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Case 2:04-cv-08425 Trial Day 5 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 Tuesday, July 20, 2010 9:10 a.m. - 12:00 p.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 5 A.M. Session Pages 944 - 1067

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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 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 139 138 341 342 343 350 WITNESSES FOR PLAINTIFF:

I N D E X

PAGE

JENNY KOPFSTEIN DIRECT EXAMINATION BY MS. MYERS (Resumed). . . . . . 948 CROSS-EXAMINATION BY MR. PARKER. . . . . . . . . . . 981 REDIRECT EXAMINATION BY MS. MYERS. . . . . . . . . . 988 LAWRENCE KORB DIRECT EXAMINATION BY MR. AENLLE-ROCHA . . . . . . . 991 CROSS-EXAMINATION BY MR. GARDNER . . . . . . . . . . 1043

ADMITTED 966 974 991 991 991 1012

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TUESDAY, JULY 20, 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: Good morning, Your Honor. Paul

Freeborne on behalf of the United States and Secretary Gates. With me at counsel table is Ryan Parker, Scott Simpson, Josh Gardner, and Major Jennifer Bottoms. THE COURT: MR. WOODS: Good morning. Good morning, Your Honor. Dan Woods of

White & Case for Log Cabin Republicans.

And with me at

counsel table today is Devon Myers and Earle Miller. THE COURT: MR. WOODS: Thank you. Good morning.

You will see other people later in the

day, but that's who's here with us this morning. THE COURT: Thank you.

Good morning, Ms. Kopfstein. THE WITNESS: THE COURT: Good morning, Your Honor.

You do not need to be resworn as a

witness as you were sworn last week and your testimony is still given under penalty of perjury. THE WITNESS: THE COURT: You understand that?

Yes, Your Honor.

Thank you.

Ms. Myers, you may continue.

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MS. MYERS:

Thank you, Your Honor.

DIRECT EXAMINATION (Resumed) BY MS. MYERS: Q. A. Where did the USS SHILOH get deployed to? We went on a six-month deployment to the Middle East, so And we were And

we transited from San Diego to the Arabian Gulf.

in the Gulf for about four months and we transited back. during both of those transits we had several important visits. Q. A. Why did you choose to go to the USS SHILOH?

I chose that ship because I wanted San Diego, because I

grew up in Orange County, so I wanted a ship that was home ported in San Diego. I also wanted a cruiser or destroyer

because I wanted to go to a combatant, mostly because until 1993 women weren't allowed on combatants, so I wanted to do that because I could. Q. What was the purpose of the deployment to the Western

Pacific and Arabian Gulf? A. We went to the Arabian Gulf to provide security for the

carrier USS ABRAHAM LINCOLN and we enforced the no-fly zone over southern Iraq. Q. A. And what was the mission that that was part of? It was called Operation Southern Watch and it was

between the first Gulf War and second Gulf War. Q. You mentioned that the ship made port several places

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before it arrived in the Arabian Gulf. ports in Malaysia? A. Q. A. Yes, it was.

Was one of those

What happened when you were docked in Malaysia? We were docked in Malaysia for about 12 hours when we

got a flash message from the Navy, which is the highest priority message you can get, that said sortie, which means leave port immediately, because the USS COLE had been bombed in Yemen and they were concerned for the safety of all ships in the Navy. Q. When the USS SHILOH was initially informed about the

bombing of the USS COLE, did you also receive instructions about whether you were likely to make port in the Arabian Gulf? A. The message didn't say specifically, but the captain was

under the impression that we wouldn't make any ports at all because of safety concerns. Q. A. And what were some of those safety concerns? Well, basically, since the COLE had been bombed by a

small boat, they felt that no port was safe because all of our security countermeasures weren't necessarily geared towards that small boat threat. Q. During that time did any of your roommates know about

your sexual orientation? A. Yes, they did.

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Q. A. Q.

Did any of them elect to move rooms? No, they did not. If someone acts inappropriately towards someone with

whom they live, does the Navy have in place a protocol for addressing that situation? A. They sure do. Especially as legal officer on board the

ship, I saw a lot of misbehavior, not a lot, but whenever there was misbehavior I got to hear about it because I was the legal officer. conduct. There are conduct rules for all kinds of

So if there is misbehavior at any time, it is dealt Our chain of command was

with and it's dealt with swiftly.

very proactive about anyone who did anything inappropriate. It was dealt with and there was punishment. Q. To circle back briefly, during your time in the Naval

Academy you said that you had told members of your sports teams about your sexual orientation, some of the people on your athletic teams? A. That's correct. I was on the soccer team and on the

rugby team. Q. A. Q. And to prepare for play, did you all use locker rooms? Yes, we did. And were there any problems involving your sexual

orientation in locker rooms? A. Q. Absolutely not. How did you address your sexual orientation with your

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crew members? A. After I wrote my letter to the captain, I just never I didn't necessarily broadcast it, but as it

lied again.

came up, as people asked me, because despite the name, people ask all the time, I just never lied. So I'm pretty sure that

people knew very rapidly, because on a ship in that enclosed environment rumors spread extremely fast, so I'm pretty sure it was practically instantaneous that everyone on the ship knew. Q. A. And how did they respond? I had a lot of positive responses. MR. PARKER: THE COURT: Objection, hearsay. The objection is overruled. I had people come up to me and speak

THE WITNESS:

to me directly about the issue, and I had some people come up to me and speak to me more indirectly. For example, I tell

the story about the senior chief who stopped me in the passageway one day sort of out of the blue. he could speak to me, and I said sure. He asked me if

And he pulled out his And he

wallet and showed me a picture of a teenage boy.

said, "This is my son and he's gay and I'm really proud of him." blue. And that was pretty much apropos of nothing out of the I wasn't expecting that. But for him it was probably

a coming out of sorts for him, too, because that's not necessarily -- the fact that he had a gay son is not

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necessarily something that he could share with his shipmates. I'm sure that the other chiefs on the ship bragged about their sons and he probably felt like he had to keep quiet about that. BY MS. MYERS: Q. Do you believe that your captain treated you differently

because of your sexual orientation? A. Q. No, I don't. Do you believe that your shipmates treated you

differently because of your sexual orientation? MR. PARKER: THE COURT: BY MS. MYERS: Q. During your time on the USS SHILOH did Captain Liggett Objection, speculation. Sustained.

select you to represent the ship in the ship handling competition? A. Q. A. Yes, he did. Can you tell me about that, please? Sure. A ship handling competition is basically a So between our ship and the other ships

driving competition.

in our battle group, the admiral in charge of the battle group basically flew onto our ship via helicopter and he watched me put the ship through a scripted series of maneuvers; for example, a man overboard drill, also an underway replenishment where we would pull up along side

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another ship and match their course and speed, some evasive maneuvers. That was timed and judged on accuracy because a

565-foot ship doesn't really stop on a dime, but you don't really want to run over the man overboard. So I did that, I

went through the whole script, and I actually won, and so I got a letter of congratulations from the admiral and a certificate, and the admiral congratulated me personally and gave me his coin. Q. A. What do you mean he gave you his coin? In the military if you do something good or if you're

friends with somebody who does something special, they have these coins that are about silver dollar size that denote that person's command usually, and they are colorful and they're used for a variety of purposes. But to get the

admiral's coin was a big deal because not very many people get them. You can get them from your peers fairly easily but

not necessarily from an admiral. Q. Did the captain choose anyone else from your ship to

represent in the ship handling competition? A. Q. A. No, he did not. And who did you compete against? I competed against whoever had been selected to drive

from the other ships, they drove their own ship, so probably other junior officers most likely on the other ships. Q. And was this competition after the date that you wrote

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your letter to Captain Liggett? A. Q. A. Q. Yes, it was. About when did the USS SHILOH return from deployment? We returned in February of 2001. And did you receive any awards for the time you spent on

deployment? A. I did. I earned the Sea Service Deployment Ribbon.

Sorry.

And I believe I also earned the Naval Expeditionary

Medal on that deployment. Q. Can you please describe for the Court what the Sea

Service Deployment Ribbon represents? A. It represents time spent overseas. They measure it in

days and you have to spend a certain number of days overseas in order to earn that. MR. PARKER: evidence. THE COURT: BY MS. MYERS: Q. A. Did this award hold special significance for you? It did, because again, not everyone earns the Sea The objection is overruled. Object to this testimony, character

Service Deployment Ribbon, and especially in the past women in particular didn't often get that particular ribbon. Q. A. And why is that? Because of the way that they were assigned. They

weren't necessarily assigned to combatant ships that traveled

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overseas. MR. PARKER: THE COURT: BY MS. MYERS: Q. Can you please describe the other award you received for Objection, speculation. Overruled.

your time on deployment? A. Q. A. I'm sorry, it's slipping my mind right now. Is the Naval Expeditionary -The Naval Expeditionary Medal, I believe they gave us

that one because of Operation Southern Watch connection because we were assigned to that particular duty. Q. Once the USS SHILOH returned from deployment, did

Captain Liggett remain as your captain? A. For a short period of time. And then he turned over

with our new captain. come. Q. A. Q.

It was just time for a new captain to

And who was the new captain? Captain William Dewes. And was there a change of command party when Captain

Liggett left the USS SHILOH? A. There was a change of command party which is customary. He announced that

It was held at Captain Liggett's house. party in the ward room.

The ward room is basically a room It has tables and

where the officers eat and watch TV. couches and television.

So we were all in there having a

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meeting and he said, "I'm going to have a change of command party at my house and everyone is invited and you may all bring your spouses." And after that announcement I didn't

think too much of it at the time, but then after the announcement he came directly up to me and said, "Ordo," because I was the ordnance officer, he said, "Ordo, I just want you to know that you're allowed to bring whoever you want to bring to this party at my house." MR. PARKER: THE COURT: BY MS. MYERS: Q. How did Captain Liggett's invitation to his change of Motion to strike, hearsay. The motion to strike is denied.

command party make you feel? A. I was surprised, especially at first, but I was very It was unexpected. So I felt like it was something

happy.

that I should definitely do since he asked me directly like that. When a senior officer suggests something, you So I brought my partner to the party. And

generally do it.

the captain and his wife were both standing at the front door greeting people as they came in, and they both greeted both of us warmly and welcomed us into their home. And we went

inside and the other officers in the ward room were there with their spouses or boyfriends and girlfriends and they were all very happy to see us. time. And we basically had a great

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Q.

Do you feel that their reaction reflects how they felt

overall towards you? A. I do. MR. PARKER: THE COURT: Objection, lack of foundation. Overruled. I do. I think that they were I think that especially

THE WITNESS:

extremely happy to finally meet her.

in a ship environment where people work so closely together 24 hours a day, it just helps to know about people's lives because you can relate to them better as people and you can understand where they're coming from. So it was important

for all of us, not necessarily to be friends because it's hard to be close friends with that many people, but you need to at least know something about each person so that you can interact with them as a team. Q. And is working together as a team something that's

important to serving on a battle cruiser? A. Absolutely. It's paramount to work as a team. There

are so many systems and procedures that require teamwork. Pretty much everything you do, you don't alone. You have to

cooperate with others in order to get something done on board a ship. Q. And you mentioned that the captain called you Ordo What weapon systems

because you were the ordnance officer.

were you in charge of as the ordnance officer?

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A.

I was in charge of two of our gun systems.

One is the We

five-inch gun which is a naval shore bombardment weapon. had two five-inch guns, one forward and one aft. fairly large weapons. artillery. They're

Essentially you can think of it as

I was also in charge of what's called the CIWS, There are also two of those on

Close-In Weapons System. board the ship.

And it's a Gatling gun that fires

20-millimeter rounds essentially for close-in defense of the ship either against missiles or any type of incoming projectile. Q. When you say "five inches," what do you mean

five-inch guns? A. The five inches is actually the caliber. The rounds

are -- the diameter is only about three inches but there fairly tall. Three inches in diameter and they range in

height from about two feet to three and a half feet. Q. On the morning of September 11th, 2001, who was your

captain? A. Q. Captain Dewes. And did Captain Dewes know about your sexual orientation

at that time? A. Q. Yes, he did. At this time do you think most of the crew members knew

about your orientation? A. Yes, I do.

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MR. PARKER: THE COURT: BY MS. MYERS: Q. A.

Objection, speculation. Overruled.

And why do you think that's the case? I think they knew because of the volume of unsolicited Like the story I told about

interactions I had with people.

the senior chief showing me the picture of his son, that type of thing happened to me fairly regularly. People would just

come up and start talking to me about things, so from that I assumed that they knew because they started out talking to me as if they knew. Q. Can you please describe for the Court where you were on

the morning of September 11, 2001? A. We were in port in Seal Beach, California, which is a We were unloading weapons.

naval weapons station. Q. A.

And what happened next? I woke up that morning at about 6 a.m. as usual and I

got dressed in my uniform, put my hair up, and went into the ward room for breakfast. And when I opened the door from the

doorway, you could see the tables where people were normally eating. And when I opened the door that morning there was

nobody sitting and eating, so I immediately knew something was wrong. As I came through the doorway, I could see the

television viewing area which had couches, but nobody was sitting down. Everyone was standing up and watching the

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television. a word.

And I said, "What's going on?"

And nobody said So I

They just -- all of them pointed at the TV.

walked over to look at the television and the first tower was on fire. So I just stood there for awhile and watched. One of my fellow junior officers was actually from New York City so he came in and started freaking out. his cousins actually worked in the Trade Center, so he immediately started trying to dial the telephone that we had there in the ward room, but he couldn't get a line through. No connection could be made. And then the plane flew into One of

the second tower and there was video of that on the television immediately. And so we saw the plane and we

immediately knew that it wasn't an accident, the first tower wasn't an accident. We immediately knew that something very

terrible was happening. At that point, shortly after the plane hit the second tower, one of my enlisted sailors burst into the ward room, which was not normal because enlisted people didn't generally come into officers' country without an escort, so we all just looked at him with wide eyes, and he said to me, "Ma'am, ma'am, request permission to load the guns." And I

looked at my boss, my immediate boss, who was the weapons officer right next to me, and he just pointed at the captain. I looked at the captain and the captain gave the order to me, "Load the guns." So I turned to the enlisted man that worked

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for me and I said, "Load the guns." Q. Did the captain also select you to be the ordnance

officer on deck -- or the officer on deck for that day? A. Yes. MR. PARKER: relevance. THE COURT: The motion to strike is denied. Yes, I was selected to be the officer Motion to strike the last answer for

THE WITNESS: of the deck.

Basically, right after the order to load the

guns was given the captain started giving more orders to other people. It sort of snapped us all out of our He told the ward room that we were

television watching.

going to get under way because message or no message we knew that we were going to get underway at that point. He turned

to me and said, "Ordo, you will be the officer of the deck," which just meant that I would be in charge of the ship while we were leaving port. And he gave some other orders. He said in a

rotation the crew has an hour and a half or two hours to go shopping on the base, because we were only supposed to be in Seal Beach for a couple of days and nobody had packed enough of anything to go to sea for an indeterminate period of time. So I went up and helped my guys load the guns and then

I took my turn going to the store with some of my fellow junior officers.

962

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 relevance.

So we went down there and the -- what happened basically was pretty surprising. The cashiers at the Navy They're little old

Exchange are usually not very friendly.

ladies and they're usually pretty grumpy, but on that day as we checked out, those ladies were in tears and they would come around the counter and hug each sailor as they went through. And that was very different and unexpected. When that happened to me, I was very emotional, because when you're gay or lesbian, you don't get the hellos and goodbyes that straight people get. Generally when you

leave on deployment they allow the families onto the pier, and you get emotional goodbyes or hellos when you come back. And that's just not possible for gays and lesbians. generally have your hellos and goodbyes at home. You

So for me

to be hugged goodbye when we were leaving on September 11th after having been attacked by unknown people leaving for an unknown period of time, for all we knew at that point we were going to steam across the ocean and go to war, so it was incredibly emotional. MR. PARKER: relevance and hearsay. THE COURT: I'll strike it on the grounds of Motion to strike the last answer for

MS. MYERS: THE COURT:

Your Honor, may I respond? Yes.

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MS. MYERS:

I would argue that it is relevant to The

show the effect of the "Don't Ask, Don't Tell" policy.

military was willing to send Ms. Kopfstein to war to defend her country, but they wouldn't allow her to say goodbye to her loved ones. And I think that shows, in effect, how

"Don't Ask, Don't Tell" weakens the military and doesn't further any compelling government interest. THE COURT: But I don't think that this testimony The

we're talking about really goes to that issue directly. testimony will be stricken. BY MS. MYERS: Q.

What did it mean for you to be selected as the officer

on deck that day? A. It meant that in an emergency the captain trusted me to

be able to do that very important job with very little preparation. Q. A. And what did it mean to load the guns? It meant that we were going to get underway from a U.S. We did have the

port with live ammunition in our weapons.

safeties on, but we could have fired those weapons on very short notice. Q. A. And what happened next? We got underway from Seal Beach and we went to sea. We

were assigned to defend the West Coast of the United States against a possible air attack.

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Q.

And when you said you sailed out, where were you sailing

out of? A. Q. A. Q. Out of the Seal Beach harbor. And was it your job to drive the ship? Yes, it was. And was it a dangerous situation given the fact that you

had live ammunition in the weapons? A. Q. Yes. That's always a dangerous situation.

If an airplane had dive bombed your ship that day the

same way the twin towers were dive bombed, would you have been in charge of the weapons that would have been fired at the aircraft? MR. PARKER: THE COURT: responsibilities. Objection, speculation. It calls for her to describe her

The objection is overruled. Yes, it would have been up to me to

THE WITNESS:

give the final order to remove the safeties from our weapons. BY MS. MYERS: Q. A. Can you describe what happened next? We were underway for about two weeks. That particular

day it was, basically, we were trying to find out what was going on for most of the day and establish communications so that we could properly do our air defense job. Q. And at the end of the day, can you please describe the

evening meal in the ward room?

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A.

Evening meal was very quiet, that evening much quieter People didn't have very much to say. The young

than normal.

officer from New York City actually was a little more brash than the rest of us and he asked the captain at evening meal if we were going to shoot down a civilian airliner. And

there was a long pause, and the captain's response was, "If we have to." MR. PARKER: THE COURT: MS. MYERS: Objection, relevance. What's the relevance? Your Honor, I think it highlights the

intensity of the situation that day and the fact that Ms. Kopfstein had been selected to be in charge as the officer on the deck and that she was an excellent officer. THE COURT: BY MS. MYERS: Q. Do you think that your sexual orientation affected your The objection is overruled.

ability to respond to the threat that September 11th posed? A. Q. Absolutely not. During this time did you receive any written reviews

that commented on your sexual orientation? A. Q. A. Q. A. Yes, I did. Can you please turn to binder 5, Exhibit 139? Okay. Do you recognize this document? Yes, I do.

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Q. A.

Can you please describe it for the Court? It is one of my fitness reports from the ship. MS. MYERS: Your Honor, I move to introduce

Exhibit 139 into evidence. MR. PARKER: grounds. THE COURT: On the hearsay objection, it's an That objection 139 is ordered Objection on relevance and hearsay

admission of -- it's an admission of a party. is overruled. admitted. BY MS. MYERS: Q. Both objections are overruled.

Can you please turn to the second page for me.

And can

you please read the comments on performance? A. Sure. It says, "Lieutenant JG Kopfstein is a hard

working and dedicated junior officer who excelled as an Officer of the Deck. She played an important role in

enhancing the ship's strong reputation. "Qualified Surface Warfare Officer. Officer of the Deck. "Due to her admission on sexual orientation, a Board of Inquiry was convened. The Board determined her in My best

violation of Navy policy and recommended separation from Naval service. Her sexual orientation has not disrupted good

order and discipline on board USS SHILOH. "Excellent Shipdriver. She is a trusted Officer of

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the Deck and best ship handler among her peers." MR. PARKER: Your Honor, this document has already We object to having the witness

been admitted into evidence.

then read the document in evidence. THE COURT: The objection is overruled. "Possesses an instinctive sense of

THE WITNESS:

relative motion, a natural seaman." BY MS. MYERS: Q. A. Q. A. Can you do me a favor and skip to the last part, please? Sure. Yes. "Volunteered at the Income Tax Assistance VITA training Where it starts "Volunteered"?

course where she dedicates her time and effort helping military members with their taxes. Lieutenant JG Kopfstein

has been an asset to the ship and the Navy, but unfortunately, her sexual orientation precludes further Naval service." And it is signed by my, Captain William Dewes,

17 July, 2002. Q. Thank you. During the time the USS SHILOH was stationed

in California, did you receive any promotions? A. Q. A. Yes, I did. What did you receive? I was promoted from ensign which is 01 to Lieutenant

Junior Grade which is 02. Q. And when did your assignment on the ship end?

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A. up.

My assignment on the ship ended when my relief showed A natural progression in the Navy is to serve on board a

ship for approximately two years and then someone will come and replace you. So as soon as my replacement showed up,

they couldn't keep me any longer on board the ship, so they sent me to the Naval Legal Service Office, NLSO, to work in their VITA Tax Center. Q. And did you win any awards during the time you were

based in California? A. Q. A. Yes, I did. And what did you receive? The Tax Center, the CO of NLSO actually gave me an

award, an individual award, called the Navy and Marine Corps Achievement Medal for my work in the Tax Center. MR. PARKER: THE COURT: BY MS. MYERS: Q. A. Q. Did you also receive the Surface Warfare Officer pin? Yes. I received that during my time on the ship. Objection, character evidence. The objection is overruled.

What is the Surface Warfare Officer pin? MR. PARKER: THE COURT: Objection. You may have a standing objection on

character evidence ground. MR. PARKER: THE COURT: Thank you. You're welcome.

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THE WITNESS:

The Surface Warfare Officer pin, or You basically

SWO pin, is equivalent to an aviator's wings.

earn it by learning about the ship, learning how to operate shipboard systems, learning how to react during emergencies, learning the watch stations that you're assigned to learn. Then after you do all of that, you're required to demonstrate your knowledge before the senior officers on board the ship at an oral Board. And they can decide after that oral Board

whether or not to give you your pin. Q. A. Q. A. And when did you receive this pin? I received it I believe in October of 2001. Did you think that you might not receive this pin? I did think that I would probably not receive it because

of my status -- basically as a lesbian I had this administrative discharge hanging over my head, and the SWO pin is elective. It's something that the senior officers on

the ship can choose to give you or not give you if you aren't good enough to wear it basically. If you don't demonstrate

the knowledge necessary or the skills to be a surface warfare officer, they won't give you the pin. Q. What happened during the actual ceremony where you

received your Surface Warfare pin? A. It is a traditional ceremony and so one of the

traditions is for the captain to take off his own pin and pin it onto the person -- onto the new person's chest. So he did

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that for me and that was very special to me. MR. PARKER: THE COURT: BY MS. MYERS: Q. A. Why was that special to you? The symbolism of it and the gravity of the occasion were They Objection, relevance. The objection is overruled.

special to me because they didn't have to do that.

weren't required to give me my pin, but I had worked very, very hard and I was hoping they would. And so when the

captain actually gave me his pin, I was very proud. Q. And you mentioned that after the ship you went to the

Naval Legal Service Office? A. Q. That's correct. Did you complete the full term that you were assigned to

on the USS SHILOH? A. Q. Yes, I did. And if you were not being discharged under "Don't Ask,

Don't Tell," would you have been assigned to the Naval Legal Services Office? MR. PARKER: THE COURT: BY MS. MYERS: Q. Do you know where you would have been assigned if you Objection, speculation. Sustained.

weren't assigned to the Naval Legal Services Office? MR. PARKER: Same objection.

971

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 elsewhere.

THE COURT:

The objection is overruled. I was scheduled to go to Nuclear

THE WITNESS:

Power School in Charleston, South Carolina. BY MS. MYERS: Q. At the time you were assigned to the Naval Legal

Services Office, could you have been posted elsewhere? MR. PARKER: THE COURT: Objection, speculation. Overruled.

You may answer. THE WITNESS: Yes, I could have been posted I actually was

It was my choice to go to NLSO.

looking for a job that was available to me where I could make a difference. I could have gone to Transient Personnel Unit,

TPU, which is generally where they send sailors who have nowhere else to go, but the work there is mundane, to say the least. BY MS. MYERS: Q. A. What do you mean by mundane? It's work that needs to be done, that's not being done

by anyone else necessarily, but you get farmed out to whoever needs you. So if that means you're picking up trash or

sweeping or standing a watch somewhere on the base, for example, a pier watch, that's it. Q. It's not rocket science.

When you went to NLSO, did your commanding officer know

about your sexual orientation?

972

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A. Q.

Yes, he did. Did you observe him treating you differently than other

service members who worked at NLSO? A. Q. No, I didn't. And can you please describe the Navy and Marine Corps

achievement medal that you earned while you were there? A. Sure. It's an individual award. And the difference

between an individual award and a unit award is that a unit award is given to everyone. So, for example, when I earned

the National Defense Service medal, that was actually given to everyone on the ship. actions on September 11th. That particular medal was for our The individual award is something

that someone has to nominate the sailor for and has to write up a citation for. So my immediate boss nominated me for

that award and wrote up a citation describing the things that I had done in the Tax Center, and submitted it to Captain Clove who was the captain in charge of NLSO, and he approved the award and awarded it to me. Q. What kind of work were you doing at the Naval Legal

Services Office? A. I worked in the Tax Center. I was second in command

between January and April.

And then after April 15th they My boss at

made me the officer in charge of the Tax Center.

the beginning was Navy Lieutenant Jag and she and I ran the Tax Center.

973

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Q.

Did your discharge proceedings also happen during the

time you were working at NLSO? A. Q. Yes, they did. What did you do in response to the commencement of your

discharge proceedings? A. Well, the Board of Inquiry was in February. It was in

the morning.

It was in the same building that I worked in at It lasted

NLSO because that was the Legal Services Office. until about lunchtime.

And then after the Board I went back

downstairs and went back to work. Q. A. Q. A. Did you contest your discharge? Yes, I did. What does it mean to contest your discharge? It means that I elected to go to the Board rather than

simply resign my commission. Q. A. Q. A. And why did you contest your discharge? Because I didn't want to get out of the Navy. And why didn't you want to leave the Navy? I like the Navy. I enjoyed the work. I liked being on

the ship and going different places.

It's not an easy life

by any means, it's actually very difficult, but it's rewarding. I enjoy the company of my shipmates. I have

friends for life that I've made both at the Naval Academy and on my ship. Q. Can you turn to Exhibit 138 in the same binder?

974

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A. Q. A. Q. A.

Got it. Do you recognize this document? Yes, I do. Can you please describe it for the Court? It's the Record of Proceedings of my Board of Inquiry. MS. MYERS: Your Honor, I move to introduce

Exhibit 138 into evidence. MR. PARKER: We object on relevance grounds and

also because there's hearsay throughout this document, including statements by Ms. Kopfstein's counsel and statements by Ms. Kopfstein herself. THE COURT: What's the purpose for which you are

seeking to introduce the document? MS. MYERS: The purpose of the document is to show

the statements of Captain Dewes and Captain Liggett who came to testify on behalf of Ms. Kopfstein to say that despite the fact that -- despite her sexual orientation, she's an excellent officer and should not be discharged. THE COURT: So are you just offering those

statements in the exhibit? MS. MYERS: Yes, Your Honor. I can select those

particular pages if you want just the excerpts. THE COURT: The exhibit will be admitted for the

limited purpose of the testimony -- well, for the limited purpose you described and for no other purpose. And the

975

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objection -- I'll treat the Government's objection as an objection to the relevance of those portions still, but it's overruled. You may continue.

BY MS. MYERS: Q. A. Q. Can you please turn to page 9? Okay. Can you please read the answer to the question, "And

what's your overall impression of her, sir, as an officer?" A. Captain Liggett's answer was, "I think she's an

outstanding officer." Q. And what is the response to, "And what do you base that

on, sir?" A. He said, "Just her -- what I would base that description

of all officers, that is her ability as a Division Officer as a watch stander, and performance collateral duties, the attention to detail and dedication to duty to which she carries out her job." Q. A. Q. Can you please turn to page 15? Okay. Can you please read the answer that responds to the

statement, "Sure"? A. He said, "None of you asked me this, but I was expecting

to be asked if she should continue serving, and I think she should. Okay, I think this person has an awful lot to offer However, I think she should continue to serve

the Navy.

976

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under on condition, that is, she complies with the Navy's established policy, that is, "Don't Ask, Don't Tell," that she not volunteer any information about her private life and her sexual orientation. And that if people are brash enough

to ask her that, she should just tell them, that's not her business. I think that's how Lieutenant Kopfstein could She's an incredible I think it would be a That's all I have got.

comply with "Don't Ask, Don't Tell." officer and she has a lot to offer. shame for the service to lose her. Q. A. Q.

And who was testifying at this point in time? I believe that's still Captain Liggett. And can you please turn to page 16. Does this begin the

testimony of Captain Dewes? A. Q. Yes, it does. Can you please read the answer to, "What is your overall

impression of her, sir?" MR. PARKER: already been admitted. Your Honor, we'd object to -- this has We'd object to having the witness

read it into the record again. MS. MYERS: THE COURT: Go ahead. THE WITNESS: Captain Dewes answered, "She is a It is the last one, Your Honor. The objection is overruled.

very good officer on the SHILOH." BY MS. MYERS:

977

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Q.

What is the significance of having two captains testify

on your behalf? A. It's extremely significant that they took time out of

their schedules to come to my Board of Inquiry because that's not normal. Captain in the Navy is 06 which is four grades Both of these senior

above my rank at the time which was 02.

officers were very busy, and it's just not normal for that to happen. Q. What did the panel decide at the conclusion of the

hearing? A. Q. A. Q. A. Q. A. They voted to separate me from the Navy. Did you appeal the panel decision? Yes, I did. Did you prevail in your appeal? No. When did you receive your separation orders? Separation orders were August of 2002, and I was

actually separated from the Navy October 31st, 2002. Q. A. Q. Was your discharge honorable? Yes, it was. What was the rank -- what was your rank at the time you

were discharged? A. Q. Lieutenant Junior Grade. After your honorable discharge did you testify before

Congress?

978

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A. Q. A.

Yes, I did. Which senator asked you to testify? Senator Levin asked me to testify. He's the chairman of

the Senate Armed Services Committee. Q. How many months did you openly serve in the Navy before

you were discharged? A. Q. I served openly for two years and four months. During the time that you openly served in the Navy did

anyone complain, to your knowledge, about taking orders from you? A. Q. No. During the time that you openly served in the Navy did

anyone complain, to your knowledge, about the quality of your work? A. Q. No. In your opinion, how important is trust to working

successfully on a battleship? A. It's incredibly important. It can't be overstated how Like I said before,

important trust is on board a ship.

everything that's done on board a ship has to be done by the team. It's incredibly interactive. You have to work I was on

together with people in order to get things done.

board the ship during many emergencies, many emergency situations, and you just have to trust people. You have to

be able to communicate with people and deal with them in any

979

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type of situation. Q. Do you think that "Don't Ask, Don't Tell" affects

shipmates' ability to trust each other? A. Yes, I do. MR. PARKER: foundation. THE COURT: The objection is overruled. I think that "Don't Ask, Don't Tell" Objection, speculation, lack of

THE WITNESS:

requires people to hide significant portions of their life, which is difficult for anyone, especially on a ship where you're together everyday, 24/7, working with people. have to get to know people. on a personal level. You

You have to interact with them You can't

You can't establish a team.

have teamwork without trust.

And you can't trust somebody if

they don't tell you the whole truth or if they avoid simple questions that you ask. So if somebody thinks that you're

hiding something or they think that you're weird or strange, trust is definitely going to be affected. BY MS. MYERS: Q. After you came out, how do you think it affected your

crew members ability to trust you? MR. PARKER: THE COURT: Same objection, speculation. Overruled.

You may answer. THE WITNESS: I believe my shipmates were able to

980

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trust me after I came out.

I don't believe they were before

because I was avoiding answering their simple questions, so they got the impression from me that I was strange and had something to hide. After I was able to come out, they I was like them. I had a

realized that I had a normal life.

family and they could relate to me and they could hang out with me and I could hang out with them, too. Because that's

another component of "Don't Ask, Don't Tell" is that even outside of work you have to be careful where you go and who sees you, so you avoid social situations. not the way it works on board a ship. And that's just

It's important to

attend those functions and to go to the barbecues and to invite people to your house and to hang out. it. BY MS. MYERS: Q. If "Don't Ask, Don't Tell" were no longer in effect, It's part of

would you rejoin the military? A. I absolutely would because when I graduated from the I signed up for five years

Naval Academy I owed five years. of service. that.

I was only able to serve three and a half of

So in my mind, I still owe at least a year and a half

of service. MS. MYERS: at this time. THE COURT: Thank you. Your Honor, I have no further questions

981

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Cross-examination, Mr. Parker. CROSS-EXAMINATION BY MR. PARKER: Q. A. Q. Good morning, Ms. Kopfstein. Good morning. We've spoken on the phone and met briefly in the hall,

but again, my name is Ryan Parker. Ms. Kopfstein, you're a member of the Service Members Legal Defense Network; is that correct? A. I work with them. I don't think they have members per

se, but I definitely have done a lot of work with them. Q. And Service Members Legal Defense Network is an

organization which, among other things, advocates for the repeal of the "Don't Ask, Don't Tell" policy; is that correct? A. Primarily they provide free legal services to service And as

members who are affected by "Don't Ask, Don't Tell."

part of that they also advocate for the repeal of "Don't Ask, Don't Tell." Q. And you yourself are an advocate for the repeal of the

"Don't Ask, Don't Tell" policy? A. Q. Yes, I am. In fact, you've given approximately 50 interviews with

members of the media telling your story and advocating for repeal of the "Don't Ask, Don't Tell" policy?

982

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A.

That's correct, because I am able to tell my story.

All

of the active duty gay and lesbian service members of which there are 65,000 have to be silent. military, I can tell my story. Q. Now, Ms. Kopfstein, this is not your first experience Since I'm out now of the

with a lawsuit challenging the constitutionality of the "Don't Ask, Don't Tell" policy; is that correct? A. Q. Correct. In fact, in October of 2003, you filed suit challenging

the constitutionality of the "Don't Ask, Don't Tell" policy in the Commonwealth of Massachusetts; is that correct? A. Q. Yes. With 12 other plaintiffs the suit was filed.

And the suit was originally called Cook v. Rumsfeld and

then became Cook v. Gates; is that correct? A. Q. That's right. And in that suit you allege that "Don't Ask, Don't Tell"

violated the equal protection clause, the due process clause, and the First Amendment; is that right? A. Q. Yes. And you brought both facial and as applied challenges;

is that correct? A. Q. Yes. And the District Court ultimately dismissed all of your

claims; is that right? A. That's right. The Government filed a motion to dismiss.

983

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Q.

And you appealed the District Court's decision to the

First Circuit; is that correct? A. Q. Yes, we did. And the First Circuit ultimately affirmed the District

Court dismissal of each of your constitutional challenges to the "Don't Ask, Don't Tell" policy; is that correct? A. Q. Yes. So the First Circuit held that the "Don't Ask, Don't

Tell" policy was constitutional as it had been applied to you; is that correct? A. Their holding didn't necessarily reach all of our

arguments, but I believe so, yes. Q. Now, Ms. Kopfstein, just so we're clear, the testimony

you have given today is based on your personal experiences; is that correct? A. Q. Yes. And you're not testifying about the experiences of other

individuals? A. Q. That's correct. Now, let me ask you just some questions about your You graduated from the Naval Academy in

service in the Navy.

May of 1999; is that correct? A. Q. Yes. And after graduating from the Naval Academy you had a

five-year service commitment?

984

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A. Q.

Correct. You testified that after graduation you attended Surface

Warfare Officers School for approximately six months? A. Q. Right. And then on March 15th, 2000, you were transferred to

the USS SHILOH? A. Q. Yes. You testified that on July 17th, 2000, you wrote a

letter to your commanding officer on the USS SHILOH, Captain Liggett, and told him that you were a lesbian; is that correct? A. Q. Yes. And at that time you had been stationed on the USS

SHILOH for only four months? A. Q. That's right. And the ship was exactly one month from leaving on a

six-month deployment to the Arabian Gulf? A. Q. Yes. And you were only approximately one year into your

five-year commitment to the Navy? A. Q. That's right. Before making your statement you consulted with an

attorney from the Service Members Legal Defense Network; is that correct? A. Yes, I did.

985

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Q.

And when you made your statement, you were aware that it

would be used as evidence of a propensity to engage in homosexual conduct? A. Q. Yes. And it's your understanding that after you made your

statement, Captain Liggett did not believe that you were a lesbian? A. Q. That's right. In fact, it's your understanding that Captain Liggett

believed that you made your statement to get out of the Navy? A. Q. That's right. And it's your understanding that Captain Liggett wanted

you to provide additional evidence that you were a lesbian? A. Q. Yes, he did. But you chose not to provide him with additional

evidence? A. Q. That's right, because it wasn't required. So Captain Liggett decided not to institute discharge

proceedings at that time? A. Q. That's right. Rather, he sent a letter to the Pentagon seeking

permission to launch an investigation? A. Q. Yes, he did. And it's your understanding that because of a change in

presidential administrations and military leadership, Captain

986

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Liggett did not receive a response to his letter for several months? A. Q. It wound up being 10 or 11 months, yes. And in June of 2001, approximately 11 months later,

Captain Liggett determined that he no longer needed additional evidence of your sexual orientation and he instituted discharge proceedings? A. Q. That's correct. And during your discharge proceedings you met with an

attorney? A. Q. Yes, I did. And instead of resigning your commission, you chose to

contest your discharge? A. Q. A. Q. Yes. So in February of 2002 a board of inquiry was convened? Yes. And the Board of Inquiry heard from witnesses and

considered evidence? A. Q. Yes, they did. And the Board ultimately recommended that you be

discharged? A. Q. Yes, they did. And after receiving the Board's decision you decided to

appeal it? A. Correct.

987

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Q.

And your appeal to the Board's decision was sent all the

way up to the Secretary of the Navy? A. Q. A. Q. Probably. And your appeal was denied in August of 2002? Yes. And two months later in October of 2002 you were

discharged? A. Q. That's right. On direct you testified that you served for two years

and four months from the time you made your statement to Captain Liggett until you were discharged? A. Q. That's right. But during the first 11 months of that time it's your

understanding that you were not subject to discharge proceedings because Captain Liggett did not believe you were a lesbian? A. Captain Liggett could have instituted discharge

proceedings against me at any time during those 11 months. It was his choice. The investigation was not required. So if I had been a bad It

was completely his prerogative.

sailor or if I had been disruptive, he could have discharged me at any time. Q. And you've testified that Captain Liggett did not

instigate discharge proceedings when you made your statement because he did not believe that you were a lesbian; is that

988

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correct? A. Q. That's correct. And for approximately 14 or 15 of the months that you

served after your statement, you were either contesting your discharge or appealing the decision of the Board -- appealing the Board of Inquiry's decision? A. Q. I suppose. I haven't counted that particular fact.

Ms. Kopfstein, on March 18th of this year you testified

before the Senate Armed Services Committee? A. Q. That's right. And your testimony to the Senate was similar to the

testimony you have provided here today? A. I told my story to the senators and various -- told them

about various things that had happened to me. Q. So the Senate has your story before it as it considers

legislation to repeal "Don't Ask, Don't Tell"; is that correct? A. Yes. MR. PARKER: questions. THE COURT: Thank you. Thank you, Ms. Kopfstein. No further

Redirect examination. REDIRECT EXAMINATION BY MS. MYERS: Q. Ms. Kopfstein, why do you speak out against "Don't Ask,

989

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Don't Tell"? A. I speak out against "Don't Ask, Don't Tell" because of

all of the active duty gay and lesbian service members who are forced to remain silent. They have families, too. They

serve honorably just like all the other active duty soldiers, sailors, airmen and Marines. They deserve to have a voice. They deserve recognition

They deserve to be treated equally.

for their service and for who they are. Q. When you wrote the letter to Captain Liggett before

deployment to the Arabian Gulf, did you write the letter to get out of deployment? A. Q. No, I didn't. What is your impression of why Captain Liggett did not

believe you when you first wrote the letter? A. My impression is that he didn't know me very well at the

time so he wanted to keep me around to determine for himself what action he wanted to take in response to the letter. MR. PARKER: THE COURT: BY MS. MYERS: Q. And it was Captain Liggett who selected you for the ship Motion to strike, speculation. Overruled.

handling competition? A. It was Captain Liggett who selected me for the ship

handling competition. Q. And it was Captain Liggett who invited you and your

990

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partner to his change in command party? A. Q. That is correct. And it was Captain Liggett who testified on your behalf

at the discharge proceedings? A. Q. A. Q. A. Q. Yes, it was. And your discharge proceedings were in February of 2000? That's correct. And you were discharged in October of 2002? That's correct. So it was approximately eight months between February of

'02 and October of '02? A. That's right. MS. MYERS: THE COURT: excused. And plaintiff may call its next witness. MR. WOODS: Thank you, Your Honor. Our next No further questions, Your Honor. Thank you. You may step down. You're

witness is Lawrence Korb.

And while he's coming in, we have

three exhibits, Your Honor, that we would like to offer into evidence by stipulation. THE COURT: MR. WOODS: binders, Your Honor. THE COURT: MR. WOODS: I'm sorry, volume what? 10. And they are exhibit Nos. 341, All right. Those are?

They are in volume 10 of the exhibit

991

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342, and 343. THE COURT: And that's by stipulation? Yes, Your Honor. They are the

MR. GARDNER:

regulations that are currently in place. THE COURT: admitted. MR. WOODS: Thank you, Your Honor. The examination All right. 341, 42 and 43 are ordered

of Dr. Corbin will be conducted by my partner, Fernando Aenlle-Rocha. THE COURT: Thank you.

PLAINTIFF'S WITNESS, LAWRENCE KORB, WAS SWORN THE CLERK: Please be seated. Thank you.

THE WITNESS: THE CLERK: it for the record. THE WITNESS: Korb, K-O-R-B. THE COURT:

Please state your full name and spell

My name is Lawrence with a "W" J.

Thank you.

You may examine. MR. AENLLE-ROCHA: Thank you, Your Honor.

Your Honor, if I could. THE COURT: Certainly. You may approach.

DIRECT EXAMINATION BY MR. AENLLE-ROCHA: Q. Good morning, Dr. Korb.

992

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A. Q. A. Q. A. Q. A.

Good morning. What is your current position? I'm a senior fellow at the Center For American Progress. And where is that located? Washington, DC. What is the Center For American Progress? The Center for American Progress is a public policy

research institute that focuses on issues that are of concern to the American people. Q. How long have you been with the Center For American

Progress? A. Q. I joined in September 2003. Could you please describe your role as a senior fellow

at the center? A. I am a senior fellow specializing in national security

policy which basically means I work on issues that affect the national security of the United States, whether they are international treaties, whether they're the conditions under which we would use armed force, the readiness of the Armed Forces to carry out their missions, the ability of the country to support the forces with the level of defense spending that's appropriate. Q. A. What does being a senior fellow mean? Well, basically, a senior fellow is the equivalent of, We have research

like in a university, of a full professor.

993

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assistants, we have fellows, and then we have senior fellows. Q. A. Do you hold any other positions at present? I am also a senior advisor to the Center for Defense

Information, and I am also an adjunct professor in the securities studies program at the School of Foreign Service at Georgetown University. Q. I'm just going to ask you a favor. If you can slow down

the pace a little bit, it will make life a little easier for our reporter. Thank you.

Could you please tell us what the Center for Defense Information is? A. Well, the Center for Defense Information is a public

like policy research institute that tries to make Americans aware of the cost of maintaining a military and carrying out our national security policy. Q. How long have you collaborated with the Center for

Defense Information? A. Q. I have been a senior advisor since the fall of 2003. And what is -- could you describe your role with respect

to the Center? A. Well, as a senior advisor they will come to me and talk

to me about particular issues, seek my help on areas of concern, what they ought to focus on, but it's a non-paid position and I only respond to inquiries from them when I'm available.

994

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Q.

I believe you testified that you're also an adjunct

professor at Georgetown University? A. Q. That is correct. Could you please describe your role as an adjunct

professor at Georgetown? A. At Georgetown University I basically teach a course,

sometimes once a year, sometimes twice a year, on defense budgeting and strategic planning. And what this course does

is it helps to get people, many of whom are in the military, many people working for the Government, to understand the issues that must be dealt with when deciding how much to spend on defense. Q. Where were you employed before you joined the Center For

American Progress in 2003? A. Q. A. I was at the Council on Foreign Relations. What is the Council on Foreign Relations? The Council on Foreign Relations is an organization that

was started after World War I by a group of Americans who fought in that war and were concerned that when the war ended the United States would retreat to its isolationist perspective, which they had. And it is a membership And as a

organization that you have to be elected to.

fellow -- as an organization what it does is it tries to focus on issues that are of concern in the area of foreign policy. Normally each year you have heads of state will

995

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speak there, all the cabinet members of the national security area will speak there. Many of the sessions are off the It also conducts

record so that people can speak candidly.

research on issues that affect the foreign policy of the United States. Q. A. How did you come to serve on the council? Well, I was elected in 1979 to the council, and in 1998

I was offered the position of vice-president and director of studies to supervise all of the research that the some hundred people working for the council do that affects issues of national -- affects issues of national security policy which includes both foreign and defense policy. Q. A. So what years did you work for the council? From 1998 until 2003. THE COURT: I'm sorry, I -From 1998 until 2000.

THE WITNESS: THE COURT:

You were elected to the council? I was elected as a member and I still

THE WITNESS:

am a member, but I worked for the council from 1998 to 2003, Your Honor. THE COURT: BY MR. AENLLE-ROCHA: Q. During that time period you served as a vice president All right. Thank you.

of the council; is that correct? A. I was vice president from 1998 until 2002.

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Q.

And what did you do after 2002 with respect to the

council? A. From 2002 to 2003 I gave up my administrative job to

focus primarily on writing a book on a new national security strategy in an age of terrorist, tyrants, and weapons of mass destruction. Q. I believe you said that you were in charge of all Could you explain that?

research. A.

Well, basically, what it would mean, that working with

the president of the council we would set the agenda for what the fellows would work on. For example, we would decide

about what should be our future relations with China, what should be the national security doctrine of the United States. We would work on issues of the global economic

health, how does what happens globally impact the economic health of the United States. example, on South Asia. America. We had groups that focused, for

We had groups that focused on Latin

We had men and women that focused on broader issues

of defense spending. Q. Where did you work before joining the Council on Foreign

Relations? A. From 1988 until -- 1998 I was at the Brookings

Institution. Q. A. Please tell us what the Brookings Institution is. Well, the Brookings Institution is the oldest think tank

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or public policy research institution in the United States and probably the largest institution. And it focuses on

issues of public policy to provide empirical, unbiased analysis of the issues confronting the American people, whether it's how to fund Social Security, whether it's how to fund national security. It has an economics division, it has

a foreign policy division, and it has American politics division. And when I was there it had a Center for Public

Policy Education to help government and private sector people to understand how the political system worked and how they can be effective, as well as run exchange programs with legislators from countries as diverse as Argentina and Japan. Q. A. What was your position at the Brookings Institution? I was the director of the Center for Public Policy

Education, and I had a joint appointment as a senior fellow in the foreign policy studies area. Q. A. And what did you do in those positions? Well, as the director of the Center for Public Policy

Education I was in charge of running all of the programs that -- public programs that the institution had. For

example, we would have a one-day session, for example, back then dealing with how does America adjust to the end of the Cold War. Would also run training programs for government

employees from the Department of Defense and from the State Department, from other agencies, to help them become

998

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effective in their jobs.

We would run programs for We

businesses to help them understand how Washington worked. would run exchange programs with legislators from foreign countries. We would work together with groups like the

European Union to get the legislators from both sides together to discuss common interests. We would also run a

seminar every other year with newly elected members of the Congress to get them to understand the issues that they would be confronting. Q. A. What did you do before joining Brookings? Before joining Brookings I was the Dean of the Graduate

School of Public and International Affairs at the University of Pittsburgh. Q. Let me just go back a second. You mentioned you were a

senior fellow at Brookings.

Does that title carry the same

duties as you described earlier? A. Well, as a senior fellow I would then write articles and

books on foreign policy issues. Q. All right. And moving backwards again, you mentioned Could you

that you were the Dean of the Graduate School.

tell us what you did in connection with your service at the graduate school for the University of Pittsburgh? A. I was a dean of one of the major schools of the This was a school that focused on public and Basically, it gave master's and PhD

university.

international affairs.

999

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programs to people in those areas to prepare them for government service, to prepare them for work in academic service. And in addition to that, I -- in addition to

running the school, I also taught a course each year on defense budgeting. Q. Was there a time when you worked for a group called the

American Enterprise Institute? A. There was. From 1972 to 1980 I was an adjunct scholar And in 1980 I took a

at the American Enterprise Institute.

full-time position there as Director of Defense Policy Studies. Q. A. What is the American Enterprise Institute? The American Enterprise Institute is another one of the

major so-called think tanks or public policy research institutions in Washington basically that, as the name implies, tries to emphasize free market solutions to the problems confronting the country. Q. I take it Brookings and the American Enterprise

Institute are located in Washington, DC? A. Yes, sir. They both are. Excuse me, sir. You need to wait until

THE COURT:

the attorney finishes his question before you -THE WITNESS: THE COURT: BY MR. AENLLE-ROCHA: Okay. I'm sorry, ma'am.

Thank you.

1000

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Q.

Dr. Korb, have you ever served in the United States

Armed Forces? A. Q. A. I have. When? From 1962 to 1966 I was on active duty with the United And from 1966 to 1985 I was in the selected

States Navy.

reserve of the United States Navy. Q. Directing your attention to the first period when you

served on active duty in the Navy, could you describe the nature of your service? A. While I was on active duty I was a naval flight The Navy basically in its combat arms has three

officer.

groups, submariners, surface warfare officers, and a flight component. I was a naval flight officer. Basically because

of my vision I was not able to fly the plane, but I was a navigator and a tactical coordinator for operations in a Navy patrol squadron. And my last year on active duty I got

pulled from my squadron to work on the staff of the Commander of the Patrol Force Seventh Fleet which was in the process of starting what became known as Market Time, the patrols off the coast of Vietnam. Q. A. Q. A. Did you serve in Vietnam? I did. In what capacity? Well, I was there in two capacities, one when I was in

1001

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Patrol Squadron One we flew off the coast of Vietnam.

And

then when I was on the staff of Patrol Force Seventh Fleet, or the Navy would call it Commander Task Force 72, we were in Cam Ranh Bay working on -- my job was to coordinate the operations between the swift boats or the patrol boats and the air. Q. A. What was your rank when you joined the Navy? Well, when I came into the Navy I was a seaman Then I got commissioned and became an ensign.

apprentice.

When I left active duty I was a lieutenant which is the third grade for the Navy. and then lieutenant. Q. With respect to your service in the Navy Reserve from I Navy is ensign, lieutenant junior grade,

believe you said 1966 to 1985 -A. Q. A. That is correct. -- what ranks did you hold in the Navy Reserve? Well, when I retired from the Navy Reserve in 1985 I was

a captain, which is the sixth level for those of you -- the Navy has different ranks than the other services. That would

be the equivalent to a colonel in the Army or the Air Force or the Marine Corps. Q. A. Q. A. So you served four years on active duty, correct? That's correct. And then another nineteen years in the Navy Reserve? That's correct.

1002

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Q. A.

Why did you choose to serve in the Navy? Well, I come from a family that feels that you have an When I got my draft notice

obligation to serve your country.

in 1962, I was teaching high school in New York and also going to graduate school. And my father basically said, "We

don't have deferments in this house," because the principal of the school had told me, I'll get you a deferment. down and join the Army." Navy?" "Go

And I said, "Well, how about the So I went

And he said, "Well, that's okay, too."

down and joined the Navy. Q. Were there -- aside from your deferment, were there

other reasons that you could have avoided service? A. Yes. MR. GARDNER: relevance grounds. MR. AENLLE-ROCHA: I believe his military I'm going to object, Your Honor, on

experience is relevant to his qualifications. THE COURT: The objection is overruled. Yes. I had polio when I was

THE WITNESS: nine years old.

And when I went to take the physical they

said I had to get a waiver in order to get a commission in the United States Navy. BY MR. AENLLE-ROCHA: Q. A. Did you secure that waiver? I did get the waiver, yes.

1003

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Q.

After you completed your initial military service, did

you continue your affiliation with the military in other ways? A. Well, in my teaching career I taught for four years at

the United States Coast Guard Academy which is one of the -it's the main source of commissioned officers for the Coast Guard. And then I taught for five years at the United States

Naval War College. Q. A. What years were those? I taught at the U.S. Coast Guard Academy from 1971 to

1975 and at the United States Navy War College from 1975 to 1980. Q. What sorts of individuals attend the Coast Guard

Academy? A. These are young men, and happy to say by the time I left

we were also admitting young women, who are going to really go on to become the leaders of the Coast Guard. In fact,

while I was on the faculty there, two of the people I taught with became commandants of the Coast Guard. Q. Directing your attention now to the period where you

served at the Navy War College, could you describe that period of time? A. During that period I was a professor of management, and

in the management section we had two specific areas of concentration. One was what was called quantitative factors,

1004

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things that you could -- numbers that you could use in terms of making decisions. And the other division which I headed

and taught in was called non-quantitative factors in defense management. Q. And what did you mean by non-quantitative factors? What

did that consist of? A. These were factors that you couldn't put a number on,

but these were factors that would influence areas of military readiness, areas of military spending, that we needed to make sure that these men and women who would go on to become leaders, both in the field and back in headquarters, took into account so that they could make better decisions. Q. During the time that you taught at the Navy War College,

did you address the issue of social change within the Navy? A. Yes, we did, because in that period of the '70s you had

a number of very, very traumatic changes for all of the services, and in particular the Navy. We had, for example,

the end of conscription or the draft in 1973, which meant that the military had to compete in the marketplace to get and keep people. They could no longer rely on people being

forced to come in to meet manpower quotas. The Navy, beginning in 1970, finally followed President Truman's directive to fully integrate the naval service to allow African-Americans to take other than menial jobs. You also had a dramatic increase in the number of

1005

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women in the service, because when we went to a volunteer military, people recognized that if you ignored 50 percent of the population, you couldn't get enough qualified people. Q. With respect to the class that you taught at the Navy

War College, how is it that those principles came into play? A. Well, what we would do is we would look at case studies

and explain what had happened and then get the students to recognize, had they recognized certain factors, they could have avoided the crisis. For example, we did a case study of

1972 where you had race riots on two Navy ships in the Gulf of Tonkin. And we went through that and explained -- we had

all the data and we did a case study and we showed the students what had led to it and what things could have prevented it from happening or to make sure that you could control it after it did. Q. Did you address the issue of institutional resistance to

change? A. Very definitely. Again, this was one of the

non-quantitative factors, how the military by its very nature is conservative. And I mean that in the sense not Whether it's a

politically but resistant to any change.

social change or whether it's a change in fighting tactics, the military, for example, has resisted unmanned aircraft. The Navy did not want aircraft carriers. want to have a separate Air Force. The Army did not

And then we would talk

1006

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about also the resistance to all of the social changes and how President Truman's order to integrate the military was resisted even by people like General Bradley and General Marshall and how the Navy had resisted it really up until Admiral Zumwalt became the Chief of Naval Operations in 1970. We talked about how military leaders had said if you

allow women to go to the service academies, which started in 1976, this would ruin the Armed Forces. Q. A. What sorts of people attend the Navy War College? Well, you have people from all of the services. Each of

the services has its own War College, but in order for them to understand the other services, you have about half the people come from the other military services as well as other government agencies like the intelligence community. And

these are people who come to the War College who the service has indicated have a very good chance to become generals and admirals. Q. And did you, in fact, teach individuals who assumed

those positions? A. Yes. One of my students went on to become the

commandant of the Marine Corps. Q. Did there come a time, Dr. Korb, when you served in

Department of Defense? A. Q. Yes. I was appointed by President Reagan in 1981.

Was your appointment by President Reagan subject to

1007

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Senate confirmation? A. Q. A. Q. A. Q. A. Yes, it was. And did the Senate confirm your appointment? Yes, they did. What years did you serve at the Department of Defense? I was there from early 1981 until September of 1985. What were you responsible for doing? Well, during that period I was responsible for about

70 percent of the defense budget, because my responsibilities included manpower, which was recruiting, training, and retaining the men and women for the active reserve forces and civilians. We had responsibilities for installations which

is the worldwide military base structure, and logistics which meant that you had to make sure that the equipment that you had you were able to keep in good repair, have enough spare parts, and have enough people that knew how to maintain it and to replace it before it aged too much. Q. How many presidential appointments were there at the

time at the Department of Defense? A. Q. A. Q. As I can best recall, I think there were 16. How many are there today? About 58. Is it fair to say that the position was quite

comprehensive? A. Back then --

1008

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

MR. GARDNER: THE COURT:

Objection, vague.

Overruled. Remember to wait until the

You may answer. question is finished. THE WITNESS:

I'm sorry. We had a different

Yes, it was comprehensive.

model where we had fewer high level presidential appointees who had a broader range of responsibility and reported directly to the Secretary of Defense. Now you have, for

example, the office I headed now has something like four presidential appointees at the assistant secretary or above level. BY MR. AENLLE-ROCHA: Q. How many Deputy Assistant Secretaries of Defense

reported to you? A. Q. A. Q. Eight. Who did you directly report to? To the Secretary of Defense. Did you receive any recognition or award in connection

with your service at the Pentagon as Assistant Secretary of Defense? A. When I left I was very fortunate to receive the

Department of Defense Medal for Distinguished Public Service. Q. Did your position deal with the issue of -- withdraw

that.

1009

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Were you responsible for the concept or the notion of military readiness? A. That was basically -- in fact, they used to nickname our

office or the people holding the position as the Readiness Czar. Q. A. PhD. Q. A. Q. What year did you secure your PhD? 1969. Have you authored any books -- withdraw that. Have you authored or contributed to any books or articles during your career? A. I have. THE COURT: Excuse me, just to shortcut this, I'm Is that agreeable? Could you please summarize your education? I have a bachelor's degree, a master's degree, and a

going to suggest that you offer his C.V. MR. GARDNER:

Your Honor, we don't have his C.V.

We've never received it. THE COURT: You have with one with you today? I do have one with me today and

MR. AENLLE-ROCHA:

I believe it was referenced -- it's on the Center for American Progress's website. in his report. I do have it. Why don't we do this: If you have a And I believe it was referenced

THE COURT:

copy to give to counsel, why don't we take the morning break.

1010

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That will give counsel the opportunity to review it, and when we resume I will ask again if there is -- is it one of the marked exhibits? MR. AENLLE-ROCHA: I don't believe it is, Your

Honor, but I do have additional copies. THE COURT: If you'll hand it to the clerk, I'll

take a look at it, too, during the recess, and when we resume we'll see if we can shortcut this a little bit. Thank you. You may step down. (Recess) THE COURT: You may resume. Thank you, Your Honor. Your Honor, I believe we've We will be in recess for 15 minutes.

MR. AENLLE-ROCHA: MR. AENLLE-ROCHA:

marked Dr. Korb's C.V. as Exhibit 350. THE COURT: Correct. May I have that placed before I'm happy to

MR. AENLLE-ROCHA: the witness?

I'm not sure if he has a copy.

give him one if the Court does not have an extra one. THE COURT: You may approach. Thank you.

MR. AENLLE-ROCHA: THE WITNESS: BY MR. AENLLE-ROCHA: Q.

Thank you.

Dr. Korb, referring to what's now been marked for

identification as Exhibit 350, could you tell us what that

1011

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is? A. That is my curriculum vitae or resume' that's posted on

the Center for American Progress's website. Q. A. Q. A. Q. Is it up to date? Yes. Is it accurate? Yes. What sorts of general categories of information does it

contain? A. Well, it has my education, the positions that I've

held, and my publications and my media appearances. Q. Does it include books that you've authored or

co-authored? A. Q. It does. Does it also include articles that you've written either

by yourself or with others? A. Q. It mentions the number. I noticed that it goes back to about 2004; is that

correct? A. The articles that are listed are the ones that I've done

since I've come to the Center for American Progress. Q. Presumably there are others before you joined the

Center, correct? A. Yes, there are. MR. AENLLE-ROCHA: Your Honor, I will offer it into

1012

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evidence, if the Government's willing to accept it. THE COURT: Any objection? Other than the broad relevance

MR. GARDNER:

objection, no objections, Your Honor. THE COURT: Thank you.

Objection is overruled and Exhibit 350 is ordered admitted. BY MR. AENLLE-ROCHA: Q. Dr. Korb, in addition to your publications, have you

also appeared on television as a commentator? A. Q. I have. Without individualizing the appearances, could you just

give us a general idea of how many times and some of the topics? A. It's at least a thousand, it may be as much as two Basically, they are national security issues

thousand now.

of the kind that I dealt with when I was on active duty and when I was working in government as well as my research. Q. A. Q. A. Q. Does it also include radio appearances? It does. Have you published on the topic of gays in the military? I have. I would like to direct your attention to two exhibits

that are contained in the volumes to your immediate right in volume 3. If you've located the volume, I'd like to direct

1013

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your attention to Exhibits 58 and 62. A. Q. A. I have that. Could you just tell us what it is?

We will start with 58.

Well, Exhibit 58 is a guideline for how the U.S.

government, the U.S. military, can end "Don't Ask, Don't Tell" by drawing upon the experiences that we had with other social changes as well as the experiences of militaries, of countries that have similar values and similar operational experiences that we have. Q. Did you have anything to do with the creation of

Exhibit 58? A. I was the primary author along with two of my research

assistants. Q. For the record, could you just read us the name of the

piece that you're referring to? A. It is called Ending "Don't Ask, Don't Tell", Practical

Steps to Repeal the Ban on Openly Gay Men and Women in the U.S. Military. Q. A. Q. What was the date of publication? June 2009. Directing your attention now to Exhibit 62 in the same

volume, could you tell us what that is, please? A. That is a chapter I had in a book called Gays and

Lesbians in the Military, Issues, Concerns and Contrasts, that was the editor by Wilbur J. Scott and Sandra Carson

1014

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Stanley.

And what this exhibit contains is Chapter 15 that I

authored called "Evolving Perspectives on the Military's Policy on Homosexuals of Personal Note." Q. A. Q. When did you author the chapter? 1994. Do Exhibits 58 and 62 constitute your publications on

the topic of gays in the military? A. Well, I have another article, another monograph that I

wrote this year, on steps to eliminate the ban on gays and -openly gay and lesbian people serving. Q. A. Is that referenced in the C.V., Exhibit 350? Yes, it is, called Implementing the Repeal of "Don't

Ask, Don't Tell" in the U.S. Armed Forces, March 23rd, 2010. Q. Dr. Korb, have you served on any academic panels

concerning the law and policy that is known as "Don't Ask, Don't Tell"? A. I've been on panels at the Center for American Progress,

the American Political Science Association, and other -- at universities. Q. A. Any idea approximately how many you've served on? Probably since "Don't Ask, Don't Tell" was enacted, I

would say at least a dozen. Q. A. Has it included any this year? We had one panel at the Center for American Progress

that took place in March of this year when we released our

1015

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latest report. Q. Meaning the monograph that you referred to earlier that

was identified on your C.V.? A. Q. That is correct. Have you ever testified as an expert witness in

connection with the ban against homosexuals serving in the Armed Forces? A. Q. A. I have testified before the Congress, yes. When did you testify before the Congress? I testified in the spring of 1993 and then in 2007 when

the military was experiencing problems in getting qualified men and women or sufficient numbers of qualified men and women to serve. I spoke about how to improve the readiness

of the Armed Forces and recommended dropping the ban on allowing openly gay people to serve. Q. When you testified before Congress in 1993, was it in

connection with the enactment of "Don't Ask, Don't Tell"? A. In 1993 "Don't Ask, Don't Tell" had not yet been The question before the Congress and the country

enacted.

was whether to support President Clinton's policy of dropping the ban on gays in the military. Q. A. What position did you take before Congress in 1993? Basically, I supported the position of the Commander in

Chief. Q. Which was?

1016

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A.

Basically that we ought to drop the ban on allowing gay

people to serve and basically use the existing regulations to deal with the issues of sexual orientation as we had with gender and race and other differences that people bring when they come to the service. Q. When you referenced the Commander in Chief, who did you

mean? A. Q. President Clinton was the Commander in Chief in 1993. Referring to your most recent testimony before Congress

on the issue, what position did you take? A. Basically what I urged the Congress to drop the ban on

allowing openly gay and lesbians to serve was to say that it did not make sense at a time when this country was at war to be forcing out people for no reason that had an impact on military readiness, from denying the opportunity to recruit people who would have been willing to serve their country because of this gay ban, and allowing some 4,000 people a year to leave the service because they were tired, as Admiral Mullen has said recently, of living a lie. Q. In addition to your testimony before Congress, have you

ever testified as an expert in any federal district court or military tribunal concerning the ban against homosexuals? A. I have testified in the federal district court. I guess

it's the Eastern District in Brooklyn. three courts-martial procedures.

And I've testified in

1017

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Q. A.

What was the general nature of those proceedings? Well, basically, in the Eastern District Court there was

a suit brought to say that the "Don't Ask, Don't Tell" law that was enacted by Congress was unconstitutional because there was no rational basis for it. And in the

courts-martial the question became, were the men and women who were being forced out of the service because of their sexual orientation, was that impacting military readiness. Q. I failed to ask you, after your service at the Pentagon

at the Department of Defense, was there a brief period of time you served in the private sector? A. Q. A. There was. What did you do? I was vice president of operations for the Raytheon

Company. Q. A. Do you recall the approximate time or period of years? I recall it very well. I took the job in late

September, 1985, and I was fired in February of 1986. Q. A. Why were you fired? Because I supported Congress's legislation to pass

Goldwater-Nichols Act which would form the way the Pentagon does business. Navy. And this was opposed by the Department of the

And I also worked with a group of people to deal with

the problem we have today, which is how to get the federal deficit under control and what smart choices we could make in

1018

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defense.

This also annoyed the Department of the Navy and

they complained to my superiors at Raytheon. Q. Are you being compensated as an expert witness in this

action? A. No, I'm not. MR. AENLLE-ROCHA: Your Honor, I tender Dr. Korb as

an expert witness in the areas of military readiness and military personnel. MR. GARDNER: witness, Your Honor. THE COURT: On what? On his qualifications, the I haven't heard a thing about the I would like to voir dire the

MR. GARDNER:

methodology he's employed. methodology yet.

Haven't heard anything about the facts or I

data he's relying upon which are prerequisites under 702. would like to voir dire the witness on this basis. MR. AENLLE-ROCHA:

Your Honor, I believe he's made

an adequate record as to his qualifications and experience, as the Court has pointed out in its prior rulings in connection with 702. THE COURT: Well, it depends on what opinions

you're going to elicit, so I'll wait -I'm going to deny your request at this time. -- until you have outlined the opinions that you're going to elicit from the witness.

1019

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BY MR. AENLLE-ROCHA: Q. Dr. Korb, during your four years of active duty and your

nearly 20 years of service in the Navy reserve, did you ever serve with anyone in any unit who you knew to be gay? A. Q. At least two people I knew were gay. Could you please describe your experiences with those

service members? A. One was a member of the flight crew that I was in in

Patrol Squadron One, and another was a pilot who I roomed with in Alaska. Q. With respect to their personal skills, what did you

think of them? A. Q. A. I would be willing to put my life in their hands. In fact, did that happen? Well, the enlisted person that I referred to, we were Our plane caught on fire in

flying off the coast of Vietnam. the back. accident.

I'm not sure whether we were hit or it was just an He was in the front of the plane, went to the back

of the plane and got the fire out so we did not have to crash land. Q. A. And what about the second individual you referenced? Well, basically, we were -- they put together -- they

patched together a mixed crew of people, he was not someone I flew with normally, after an earthquake in Alaska in 1964 to go up there. And we were temporarily assigned to the same

1020

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crew and we roomed together. Q. During your service with either of those two

individuals, did you ever have any concerns about sharing bathroom or living facilities with them? A. Q. A. Q. No, sir. Did anyone else that you knew of? Not that I know of. Were they discharged as a result of their status as gay

service members? A. No. We had the Cold War and the Vietnam War and we

needed every able bodied person. Q. Are you aware that the United States Armed Forces

currently allows individuals convicted of felonies to serve under exceptions known as moral waivers? A. Q. I am. Why did the military institute a policy allowing

convicted felons to serve? MR. GARDNER: THE COURT: Objection, lack of foundation.

The objection is overruled. Can I answer? That means you may answer.

THE WITNESS: THE COURT:

Yes.

THE WITNESS:

The Armed Forces of the United States

could not get enough qualified people to join because of the increasing unpopularity of the war, particularly in Iraq. And so what they did was they had to lower their educational

1021

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and aptitude standards and then grant what -- this is their term -- "moral waivers" to allow people to come into the service who ordinarily would have been excluded. moral waivers included, among other things, felony convictions. BY MR. AENLLE-ROCHA: Q. What do you believe the effect of the moral waiver And these

policy to be? A. I think basically what it has done is it has made it

much more difficult for the Armed Forces to carry out their missions, particularly in this time of high stress in combat. And it's led to some rather unfortunate incidents in the war zones. Q. A. Such as? Well, I think the most egregious example is former Private Steven Green was a young

Private Steven Green.

person from Texas who enlisted -- tried to enlist in the Army, was a high school dropout. Normally, the Army tries He had three misdemeanor

not to enlist high school dropouts.

convictions and he had a personality problem, but they allowed him to enlist. When he was deployed to Iraq, the psychiatrist, the medical people, said he doesn't belong here. They allowed

him to stay and he ended up with getting two other people to rape a 14-year-old Iraqi girl, then killed her and her

1022

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family. Shortly after that incident, the Army not knowing that had happened, discharged him. When the incident came to

light, he was prosecuted in a federal court in Kentucky and is now serving life in prison. MR. GARDNER: Your Honor, I object, beyond the There is no

scope of the expert report and move to strike.

reference to Private Steven Green anywhere in Dr. Korb's expert report. THE COURT: Well, do you wish to respond? The subject of moral waivers is It's addressed and he was

MR. AENLLE-ROCHA:

discussed in his expert report.

obviously subject to deposition, a full day deposition. THE COURT: BY MR. AENLLE-ROCHA: Q. Dr. Korb, do you believe that a policy of allowing The objection is overruled.

individuals convicted of crimes, be it felonies or misdemeanors, to serve and discharging known homosexuals makes sense from a military readiness point of view? MR. GARDNER: Objection, Your Honor. The witness

has not been qualified yet to offer opinions. THE COURT: The objection is overruled. Are you

asking to voir dire the witness about his qualifications to offer this opinion? MR. GARDNER: I would like to voir dire the witness

1023

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

to offer -- because we do dispute that he has satisfied with respect to any opinions, Your Honor. If -- what I understand

plaintiff can do is identify in general what opinions he would like to offer without giving the ultimate conclusion, and then I should have the opportunity to voir dire the expert's opinions. THE COURT: No, that's not correct. When you refer

to asking about methodology, it depends on the type of opinion that's being offered. MR. GARDNER: following. I'm sorry, Your Honor. I'm not

702 requires the use of a methodology. THE COURT: I'm familiar with Rule 702. And, in

fact, I read it into the record the other day for the benefit of either you or one of your colleagues. So what I'm asking

you is, if you feel -- this witness is qualified to give the opinions that were identified in connection with the motion in limine, which I already ruled on. If you're objecting to

his answer to a particular question and you don't think that he's qualified to answer as to a particular question, and the question that's pending is, whether a policy of allowing persons convicted of crimes, whether felonies or misdemeanors, to serve in the military while there's a policy of discharging known homosexuals -What was the end of your question? MR. AENLLE-ROCHA: Makes sense from a military

1024

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

readiness point of view. THE COURT: Are you objecting to that question?

And if so, what are the grounds for your objection? MR. GARDNER: I object to that question and, more

broadly, any opinion testimony of Dr. Korb. THE COURT: My question to you is, what is the

basis for your objection to that question? MR. GARDNER: There's been no identified

methodology, there's been no identified facts or data upon which Dr. Korb has relied to offer those opinions, and there's been no identification of applying any facts or data to any type of identifiable methodology in reaching said conclusions. THE COURT: Well, I refer you to what I said

earlier in references to the case law about Rule 702 with the reference to methodology depends on the type of opinion that's being elicited from the witness. And if you're asking

or if you're implying that there has to be some sort of empirical scientific test to support a ruling allowing him to answer that question, your objection is overruled. If you

want to voir dire the witness as to his expertise in the subject of military readiness, the request is denied because the witness's expertise in that area has been established. So I'm not sure what your -- other than that, I'm not sure what you're seeking.

1025

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

MR. GARDNER:

Well, Your Honor, I candidly -- we We were clear about this in the

have not taken the position. motion in limine.

We don't dispute the fact that

sociologists, historians, political scientists may be properly qualified and that the standard under Kumho Tire recognized that fact, but that still needs to be a methodology, methodology that's recognized by those in the field. THE COURT: I'm not asking you to rehash a motion Do you have something new to

upon which I've already ruled. add?

If you have a specific objection that I haven't

addressed, now is the time to make that. MR. GARDNER: things, Your Honor -THE COURT: I'll tell you what, that's not the I'll tell you what, to expedite

proper tone to take when you're addressing the Court. MR. GARDNER: THE COURT: I understand, Your Honor. This is

So why don't you start again.

your last opportunity I'm going to give you to -MR. GARDNER: THE COURT: Understood.

Don't interrupt me, counsel, or you This is your last

will not get another opportunity.

opportunity to state what your objection is other than what you've already stated and that I've already ruled on. MR. GARDNER: Fine. We have nothing other than

1026

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

what we have mentioned in our motion in limine and the fact that this witness does not, in the Government's view, satisfy 702. THE COURT: If you want to tell me why other

than -- I think you're done. All right. You may answer the question. Could you repeat the question?

THE WITNESS: BY MR. AENLLE-ROCHA: Q. Yes.

Do you believe that a policy that allows

individuals convicted of crimes, be it felonies or misdemeanors, to serve in the military and discharging known homosexuals makes sense from a military readiness point of view? A. It does not, because you're putting out people who don't

impact military readiness and taking in people that create a great risk. And I think the important thing to keep in mind

is that until you came into these tough circumstances, you would never allow people like that in the military. And as

the economy has gotten terrible and more people are willing to join the military, they no longer allow them in. Q. to? A. I'm talking about people who have convictions, criminal When you say "people like that," who are you referring

convictions, including felonies. Q. Are you familiar with the number of discharges or

1027

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

separations from the military of homosexuals since the enactment of "Don't Ask, Don't Tell"? A. Q. A. I am. How are you familiar with that? Basically by looking at the Department of Defense's

statistics, and in the studies that we do we heavily footnote them to show that our conclusions are based on empirical evidence, and that's one of the data points that we use. Q. Between 1994 and 2001, did the number of discharges on

the grounds of homosexuality under "Don't Ask, Don't Tell" increase or decrease? A. Q. It increased. Why do you believe that the number of separations under

"Don't Ask, Don't Tell" increased during that time period? A. In my opinion, what was happening then is that the

military was downsizing, the demands that they had to recruit people were less; and so therefore, they could put more people out without affecting the quality of the people that they needed to take in. Q. And when you say "put more people out," you mean

discharge? A. Discharge people more for -- on the grounds of violating

the "Don't Ask, Don't Tell" law. Q. After 2001, did the number of separations from the

military on the grounds of homosexuality increase or decrease?

1028

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. war.

It decreased as it normally does whenever we've been at What people forget is back in 1991, '90 and '91, as we

were getting ready to go to the Persian Gulf, the first war, the military actually suspended all of the pending discharges of people on the grounds of violating the policy then, which was much more restrictive. It said homosexuality is It wasn't even a They could actually ask

incompatible with military service. question of "Don't Ask, Don't Tell." you. Q. A. Q.

And the discharges were actually suspended during the -They were suspended until the war was over. Dr. Korb, do you believe that there are financial costs

associated with the law and policy known as "Don't Ask, Don't Tell"? A. Q. I do. Why do you believe that there are financial costs

associated with that law and policy? A. Well, in order to get a young man or young woman to

know about opportunities in the service, you have to spend a lot of money on advertising; for example, military advertising during the Superbowl which is very expensive but those are the type of people who normally would be attracted to military service. You have to pay the recruiters who go

around, the salaries of the recruiters who bring the people in. You have to give them medical exams. You have to do a

1029

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 search on their background.

Then you have to put them

through at least 12 weeks of basic training and usually another six months of advanced training. And so by the time

that man or woman is ready to go into a unit, you've got several thousand dollars invested in that person. Q. A. And how does that value change over time? Well, the longer that the person serves, the more money

that you've spent training them and giving them experience in carrying out their mission. And, for example, to train a

person who would be a weapons officer or a fighter pilot, you're talking about millions of dollars invested in that man or woman by the time they're ready to get to their operational unit. Q. A. How does "Don't Ask, Don't Tell" affect those costs? Well, what happens is if you put a person out because,

as happens to some people, they've been outed by a third party and it has nothing to do with their performance, then you have to get somebody to replace that person. And when I

was working in the Pentagon, our data showed that for every person you'd lose at say a 10-year mark, you'd have to bring in six people to get them to that level of experience, because people could leave before when their enlistment expired or for an injury or something like that. Q. And do you know whether "Don't Ask, Don't Tell" actually

contributes to people leaving?

1030

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.

Well, we know two things:

One, the number of people We also

who are forced out under "Don't Ask, Don't Tell."

know that at least the best estimate is about 4,000 people don't reenlist because, as Admiral Mullen said, they're tired of living a lie. So what you're losing there is roughly

about 5,000 people who you've already trained and spent money to recruit and train. THE COURT: period of time? THE WITNESS: BY MR. AENLLE-ROCHA: Q. A. Does "Don't Ask, Don't Tell" impact recruiting? I think it impacts recruiting in two ways. Number one, It's annually. When you say "5,000 people," in what

you have a lot of men and women who would want to serve their country in the military who don't want to become involved with an organization, again, as Admiral Mullen has pointed out, that forces people to live a lie. And number two,

because many universities will not allow people to recruit on campus if they have a policy that discriminates on the basis of sexual orientation, you don't have ROTC's in some schools that you might like to have. Q. Is it at all possible to quantify the number of people

who don't enlist because of "Don't Ask, Don't Tell"? A. Q. It's very difficult to quantify. Dr. Korb, do you believe that there's a need for a

1031

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

policy in the military concerning homosexuality? A. I believe that the military should enforce its existing

regulations on people regardless of their sexual orientation or their gender or any other characteristic that they bring to the service. After all, one of the great things about

serving in the military is you -- and I speak from my own experience and the experience of others I served with -- is you get to meet people with different backgrounds, different values, different approaches to life, and I think that makes you a better person for it. And as a leader, you get to mold

those people into a task-oriented group that focuses on achieving a goal. Q. A. In your view, is the military a meritocracy? In terms of promotions the military is the most People are

meritocracy based organization that I know. promoted on the basis of performance. Q.

Does the policy in law known as "Don't Ask, Don't Tell"

promote or detract from a merit based system in the military? A. Well, I think it detracts, because if you're putting

out people, for example, as you have Lieutenant Colonel Fahrenbach who is a weapons officer with 18 years of service who was doing splendidly until there was an anonymous phone call from someone who was upset at something he did, here's a person who should be promoted to full colonel who will not. He will actually be put out. And he is just one of a number

1032

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

of otherwise qualified people who are put out. I can remember testifying in support of Colonel Grethe Cammermeyer who was in the National Guard. And when

her -- at the military tribunal when they were forced to put her out, the Judge Advocate, who was one of her co-workers, basically said, I can't tell you how bad I feel about this and how much this is going to undermine our unit because you're being put out only because you were asked a question on a security clearance whether you were gay. other problem in performance. Q. And the costs you testified to earlier would apply in There was no

the case of those individuals, would it not? A. Very definitely. In fact, you can't even put a number

on the cost of somebody who has been a weapons officer for 18 years and has flown in combat missions in at least two combat theaters. Q. Having flown in combat yourself, how do you value that

experience? A. I don't think you can put a price tag on it because you And

don't know how you will handle it until you actually do.

those people who do, basically, are the type of people that you want to be defending this country. Q. How do you respond to those who say that this policy of

"Don't Ask, Don't Tell" is required to maintain morale, good order, discipline, and unit cohesion?

1033

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.

Basically what I say is that we know that there are gay We know that people in their units know and We also know from the cases of

people there.

they don't see a problem.

people that have been put out that there was not a question of readiness, it was a question of people having to follow the policy. We also know that in countries like ours, the

United Kingdom, Canada, Australia, and Israel, that when they change their policies to allow openly gay people to serve, despite what people had said before would happen, actually nothing happened in terms of readiness. Q. Do you believe that the integration of African-Americans

and women into the military -- do you find that to be instructive to the integration to openly gay individuals in the military? A. I do, but in my opinion, it would be much less difficult You've got to remember

than those two social changes were.

when President Truman issued his executive order in 1948, only 13 percent of people in the country thought that African-Americans and Whites should serve together in the same unit. You've got to remember that people like General

Bradley, the last living five-star general, and General Marshall, basically felt that this would destroy the Army. Similarly, you have the commandant of the Marine Corps saying allowing women to serve in combat units would do something no enemy has ever done, defeat the Marine Corps.

1034

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 resisted.

So you had these changes that were, you know, These were changes that were much more traumatic.

We're talking about African-Americans who at the time of the creation of the volunteer military went from 10 to 20 percent of the Armed Forces. Women who up until 1967 were restricted

to no more than 2 percent of the Armed Forces going to 13 percent. the numbers. So you had very, very big changes in terms of My opinion is, you will not have that many, you

know, with allowing openly gay people to serve. MR. GARDNER: I'm going to object, Your Honor,

beyond the scope of the expert report, move to strike. There's no reference to any analogies between African-Americans and homosexual service members. THE COURT: Do you wish to respond? My response is that he was -- he

MR. AENLLE-ROCHA:

testified at length in his deposition, as I mentioned his day-long deposition consisting of over 400 pages. And at

various times throughout that deposition he testified, attempted to testify, concerning women in the military, women on submarines, African-Americans in the military. And it's

in connection with the issue of readiness and the integration of other groups into the military. THE COURT: exhibit number? MR. GARDNER: 56, Your Honor. Where is the expert report? What

1035

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 time. 347 to 49.

THE COURT:

I have a copy of the -I'm sorry, 59.

MR. GARDNER: THE COURT: transcript, please? MR. GARDNER:

Do I have a copy of the deposition

We did lodge it in connection with We also have an extra

the motions in limine, Your Honor. copy if you'd like one. THE COURT:

I will see if I can find one up here.

Since my CRD has stepped out of the courtroom and she probably knows where the deposition transcript is, so if you would hand one up. MR. AENLLE-ROCHA: Your Honor, I can direct the

Court to certain portions of the examination. THE COURT: All right. Pages 40, 93, 145 through 150,

MR. AENLLE-ROCHA:

THE COURT:

I'm sorry, let me take a moment. I'm sorry. We'll go one at a

MR. AENLLE-ROCHA:

THE COURT:

Did you say 40? I did. Line 15.

MR. AENLLE-ROCHA: THE COURT:

All right.

Next?

MR. AENLLE-ROCHA: THE COURT:

Page 93 starting at line 2.

All right. 147 starting at line 1 through

MR. AENLLE-ROCHA:

1036

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

11. THE COURT: Next? Page 150.

MR. AENLLE-ROCHA: THE COURT:

Page what? Starting at the bottom of 149

MR. AENLLE-ROCHA: going on to 150. to the next page. THE COURT: Next?

Line 20 at the bottom of 149 continuing on

MR. AENLLE-ROCHA:

Also relating to the testimony

here, page 361, lines 12 through 15. THE COURT: Next? Page 394, line 19 through the

MR. AENLLE-ROCHA:

bottom, continuing on to the top of 395. THE COURT: enough. All right. Well, I think that's

And I think the question is, it isn't -- there's In his

nothing in the expert report that refers to this.

deposition Dr. Korb refers to the experience of racially integrating the military and the admission of women into the military branches to a much greater degree. That

experience -- he doesn't have a separate opinion on it which is why I think it's not in the report designated as an opinion, but he states in his deposition that information as part of the bases for some of the opinions that he's stating about the effect or lack of effect on morale, unit cohesion, and military readiness.

1037

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 objection.

So the question is not whether or not he's giving an opinion today that's an opinion that wasn't stated in the report. It's really the -- because that's not the case. The

question is, is he stating a basis for the opinion that is different from or in addition to a basis that was stated in the -- at the time that his deposition was taken. not the case. So the objection is overruled. And that's

Let me see if the witness had finished. Yes, you may ask your next question. BY MR. AENLLE-ROCHA: Q. In the context of the answer you just provided,

Dr. Korb, how is the integration of those two groups of individuals, African-Americans and women, instructive to the integration of openly gay individuals in the military? MR. GARDNER: Your Honor, may I lodge a standing

objection as to, not to be obstreperous, this is beyond the scope of the expert's report. THE COURT: Yes, you may have a standing

The objection is overruled. You may answer. THE WITNESS: Well, I think what it says is that at

least initially many military people are gonna be concerned about the change. I think it says that if you're going to do

it, do it quickly, decisively, and then make sure that you follow up with appropriate training, similar to what we did

1038

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

at the Navy War College and is done at places like the Defense Equal Opportunity Management Institute, to ensure that people know what the rules and regulations are and how to follow them. And I think the great thing that we learn

after these is while the military might resist these in the beginning, when ordered to do so, they carry it out and then become a beacon for society. I think it is amazing when you go back and look in 1948 when President Truman ordered his executive order, the military did it so well that African-Americans not only came in but reenlisted in larger numbers because of the environment that was created for them that was better than the rest of society. BY MR. AENLLE-ROCHA: Q. Are you familiar with the law and directive that is at

issue in this case? A. Q. I am. Have you had a chance to review Congress's findings in

support of that law? A. Q. I have. What is your opinion about the portion of the law and

policy that states a, quote, prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service?

1039

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

MR. GARDNER:

Objection, beyond the scope of

Dr. Korb's expert report. MR. AENLLE-ROCHA: If I may, Your Honor, I would

direct the Court to pages 5 and 6 which discuss the history of homosexual policies in the military. THE COURT: That's 5 and 6 of Exhibit 59? 59, I believe.

MR. AENLLE-ROCHA: THE COURT:

So that's Bates stamped 156 and 157? Yes, Your Honor.

MR. AENLLE-ROCHA: THE COURT:

Do you wish to be heard further? Just that there is no opinion in his

MR. GARDNER:

expert report that talks about the findings of Congress. THE COURT: Well, I think the pages that were

cited go directly to his opinion about what undercuts -- his opinion about what undercuts the findings of Congress. the objection is overruled. You may answer the question. BY MR. AENLLE-ROCHA: Q. If I may just amplify briefly. Dr. Korb, I'm So

specifically referring to finding No. 13. A. As I testified once before in the Able case back in the

Eastern District Court on finding No. 13 where it says basically that we've never allowed homosexuals to serve in the military, that is not true. And, in fact, the Justice

Department in late 1970s told the military that they needed

1040

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

to have a more consistent policy because some people were not being discharged when they were found out to be gay because the commanders felt that they were not a problem, whereas others were discharged and people went to court basically saying, well, why was I discharged when somebody in another unit was not. And the Justice Department told the Defense

Department that they needed to have a consistent policy, which was the policy formulated by the Carter Administration in 1980. Q. In your view, is there any scientific basis for finding

No. 13 in terms of studies conducted by the government? A. There has never been a peer-reviewed empirical study

done going back to 1957 that ever concluded that allowing openly gay people to serve would undermine military readiness. Q. A. Q. A. Are you familiar with the studies? I am. Could you tell us what they have been? The first study was the so-called Crittenden Report of Then you

1957 which was done by the Secretary of the Navy.

had reports that were done by the what we call PERSEREC, the Personnel and Security Research Group out at Monterey that looked at the issue. You had RAND studies done in 1993 that

basically concluded the same thing. Q. By the way, did you have anything to do with the

1041

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

creation of PERSEREC? A. When I was in government, to enable us to deal with a

lot of the issues about who were the type of people to recruit, where were the best ways to determine if a man or woman would be successful, we set up a research group, and it was their task to basically help us make those decisions. Q. A. Q. And it had not existed before your service -As far as I can recall, it had not. I'm just going to ask you again if you can just wait Thank you.

until I finish the question.

Dr. Korb, what is your opinion with respect to the finding, I believe it's 15, that provides, quote, the presence in the Armed Forces of persons who demonstrate propensity or intent to engage in homosexual acts could create unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability? A. My opinion is that there's no empirical basis for that

statement. Q. A. In your opinion, what are these findings based on? I think at least two of the findings are the 15 -- 13

and 15 are based on people's predispositions toward a certain class of people based on a number of factors. And I think

that they allowed those attitudes to color the conclusions that they came up with.

1042

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.

Dr. Korb, based on your experience as a Navy flight

officer, a professor in the Navy War College, Assistant Secretary of Defense, and scholar at a number of prominent think tanks, do you believe that there are any benefits to "Don't Ask, Don't Tell"? A. I don't believe there are any benefits. In fact, I

think that basically it has been a negative factor in the readiness of the United States Armed Forces. Q. A. Why? Well, basically, I think it has forced people out who It has forced

were not undermining military readiness.

people to get out, as Admiral Mullen said, because they're tired of living a lie. It has prevented people who would

have made good men and women in the Armed Services from joining because they did not want to be associated with an organization that, in their view, discriminated. And it's

prevented us from having things like the reserve officers training course, ROTCs, at schools who will not allow it because they do not allow organizations that discriminate to have a presence on their campus. MR. AENLLE-ROCHA: Your Honor. No further questions. THE COURT: Thank you. If I may just have a moment,

Cross-examination.

1043

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. GARDNER: Q. A. Q.

CROSS-EXAMINATION

Good morning, Dr. Korb. Good morning. You consider your job title to be that of a scholar,

correct? A. I consider my job to be someone who basis his decisions

on empirical research rather than things that have not been proven, to the extent that you can, also based upon, particularly when dealing with national security issues, my service in the military service as well as my service in the Department of Defense. Q. A. yes. Q. And as a scholar it's important to be objective, You consider yourself to be a scholar, correct? Well, I think I would consider myself to be a scholar,

correct? A. It's important to allow the evidence to determine the

conclusions. Q. A. And therefore, it's important to be objective, correct? If by objective you mean allow the evidence to determine

the conclusions, to the extent that you can, yes. Q. And it's fair to say that you're a strong advocate for

the repeal of "Don't Ask, Don't Tell," correct? A. I would say that my research and experience tells me

1044

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

that this policy should be repealed. Q. And it's fair to say that you are a strong advocate for

the repeal of "Don't Ask, Don't Tell," correct? A. When I am asked my opinion on it by academics, members

of the Congress, members of government, I will give them my opinion on it, but I deal with a whole host of other issues. Q. All right. Dr. Korb, do you recall you were deposed in

this case? A. Q. A. Q. A. Q. A. Do I -- pardon me? You were deposed in this case, correct? I remember it, yes. You swore to tell the truth? Yes. And you did tell the truth, correct? That's correct. MR. GARDNER: witness? THE COURT: You may. Your Honor, I'm going to refer the Your Honor, may I approach the

MR. GARDNER:

witness, after opposing counsel reviews it, to page 39 of the deposition, lines 5 through 8. THE COURT: Any objection? Your Honor, it's improper

MR. AENLLE-ROCHA: impeachment. testimony.

It is not inconsistent with his current

1045

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. A. Q. A. Q.

THE COURT: BY MR. GARDNER: Q.

The objection is overruled.

Dr. Korb, I'd like to draw your attention to page 39 in I'd like you to look at line 5. You were

your deposition.

asked the following question:

It's pretty fair to say you

are a strong advocate for the repeal of "Don't Ask, Don't Tell," correct? And the answer is: That's correct.

Have I read that correctly? Well, again, in reading it here -Did I read that correctly, sir? Would you allow me to answer? No, you can answer that on redirect. Did I read that correctly? No, you didn't. I didn't read that sentence correctly? Okay. You read it correctly, but that's not the

question you asked. Q. Now, one of the organizations you're affiliated with is

the Palm Center, correct? A. Q. I am on the Board, yes. The Palm Center is an advocacy group in favor of the

repeal of "Don't Ask, Don't Tell," correct? A. Q. That is correct. And you're also affiliated with the Service Members

1046

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

Legal Defense Network, correct? A. Q. That is correct. Service Member Legal Defense Network is another advocacy

group that's seeking to repeal "Don't Ask, Don't Tell"? A. The Servicemen's Legal Defense Fund does a number of

things. Q. And one of the things they do is advocate for the repeal

of "Don't Ask, Don't Tell," correct? A. Q. That is correct. You are on the military advisory council to that

organization? A. Q. That is correct. Now, as a scholar, Dr. Korb, it's important to be

accurate, correct? A. Q. To the extent that you can, yes. And also as a scholar, it's important to look at primary

source material if it's available? A. Q. That is correct. Now, Google is your primary source for research,

correct? A. Q. No. All right. Dr. Korb, and actually before you look at

it -MR. GARDNER: Your Honor, I'm going to refer the

witness to page 125 of his deposition, line 22 through 126,

1047

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

line 2. MR. AENLLE-ROCHA: again? MR. GARDNER: THE COURT: 125, line 22, 126, line 2. Sorry. Can we have the lines

Any objection? No, Your Honor.

MR. AENLLE-ROCHA: BY MR. GARDNER: Q.

Dr. Korb, I'd like to draw your attention to page 125 of It's going to go over

your deposition beginning at line 22. to the next page. Question: research? Answer: A. That's correct.

Google is your primary source for

Please, may I continue? It said:

You didn't read my whole

answer. Q. A.

That's correct, plus my own experience.

I asked you what your primary research tool was. And I said it was, among other things, is the intent

that I tried to give there. Q. And, again, you can explain that with your counsel on

redirect. A. Let me ask you something. Why did you not read my whole

answer? Q. A. Dr. Korb, I get to ask the questions. I think I have the right to ask. If you're going to

take things out of context, I think I have right to ask that.

1048

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.

Dr. Korb, your expert report in this case is a portion

of your June 2009 monograph that you prepared with two other individuals, correct? A. Q. That's correct. That's that joint Exhibit 58 that you looked at with

plaintiff's counsel? A. Q. That's correct. Now, your June 2009 report advocates for the repeal of

"Don't Ask, Don't Tell," correct? A. yes. Q. And the intended audience of your June 2009 monograph It argues that it is a policy that should be changed,

was, among others, the media, correct? A. Well, the media basically is one audience that covers

our reports, yes. Q. Uh-huh. And the methodology you employed in preparing

the June 2009 monograph consisted of reviewing publicly available documents and stating what they said, correct? A. Q. That was part of the methodology, yes. And you provided that monograph for attorneys for

White & Case, correct? A. Q. I did, yes. And the attorneys for White & Case took parts of that

June 2009 monograph and turned it into a new document, correct?

1049

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A. Q.

That they sent to me. Mm-hmm. And you signed that new document and adopted

that as your expert report in this case, correct? A. Q. That's correct. Now, your June 2009 report was not peer reviewed,

correct? MR. AENLLE-ROCHA: THE COURT: Objection, vague.

Sustained. The June 2009 -When I sustain the

THE WITNESS: THE COURT:

Excuse me.

objection, you don't have to answer the question. BY MR. GARDNER: Q. Joint Exhibit 58, which you discussed on direct, was not

peer reviewed, correct? A. It was reviewed by other people in the think tank world,

as I can recall. Q. In terms of sending it to other scholars, you didn't do

that? A. Well, I don't recall exactly who we sent it to, but it

was sent to other people to fact check it, yes. Q. So you're saying, yes, you did send it to other scholars

for review? A. We did send it to other people, yes, to take a look at. MR. GARDNER: Your Honor, I'm going to refer the

witness, once opposing counsel looks at it, to page 38,

1050

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lines 1 through 5. THE COURT: Any objections? It's not the complete testimony,

MR. AENLLE-ROCHA:

but no objection to 1 through 5. BY MR. GARDNER: Q. Dr. Korb, I'm going to draw your attention to page 38,

lines 1 through 5. Question: review. Okay. You mentioned the notion of peer

Was this June 2009 report, that's Exhibit 58 to your

deposition, peer reviewed? Answer: no. Now, Dr. Korb, you testified on direct that you've written 20 books, right? A. Q. No. I said that I have written, edited, or contributed. None of those books are devoted to the In terms of sending it to other scholars,

Fair enough.

issue of gays in the military? A. Q. Well, one of the chapters that we referred to was here. And other than that chapter, none of the books you have

edited, authored, et cetera, are devoted to the issue of gays in the military? A. I had done a monograph for Harvard in the mid '90s that

was devoted to that. Q. A. In terms of books we're talking about now. I guess it's your definition of a book. You mean a

1051

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hardbound as opposed to -Q. A. Q. A. Q. Yes. People use different terms for it. A hardbound book. No. Okay. And you mentioned a number of articles you had

also written on direct, correct? A. Q. A. Q. A. Q. A. Q. Articles? That you have written, correct? What does on direct mean? Direct examination. Oh, okay. Correct? Do you recall that testimony?

Yes, I do. And other than that monograph you just referred to, none

of your articles involving homosexuals in the military were peer reviewed? A. Q. Could you explain to me a definition of peer reviewed? Let me ask you a question, Dr. Korb. Can you tell me

what you understand the process -THE COURT: Okay, wait. One at a time. Stop

cutting off the witness. And please wait until the attorney finishes the question -THE WITNESS: Sure. I'm sorry.

1052

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THE COURT: Go ahead. BY MR. GARDNER: Q.

-- or me before you begin speaking.

Dr. Korb, do you have an understanding that there is a

formal process that scholars use to peer review works? THE COURT: You know what, just to try to make this

move a little more smoothly, I think that perhaps the confusion here is referring to peer review rather than peer review journals, something that if you refer to something as something that's published in a peer review journal, rather than an article that was peer reviewed, that might make the confusion less likely. BY MR. GARDNER: Q. Other than the one monograph you prepared, none of your Why don't you rephrase your question.

articles involving homosexuals in the military appeared in peer review journals, correct? A. Q. That is correct. Now, Dr. Korb, you testified on direct examination that

you testified in the Able case, correct? A. Q. That's correct. And it's your understanding that, despite your opinions,

the Court of Appeals found "Don't Ask, Don't Tell" constitutional? A. us. It's my understanding that the District Court supported

1053

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Q.

And the Court of Appeals found "Don't Ask, Don't Tell"

constitutional, correct? A. Q. A. I don't know because I just testified in the one trial. You have no understanding what the Court of Appeals did? I haven't followed the issue, to be perfectly honest.

My understanding is, basically, later on that the judge's opinion was overturned, yes. Q. Okay. And it's your view, actually, that the Second

Circuit wasn't objective because it didn't call witnesses, correct? A. Q. That's my opinion, yes. Now, with respect to the issue of unit cohesion and

"Don't Ask, Don't Tell" you've not personally conducted any studies on that issue? A. Q. No, I have not. In fact, you agree that your opinion about unit cohesion

is fairly cumulative of the opinion of Dr. Frank? A. Q. A. Q. I quote Dr. Frank, yes, in the work that we've done. Now, you're not an economist, correct? I am not an economist. And you have not conducted any independent analysis to

confirm how much "Don't Ask, Don't Tell" has cost the government? A. Q. I have not. And the sole basis for your opinion concerning the costs

1054

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associated with "Don't Ask, Don't Tell" is reading a GAO report and a report prepared by the Palm Center? A. No, that's not correct. MR. GARDNER: Your Honor, I'm going to refer the

witness to page 121, lines 2 through 8. THE COURT: Any objection? No, Your Honor.

MR. AENLLE-ROCHA: THE COURT:

Go ahead. Well, I object.

THE WITNESS: THE COURT:

Excuse me. Basically --

THE WITNESS: THE COURT:

Excuse me.

Go ahead and read the testimony in. BY MR. GARDNER: Q. Dr. Korb, I want to refer your attention to 121 of your

transcript beginning at line 2. Okay. Is it fair to say that the basis for your

understanding of those costs associated with "Don't Ask, Don't Tell" come from the GAO report and Perry's report? Answer: That's correct. Any other basis?

Question: Answer: A.

Not that I can recall right now.

Well, right now I can recall some things. THE COURT: On redirect examination -Okay.

THE WITNESS:

1055

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THE COURT:

-- you'll get a chance to explain it. I'm just trying to give an objective

THE WITNESS:

scholarly viewpoint, Your Honor. THE COURT: BY MR. GARDNER: Q. Dr. Korb, your opinion is that "Don't Ask, Don't Tell" There's no question pending.

is irrational, correct? A. Q. In the sense that there's no basis for it, yes. And let's flush that out a little bit. It's irrational

in your view because you believe there is no evidence to support the position that allowing openly gay people to serve would undermine military effectiveness and unit cohesion; is that correct? A. Q. That's correct. In other words, while unit cohesion and military

effectiveness may be valid rationales, you believe there is no evidence to support the conclusion that "Don't Ask, Don't Tell" promotes those rationales? A. I think, as I understand it, it's that "Don't Ask, Don't

Tell" in fact, it undermines those rationales. Q. Yes. In other words, just to break this up, you agree

that unit cohesion and military effectiveness may be valid rationales generally, but you believe there's no evidence to support the conclusion that "Don't Ask, Don't Tell" promotes those rationales, correct?

1056

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A. Q. A. Q.

Okay. Yes? Yes. Now, your understanding, Dr. Korb, is that the only

two reasons that Congress had for adopting "Don't Ask, Don't Tell" were unit cohesion and military effectiveness, correct? A. Those were -- as I can recall, those were the reasons

that they stated, yes. Q. And the basis for your understanding is, among other

things, the five hours you spent testifying before the Senate Armed Services Committee, correct? A. Q. That's correct. As you testified on direct, you testified before the

Senate Armed Services Committee during the 1993 hearings, right? A. Q. A. Q. Right. You submitted a written statement, correct? Correct. And that written statement contained all of your

opinions, correct? A. Q. That's correct. And you weren't limited by Congress or anyone else in

giving your opinions? A. Q. No. In fact, you testified before Congress on numerous

1057

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occasions, correct? A. Q. That's correct. And each time you testified before Congress or a

committee of Congress you've endeavored to be as accurate as possible; is that correct? A. Q. A. Q. That's correct. And as truthful as possible? That's correct. Now, during the 1993 Senate hearings you expressed your

opposition to a wholesale ban on homosexuals serving in the military, correct? A. Q. That's correct. And you're offering a similar opinion in this lawsuit to

the extent you believe that the preclusion of open homosexuals serving in the military is inappropriate, correct? A. Q. That's correct. Now, do you recall that there were others that testified

in 1993 that similarly supported lifting the ban on homosexual service, correct? A. Q. I don't recall. Let's see if I can refresh your recollection. And I

want you to turn in your deposition at page 163, lines 10 through 13. I don't want you to read it, but I want you to

look at it and then look up when you're done.

1058

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MR. AENLLE-ROCHA: MR. GARDNER: BY MR. GARDNER: Q.

I'm sorry, what were the lines?

163, lines 10 through 13.

Dr. Korb, does that refresh your recollection that there

were, in fact, others that testified in 1993 that similarly supported lifting the ban on homosexual service? A. I believe so. It's been a long time ago. I don't

remember who testified. Q. Okay. You agree that those that supported the repeal of

the ban made those views known to Congress? A. Q. Some did, yes. Now, you didn't sit through all of the Congressional

testimony back in 1993, correct? A. Q. Pardon me? You didn't sit through all of the Congressional

testimony in 1993 with respect to "Don't Ask, Don't Tell"? A. Q. No, I did not. And you haven't reviewed the transcript in its entirety

of the 1993 Congressional proceedings? A. Q. A. Q. A. Q. I have not. But you've read media accounts of the proceedings? Back in 1993? Mm-hmm. I don't recall. Now, in forming your opinions in this case, Dr. Korb,

1059

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you didn't consider the 1993 Senate Armed Services Committee report which summarized the testimony concerning "Don't Ask, Don't Tell," correct? A. Q. I have considered it over the years. You didn't consider it for purposes of forming your

opinions in this case, correct? A. It's part of the basis on which my opinions have been

formed over the years. MR. GARDNER: All right. Your Honor, page 50,

line 10, to page 52, line 3. THE COURT: Any objection? If I could have a moment, Your

MR. AENLLE-ROCHA: Honor. on 52? MR. GARDNER:

I'm sorry, counsel is going to go through what line

Line 3. No objection.

MR. AENLLE-ROCHA: THE COURT: BY MR. GARDNER: Q.

Go ahead.

Dr. Korb, I want to direct your attention to page 50 of Follow along with me

your deposition, beginning on line 4. here.

I asked you the following question:

Dr. Korb, I've

handed you what's been previously marked in this case as defendant's Exhibit No. 3. It's entitled "National Defense

Authorization Act for Fiscal Year 1994 Report, Committee on

1060

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Armed Services, United States Senate, June 30th, 1993." you recognize this document, sir? Answer: (Witness examined document). No.

Do

Question: before? Answer:

Have you ever seen this document

Not to the best of my knowledge. Okay. This doc -- if you flip to the

Question:

next page, the page 263 that says "Policy Concerning Homosexuality in the Armed Forces," do you see that? Answer: Page where? Page after the cover page. It's page

Question: 263. Answer:

Yes. The heading is "Policy Concerning Do you see that?

Question:

Homosexuality in the Armed Forces.. Answer: Yeah.

Question:

Dr. Korb, and you can take a few seconds

or minutes if you like to flip through this document, but do you have an understanding that this document reflects the results of the Senate Armed Services Committee's hearings on "Don't Ask, Don't Tell"? Answer: I don't know that. Can you take a look to see if you can

Question:

get an understanding by flipping through it? Answer: (Witness examined documents). Okay. It

1061

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does. Question: Okay. So this is a summary, if you

will, of the testimony presented to the Armed Services Committee in connection with "Don't Ask, Don't Tell," correct? Answer: Yes. Okay. And this is not a document you

Question:

considered in preparing your expert report? Answer: I -- it is not a document I considered

because several of the people quoted in there have changed their minds on this, for example, Charlie Moskos. Now, Dr. Korb, as you stated earlier, it's your opinion that "Don't Ask, Don't Tell" is irrational because there's no data showing that allowing openly gay people to serve causes problems with unit cohesion and military readiness, correct? A. Q. That's correct. And when you say "data," you mean empirical data,

correct? A. Q. That's correct. And so when you say "there is no data," you're not

considering the testimony of those before the Senate Armed Services Committee, correct? A. Q. Well, those were opinions that they gave. Mm-hmm. And my question was, when you're referring to

1062

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data, you're not considering the testimony of those before the Senate Armed Services Committee, correct? A. I'm considering the studies that were done by the

Pentagon. Q. And by definition then, you're not including within data

the testimony of those before the Senate Armed Services Committee? A. Q. A. Q. The opinions of people. You're not considering them, correct? They're opinions, no. Now, it's your opinion that it was irrational for

Congress to have relied upon the military's judgment of Colin Powell, Norman Schwarzkopf, and others in enacting "Don't Ask, Don't Tell," correct? A. Q. That's correct. That's because you believe the primary basis for their

testimony was resistance to change? A. Q. A. Q. That was one of the reasons, yes. The primary reason, in your opinion? As I can recall, yes. And that opinion, again, in turn, is based upon your

belief that there has been no study that demonstrated that allowing open homosexuals to serve caused any problems, correct? A. Correct.

1063

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Q.

Now, at the end of the day, Dr. Korb, you disagreed with

the wisdom of Congress and relying upon the testimony of those in the military in enacting "Don't Ask, Don't Tell"? A. Just as I disagreed with the military people who did not

want to follow Harry Truman's order to integrate the Armed Services, yes. Q. Now, back in 1993, it was your opinion that there was a

probability that morale and unit cohesion may be undermined temporarily if the ban on homosexual service in the military was lifted, correct? A. That was my opinion in 1993. It is no longer my

opinion. Q. That's what you told the Senate Armed Services Committee

at the time, right? A. Q. As I can recall. Let's look at that testimony. MR. GARDNER: evidence, Your Honor. case. BY MR. GARDNER: Q. you. Just to orient you, we'll put it up on the screen for I think it might be big enough. If you look at Joint Exhibit 344. It is already in

It is the legislative history in this

page 255, you'll see that's the beginning of your written statement before the Committee, correct? A. It's hard to read here, but, yeah, I can see.

1064

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Q.

Does that appear to you to be the beginning of your

written statement before the Senate Armed Services Committee? A. Q. I can't hear your question. Does that appear to be the written statement you

submitted? A. I just -- it says -- I can't -- it's too small. I can't

read anything. Q. Let's do this. Do you happen to have the binder with If not, I can bring you a

joint Exhibit 344 by your side? copy. A. Q. 344? Correct.

It's a big document.

If I could draw your

attention, Dr. Korb, to page 255 within that document. A. Q. A. Q. 344? 344 is the exhibit number. 255 is the page number.

Oh, that's a whole other one here. Why don't I provide you with a copy. MR. GARDNER: THE COURT: Your Honor, may I approach?

Yes, you may.

BY MR. GARDNER: Q. A. Q. A. Q. Dr. Korb, if I could draw your attention to page 255 -255? Correct. Okay. Is this, in fact, Dr. Korb, the beginning of your

1065

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testimony that you provided to the Senate Armed Services Committee? A. Q. As far as I can remember, yes. Okay. Now, I want you to flip to page 258. And, again,

we'll put it up on the screen.

It may be easier for you.

But you'll see on the beginning of page 258, the third full paragraph, you state: Is there a probability that morale and

cohesion may be undermined temporarily if the policy is changed? Unfortunately, research and experience says the

answer is probably yes. Dr. Korb, that's what you told the Senate Armed Services Committee in 1993, correct? A. Q. Yes. Now, you also held the opinion back in 1993 that all of

your research and experience on the issue told you that the question of whether the presence of openly gay men and women in the Armed Services would undermine fighting effectiveness cannot be answered definitively until the policy is actually changed, correct? A. Q. Correct. In other words, it was your opinion at the time that

there is necessarily going to be conjecture as to the impact on unit cohesion until a ban is lifted? A. Q. Yes. And you stand by that view today?

1066

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A. Q.

No. Dr. Korb -MR. GARDNER: Sorry. Your Honor, defense counsel

-- I'm going to refer the witness to page 399, 1 through 11. THE WITNESS: I only have 394. Ours ends at 394.

MR. AENLLE-ROCHA: MR. GARDNER:

Oh, that is a problem.

Your Honor, may we now take our lunch break and I can get a full copy of the deposition? THE COURT: Certainly. Thank you. How long is the lunch break, Your

MR. GARDNER: THE WITNESS: Honor? THE COURT: 15 minutes.

I'm sorry.

Let's take a hour and

Do you have a plane to catch this afternoon? No, but I'd like to finish. I have

THE WITNESS:

to go back tomorrow, so if we can finish today. THE COURT: I'm going to inquire. How much longer

do you think you have? MR. GARDNER: I can assure you, he will be off the I probably have another -- no

stand from our perspective. more than 45 minutes. the witness. THE COURT: will be?

It depends on how fast this goes with

How long do you think your redirect

1067

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MR. AENLLE-ROCHA:

It won't be terribly long.

would think maybe 15, 20 minutes. THE WITNESS: THE COURT: Thank you.

So we'll be in recess until 1:15. (Lunch 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 21, 2010