[Vision2020] The Ultimate Test for ‘Don’t Ask’

[Tom Hansen]

Courtesy of the Army Times.

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The ultimate test for ‘don’t ask’

What’s coming next — and why the historic case is not yet settled
By Andrew Tilghman, Military Times Reporter

For eight days, the military lift­ed its ban on gays serving openly in the
military.

Then the ban fell back into place — for the most part.

In a chaotic and confusing series of court rulings and Pentagon
cor­respondences, the law known as “don’t ask, don’t tell” faced the most
intense test of its 17-year his­tory after a federal judge declared it
unconstitutional Oct. 12.

The moratorium on barring open­ly gay service members lasted just long
enough for top-level officials and service members alike to sketch out a
picture of what the military would look like if the law is ever
permanently changed, as Pres­ident Obama has promised to do.

Pentagon attorneys told com­manders to halt all investigations and
separations under the law.

They told recruiters to begin accepting gay applicants.

And troops began talking more openly — if hesitantly — about the fact that
some of their fellow soldiers, sailors, airmen and Marines are gay.

But that changed again after the Oct. 20 ruling from a federal appeals
court in Los Angeles, which granted the government’s “emergency motion”
allowing the old rules to resume.

Here are some of the most fre­quently asked questions following the
government’s victory in court:

What is the current policy?

For now, only civilian political appointees have the authority to finalize
separations under the “don’t ask, don’t tell” law. After the federal
courts gave the Pentagon the go-ahead to resume barring gays from serving
openly, Defense Secretary Robert Gates issued new rules Oct. 21 regarding
separation authority.

Only the service secretaries can authorize a separation under the law, and
the secretaries have to consult with the Defense Depart­ment’s top
attorney and the under­secretary for defense for personnel and readiness.
And, most impor­tantly, the secretaries can’t dele­gate that job to
staffers — they have to sign off themselves.

That’s to “ensure uniformity and care in the enforcement of ‘don’t ask,
don’t tell’ law and policy dur­ing this period of legal uncertain­ty,” a
senior defense official said Oct. 21.

Previously, general and flag offi­cers were required to sign off on most
separations of gay enlisted members, and secretaries autho­rized most
releases of gay officers. The rules may change again soon, if and when the
courts make additional rulings.

What’s next?

It’s far from over. The federal lawsuit in California that prompt­ed the
Oct. 12 ruling continues. The appeals court granted only an “emergency
stay” after the govern­ment claimed an immediate end to the “don’t ask,
don’t tell” law “risks causing significant, immediate harm to the military
and its efforts to be prepared to implement an orderly repeal.” A more
permanent ruling will likely come next year.

Meanwhile, Gates — who has publicly supported eventually end­ing the ban
on gays serving open­ly in the military — will receive a report Dec. 1
from an advisory group that he asked to examine the possible impact of
repealing the law. The report will help gauge the impact on morale, unit
cohe­sion, housing policies, benefits and other potentially thorny issues.

Also, some lawmakers hope to call a vote during the brief session Congress
holds after the November elections.

“We are planning for multiple scenarios,” the senior official said.

What was Obama’s role?

The president has spoken out strongly against the ban on gays serving
openly in the military and vowed that the exclusion would end “on my
watch.” That’s why some people wondered why his adminis­tration fought the
judge’s Oct. 12 injunction so forcefully.

“I’m surprised that the president has done this. Did he have to request an
emergency stay due to irreparable harm?” said Elizabeth Hillman, a former
Air Force cap­tain who teaches military law at the University of
California’s Hastings College of the Law.

For the president, the court rul­ing raised broad constitutional issues,
Hillman said. The Justice Department has a duty to defend laws passed by
Congress, and the president faced “a slippery slope” if he instructed his
attorney gener­al to decline an appeal and let the law die.

If Obama doesn’t defend [“don’t ask, don’t tell”], will that open the door
for all presidents to essential­ly reassess every law?” she asked.

How did troops react?

What happened for those days?

A few days after the Oct. 12 rul­ing declaring the “don’t ask, don’t tell”
policy unconstitutional, the Pentagon handed down a series of instructions
to the four services.

The first went to judge advocates general, advising them that the Defense
Department would adhere to the court order lifting the ban on openly gay
members. At the same time, however, a memo from the Pentagon’s top
personnel official warned troops who might think about coming out of the
closet.

“A certain amount of uncertain­ty now exists about the future of the
‘don’t ask, don’t tell’ policy,” wrote Undersecretary for Person­nel and
Readiness Clifford Stan­ley in the Oct. 15 memo to the service
secretaries.

“We note for service members that altering their personal conduct in this
legally uncertain environ­ment may have adverse conse­quences for
themselves or others should the court’s decision be reversed,” Stanley’s
memo said.

The Pentagon told recruiting commands to begin processing applications
from prospective recruits who identify themselves as gay. But the impact
was uneven.

In Austin, Texas, a former sailor who was discharged for being openly gay
was turned away Oct. 15 at a recruiting station where he tried to
re-enlist.

In San Diego, a former Marine who is gay was told no slots were available
and that he should try back in a few months.

In New York City, a former sol­dier and Iraq veteran who is gay tried to
re-enlist, and recruiters at the Times Square office initiated the routine
recruitment process.

A senior defense official at the Pentagon said confusion among the troops
is understandable.

“Is there the potential for service members to get mixed messages? Yes,”
he said.

Some troops said the topic came out into the open.

“You are seeing a lot of straight troops going up to people in their unit
who they thought were gay and saying ‘Is it true? Are you? It’s OK to be
gay now? What do you think about what is going on right now?’ ” said an
Air Force officer who is connected to an online network of closeted gay
service members through a group called OutServ.

“I had a friend run down to my office and say, ‘Hey, you can come out of
the closet now,’ and there was another co-worker there who didn’t know I
was gay,” the officer said.

Another officer, an Air Force reservist who is gay but does not disclose
his sexuality publicly, said he did not expect new rules to change the
military culture. “Serv­ing in the military is an honor, with absolutely
nothing to do with one’s sexuality. There’s not going to be this mass
coming-out party when it is finally over,” he said.

But senior officials said they do not believe many troops came out during
the eight days the law was suspended, partly because gay advocates and
their attorneys strongly advised gay troops against any public statements
that could come back to haunt them.

“My sense is that most people heeded the advice of these legal
organizations and did not disclose their sexuality,” the senior defense
official said.

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Seeya round town, Moscow.

Tom Hansen
Moscow, Idaho

"The Pessimist complains about the wind, the Optimist expects it to change
and the Realist adjusts his sails."

- Unknown