At Pentagon, 'don't ask, don't tell' is back, but under heavy guard

A new Pentagon regulation requires the 'personal approval' of one of a select few senior officials to enforce 'don't ask, don't tell.' The policy likely will hinder the removal of openly gay service members from the military.

Although "don’t ask, don’t tell" is back and is once again the law over at the Pentagon, throwing troops out of the US military on the basis of their sexual orientation has become even more difficult on the heels of a new Pentagon policy change announced Thursday.

Under orders from Defense Secretary Robert Gates, now only a small handful of officials, including the secretaries of the Army, Navy, and Air Force, can decide whether or not to discharge service members under the law that prohibits openly gay service members from being in the military. Any such moves now require their “personal approval.” They must further do this “in coordination” with the Pentagon’s top lawyer, Jeh Johnson, and Clifford Stanley, undersecretary of defense for personnel.

Because all of these officials are political appointees of President Obama, who has made it clear that he wants to see the ban lifted, the move is likely to slow any practical enforcement of DADT policy.

“The writing on the wall is that this policy is going to be repealed,” says Tim Haggerty, a professor who studies the social impact of war and directs the Humanities Scholars Program at Carnegie Mellon University in Pittsburgh. “It strikes me as a means of greatly diminishing the number of cases that can be reviewed.”

Pentagon officials denied this was the case at a press conference on Thursday. “You all want to find something between the lines here that really isn’t here,” said a senior Pentagon official who was authorized to speak on condition of anonymity. “It is what it is.”

When reporters pointed out that the bar now seems higher to remove gay service members under don’t ask, don’t tell, particularly since the secretaries of the services are generally busy with many other duties, the official said. “We’re not raising or lowering the bar. The bar has always been high, but we’re going to put the separation authority in fewer, more senior hands who will be most up to date on this changing legal landscape.” He added, “It is what it is.”

Despite the official's reluctance to draw any conclusions for the press about the underlying meaning of the Pentagon's latest directive, the ping-pong-like legal changes that resulted from court rulings this month have made a few things clear at the Pentagon.

One is that there will be memos – lots of them. “It is certainly not desirable to have to send out as many as three of these in the course of a week and a half,” said the Pentagon official, in a tone of mock exasperation, as he brandished the memo.

More seriously, however, defense officials acknowledged that during the eight days in which the ban was essentially overturned, there was scant evidence of the sort of “immediate harm” of which defense officials warned in papers asking the courts to keep the ban in place for the sake of an orderly transition.

The senior Pentagon official on Thursday added that the eight-day period also highlighted for the Pentagon the fact that if the “law changes suddenly, the first place you’ll see an issue” will be in recruiting centers around the country.

Throughout the course of the past week, there were reports of gay soldiers who had been removed from the US military under DADT policy returning to recruiting centers to reenlist. It is uncertain what will happen to their cases now, Pentagon officials say. “We are clearly in a legally uncertain environment,” said the official.