Pentagon already taking steps to blunt 'don't ask, don't tell'

A repeal of 'don't ask, don't tell' failed in the Senate Thursday, but the Pentagon is already changing policies to make it more difficult for the military to expel gays.

Senior Pentagon officials expressed frustration this week with the Senate’s failure to repeal “don’t ask, don’t tell.” Secretary of Defense Robert Gates, for his part, said the development “disappointed” him.

He warned of the widespread confusion that would be introduced into the military ranks if the courts act before Congress does. “My greatest worry,” he said, “will be that then we’re at the mercy of the courts and all of the lack of predictability that that entails.”

These fears are well-founded, Pentagon officials stress. But in the near future, a series of directives recently put into place by Mr. Gates and other senior administration officials make it far more difficult for gay troops to be discharged from the military, even while the ban is still in place.

New directives

The Pentagon announced in October, for example, that any “don’t ask, don’t tell” discharge would from that point forward would require the approval of senior civilian officials in the Defense Department – officials who are also Obama administration appointees. President Obama has said that he wants to see the ban overturned.

Since then, no service members have been discharged under the policy, according to a Pentagon spokesperson.

Back in March, Gates put an end to what were referred to as the “vendetta outings” of gay troops by third parties who might be nursing a resentment or gripe. The Pentagon also greatly limited the evidence that could be used to discharge the accused under the “don’t ask, don’t tell” law, making the testimony of counselors, clergy, and security clearance personnel, for example, inadmissible in hearings.

It was all what Gates called “special scrutiny on third parties who may be motivated to harm the service member.”

What’s more, under those changes, only a general officer in the chain of command of the accused could discharge troops under “don’t ask, don’t tell."

The measures were designed to add “a greater measure of common sense and common decency” to proceedings against US troops who risk their lives for their country, Gates said.

Last year, roughly 428 homosexual personnel were forced to leave the military. More than three quarters of those were service members who revealed their own sexuality, according to the Pentagon’s top lawyer Jeh Johnson – in essence forcing the Pentagon to proceed with hearings.

But though discharges under “don’t ask, don’t tell” have largely ground to a halt, critics such as Chairman of the Joint Chiefs of Staff Adm. Mike Mullen point out that the law continues to force gay service members “to live a lie.”

Chaos of the courts

What's more, the courts may overturn the ban at any time, as happened in October when a federal judge struck down the law. Gates has called this period a “nightmare” in which there was chaos at the Pentagon about what the ruling meant in practice – even as potential soldiers were walking into recruiting centers, declaring themselves to be gay, and asking to volunteer for service.

It ended when the Justice Department was granted a temporary stay of the law on appeal days later. Gates pointed out on Friday that one of several other lawsuits pending in the courts would overturn the ban only in the jurisdiction of the Ninth Circuit Court of Appeals, which includes a handful of Western states, raising the possibility that serving as an openly homosexual American soldier would be legal in some parts of the country, and illegal in others.

This would be an untenable situation, military officials point out, particularly given how often US troops are asked to move around – not to mention, they add, the confusion of figuring out what policy would be for US bases overseas.

As a result, Gates warned as he returned from a trip to Afghanistan this week, the failure of Congress to act – coupled with cases steadily making their way through the courts – means that the Pentagon will continue to face “again, the potential for extraordinary confusion.”