Log Cabin Republicans v. United States of America et al

Filing 154

APPENDIX OF EVIDENCE (PAGES 1-600) In Support of Opposition re MOTION for Summary Judgment as to Plaintiff's First Amended Complaint #136 filed by Plaintiff Log Cabin Republicans. (Attachments: #1 Appendix LCR Appendix 1-200, #2 Appendix LCR Appendix 201-300, #3 Appendix LCR Appendix 301-400, #4 Appendix LCR Appendix 401-500, #5 Appendix LCR Appendix 501-600)(Hunnius, Patrick)

Log Cabin Republicans v. United States of America et al

Doc. 154 Att. 1

Appendix of Evidence in Support of Log Cabin Republican's Opposition to Defendants' Motion for Summary Judgment

LCR Appendix Pages 1-200 (Part 1 of 19)

Dockets.Justia.com

Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 1 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 Reported by: EMI ALBRIGHT RPR, CSR No. 13042 Job No. 19676
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UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION _________________________________________________ LOG CABIN REPUBLICANS, ) ) Plaintiff, ) ) Case No. vs. ) ) CV04-8425 UNITED STATES OF AMERICA AND ROBERT GATES, Secretary of Defense, ) (VAP)(Ex) ) ) Defendants. ) ) __________________________________________________

DEPOSITION OF AARON BELKIN, Ph.D. March 5, 2010 San Francisco, California

LCR Appendix Page 0001

Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 6 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 BY MR. FREEBORNE: Q Dr. Belkin, for the record could you AARON BELKIN, Ph.D., having been first duly sworn, was examined and testified as follows: EXAMINATION San Francisco, California, March 5, 2010 9:01 a.m. - 2:53 p.m.

state your name and your address, please? A Aaron Belkin, 2208 Derby Street,

Berkeley, California 94715. Q A Q A Q witness? A like this. I testified in a case but it wasn't It is that I saw an instance of You understand you are under oath? I do. Have you been deposed before? No, this is my first time. You have never testified as a fact

harassment and I was called to say what I said. Q That was in an Equal Employment

Opportunity case? A Q No, I think it was criminal, actually. Did you testify at trial?
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LCR Appendix Page 0002

Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 27 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 data. there is a range of knowledge. But on the polls,

at least Zogby and Military Times, there is a distinction between people who, quote, unquote, say they know for sure versus people who suspect. So that is as fine grained an analysis as we can do because that's what the questions ask. But I

take your point that there are many different ways of knowing something. But we only know in this

case of the distinction between know -- sorry -know for sure, suspect, and don't know. Q A Q Let's take know for sure and suspect. Uh-huh. And let's put aside the actual polling But why do you believe or do you believe

that if heterosexuals know or suspect that they are serving with gay and lesbian service members, that has an impact in evaluating the privacy rationale? A The privacy rationale is premised on

the assumption that after the repeal of the ban that conditions in living spaces will change. if it is true that service members are serving with people -- sorry -- that heterosexual service members know that they are serving with gays and lesbians now and if it is also the case that that
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And

LCR Appendix Page 0003

Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 28 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 is not likely to change or to change much postrepeal, then the privacy rationale by definition cannot be plausible because there would be no change in showers or barracks or intimate spaces. So the baseline condition of whether

people are serving with gays and lesbians now sustains that argument. That is point 1.

Point 2 is because the data to the extent that a significant portion of service members, straight service members know they are serving with gays and lesbians, that casts doubt on the heat surrounding the privacy rationale. you listen to the main proponents of the privacy rationale and the way they express their claims, their point is that there are no gays and lesbians serving -- there are no -- straights are not aware of any gays and lesbians in their units now. And If

if they were, we have a privacy disaster and the sky would fall. Well, the fact is to the extent that the data show that they are serving with people who they know to be gay, then the claim of the privacy rationale proponents is wrong because people are serving already. And also the claims

about the sky falling down are at very least cast
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LCR Appendix Page 0004

Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 29 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 into significant doubt because, obviously, the sky hasn't fallen now. data are important. Q And in terms of the baseline that you So that's the reason why those

made reference to, why do you believe that the baseline would not change postrepeal? A It is two factors -- well, possibly

more than two factors, but I will start with two factors. One is that the literature suggests that what determines the level of outness, in other words, what derives a decision to reveal sexual orientation is not the presence or absence of a ban but it is the safety of the unit. is the service member's assessment of the climate -- the culture or the climate of the work environment. And not only is there scholarship on So And it

that but to me that makes intuitive sense. that's point 1. And point 2 is that in analogous

institutions that I have studied, we have not seen waves of mass disclosures postrepeal of a ban. And so that is what informs my conclusion. Q And with respect to the first basis,

when you say it is the service member's perceived
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LCR Appendix Page 0005

Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 35 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 A Q A Under certain conditions? Yes? Absolutely, under certain conditions

private showers are not possible. Q Do you believe that would be important

to take into consideration in evaluating the privacy rationale? A I would say that if that were true --

and I have just acknowledged it is -- then the privacy rationale could be valid in those circumstances. Q Well, is it your opinion that a Don't

Ask, Don't Tell policy would be appropriate in, say, combat conditions but not in noncombat conditions where accommodations permit individual showers or more private accommodations? A The research shows that, no, a Don't

Ask, Don't Tell situation would not further heterosexual privacy in combat situations where individual accommodations are not possible. Q What is that research that you are

referring to? A Q A Well, my research, for one thing. What research? The point -- well, it is many points.
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LCR Appendix Page 0006

Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 36 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 I will go over all the points, yeah, I will because you asked me the question. Q A Yes. First of all, because there will be no

change, no meaningful change among disclosure rates postrepeal. So whether you have -- and in

other words, even if you granted that every heterosexual person in the military is grossly discomfort in the nude around gays and lesbians, there will be no change in the privacy conditions even in combat postrepeal because again you won't have any difference in the shower because straights are already serving with people they know to be gay, and the extent to which that is true will not change in any meaningful way. that is one. Q Can I just stop? Can I stop you there So

just -- you want to finish? A Q A I actually would like to finish. That's fine. Second of all, because actually in

combat situations what we find is that you have men and women quartering together. And so

actually in combat the military realizes and in deployment situations when the bullets are flying,
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LCR Appendix Page 0007

Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 37 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 those are the moments when the troops are most focused on the mission. And to the extent they

are most focused on the mission, other concerns recede to the background. And, third of all, because my research and others' research has shown that the level of extreme discomfort around gays and lesbians has diminished drastically, and so the percent of people for whom even in theory this could be an issue, which again would not change pre and postrepeal, is very tiny. So that is why I don't

believe that -- well, the research shows that whether or not you have a gay ban is immaterial for privacy in the shower. Q Okay. And correct me if I'm wrong.

The baseline reasoning that you just set forth that there would be no change in the percentage of acknowledged gay and lesbian service members between a prerepeal environment and a postrepeal environment is based upon your research of foreign militaries; correct? A I actually wouldn't say that. I

wouldn't say that is totally the case. Q A What would you say? I would say that it is based on -- it
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LCR Appendix Page 0008

Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 38 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 is based on a range of data analogous in the institutions in the U.S. We did not have reports

of mass disclosures in police or fire departments, the CIA, basically any organization that changed from a discriminatory to an inclusionary policy. So we have never seen that. be Point 1. Point 2, in the U.S. military itself when the ban has been relaxed or softened, we did not see any change in disclosure rates. have evidence from our militaries. of all is the foreign militaries. And then fourth of all is the theoretical point -- it is not empirical but it is theoretical, but consistent with all the empirics, that what drives disclosure is not the presence or absence of a ban but the service member's read of the climate in the unit. Q And that finding applies across foreign So we So I guess that would

And then third

militaries that you studied, paramilitary organizations such as police departments, federal agencies such as the FBI, CIA, that permit the disclosure of one's sexual orientation? A Q Yes, and the U.S. military. Right. And describe for me the context
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LCR Appendix Page 0009

Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 43 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 Q A Okay. Anything else?

Yes, but I'm not recalling off the top But if I remember later, then I hope

of my head.

I can say it later. Q A Q You can absolutely say it later. Okay. The third factor you set forth in

evaluating the privacy rationale was the counterfactual. on that one. What would be in the example of a counterfactual of the complete ban that you were referring to? A The counterfactual is a hypothetical. And I have to admit you lost me

It is a claim about something that never happened. And so if you made a hypothetical or counterfactual claim that God came in and told the military who every gay person was, even if they are closeted, have never -- they might not even know themselves they are gay, but just identified every person with a gay or possibly gay identity and just got them out of the military so the military was 100 percent straight, 100 percent straight, no gays whatsoever, no closeted gays, no future gays, what would happen in privacy
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LCR Appendix Page 0010

Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 44 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 settings, in intimate settings in the shower in the barracks. experiment. And my argument is that to the extent you believe that the shower and barracks are places where privacy violations take place because of gays, then that hypothetical counterfactual world with no gays would still have just as many privacy violations involving just the same kinds of things that people who articulate the privacy rationale worry about now. And the reason for that is because straight service members have sex in the military with each other. And even if there were no gays, So that's the hypothetical

they would just go right on having sex with each other. And so to the extent that that's what you

are concerned about, kind of looking and sexual play and sex itself, that is actually not about gay people being in the military. That is a

phenomenon that is independent of whether or not gays are in the military. reasons why I know that. Q A What are those three reasons? There is statistical evidence, And there are three

ethnographic evidence, and legal evidence.
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LCR Appendix Page 0011

Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 45 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 Q And take me through each of those

pieces of evidence. A Well, the legal evidence is the queen

for a day exception, which has this lengthy history, that the military itself knows that this is going on which is why they need a queen for a day exception. If it wasn't going on, then they So

would not need a queen for a day exception.

the very fact that this regulation has lived in -well, in regulation and in statute for most of the last century is evidence that the military itself knows quite well that this is going on. The ethnographic evidence is just descriptions from the literature. wrote a whole study on this. I actually

But, for example, a

marine chaplain who says something to the effect of, oh, yeah, marines are always jacking off together in the showers, that is very common from what I have seen, so things like that. A unit of

navy seals that I know of where the seals all in a unit in a circle masturbate together, so things like that -- straight seals. And then the statistical evidence is that the best available evidence we have is that the percent of men -- gay men in the population
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LCR Appendix Page 0012

Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 46 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 and the percent of gay men in the military is just about the same, very close to each other. However, if you look at statistical evidence about the frequency of male/male sex among veterans, it is much higher than in the general population. And what that -- it does not prove that the veterans are having the -- the straight veterans are having gay sex in the military because it is possible that veterans have more gay sex than civilians because they have their gay sex after their military service; that is absolutely possible. But I would say at the very least it is

not inconsistent with the notion supported by ethnographic and legal evidence that straight people are having gay sex in the military. And

even if you could get rid of all gays, they would just keep right on having that sex. It is kind of

like a fraternity ritual, I mean, some of the hazing rituals you hear about. So I actually make this argument at military academies when I go speak there. And you

get a perplexed look from some people, but a lot of people kind of nod and smirk and they know what is going on. Q The fourth factor or fourth layer of
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Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 74 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 Q All right. And what specific questions

did she say to anticipate in that regard? A I don't think she specified anything,

but she said that that was -- my memory is correct, she said that was an area where your side, the Government seems intent on trying to make a point. Q Okay. With respect to we talked

earlier about the privacy rationale, did the Israeli defense forces make any special accommodation for gays and lesbians or heterosexuals postrepeal? A Are you talking about special

accommodations in terms of systematic policy law or regulation or are you talking about special accommodations in terms of micro-practices, discretionary practices on the ground? Q Let's start with the latter. What I am

thinking of is either in terms of facilities or allowing heterosexuals, for example, to serve, to live at home if they had a particular privacy interest that they felt was being infringed upon by allowing gays and lesbians to openly serve. A I believe we found one case where a

commander had allowed a straight service member to
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LCR Appendix Page 0014

Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 75 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 back. You have looked at the Canadian, Australian, Israeli, and Great Britain examples; right? A Me personally or the center?
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shower at different times.

So I believe it was he

would not have to be in the shower with other people. And I believe we found one case where And I am

someone was allowed to live off base.

sorry I don't remember if that was the same person or not. Q member? A Q If my memory is correct. And the special accommodation that was So that was a heterosexual service

provided for that heterosexual member or members was based upon a privacy concern expressed by the heterosexual member? A I don't know the details but my strong

suspicion would be yes. Q A What is that suspicion based upon? That they wouldn't have done the --

they wouldn't have made the accommodation if there wasn't a concern. Q Did you find any other -- well, step

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Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 209 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 the pluralistic ignorance hypothesis. get you references of that. And I could

It is a well

established hypothesis in the psychological literature. Q I only have one more question. You

submitted your report -- or we submitted your report to the Government on January 15th 2010. Has anything happened since then that either bolsters your expert opinion or is relevant to your expert opinion in this case? A Well, the chairman of the Joint Chiefs

of Staff said that he thinks the policy compromises the integrity of the forces by forcing service members to lie. And a currently serving

chairman of the Joint Chiefs of Staff has never said that. And he said that our troops are pretty

robust and professional and that they can make the adjustment to an inclusive policy without problems. So I would say that that testimony

bolstered the research. And I would say in terms of the conviction, that people who express reservations about unit cohesion and privacy and things like that are not coming from a place based on evidence but are coming from a place based on moral
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Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 210 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
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intolerance.

I just found out that, in fact,

General Conway of the Service Chief of the Marines is coordinating opposition to repeal efforts with Peter Pace. And Peter Pace is the former chairman

of the Joint Chiefs of Staff who was honest enough to admit when asked by the Chicago Tribune editorial board why we have a Don't Ask, Don't Tell policy, he was honest enough to admit it is because homosexual conduct is immoral. Now, he was rowdly criticized for that, but I was actually happy he said that because for the first time we had a military person being honest about the policy. So the fact that he is

back in the quarterback seat tells me -reinforces my conviction that this policy is not and never has been about cohesion or privacy or any other rational military ends but it is about promoting the moral convictions of a particular group of individuals. MS. FELDMAN: questions. MR. FREEBORNE: further questions. (Deposition concluded at 2:53 p.m.) Thank you, Doctor. No I have no other

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Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 211 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 MY COMMISSION EXPIRES:
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CERTIFICATE OF DEPONENT

I hereby certify that I have read and examined the foregoing transcript, and the same is a true and accurate record of the testimony given by me. Any additions or corrections that I feel are necessary, I will attach on a separate sheet of paper to the original transcript.

_________________________ Signature of Deponent

I hereby certify that the individual representing himself/herself to be the above-named individual, appeared before me this _____ day of ____________, 2010, and executed the above certificate in my presence.

________________________ NOTARY PUBLIC IN AND FOR

________________________ County Name

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Aaron Belkin, Ph.D. San Francisco, CA

March 5, 2010

Page 212 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
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STATE OF CALIFORNIA ) : ss County of Alameda ) )

I, the undersigned, a Certified Shorthand Reporter of the State of California, do hereby certify: That the foregoing proceedings

were taken before me at the time and place herein set forth; that any witnesses in the foregoing proceedings, prior to testifying, were placed under oath; that a verbatim record of the proceedings was made by me using machine shorthand which was thereafter transcribed under my direction; further, that the foregoing is an accurate transcription thereof. I further certify

that I am not a relative, employee, attorney or counsel of any party to this action or relative or employee of any such attorney or counsel and that I am not financially interested in the said action or the outcome thereof; IN WITNESS WHEREOF, I have this date subscribed my name. Dated:____________________________

EMI ALBRIGHT, CSR No. 13042

LCR Appendix Page 0019

Nathaniel Frank, Ph.D. New York, NY

February 26, 2010

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION ----------------------------LOG CABIN REPUBLICANS, Plaintiff, vs. No. CV04-8425 (VAP) (Ex) UNITED STATES OF AMERICA AND ROBERT GATES, Secretary of Defense, Defendants. -----------------------------

February 26, 2010 10:02 a.m. Deposition of Expert Witness NATHANIEL FRANK, Ph.D., held at the offices of White & Case, LLP, 1155 Avenue of the Americas, New York, New York, pursuant to Notice, before Theresa Tramondo, a Notary Public of the State of New York.

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Nathaniel Frank, Ph.D. New York, NY

February 26, 2010

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NATHANIEL

F R A N K,

P h. D.,

called as a witness, having been duly sworn by a Notary Public, was examined and testified as follows: EXAMINATION BY MR. FREEBORNE: Q. please. A. Q. A. Dr. Nathaniel Frank, Ph.D. What is your address? Home address is 118 Gates Avenue, State your name for the record,

Brooklyn, New York 11238. Q. A. Q. Dr. Frank, good morning. Morning. I introduced myself this morning, I'm an I am

but my name is Paul Freeborne.

attorney at the Department of Justice.

counsel of record in the case captioned Log Cabin Republicans versus The United States. The action has been brought against the United States and Secretary Gates. As you

know, it involves a facial challenge to the "Don't Ask, Don't Tell" statute. To my left is Ryan Parker. He's

LCR Appendix Page 0021

Nathaniel Frank, Ph.D. New York, NY

February 26, 2010

Page 46 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 mean -Q. A. As an expert in this case. You mean LCRVUS or in this issue Frank irrational in a legal sense, but go ahead answer the question. Q. Are you entering any legal opinions

in this case? A. No. When you say "in this case," do you

we're discussing? Q. I see them as co-extensive, but in

"this case" being Log Cabin versus United States, as an expert, are you rendering any legal opinions? A. have -Q. I just note that because I am not Well, I am not a lawyer, so I

asking you for a legal conclusion. A. Q. Okay. When I use "irrational," I mean it

in a -- from the vantage point of expert opinion as a factual matter. A. this way: Let me try to answer that question Some people in the military have a
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LCR Appendix Page 0022

Nathaniel Frank, Ph.D. New York, NY

February 26, 2010

Page 47 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 Frank desire not to serve with gay people because they feel that it is an invasion of their privacy. I'm not comfortable concluding that

some people's feelings and desires are irrational, that those people's desires and feelings are irrational. Q. that? A. Q. Do you have anything else to add on I don't want to cut you off? No. Have you ever been involved either

as an expert or a nontestifying expert in any other challenge to the "Don't Ask, Don't Tell" policy? A. Q. A. Legal challenge? Legal challenge? I was involved as an expert witness

in a case -- a military criminal case of nonconsensual sex. My understanding is that

was not a challenge to "Don't Ask, Don't Tell." Q. Is that United States V Sergeant

Dale Boldware? A. Q. That's right. What did you do in that case?
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LCR Appendix Page 0023

Nathaniel Frank, Ph.D. New York, NY

February 26, 2010

Page 111 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 Q. Frank Do you believe that General

Powell's testimony in that record was based upon a moral animus towards gay and lesbian service members? A. Q. Based on that assertion, no. Do you believe that he was

motivated by an animus towards gay and lesbian service members in providing the testimony he did before the Senate? A. What I say in my report is that

Powell is one of the people who argued for the band based on personal reasons. I don't

know that that rises in his case to moral animus. I believe that he believed that open

homosexuals should not be allowed to serve in the military but didn't base that belief on military necessity. belief. Q. It was a personal

I am not calling it animus. Do you agree or disagree that his

concern with privacy was based upon his professional military judgment? A. His concern with privacy as a

general matter may certainly be based on his professional military judgment, but what he
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LCR Appendix Page 0024

Nathaniel Frank, Ph.D. New York, NY

February 26, 2010

Page 112 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 Frank says here does not constitute an argument for keeping out open homosexuals. Q. A. Why is that? Because what he says here is that

service members are required to serve with very little privacy, so it doesn't make any sense to me to conclude from that that there is a justification to exclude open homosexuals since he's just acknowledged that part of being in the military means sacrificing privacy. Q. Isn't it fair to say that the

concern that he was expressing is that if the military were to permit gay and lesbian service members to serve openly that that would infringe upon the privacy interests of heterosexual service members? A. No. More than all of the other

infringements of privacy he just said service members would have to endure. Q. privacy -A. It is consistently infringed in the Right. He's recognizing the

military; hence, my interpretation when he
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LCR Appendix Page 0025

Nathaniel Frank, Ph.D. New York, NY

February 26, 2010

Page 113 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 Frank draws a line in the sand around gay people, that reflects a personal basis because it's inconsistent with his acknowledgment that military service requires that privacy be sacrificed. Q. I direct your attention further This is in reference to The sentence that

down that same page.

the sexual tension point.

reads "The separation of men and women is based upon the military necessity to minimize conditions that would disrupt unit cohesion, such as the potential for increased sexual tension that could result from mixed living quarters." Powell. Then it goes onto quote General

He states, "Cohesion is strengthened

or weakened in the intimate living arrangements we force upon our people. Youngsters from different backgrounds must get along together despite their individual preferences. Behavior too far away from the In

norm undercuts the cohesion of the group. our society gender differences are not

considered conducive to bonding and cohesion within barracks living spaces."
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Nathaniel Frank, Ph.D. New York, NY

February 26, 2010

Page 114 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 A. Q. Frank Do you see that? Yes. Then he goes on to -- well, do you

have any reason to question the testimony he gave as it relates to the accommodation we must make for men and women? A. If I could have a second to read it

over again. Q. A. Sure. Again, you ask me if I agreed with It's a contradictory

his assertion there?

statement as it relates to -- as it relates to an argument in favor of excluding open gays. He says "Youngsters from different

background must get along together despite their individual preferences." And then he

says "Behavior too far away from the norm undercuts cohesion of the group," having just said that youngsters must get along despite individual preferences. confusing to me at best. Q. Do you take issue with the separate So the assertion is

accommodations that the military provides for men and women?
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LCR Appendix Page 0027

Nathaniel Frank, Ph.D. New York, NY

February 26, 2010

Page 118 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 Frank according to this concern if it were to be fully honored, you couldn't put individual gay males together either because then they could be uncomfortable undressing in front of one another. Q. Beyond the financial cost, what

other costs are you referring to? A. Costs to cohesion; for instance,

General Carl Mundy, who is former opponent of allowing open gay service has said nevertheless that if open gay service is to be the new policy there should not be separate facilities, a finding that echoed in the RAND study, because that breeds resentment and undercuts the cohesiveness of the force by separating people out that need to be training and living together. Q. Part three of your report you

attribute certain statements to Senator Nunn. If you could return back to your expert report and look at part three, I ask you where I could find the statements that you attribute to Senator Nunn? page 5.
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I am sorry.

On

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Nathaniel Frank, Ph.D. New York, NY

February 26, 2010

Page 119 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 A. Frank Well, I would recommend looking in

my book where I believe those quotes appear with footnotes. Q. Okay. Describe for me the conversations you had with Professor Moskos? A. I first interviewed Professor

Moskos about this issue in the year 2000 for an article I wrote. I focused in part on the

question of unit cohesion and began examining what, if any, evidence there might be for the argument that open homosexuality creates a risk to unit cohesion. I spoke to him and

e-mailed him across a period of months probably at that time for that article, and subsequent to that I had several conversations, again e-mail, phone and in person, over the course of another eight years. Not frequent but from time to time.

You know, a couple of years -- a few years. In one of the early conversations in 2000 for the article I was writing at the time, I asked him about the role of unit cohesion in this argument and that's when he
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Nathaniel Frank, Ph.D. New York, NY

February 26, 2010

Page 120 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 Frank dismissed unit cohesion saying "fuck unit cohesion, I don't care about that," and told me instead that his argument for supporting a band on open service had to do with a moral concern about the right, as he saw it, of straight people not to have to share intimate quarters with a gay person. Q. It's the privacy concern that we

have been discussing that Colin Powell expressed for one? A. That's right. But Professor Moskos

didn't always rely exclusively on the privacy argument alone. Q. Based upon your interaction with

Professor Moskos, did you have any reason to believe that he had a personal animus towards gay and lesbian service members? A. Q. A. Yes. What was that based upon? He often used to joke that he knew

he served with gay people, but it worked out because they didn't hit on him, which implied to me a personal belief that gay people were more likely to be sexual predators than
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LCR Appendix Page 0030

Nathaniel Frank, Ph.D. New York, NY

February 26, 2010

Page 192 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 Frank proximity' and soldiers 'are told whom you're going to live with' and because it is such an important institution of American power Powell said, 'We have to be careful when we change the policy.'" Q. The quotes that Dr. Frank -- those

are from Colin Powell, correct? A. Q. Yes. Why are you being critical of Colin

Powell here? A. Because in my view he's -- these

assertions are irrelevant to the question of whether openly gay service undermines the military, so to repeat assertions that are not untrue necessarily but are not relevant to the question at hand in my view in order to make a reform in policy seem difficult and dangerous is arguing in bad faith. Q. A. Why is it arguing in bad faith? Because he's saying these things as

though simply by saying them people should understand that there is great risk to letting gay serve in the military when, in fact, in my view there isn't.
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LCR Appendix Page 0031

Nathaniel Frank, Ph.D. New York, NY

February 26, 2010

Page 193 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 Q. Frank Because you believe the privacy

rationale to be irrelevant? A. The privacy rationale to propping

up the policy? Q. The privacy rationale that we

discussed earlier that Colin Powell espoused during the Senate hearing? A. I believe that people's genuine

discomfort in terms of the impact of known gays on their privacy does not rise to the level of undercutting military effectiveness. Q. Dr. Frank, I would like to now mark

as Defendants' Exhibit 17 another opinion piece that appears in the Huffington Post on January 22, 2010. (Defendants' Exhibit 17, opinion piece appearing in the Huffington Post entitled "Refuting the Latest Arguments Against Gay Troops," marked for identification, as of this date.) Q. This article is entitled "Refuting

the Latest Arguments Against Gay Troops." Again, it appeared in -Let me step back. We have a posted

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Nathaniel Frank, Ph.D. New York, NY

February 26, 2010

Page 233 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
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CERTIFICATE OF DEPONENT

I hereby certify that I have read and examined the foregoing transcript, and the same is a true and accurate record of the testimony given by me. Any additions or corrections that I feel are necessary, I will attach on a separate sheet of paper to the original transcript.

_________________________ Signature of Deponent

I hereby certify that the individual representing himself/herself to be the above-named individual, appeared before me this _____ day of ____________, 2010, and executed the above certificate in my presence.

________________________ NOTARY PUBLIC IN AND FOR

________________________ County Name MY COMMISSION EXPIRES:

LCR Appendix Page 0033

Nathaniel Frank, Ph.D. New York, NY

February 26, 2010

Page 234 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
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CERTIFICATE STATE OF NEW YORK ) : ss. COUNTY OF NEW YORK )

I, THERESA TRAMONDO, a Notary Public within and for the State of New York, do hereby certify: That NATHANIEL FRANK, Ph.D., the witness whose deposition is hereinbefore set forth, was duly sworn by me and that such deposition is a true record of the testimony given by the witness. I further certify that I am not related to any of the parties to this action by blood or marriage, and that I am in no way interested in the outcome of this matter. IN WITNESS WHEREOF, I have hereunto set my hand this 8th day of March, 2010.

_____________________ THERESA TRAMONDO

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