Day 4, July 16, 2010
From: http://online.logcabin.org/day-4-vol-i.pdf and
MR. KAHN, Plaintiff atty (LRC)
MR. WOODS, Plaintiff atty (LRC)
MS. FELDMAN, Plaintiff atty (LRC)
MR. SIMPSON, Defense atty (USA)
First witness up for the day is CHRISTOPHER MEEKINS, previously an
attorney for White & Case. the law firm currently representing LRC.
His purpose in testifying here today is two fold - to assist in
providing evidence that LRC in fact does have standing to prosecute
this case, as well as to provide supporting information that an
upcoming plaintiff witness, 'JOHN DOE' is in fact a member of the
Republican party, and a member of LRC.
The defense seems interested in throwing out JOHN DOE's testimony by
indicating that he is not really a member of the LRC, a finding that
would reduce (if not invalidate) LRC's standing to pursue this case.
JOHN DOE is a currently serving individual in the US Army, whose
anonymity is being protected in this case so that he isn't kicked
out for a DADT violation.
The next plaintiff witness is MICHAEL ALMY, formerly a Major in the
USAF, discharged due to DADT.
I will excerpt some of his testimony below.
Q. = MR. KAHN, Plaintiff atty (LRC)
A. = MICHAEL ALMY, plaintiff witness
Q. Mr. Almy, did you serve in the U.S. military?
A. Yes, I did.
Q. How long was your active duty career in the U.S. military?
A. Slightly over 13 years.
Q. What years did that encompass?
A. 1993 to 2006.
Q. And in what branch of the military did you serve?
A. The U.S. Air Force.
Q. Were you enlisted or an officer?
A. I was an officer.
Q. And how did you become an officer in the U.S. Air Force
A. I earned my commission through Air Force Reserve Officer
Training Corps when I went through college at Wright State
Q. Mr. Almy, why did your active duty career in the Air
Force end in 2006?
A. I was discharged from the Air Force because of the law
we call "Don't Ask, Don't Tell."
Q. And what was your rank when you were discharged?
A. I was a major.
Q. Mr. Almy, why did you join the Air Force?
A. I joined the Air Force primarily out of a sense of duty. My father
was also a career officer in the Air Force. He retired as a full
colonel. I had several uncles who had also retired from the
military. One uncle had retired from the Army and had service in the
Korean War. Another uncle of mine had retired from the Marine Corps
and had service in World War II, Korea, as well as Vietnam. So growing
up I always had a rich history of military service in my family and
just always knew that I would follow suit.
Q. How long did you intend to serve in the Air Force?
A. I had every intention of staying for 20 years where I was eligible
for retirement or perhaps longer than 20 years.
What follows are Mr. Almy's description of his 13 year career in
the Air Force, including promotions, commendations, awards, and various
deployments to Saudi Arabia and Iraq.
Q. Thank you. You also mentioned that you were discharged
under "Don't Ask, Don't Tell" in 2006?
Q. Can you please describe to the Court what led to your
A. Yes. As I mentioned previously, my unit left Iraq towards the end
of January 2005. The unit that replaced mine in Iraq was rotating
in. We had about a two-week transition time. Several weeks after my
unit left Iraq, someone who had been sitting at my same desk, same
computer, somehow private e-mails that I had written to family and
friends during the stress of combat zone, these e-mails were searched
for any type of content or any potential perceived violation of "Don't
Ask, Don't Tell." This was a personal folder. It was labeled
"Friends," so in the sense that there was no business or professional
reason for this particular individual to search this particular
folder. There were approximately 500 e-mails, over 500 e-mails that I
had put in this folder to designate my private, personal e-mail
communications while I was in Iraq.
Again, several weeks afterwards this folder was
searched. Approximately 12 to 15 e-mails were pulled out which were
damaging to myself as far as perceived violations of "Don't Ask, Don't
Tell." These e-mails that were searched in Iraq were forwarded from
the unit that replaced mine in Iraq. They forwarded these e-mails to
my commander back in Germany. And then approximately six weeks after
my unit had returned from Iraq, my commander called me into his
office. The first thing he did was he read me the DOD policy on
homosexuality. When he finished reading that he handed me a stack of
e-mails and asked how did I explain these e-mails.
In other words, he demanded an explanation for these e-mails.
I refused to do so. He pressured me to make a statement to
acknowledge the e-mails, basically to admit that I had
violated "Don't Ask, Don't Tell," and again, I refused to do
so. I told my commander at the time I would not make a
statement until I had first consulted with a lawyer.
MR. SIMPSON: Your Honor, we object on grounds of lack of foundation
and move to strike Mr. Almy's testimony regarding the circumstances of
THE COURT: The search of his computer?
MR. SIMPSON: Correct, Your Honor.
MR. KAHN: Your Honor, I think as my questioning goes on, I can
establish that foundation.
THE COURT: All right. Why don't you proceed -- well, I'm going to
strike the testimony regarding how the e-mails were discovered and you
may attempt to lay a foundation.
BY MR. KAHN:
Q. Mr. Almy, what generally were discussed in those
A. These were private communications between family and friends,
personal e-mails written for my own purposes to take my mind off the
stressful combat zone, combat situation. They were written to
approximately three or four people, friends that I had known,
including one person that I had dated briefly.
Some discussion about the proper use of government email accounts.
Soldiers serving in Iraq were permitted (and encouraged) to use their
government provided email accounts for both personal and business
Access to private email facilities was not allowed without special
permission from the System Administrators. This was for security
Q. Besides using the government's e-mail account, was there any way
for a service member to communicate via e-mail other than to apply for
and receive the permission to access their private e-mails as you
A. There was no -- no.
Q. Did the commander tell you how he received the e-mails?
A. He explained to me that they had been searched in Iraq by the unit
that had replaced mine. They were forwarded to my commander from the
commander of the unit in Iraq.
Q. You testified earlier he pressured you to make a
statement in response to being confronted with these e-mails.
How did he pressure you?
A. We went round and round for approximately 20 minutes. He wanted me
to acknowledge the e-mails or to provide some explanation basically to
say that I had written the e-mails, in essence, acknowledging that I
had violated a perceived violation of "Don't Ask, Don't Tell."
Q. Did he show you the "Don't Ask, Don't Tell" policy?
MR. SIMPSON: Your Honor, on the last answer,
objection, move to strike on the grounds of hearsay.
THE COURT: If this was the witness's commander, it
would be a party admission. I'm going to overrule the objection on that basis.
You may continue.
THE WITNESS: The first thing that happened during this meeting was my
commander read me the DOD policy on homosexuality.
BY MR. KAHN:
Q. At the end of this meeting -- well, how did this meeting
A. I was relieved of my duties. In essence, I was fired where I had
led 180 men and women in my directorate. At the end later that
afternoon, my commander called an officer call, there was
approximately 30 to 40 officers in my squadron, called an officer call
through the whole squadron and said Major Almy had been relieved of
his duties, saying basically I had been fired.
Q. How did you react of being relieved of your duties that day?
A. I was completely devastated. I drove myself home. I took my uniform
off. I curled up on the floor of my bathroom in the fetal position and
just balled like a baby for probably several hours.
Q. At that time how long had you been serving in the Air
A. At that time it was a little over -- near the 12-year
Q. At that time had you ever made a statement to anyone in
the military that you were gay?
A. No, I had not.
Q. Was there any effect on your security clearance as a
result of your meeting with your commander?
A. Approximately three months after I was relieved of my duties, my
security clearance was suspended. I had a TS or top secret SCI
clearance, which is one of the highest level clearances that an
individual can have in the military, and that was restricted. My
access to classified information was suspended at that point.
Q. Can you remind the Court, please, when this was that you were first
relieved of your duties?
A. This was March 14th, 2005.
Q. Did you contest your discharge proceedings?
A. I did. When I was served formal notification of what we call a show
cause letter -- in other words, that means that the Air Force thinks
they have sufficient grounds to discharge me under "Don't Ask, Don't
Tell," I had several options at that point. I could have resigned my
commission and gone quietly, I could have done nothing, in which case
the case against me would have moved forward, I could have made a
statement, or the option that I chose was to invoke my right to an
Q. And why is that that you invoked your right to an administrative
A. Because I wanted to fight this as much as I could. I maintained
that I had done nothing wrong, that I had not violated the policy
because I never told. In other words, I kept my private life separate
from my professional life.
Q. Did you solicit any letters from fellow service members?
A. I solicited and obtained approximately two dozen letters from
service members that I had worked with. Some of these were junior
enlisted or officers who had worked directly for me, some of these
were my peers who had worked alongside me, and some of these were
superior officers who I had worked for.
Q. And what was your purpose in soliciting those letters?
A. The purpose in these letters was to show the Air Force these were
men and women who had worked side by side with me who knew my
professional conduct, who knew my reputation as an officer, who knew
my performance. It was to establish credibility with the Air Force and
show first-hand knowledge of people who knew me and urge that the Air
Force retain me, that I not be discharged from the Air Force.
MR. SIMPSON: Objection, Your Honor, hearsay.
THE COURT: Objection is overruled.
You may answer.
THE WITNESS: Not one person that I asked to write a letter in my
defense objected. In other words, they all supported, they all
wholeheartedly endorsed writing a letter for me, and they all urged
the Air Force that I be retained.
Thus begins a long argument from defense as to whether these letters
can be admitted into evidence. Defense does not believe these letters
have the proper 'foundation' or relevance to be admitted.
After some back and forth between defense and plaintiff, the letters
are admitted into evidence, however not for the purposes of
determining the witness's character.
Law, it's an adventure!
BY MR. KAHN:
Q. Mr. Almy, as a communications officer in the Air Force, are you
familiar with the permissible uses of e-mail, of government e-mail
A. I am quite familiar with them from the standpoint that part of my
duties as a communications officer or in the career field in general,
the communications career field, is to operate and maintain the
network. The system administrators who are in charge who are
maintaining the network on a day-to-day basis fall within the com
squadron, which is what I was a part of. That was my career field. So
as such, I was very familiar with the network as well as the permitted
use of government e-mail.
THE COURT: If I may, when you say "systems administrators," would
someone who was a systems administrator report to you?
THE WITNESS: Yes, they would, Your Honor.
THE COURT: Thank you.
BY MR. KAHN:
Q. Given your knowledge in this area, would it have been permissible
for a service member to discuss heterosexual conduct using the exact
same government e-mail account on the exact same government computer?
MR. SIMPSON: Objection, Your Honor, relevance.
THE COURT: Overruled.
THE WITNESS: Yes, it would have been.
MR. KAHN: Thank you.
Next witness: ROBERT J. MAC COUN, PH.D., PLAINTIFF'S WITNESS, SWORN
Dr. MacCoun was a behavioral researcher for the RAND Corporation.
We are also going into Volume 2 of the day's testimony.
Q. = MS. FELDMAN, plaintiff atty
A. = ROBERT J. MAC COUN, plaintiff witness
BY MS. FELDMAN
Q. Shall we go back to the previous question?
A. Sure. I was mentioning that I've been involved in two different
recent RAND projects. One of which is the -- I'm part of a larger team
that tried to project the tax revenues of the marijuana ballot
initiative and whether some of the claims that have been made were
plausible. And then, the other project is revisiting the issue of
sexual orientation and U.S. military policy for the Pentagon.
Q. Dr. MacCoun, have you previously testified as an expert witness in
court or arbitration proceedings?
A. Yes. I was an expert witness in the Abel trial in 1994, I believe.
Q. What was the nature of the Abel trial?
A. This was the ACLU's challenge to the "Don't Ask, Don't Tell"
Q. Can you please describe to the court your role in the Abel case?
A. I testified about the unit cohesion.
Q. Were you found to be qualified as an expert in that case?
A. Yes, I was.
Q. Dr. MacCoun, what was your assignment in this case?
A. I was asked to testify about the unit cohesion and the facts of
repealing "Don't Ask, Don't Tell" on unit cohesion.
Q. Have you reached an opinion on whether allowing open homosexual
military service would impair unit cohesion and military performance?
A. Yes, I have.
Q. What was your opinion?
A. In my opinion, it is -- repealing "Don't Ask, Don't Tell" would
have negligible effects on unit cohesion and military performance.
Therein comes a rather detailed report of how the RAND report (518
pages of it) was put together, who worked on it, how many separate
teams contributed to it, what studies were
It also discusses the Pentagon's Military Working Group, who inconjunction to the RAND report were commissioned by Secretary Aspin.
Q. Do you know what the military working group was?
A. Secretary Aspin commissioned two studies of the issue: The Pentagon
military working group and the RAND Corporation, as a civilian working
Q. And did the military working group issue a report?
A. They issued a memorandum.
Q. What was the conclusion of the military working group's memorandum?
A. They recommended the "Don't Ask, Don't Tell" policy.
Q. How long was that memorandum?
A. 15 pages, I believe. Something like that.
15 pages. Further testimony reveals that very little of the RAND
report made it into the Military Working groups recommendations.
Here's some more testimony:
Q. And why is it your understanding that the military working group
knew what conclusions you were reaching?
A. Well, we had shared our preliminary conclusions with them in the
video teleconference and also there were various media reports
describing what's in drafts.
Q. Dr. MacCoun, do you know whether any member of RAND was invited to
testify before Congress in 1993?
A. Not to my knowledge, no.
Read it if you've got a few hours :)
End of Day 4