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Gates, Mullen to discuss ‘don’t ask’ policy

Supporters and opponents of repealing the military’s ban on open service by gays should not expect to hear a point-by-point plan to implement a change when the Pentagon’s top two leaders testify before the Senate Armed Services Committee on Tuesday.

Instead, a senior defense official who asked not to be identified told Military Times, listeners will hear “a plan to develop a plan.”

The senior defense official said Defense Secretary Robert Gates and Joint Chiefs Chairman Adm. Mike Mullen will tell the committee: “These are the major issues we need to look at, and this is the manner in which we need to look at them to implement a new policy, should the law be repealed.”

That does not sound like a list of specific proposals on a way forward — although some outside observers have posited that Gates and Mullen will propose specific options that would allow for less draconian enforcement of a law and policy that have resulted in the discharge of more than 13,500 gay service members since 1994, according to the Servicemembers Legal Defense Network, a Washington, D.C., gay-rights group dedicated to repeal.

At the tail end of last week’s State of the Union address, President Obama emphatically reiterated a campaign promise to repeal the law and policy, commonly referred to as “don’t ask, don’t tell.”

“This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are,” he told his nationwide audience. “It’s the right thing to do.”

The following day, the Senate Armed Services Committee announced that it had added an hour to a scheduled Feb. 2 briefing on the Pentagon’s proposed fiscal 2011 budget by Gates and Mullen to hear the two leaders discuss their views on a repeal of the gay ban and the practical obstacles they feel must be overcome should Congress elect to change the law.

Pentagon spokesman Geoff Morrell said last week that Gates, who along with Mullen has held discussions with Obama on the issue, would use his Capitol Hill appearance to revisit concerns that he has previously expressed on the law and policy.

Past remarks provide some clues to Gates’ thinking.

Last summer, Gates, who said he had also discussed the issue with other senior defense leaders, told reporters that the department was looking at ways the law could be enforced with more “flexibility,” or in a “more humane” fashion. He said his specific concern was whether the department needed to begin separation proceedings against a gay service member who was “outed” by someone else “who may have vengeance in mind or blackmail or somebody who has been jilted.”

While Gates didn’t refer to him by name, he subsequently ordered a review of the Pentagon’s policy in light of the case of Air Force Lt. Col. Victor Fehrenbach, an 18-year veteran weapons officer, who was “outed” by a civilian acquaintance and ordered to be separated from the service. Fehrenbach couldn’t be reached for comment and his current status could not be determined.

And in reply to a question about “don’t ask, don’t tell” following remarks Gates made during an April visit to the Army War College in Carlisle, Pa., he said he was concerned about trying to resolve what he called a “complex and difficult problem” at a time when the wartime force is “under considerable strain.”

He then noted that when President Truman signed the executive order in 1948 that mandated racial integration of the U.S. military, “it was five years before that process was completed. I’m not saying that’s a model for this, but I’m saying that I believe this is something that needs to be done very, very carefully.”

Last summer, the Palm Center, a think tank in Santa Barbara, Calif., that supports gay rights, issued a legal memo concluding that Gates could limit enforcement of the ban on open service by invoking his authority to retain those identified under “don’t ask, don’t tell” who are “otherwise eligible for continued service,” or by requiring that no investigations be initiated without his specific approval.

Those for and against appeal have weighed in with very specific predictions about what the two leaders could say Tuesday in addition to a discussion of the issues. The Palm Center expects to hear Gates and Mullen issue guidance that would protect some service members from investigations based on third-party allegations, set a new standard for information that can trigger a command investigation and raise the bar for discharges under the law by requiring a flag officer to approve a discharge before it can proceed.

Repeal opponent Elaine Donnelly, who has previously testified on the issue before Congress, thinks that Gates and Mullen could discuss various plans for incremental repeal — “by suspending enforcement … or delaying implementation until after the war,” she said.

She urged senators on the committee to focus “on the purpose of the current law: military effectiveness.”

A November Rand Corp. study of U.S. veterans of the Iraq and Afghanistan wars found that service members surveyed felt that having a gay or lesbian member in their unit “had no significant impact” on their unit’s cohesion or readiness, researchers said — one of the most common concerns expressed by those opposed to open service by gays and one of the tenets underpinning the 1993 law that mandates separation from the service if a service member admits to being gay or is caught engaging in, attempting to engage in, or soliciting gay sex.

That law led to a 1994 Pentagon policy directive on such discharges that stated in an attachment, “Although we have not and will not ask you about your sexual orientation, you should be aware that homosexual conduct is grounds for discharge from the Armed Forces.”