Log Cabin Republicans v. United States of America et al

Filing 160

EXHIBIT to MOTION for Summary Judgment as to Plaintiff's First Amended Complaint #136 Appendix In Support of Reply in Support of Defendants' Motion for Summary Judgment filed by Defendants Donald H Rumsfeld, United States of America. (Attachments: #1 Exhibit Exhibit 8, #2 Exhibit Exhibit 9, #3 Exhibit Exhibit 10, #4 Exhibit Exhibit 11)(Parker, Ryan)

Log Cabin Republicans v. United States of America et al

Doc. 160 Att. 3

EXHIBIT 10

Dockets.Justia.com

Terry Hamilton Los Angeles, CA

March 13, 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
Alderson Reporting Company 1-800-FOR-DEPO

IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION

LOG CABIN REPUBLICANS, Plaintiff, v. UNITED STATES OF AMERICA AND ROBERT GATES, Secretary of Defense, Defendants.

) ) ) ) ) ) ) No. CV-04-8425 (VAP) (Ex)

Deposition of TERRY HAMILTON, taken in the above-entitled matter before Lindsay Pinkham, Certified Shorthand Reporter No. 3716, Certified Realtime Reporter within and for the State of California, taken at the offices of WHITE & CASE, 633 West Fifth Street, Suite 1900, Los Angeles, California 90071, on Saturday, March 13, 2010, commencing at 10:00 A.M.

Terry Hamilton Los Angeles, CA

March 13, 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 (Recess 11:07 to 11:14 a.m.) BY MR. FREEBORNE: Mr. Hamilton, putting aside

Mr. Nicholson and John Doe, are you aware of any other members of the Log Cabin Republicans who have been harmed by Don't Ask, Don't Tell? A I've heard stories. I don't know that I can

recall the exact names of people. Q Well, do you know the names of any of the

individuals? A I don't think so. I think it's difficult to

determine which ones were telling the story during the time of Don't Ask, Don't Tell or the time before Don't Ask, Don't Tell. Q Now, we looked earlier at Exhibit 36, which is And I believe you

the survey that you conducted.

testified that you purposely made that survey anonymous. Correct? A Q Yes. Would there be any way to determine the

identities of the individuals that are referenced in Exhibit 36? A Q I don't believe so. Did you undertake any effort to determine one

way or the other the truth of the statements that we see in Exhibit 36?
Alderson Reporting Company 1-800-FOR-DEPO

Terry Hamilton Los Angeles, CA

March 13, 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 A Q No. Let me ask you to look at Exhibit 36, and I

direct your attention to a few pages, and they've been identified as LCR 1 through 17. If you look at page 5,

do you see the fifth member there identified as veteran under the heading, "What is your military service status?" and then there's another column which asks, "Have you been negatively impacted by the Don't Ask, Don't Tell policy?" this veteran says "Yes, in other ways"? A Q person? A Q No. Let me ask you to turn to page 6. And again, Do you see that? I do. Any way to determine the identity of that

the veteran referenced in the fifth -- basically, the fifth category down, veteran, then under the column, "Have you been negatively impacted by the Don't Ask, Don't Tell policy?" service." A Q See that? Yes. Any way to determine the identity of that "Yes, it was used to terminate my

individual? A Q No. Turn to page 15 with me, and I'm looking at the
Alderson Reporting Company 1-800-FOR-DEPO

Terry Hamilton Los Angeles, CA

March 13, 2010

Page 48 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 No. Okay. Now, when I was looking through the

currently serving members -- well, strike that. Are you aware of a circumstance in which a Log Cabin Republicans member has made a statement that he or she is gay or lesbian and that statement has been used for a purpose other than to show a propensity to engage in homosexual conduct or acts? A Q Could you repeat the question, please? Have you read Judge Phillips's June 9 order

granting in part and rejecting in part the government's motion to dismiss in this case? A Q I believe so. Are you aware that she ruled that with respect

to the First Amendment claim, that the Log Cabin has the right to pursue a claim in which statements have been used for a purpose other than an admission under the policy? A Q Yes. And my question to you is, are you aware of any

member of the Log Cabin Republicans that would fit within that category? A Q Other than what I've seen in the survey, no. And do you see anything in the survey that

would suggest that?
Alderson Reporting Company 1-800-FOR-DEPO

Terry Hamilton Los Angeles, CA

March 13, 2010

Page 49 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 survey. MR. WOODS: I'm also going to object to the I'd have to go back and reread the whole

question on the ground that it calls for a legal conclusion. Q BY MR. FREEBORNE: Why don't you take a moment

to read through the survey and see if you see any of those individuals. A Q category? A I'm trying to remember what the category is. (Examining document.) Do you see anyone that fits within that

It was about speech, I understand. Q In which a statement has been used as evidence

of something -- has been used for a purpose other than as an admission under the policy. MR. WOODS: Same objection. Calls for a legal

conclusion or interpretation of Judge Phillips's order. You can answer the question. THE WITNESS: Well, I believe in a broad

interpretation of speech, and every last one of these that I read could fit under free speech, as far as I'm concerned. Q That's my personal opinion. But my question to you, do

BY MR. FREEBORNE:

you see anything in the survey in which the military has
Alderson Reporting Company 1-800-FOR-DEPO

Terry Hamilton Los Angeles, CA

March 13, 2010

Page 50 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 used someone's statement for a purpose other than an admission that the member is likely to engage in homosexual acts? A I really don't know how to answer that

question, because it's so insidious that in my opinion, it could be used in all sorts of different ways, and probably -- I don't know. Q My question to you is, do you see anything in

the survey in which it has been used for a purpose other than what I just described? MR. WOODS: Same objection.

You can answer. THE WITNESS: It seems to me, as I was reading

through this and trying to keep your question in mind, was that if they answered the question yes, in other ways have you been negatively impacted, that that meant that they had not been terminated already. So

obviously, someone who is currently serving is still operating under these situations, where they have to either lie or prevent the truth from coming out. And I

don't know what the government or the military might use, or whether they have used it, based on those statements. Q It's not clear to me. But in the circumstance you were just

Right.

describing, a statement has not even been made; right?
Alderson Reporting Company 1-800-FOR-DEPO

Terry Hamilton Los Angeles, CA

March 13, 2010

Page 51 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 another. Q Let's go back. I missed a few, and I just want I don't know that I can answer that one way or

to be sure that we're clear. Again, on Exhibit 36, take a look at page 4, the second member that we see on that page, veteran, under the column, "Have you been negatively impacted by the Don't Ask, Don't Tell policy?" terminate my service." A Q A Q Yes. Any way to identify that person by name? No. Okay. Let's turn to page 8. Do you see the "Yes, it was used to

Do you see that?

veteran that's the second line from the bottom, again, "Yes, it was used to terminate my service," in response to the question, "Have you been negatively impacted by the Don't Ask, Don't Tell policy?" A Q A Q Yes. Any way to identify that person by name? (Examining document) No. In fact, you set up this survey so that there

would be no way to go back and identify the individual; right? A Q That is true. And you didn't make any distinction between
Alderson Reporting Company 1-800-FOR-DEPO

Terry Hamilton Los Angeles, CA

March 13, 2010

Page 57 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 over a period of about a week or so. Q Is there a particular type of survey tool that

you used, a software program or something of that sort? A Q A Q Yes. What is it called? It's called SurveyMonkey. And do you have any reason to believe that the

comments that were provided in response to the survey under the column, "Tell us what happened" are not true? A Q No. Do you have any reason to believe that the

answers to any of the questions on the survey that you received are not true? A Q No. You were asked some questions about whether

there was anything in the survey that related to the First Amendment claims in this case. that? A Q I do. Rather than ask you to look through all 17 Do you recall

pages of this survey response, let me ask you to look on page 1, please, the next to last entry, which refers to a veteran who says he or she was negatively impacted and that the policy was used to terminate the service. you see that one?
Alderson Reporting Company 1-800-FOR-DEPO

Do

Terry Hamilton Los Angeles, CA

March 13, 2010

Page 58 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 I do. And the actual comments here, under the column,

"Tell us what happened," say this: "I was actually discharged twice, once for annulling my marriage to a woman; the second time, I spoke out against former chairman of the joint chiefs General Peter Pace when he was quoted as saying that gays were immoral in 2007." Having now focused on that particular response to the survey, do you believe that that response may at least fit into the category of the First Amendment claims in this case? A Q I do. Then directing your attention to page 4 of the

survey response, the second item there under the column, "Tell us what happened," is rather lengthy, but it basically has to do with a naval flight officer that served for over six years who appears to have been discharged once it was discovered that he listed himself as gay on a MySpace page. A Q I do. Do you think that, in your opinion, as a Do you see that?

nonlawyer, might fit into the First Amendment category
Alderson Reporting Company 1-800-FOR-DEPO

Terry Hamilton Los Angeles, CA

March 13, 2010

Page 59 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 Going back to Exhibit 36 and first the veteran FURTHER EXAMINATION that you were questioned about before, now that you've had a chance to focus on that one this particular? A Yes. MR. WOODS: That's all I have.

that Mr. Woods just directed you to, any way to identify that person? A Q No. Any way to learn about, to flesh out the

explanation that we see in, "Tell us what happened"? A Q No. Same question on page 4, the veteran that

Mr. Woods just made reference to, the Facebook veteran. Do you see that? A Q A Q I do. Any way to identify that person by name? No. Any way to learn more about the circumstances

of that particular veteran's discharge? A Q No. Going back to the first veteran that Mr. Woods

just walked you through, he said that he was discharged
Alderson Reporting Company 1-800-FOR-DEPO

Terry Hamilton Los Angeles, CA

March 13, 2010

Page 60 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 twice, once for annulling his marriage to a woman. you see that? A Q I do. And then a second time for speaking out against Do you see that? Do

the chairman of the joint chiefs. A Q I do.

Do you agree that it calls for speculation to

say that he was discharged because of a statement that he made about his sexual orientation? MR. WOODS: Go ahead. THE WITNESS: Well, I'm not a lawyer, so I Objection. Vague and ambiguous.

don't know whether that calls for speculation or not. Q BY MR. FREEBORNE: Well, is another plausible

reading that he spoke out against the chairman of the joint chiefs and perhaps was discharged because of that reason? A Q A Q A Q I don't believe so. Why? It's just my belief. Okay. Nothing more than that.

Nothing more. Okay. And with respect to the veteran that we

see on page 4, again, summarizing, who listed his sexual orientation as gay on a publicly available Facebook
Alderson Reporting Company 1-800-FOR-DEPO

Terry Hamilton Los Angeles, CA

March 13, 2010

Page 61 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 page, where in there do you see that the statement was used for a purpose other than to show that that particular service member was likely to engage in homosexual acts? A Quite frankly, I don't know how to respond to Could you rephrase it in a different

your question. way, please? Q

Well, I think we've already established,

you're aware of Judge Phillips's ruling in this case that she will allow the First Amendment claim to go forward in this case if Log Cabin can point to a member in which the member has made a statement that he or she is gay or lesbian, and the military has used that statement for a purpose other than to show -- other than as an admission that that service member is likely to engage in homosexual acts. MR. WOODS: Correct? You've

I object to the question.

misstated the judge's order.

She never said that the

Log Cabin Republicans were required to prove that it has a member in that particular category. the record dramatically. MR. FREEBORNE: MR. WOODS: I don't believe so. You're misstating

Then point me to, please, a portion You keep saying that, You're misstating

of her order where it says that.

but that is not what her order says.
Alderson Reporting Company 1-800-FOR-DEPO

Terry Hamilton Los Angeles, CA

March 13, 2010

Page 62 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 way. answer? MR. WOODS: If you preface it with the preface it, and I object to it, and I'm going to instruct the witness not to answer any questions prefaced by a false statement that you're making about the judge's July order. MR. FREEBORNE: You're instructing him not to

that misstates her order, yes, I will. Q BY MR. FREEBORNE: Well, let me put it this

Are you aware of any member of the Log Cabin

Republicans who has made a statement that he or she is gay and that the military has used that statement for a purpose other than as an admission that that service member is likely to engage in homosexual acts? A question. Q Okay. And that would include the service I'm going to have to answer "no" to that

member that we see on page 4 of Exhibit 36, the second veteran there? A I don't know how to answer that. You've

phrased it negatively and requested a positive answer, I believe. Q So I guess the answer in a general way is no. You're not aware of a member that fits within

that category? A I personally am not aware.
Alderson Reporting Company 1-800-FOR-DEPO

Terry Hamilton Los Angeles, CA

March 13, 2010

Page 63 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 Q Q Okay. Now, do you believe that the second

veteran that we see on page 4, that Mr. Woods just walked you through, fits within that category? MR. WOODS: conclusion. MR. FREEBORNE: He seemed very comfortable Objection. Calls for a legal

offering that testimony a second ago in response to your question. So I'm asking the same question. THE WITNESS: Do I believe? Why? Yes, I believe.

BY MR. FREEBORNE:

Based on everything I read there. And what do you read there that leads you to

the conclusion that he fits within that category? A speech. Q My question is, anything in that narrative in I believe that personal places like MySpace are

which the service member says, the military used my statement, for a purpose other than the admission that we just discussed? A No. MR. FREEBORNE: THE REPORTER: I have no further questions. Do you put any kind of

stipulation on the record? MR. FREEBORNE: to read and sign.
Alderson Reporting Company 1-800-FOR-DEPO

I assume the witness is going