Gates sharply limits ‘Don’t Ask, Don’t Tell’

In a major victory for opponents of the military’s ban on open homosexual service, Defense Secretary Robert Gates significantly revised how the Pentagon will implement the so-called “Don’t Ask, Don’t Tell” law, effectively making it difficult to remove a soldier, sailor, airman or marine who does not out himself or herself as gay.

Defense Sec. Robert Gates (Matthieu Rondel/Maxppp/ZUMA Press)

Defense Sec. Robert Gates (Matthieu Rondel/Maxppp/ZUMA Press)

Gates said the changes, endorsed by Joint Chiefs of Staff and vetted by the Pentagon’s top lawyer, would add “a greater measure of common sense and common decency” for service members negatively impacted by the law. The Servicemembers Legal Defense Network, an advocacy organization for gay and lesbian service members, considered Gates’ changes a “major step toward the end of the law,” according to spokesman Kevin Nix.

Starting today, only a general officer in an accused service member’s chain of command can discharge someone for a violation of the ban, and only an officer with the rank of commander or lieutenant colonel or higher can conduct a fact-finding inquiry to recommend a discharge. The standards of evidence provided to those inquiries will become far less burdensome on the accused, with what Gates called “special scrutiny on third parties who may be motivated to harm the service member.” Entire categories of evidence will no longer be admissible, including testimony from clergy members, physicians, abuse counselors, security-clearance review personnel and mental-health personnel — a move that also significantly improves troops’ quality of life.

“A good friend of mine just left the Navy as a Navy doctor,” said Christopher Anders, a lobbyist for the American Civil Liberties Union, which opposes “Don’t Ask, Don’t Tell.” Anders said that while his friend never turned in service members for violating the ban, the gay ban “was an obstacle to medical care,” as some personnel opted not to pursue certain medical care out of fear that treatment might be used against them in a “Don’t Ask, Don’t Tell” hearing.

Seated beside Adm. Mike Mullen, the Chairman of the Joint Chiefs of Staff who forcefully endorsed repealing the “Don’t Ask, Don’t Tell” law, Gates said at a press conference this morning that the new procedural changes apply to all ongoing investigations related to the ban on open gay military service. Gates clarified that he would not endorse any changes to the law until he sees the results of a review led by Pentagon general counsel Jeh Johnson and Army Gen. Carter Ham due by the end of the year. But Gates also clarified that the Johnson/Ham review “is about how you implement” a repeal of “Don’t Ask, Don’t Tell,” and “not about ’should we do it.’”

While recent polls show repealing “Don’t Ask, Don’t Tell” is broadly popular among both civilians and Iraq and Afghanistan military veterans, there has been some opposition to the looming repeal from senior levels of the military. The commandant of the Marine Corps, Gen. James Conway, favored keeping the gay ban in testimony last month. Army Lt. Gen. Benjamin Mixon wrote a letter to “Stars & Stripes” earlier this month urging advocates of the gay ban to “write your elected officials and chain of command and express your views.”

That letter earned Mixon a rebuke from both Gates and Mullen this morning. “That letter was not an appropriate letter,” Gates said. Mullen reminded Mixon that “as a three-star leader in command, he has great influence,” and “all of us in uniform are obliged to follow the leadership of the president,” who urged an end to the gay servicemember ban in his State of the Union address in January.

Sen. Joe Lieberman (I-Conn.) introduced a bill earlier this month to repeal the ban. A statement from Lieberman and his co-sponsors reacting to Gates’ changes in implementing the ban is expected later today.

While Anders hailed Gates’ changes, he noted that the defense secretary did not exercise all his authority to relieve some of the onerous provisions of the ban. Gates did not endorse a recent ruling of the Ninth Circuit Court of Appeals that said the military must prove servicemember discharges under “Don’t Ask, Don’t Tell” are vital to unit cohesion or combat readiness. Nor did Gates reverse a policy that cuts troops’ separation pay in half if the cause of their discharge from the military is a violation of the gay ban. Gates also clarified at his press conference that the changes are not retroactive, and so service members who were kicked out of the military for violating the ban will not be able to appeal their cases under the new rules.

Still, Anders said, Gates’ changes “are really important steps forward, obviously.”

Nix said that the Servicemembers Legal Defense Fund’s attorneys are reviewing the changes to determine what they mean for their clients, but that they dealt a serious blow to the ban.

“At the end of the day, what happened today is an important signal to Congress that repeal needs to happen this year,” Nix said. “What the secretary’s recommendations should tell Congress is this thing is on its way to an end, and Congress’s responsibility is to get rid of the law once and for all.”

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Spencer Ackerman

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