Gates Limits ‘Don’t Ask, Don’t Tell’

ARLINGTON, VA - MARCH 25:  U.S. Secretary of Defense Robert Gates speaks to members of the media during a press briefing at the Pentagon March 25, 2010 in Arlington, Virginia. Gates announced that the Pentagon will ease the enforcement of the "Don't Ask, Don't Tell" policy.  (Photo by Alex Wong/Getty Images)

ARLINGTON, VA - MARCH 25: U.S. Secretary of Defense Robert Gates speaks to members of the media during a press briefing at the Pentagon March 25, 2010 in Arlington, Virginia. Gates announced that the Pentagon will ease the enforcement of the "Don't Ask, Don't Tell" policy. (Photo by Alex Wong/Getty Images)

Secretary of Defense Bob Gates today issued an order sharply limiting the enforcement of “Don’t Ask, Don’t Tell,” the Clinton-era regulation governing how the military deals with homosexual troops.  Spencer Ackerman has details.

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.

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.

While I think it’s time to lift the ban on gays serving, I’m dubious of this half measure.

Unless military law has changed radically over the last two decades — or I was woefully misinformed when I served as a junior officer — chaplains, doctors, counselors, and intelligence officers are military officers.    Gates has thus created a bizarre paradox:  Under the UCMJ, homosexual conduct is illegal.  And it remains the policy of the armed services that openly gay service members should be discharged.   But, now, you’ll have soldiers revealing to serving officers that they are homosexual and yet allowed to continue serving.  That simply makes no sense.

Further, even the half measure is being half-enforced.

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.’”

[…]

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.

So . . . Gates has not yet concluded that serving homosexuals are not in fact a disruption to unit cohesion.  Yet he’s made it easier for homosexuals to serve.   The mind boggles.

“Don’t Ask, Don’t Tell” was always a bizarre compromise.  Bill Clinton wanted to end the ban on gays serving outright but the military brass pushed back and a significant part of the Democratic coalition likewise balked.  So DADT was born.    At this juncture, however, it’s time to either end restrictions on gays serving or it isn’t.   Continuing to take conflicting baby steps isn’t helping anything.

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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. William d'Inger says:

    Oh, he just wants to get airtime on the Sausage & Legislation talk show circuit.

  2. Well, but we have a similar half-measure in place on related issues — correct me if I am wrong, but sodomy and adultery are also both illegal under UCMJ. This just puts homosexuality on the same rules as those two, no?

  3. James Joyner says:

    Well, but we have a similar half-measure in place on related issues — correct me if I am wrong, but sodomy and adultery are also both illegal under UCMJ. This just puts homosexuality on the same rules as those two, no?

    Only technically. There was an outright ban on homosexuality under the Articles of War. When UCMJ came into place, they decided to make sodomy the crime — and to technically extend it to heterosexual sodomy — but the enforcement was almost always aimed at homosexual acts. I’d much prefer to see the anti-sodomy Article go away or at least see it replaced with a law that is actually intended to be enforced.

    Beyond that, being a practicing homosexual remains a dismissible offense. Under Gates’ order, though, most evidence has to be ignored. That’s untenable in my view.

  4. PD Shaw says:

    I love the advertising your site gets when you post on this subject. “Gay Military Dating”? There aren’t any gay people in the military, are there? How could you tell?

  5. PD Shaw says:

    More seriously, this policy seems to be closer to my impression of what has been happening for a while now (since Bush second term). Have there been many people discharged in the last few years, who have not volunteered that they are gay (either as a civil rights protest or to avoid assignment) or been caught in improper conduct?

    I think restricting the evidence is a reasonable approach from the military, so long as Congress isn’t going to repeal DADT. Specifically, it’s reasonable for the military to strictly limit the situations in which a service member can incriminate themselves.

  6. Franklin says:

    More seriously, this policy seems to be closer to my impression of what has been happening for a while now (since Bush second term). Have there been many people discharged in the last few years, who have not volunteered that they are gay (either as a civil rights protest or to avoid assignment) or been caught in improper conduct?

    There was something in the news just the other day where Missouri police investigating one woman outed her legally-wed lesbian wife to the Air Force who in turn discharged her.