ARLINGTON, Va. – Citing the continuing “legal uncertainty” swirling around the “don’t ask, don’t tell” law, Defense Secretary Robert Gates ordered on Thursday that only the secretaries of the Army, Navy and Air Force have the power to discharge openly gay servicemembers from the military.
“Effective immediately and until further notice,” Gates wrote, no servicemember may be discharged without their service secretary’s personal approval and in consultation with the Defense Department’s top lawyer, General Counsel Jeh Johnson, and Under Secretary of Defense for Personnel and Readiness Clifford Stanley.
Previously, hundreds of flag officers had the authority to discharge troops found in violation of the policy.
The move does not equate to a moratorium on discharges, and the “don’t ask, don’t tell” policy remains in effect, Pentagon officials warned Thursday. Rather, it is intended to “ensure uniformity and care in the enforcement of this law.”
It is the second guidance issued to the entire military in eight days and tells troops to expect more instruction to come as the court case plays out.
In a sign of just how confusing the legal limbo has become, the Pentagon called reporters to the briefing room late Thursday but would not provide any officials to go on the record about the changes. Gates said the change had "enormous consequences" for the military, but has not commented publicly on it since speaking to reporters in Brussels more than a week ago.
Pentagon officials would not say with clarity what will happen to those active troops or applicants who revealed themselves to be gay or lesbian during the past eight days when the injunction against the policy was in effect, although they speculated the number was small.
“The law is in effect,” said a senior defense official who is a lawyer. “I would not expect to try and micromanage that situation at this level, I expect that it will play itself out in the coming days.”
On October 12, a California judge issued an injunction ordering the U.S. military to halt enforcement of “don’t ask, don’t tell.” Pentagon officials said they considered it a “de facto” moratorium on the law, and after two days of public silence instructed commanders to stop moving forward with any investigation or separation proceedings. The department later told recruiters to begin accepting applications from openly gay applicants.
One week later, on Tuesday, the U.S. government appealed the injunction to the same judge, who denied the request. But the government won a temporary stay from the higher 9th Circuit Court of Appeals. That court is deliberating on whether to extend the injunction during the entire appeals process, which could last for months should the Obama administration keep pursuit.
Pentagon officials have not said how many pending “don’t ask, don’t tell” discharge cases exist worldwide, nor how many cases may be so close to finality they may be delayed to due to the new, higher authority required under Gates’ memo issued today.
This is the second time Gates has raised the requirements for discharging troops for violating “don’t ask, don’t tell.” In March, shortly after declaring its intention to seek repeal, the Pentagon raised its requirements so that only flag officers could initiate an investigation or separate a servicemember.
The administration has repeatedly stated it prefers Congress to repeal the existing law rather than to act unilaterally from the executive branch to change “don’t ask, don’t tell.”
But with the courts weighing in, the Pentagon is now facing, and considering, a wider range of possible outcomes.
Asked if one of those outcomes could be the Pentagon was considering dropping its appeal, the senior defense official only repeated, “We are planning for multiple scenarios.”