexual orientation would have an adverse effect on unit morale, correct? A. Q. I believe that's correct. Let's just talk quickly about costs, just so the record Dr. Frank, you're not an economist, correct?

is clear. A. Q.

Correct. And while you testified the Palm Center has published a

study of the financial costs allegedly attributable to the policy, you were not involved in formulating the appropriate economic assumptions that underline that, correct? A. First of all, that report is not published. Second of

all, I was marginally involved in discussions about the finances. It is very basic finances. You only need a

calculator. Q. But is it fair to say your role in the publication of

the Palm study was a writing role which included assembling the data and information that the commissioners brought to the study? A. Yes. MR. FREEBORNE: THE COURT: No further questions, Your Honor.

Thank you.

Redirect examination. MR. WOODS: We need just a minute, Your Honor, to

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gather two of the exhibits that he was shown. THE COURT: MR. WOODS: THE COURT: MR. WOODS: Go ahead. So if I can just have a moment. Certainly. Your Honor, I'm going to start. REDIRECT EXAMINATION BY MR. WOODS: Q. Professor, you were asked about the testimony. MR. WOODS: BY MR. WOODS: Q. Professor Frank, let me start with this: Mr. Freeborne Just a minute, Your Honor. I'm sorry.

asked you a lot of questions about what was presented to Congress in 1993, some 17 years ago. Can you, in your own

opinion, explain what situations or circumstances have changed since 1993 with respect to possible open service of homosexuals in the military? A. Well, acceptance of homosexuality and support for

allowing openly gay service, both in civilian society and in the military, has grown considerably. Very senior level

military personnel, active duty and retired, have in many cases reversed their positions or have expressed for the first time support for ending the policy of. An enormous

amount of additional research has come to light from the experiences of both the U.S. military and other militaries, such as the British military, which changed its policy in the

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year 2000, during that period.

So the research, the comfort

level with homosexuality, support for openly gay service by leaders, including military leaders, which research shows is very critical in personnel policy, have all changed the landscape since 1993. Q. You were shown some of General Powell's testimony.

Maybe I could ask counsel's assistance in pulling up again the portion that you were shown from Exhibit 3, page 277. Same passage that Mr. Freeborne showed you about communal settings, intimacy, little privacy, submarine, foxholes, and open berthing areas. A. Q. Yes. You don't dispute that those situations exist in the

military, do you? A. Q. A. Q. No, I don't. You never have, right? Correct. Can you explain -- well, is it part of your

understanding that in becoming a member of the military that one must sacrifice privacy? A. Q. Yes. And, in fact, Colin Powell says so.

And if we look, please, at page 283 of the same exhibit,

another part of General Powell's testimony, 283, please, it's that indented paragraph which summarizes General Powell's testimony beginning, "It is very difficult" --

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THE COURT:

If you touch the screen, I'll see which

Thank you.

BY MR. WOODS: Q. Now, let's focus on this passage for a minute, This is a passage you were shown. And it says

Professor. this:

It talks about people being in a military setting and

introducing -- within with -- you put homosexuals in with heterosexuals, quote, who would prefer not to have somebody of the same sex find them sexually attractive. assumption is inherent in that statement? MR. FREEBORNE: THE COURT: Objection, calls for speculation. What

The objection is overruled.

But could you tell me what page, again, that is? MR. WOODS: THE COURT: Yes. It's page 283, Your Honor.

Thank you. For starters, using the word

THE WITNESS:

"introduce" implies that the discussion is about whether to allow any kind of gay person, whether open or not, in the military, but Colin Powell and others had previously said at that point that most people already agree that gay people have been in the military. So "introduce" is not the right There

word given what the country was actually discussing.

is also an implication that Colin Powell believes there's a choice in whether to be gay. And there's an implication

that -- well, if you take the entire sentence that the

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alleged preference is, of a certain number of service members, not to have somebody of the same sex find them sexually attractive somehow undercuts the military rather than simply being a statement of preference. BY MR. WOODS: Q. With respect to the point you were making about

introducing, is it the case that heterosexuals and homosexuals are often in close proximity outside the military? A. Q. A. Yes, both outside and inside. And in terms of showers and things like that? People in the military, as in civilian society, have

always been showering with and living in close proximity to people who find members of the same sex sexually attractive. Q. A. Can you explain what you mean by that? What situations?

Well, in gym locker rooms, in doctors' offices where

people of different sexes see each other naked in a non-sexual context. Q. And do all homosexuals find heterosexuals sexually

attractive, Professor? A. Q. No. Do homosexuals have an interest in privacy for their own

bodies as well as heterosexuals? A. Q. Yes. Do you believe that this text from General Powell is

based on any emperical research, study, report, or analysis?

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A.

Well, no, but it also doesn't say that -- what it says

is that it is very difficult, but no one said war would be easy. Q. And in this same passage we're looking at, the last line Do you see that

talks about the current military structure. reference to current? A. Q. Yes.

And, again, is it your view that the current situation

that existed in 1993 may now have changed? A. Q. Yes. Now, you were shown an excerpt from the testimony before

Congress of a Ginger McElfresh and asked whether you thought that her testimony was irrational. What are your thoughts

about her testimony in terms of whether it is a legitimate basis for a government policy? A. Well, there is confusion. MR. FREEBORNE: testimony that I -THE COURT: I'm sorry. It was not the testimony. A, it Objection. That is not the

MR. FREEBORNE: calls for speculation. THE COURT: objection? MR. FREEBORNE: THE COURT:

And B --

What is the legal basis for your

Speculation, Your Honor. Sustained.

Speculation.

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BY MR. WOODS: Q. You were asked whether you thought it was irrational.

Do you believe that her testimony was irrational? A. There is confusion in the basis of her feelings as

explained, because they imply that she has never had to share intimate quarters with someone who finds her sexually attractive. So that's why I hesitated to call it irrational,

because what she was saying, if I recall it correctly now, was that the idea of having to undress in front of someone who finds her sexually attractive is upsetting to her, and yet, it's very fair to assume that she has already had to do that. Q. Now, you were also asked about a Zogby poll and you were Did the

asked a question about a finding in the Zogby poll.

Zogby poll reflect that a certain percentage of service members were personally comfortable interacting with gays and lesbians? A. Q. Yes, 72 percent. And did it discuss findings of whether people in the

military who were the people polled by Zogby felt that the presence of known gays in their unit had or didn't have any impact on unit morale? A. Q. A. Yes. What was the result of the poll on that subject? Those people who knew or suspected that there were

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already gays in their units were considerably less likely to believe that the presence of known homosexuals lowered morale and cohesion. Q. Did the poll have any findings about whether service

members knew or suspected that there were homosexuals in their units? A. Yes. The majority knew or suspected, if you combine the

two categories of do you know and do you suspect. Q. And what, in your opinion, is the significance of that

finding? A. Well, it indicates, first of all, that large numbers of

people in the military already know gay people in their units. It also indicates that familiarity breeds tolerance

so that the ban on this knowledge is itself creating concerns about cohesion and morale that would be obviated if the ban were lifted, not entirely but to some extent, given the findings that when you know that a gay person is in your unit, you actually feel more comfortable, not less comfortable in many cases. Q. You were asked about the basis of your opinions about

the relaxation of enforcement of bans in wartime and the discussion was about some Wall Street Journal articles. And

you said that was a part of your opinion, part of the bases of your opinion. What were the other parts of the bases of

your opinion, Professor?

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A.

Well, there's an enormous amount of data on that.

In

addition to those articles, there are many other journalistic articles, for starters, including reports in Stars And Stripes which is a military-focused newspaper. There is a book by Randy Schultz that echoed many of his articles and reports about this from the San Francisco Chronicle. There is indication by the Service

Members Legal Defense Network that many hundreds of gay people have been allowed to serve and allowed to go overseas despite the fact that their sexuality was known. There are

the indications from my 2004 study which showed that dozens of gay service members were known to their peers and were mobilized. And there is the FORSCOM regulation and the

subsequent verification by Pentagon spokespeople that in certain cases known gays are mobilized for war. And there

are the historical figures that show that discharges plummet during wartime. MR. WOODS: THE COURT: MR. WOODS: THE COURT: Thank you, Professor. No further questions? Yes. Thank you. You may step down.

We will take our morning recess for 15 minutes until 10:45. Thank you. (Morning Recess) ---o0o---

C E R T I F I C A T E DOCKET NO. CV 04-8425 VAP I hereby certify that pursuant to Section 753, Title 28, United States Code, the foregoing is a true and accurate transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.

/S/ Phyllis Preston PHYLLIS A. PRESTON, CSR Federal Official Court Reporter License No. 8701

DATED:

July 14, 2010