TACOMA, Wash. – A lesbian flight nurse discharged under the government's "don't ask, don't tell" policy for gays in the military was an excellent officer whose sexuality never caused a problem in her unit, former colleagues told a federal judge Monday.
Former Maj. Margaret Witt is seeking reinstatement to the Air Force Reserve in a closely watched case that "don't ask, don't tell" critics hope will lead to a second major legal victory this month. The trial began just days after a federal judge in California declared the policy unconstitutional.
Witt was suspended in 2004 and honorably discharged after the Air Force received a complaint from a civilian about her sexuality.
The first witness in her case, retired Master Sgt. James Schaffer, testified that Witt was exceedingly competent and said her dismissal was so unfair, it was part of the reason he retired in 2007.
"It was a rather dishonorable act on the part of the Air Force," Schaffer said. "It should not be about what you are, but who you are."
Witt's case has already led to one crucial ruling — a 2008 holding by a 9th U.S. Circuit Court of Appeals panel that the military cannot discharge people under "don't ask, don't tell" unless it shows that the firing is necessary to further military goals such as unit cohesion. The case has returned to federal court in Tacoma for U.S. District Judge Ronald B. Leighton to determine whether Witt's dismissal met that standard.
The 1993 law prohibits the military from asking about the sexual orientation of service members, but allows the discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity. Last week, U.S. District Judge Virginia Phillips in Los Angeles determined the policy was an unconstitutional violation of the due process and free speech rights of gays and lesbians.
While Phillips' ruling has no effect on the legal issues in Witt's case, gay rights activists believe a victory — and Witt's reinstatement — could help build momentum for repealing the policy. The Senate could soon take up a House-approved defense bill that includes a repeal.
Witt sat in the courtroom Monday amid her supporters, including Lt. Col. Victor Fehrenbach, a fighter pilot from Idaho who is fighting his own discharge by the U.S. Air Force.
Peter Phipps, a Justice Department lawyer representing the Air Force, insisted during his opening statement that Witt's conduct necessitated her firing. That included a long-term relationship with a civilian woman, an affair with a married woman and two earlier relationships with fellow servicewomen, Witt acknowledged in a May deposition.
A 2004 e-mail from the married woman's husband to the Air Force chief of staff, Gen. John Jumper, prompted the investigation into Witt's sexuality. Witt remains in a relationship with that woman, whose husband divorced her.
"By committing adultery, she compromised her integrity and her ability to lead," Phipps said. "Plaintiff set an example of a disregard for Air Force policies."
Witt's discharge therefore eliminated a risk to unit cohesion and morale, he added. He said the support she has received from colleagues is irrelevant; the law's constitutionality doesn't depend on the views of her friends.
Furthermore, the military cannot handle discipline by referendum, because that would lead to uneven application of the law, Phipps said.
Witt acknowledged in her deposition the extramarital affair was not consistent with good "officership." She also said she told two members of her unit about her orientation — forcing them to choose between loyalty to Witt and Air Force policy, the Air Force argues.
Former colleagues who testified Monday disagreed that Witt's firing accomplished anything — especially because it came during a shortage of flight nurses.
"We were at war at the time," said Lt. Col. Vincent Oda. "It was the loss of an able flight nurse is what that was."
The court also heard from other service members discharged under "don't ask, don't tell." One, former Army Sgt. Darren Manzella, said that when his superiors first investigated him, he gave them pictures of himself and his boyfriend kissing to make it clear he didn't want to hide anything.
The result of that initial inquiry? "No evidence" of homosexuality, Manzella said. He served almost two more years before the Army kicked him out in 2008.
One of Witt's lawyers, Sarah Dunne of the American Civil Liberties Union of Washington state, said in her opening statement that the McChord Air Force Base aeromedical evacuation squadron with which Witt served welcomed gays and lesbians, and it was her dismissal — not her orientation — that caused problems in the unit.
Schaffer, the retired master sergeant, said he went on hundreds of flights with Witt, including several missions to evacuate ill or wounded Americans from the Middle East and Afghanistan. Witt received a standing ovation when she showed up at his retirement party in 2007, he said.
Dunne said Witt received glowing performance reviews that attested to her nursing ability and leadership, even one that was written in 2005, after her suspension.
Her suspension came less than a year before she would have earned her full pension.