Gates: Panel has one year to plan for end to ‘don’t ask, don’t tell’

Related Story: Mention of gay troops in State of the Union offers little clarity to path ahead

WASHINGTON — Military commanders will look for ways to stop enforcing the controversial “don’t ask, don’t tell” law but could still take years to fully get rid of it, according to a plan outlined by Defense Secretary Robert Gates on Tuesday.

In testimony before the Senate Armed Services Committee, Gates said he will establish a panel to examine how to repeal the military’s ban on openly gay troops, with a goal of creating an implementation plan by the end of the year.

The study, to be led by Defense Department General Counsel Jeh Johnson and U.S. Army Europe Commander Gen. Carter Ham, will survey troops on concerns about serving with openly gay servicemembers, how housing allowances and benefits programs might be affected, and how the changes might affect recruiting and retention.

“There have been a lot of studies done, but there has not been one done by the military,” he said. “If legislation is passed repealing the law, we feel strongly we will need time for implementation of that change.”

At the same time, Gates ordered a 45-day review of the legal aspects of the current “don’t ask, don’t tell” law, with an eye toward not discharging servicemembers who have been outed by a third party.

The secretary said a change could give commanders more discretion to ignore tips from outside parties and raise the level of proof required to dismiss troops believed to be gay.

Joint Chiefs Chairman Adm. Mike Mullen told lawmakers he believes that the current ban on openly gay servicemembers is unfair, saying he is “troubled that we have a policy that requires our young men and women to lie in order to serve our country.”

Mullen said the service chiefs approve of the study-and-review approach outlined by Gates, although he would not speculate whether they individually would support repealing the law. Each of the service chiefs is expected to testify before Congress on the defense budget in coming weeks, and lawmakers said they expect to question them on the issue then.

On several occasions in his first year in office — including last week’s State of the Union address — President Barack Obama has promised to repeal the 1993 “don’t ask, don’t tell” law. But he has also repeatedly put the responsibility of initiating repeal efforts on Congress, even while lawmakers have publicly asked for a more explicit direction from the White House.

Republicans on the Senate committee decried the announcement. Ranking member Sen. John McCain, R-Ariz., blasted the Pentagon leaders for coming up with a decision before studying the issue, called the gay ban a flawed but effective policy.

“It has helped to balance a potentially disruptive tension between the desires of a minority and the broader interests of our all-volunteer force,” he said. “It reflects, as I understand them, the preferences of our uniformed services.

“It has sustained unit cohesion and unit morale while still allowing gay and lesbian Americans to serve their country in uniform. And it has done all of this for nearly two decades.”

Gay rights advocates in the hearing room grumbled as Gates announced the study, questioning if reluctant military commanders will spend years studying the problem to postpone any real change.

“We think a one-year study is far too long and unnecessary and this process must have finality,” said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network. “Nearly a quarter of Iraq and Afghanistan veterans say they know who is gay and who is not. This means gay and straight troops are talking about it. Having a law on the books that fires 300-plus talented linguists and medics, at a time of two wars when all manpower is needed, is un-American and, practically speaking, makes no sense.”

“This is appreciated and needed, but we should have been here a year ago,” said Alexander Nicholson, founder of the pro-repeal group Servicemembers United. “I thought in the president’s statements there was an implicit timeline, a push to get it done now.”

Nicholson, a former Army intelligence officer, was forced out of the service under the “don’t ask, don’t tell” law after a colleague revealed his sexual orientation to commanders. Easing the prosecution of outed troops “will save careers,” he said, but is only part of the larger fight for equality in the ranks.

Gates admitted that after the yearlong study, it could take another year or more to implement many of the changes necessary for a smooth transition.

On the other side, Elaine Donnelly, president for the Center for Military Readiness and an outspoken advocate for keeping homosexuals out of the military, saw Gates’ plan to ignore some cases of gays in the ranks as a misinterpretation of the law.

“The secretary has the power to issue enforcement regulations, but not regulations that run contrary to the actual law,” she said. “He is setting up a double standard that will weaken discipline across the board.”

Under the new plan, Donnelly noted, gay troops could ensure they don’t get dismissed from the military by asking someone to purposefully “out” them to military officials, effectively protecting them from an accidental slip of their own.

According to Defense Department statistics, 428 troops were dismissed under the “don’t ask, don’t tell” law in 2009, down nearly 200 troops from the previous year. More than 13,500 troops have been kicked out of the service under the law since 1994, according to the Servicemembers Legal Defense Network.

section 654 of title 10, United States Code

TITLE 10 > Subtitle A > PART II > CHAPTER 37 > § 654

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§ 654. Policy concerning homosexuality in the armed forces

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(a) Findings.— Congress makes the following findings:

(1) Section 8 of article I of the Constitution of the United States commits exclusively to the Congress the powers to raise and support armies, provide and maintain a Navy, and make rules for the government and regulation of the land and naval forces.

(2) There is no constitutional right to serve in the armed forces.

(3) Pursuant to the powers conferred by section 8 of article I of the Constitution of the United States, it lies within the discretion of the Congress to establish qualifications for and conditions of service in the armed forces.

(4) The primary purpose of the armed forces is to prepare for and to prevail in combat should the need arise.

(5) The conduct of military operations requires members of the armed forces to make extraordinary sacrifices, including the ultimate sacrifice, in order to provide for the common defense.

(6) Success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion.

(7) One of the most critical elements in combat capability is unit cohesion, that is, the bonds of trust among individual service members that make the combat effectiveness of a military unit greater than the sum of the combat effectiveness of the individual unit members.

(8) Military life is fundamentally different from civilian life in that—

(A) the extraordinary responsibilities of the armed forces, the unique conditions of military service, and the critical role of unit cohesion, require that the military community, while subject to civilian control, exist as a specialized society; and

(B) the military society is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society.

(9) The standards of conduct for members of the armed forces regulate a member’s life for 24 hours each day beginning at the moment the member enters military status and not ending until that person is discharged or otherwise separated from the armed forces.

(10) Those standards of conduct, including the Uniform Code of Military Justice, apply to a member of the armed forces at all times that the member has a military status, whether the member is on base or off base, and whether the member is on duty or off duty.

(11) The pervasive application of the standards of conduct is necessary because members of the armed forces must be ready at all times for worldwide deployment to a combat environment.

(12) The worldwide deployment of United States military forces, the international responsibilities of the United States, and the potential for involvement of the armed forces in actual combat routinely make it necessary for members of the armed forces involuntarily to accept living conditions and working conditions that are often spartan, primitive, and characterized by forced intimacy with little or no privacy.

(13) The prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service.

(14) The armed forces must maintain personnel policies that exclude persons whose presence in the armed forces would create an unacceptable risk to the armed forces’ high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.

(15) The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.

(b) Policy.— A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:

(1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that—

(A) such conduct is a departure from the member’s usual and customary behavior;

(B) such conduct, under all the circumstances, is unlikely to recur;

(D) under the particular circumstances of the case, the member’s continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and

(E) the member does not have a propensity or intent to engage in homosexual acts.

(2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.

(3) That the member has married or attempted to marry a person known to be of the same biological sex.

(1) The Secretary of Defense shall ensure that the standards for enlistment and appointment of members of the armed forces reflect the policies set forth in subsection (b).

(2) The documents used to effectuate the enlistment or appointment of a person as a member of the armed forces shall set forth the provisions of subsection (b).

(d) Required Briefings.— The briefings that members of the armed forces receive upon entry into the armed forces and periodically thereafter under section 937 of this title (article 137 of the Uniform Code of Military Justice) shall include a detailed explanation of the applicable laws and regulations governing sexual conduct by members of the armed forces, including the policies prescribed under subsection (b).

(e) Rule of Construction.— Nothing in subsection (b) shall be construed to require that a member of the armed forces be processed for separation from the armed forces when a determination is made in accordance with regulations prescribed by the Secretary of Defense that—

(1) the member engaged in conduct or made statements for the purpose of avoiding or terminating military service; and

(2) separation of the member would not be in the best interest of the armed forces.

(f) Definitions.— In this section:

(1) The term “homosexual” means a person, regardless of sex, who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts, and includes the terms “gay” and “lesbian”.

(2) The term “bisexual” means a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual and heterosexual acts.

(3) The term “homosexual act” means—

(A) any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires; and

(B) any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in subparagraph (A).

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