Fourteen senior retired military leaders have filed a brief urging the First Circuit Court of Appeals to reverse a lower court ruling regarding the federal “Don’t Ask, Don’t Tell” ban on lesbian, gay and bisexual service members.

The brief was filed on November 22 2006 in support of the plaintiffs in Cook v. Rumsfeld, a constitutional challenge to the law.

“Based on their experience in the military, (these leaders) have first-hand knowledge that numerous gay people serve in the Armed Forces with full awareness by their commands,” the brief says.

“This service does not undermine unit cohesion, as is made evident by the policy of retention of openly gay service members during times of war and urgent need.”

The brief adds, “the military’s own policies and its general and specific decisions belie its continuing public assertion that allowing openly gay persons to serve undermines unit cohesion. During times of war, the Armed Forces formally and informally implement stop-loss policies that result in the retention of openly gay service members until the time of crisis has passed,” undermining the military’s assertion that openly gay troops negatively impact unit cohesion or morale.

The leaders argue in their brief that, “the experience of numerous foreign militaries culturally similar to the United States uniformly demonstrates that the integration of openly gay service members has no adverse effect on cohesion.” It is the law, the brief says, “not the actions of the military’s many loyal, talented homosexual service members” that undermines military capability.

It concludes that the law “undermines the military’s ability to fulfil its primary mission of providing national security by discouraging the enlistment of gay persons qualified to serve their country and by expelling from the military those who have served with honour.”

“This brief is an important milestone in the public debate about ‘Don’t Ask, Don’t Tell,’ as senior military leaders are now publicly criticising the ban,” said C Dixon Osburn, executive director of Servicemembers Legal Defence Network (SLDN).

“In the past, courts have deferred to what they perceived as a policy preferred by military leaders to further military readiness. That has not been, and is not now, the case. ‘Don’t Ask, Don’t Tell’ hurts our national security, as the leaders who signed on to this brief so eloquently argue.”

Cook v Rumsfeld, filed on behalf of twelve veterans of the war on terror who were dismissed under “Don’t Ask, Don’t Tell” has been appealed to the First Circuit following an April District Court decision granting the government’s motion to dismiss the case. The suit was filed on behalf of the plaintiffs by SLDN and the law firm of Wilmer Cutler Pickering Hale and Dorr LLP. In their main brief, the plaintiffs argue that “Don’t Ask, Don’t Tell” violates their rights of substantive due process, equal protection and freedom of speech.