WASHINGTON — Only top members of the Defense Department now can expel service members under the Pentagon's "don't ask, don't tell" policy, the Pentagon announced Thursday in response to the ongoing legal battle over whether the military's ban on gays and lesbians serving openly is constitutional.
Hundreds of officers once had the authority to expel service members for revealing that they're gay or lesbian, so the order appears to limit the number of people who can be discharged. The Pentagon, however, denied that's the case, saying the new policy is designed to apply the 1993 policy uniformly.
Secretary of Defense Robert Gates issued the memorandum Wednesday. It ordered that only the chief of the Air Force, Army and Navy, depending on where a suspected member serves, in coordination with the undersecretary of defense for personnel and readiness and the Defense Department's general counsel, may discharge openly gay or lesbian service members.
Gates issued the memo in response to a California appeals court decision Wednesday to reinstate "don't ask, don't tell" temporarily. A week earlier, a federal district court judge found it unconstitutional and issued a worldwide stay of it.
"The Pentagon appears to be saying to the court and to service members that it will provide all service members the protections already afforded officers, but with no delegation of that authority: All proposed DADT discharges, regardless of grade and rank, will be reviewed at the highest civilian levels," said the Servicemembers Legal Defense Network, which is dedicated to ending "don't ask, don't tell." "This can be a major constructive development for gay and lesbian service members."
During the eight days between the district judge's ruling and Thursday's stay, Pentagon officials said they'd heard anecdotal stories of service members who'd been expelled and had tried to re-enlist. Pentagon officials said they didn't know how many open gays and lesbians had attempted to re-enlist, although they think the number is small.
A number of people heeded the advice of legal organizations and didn't reveal their sexual orientations, said a senior defense attorney, whom the Pentagon said couldn't be further identified. The Pentagon didn't offer any further explanation for requiring the attorney's anonymity.
The Pentagon had suspended cases against soldiers charged with openly being gay or lesbian after last week's injunction. In addition, the military began welcoming openly gay and lesbian soldiers seeking to enlist.
Although President Barack Obama has promised that "don't ask, don't tell" will end during his administration, he wants Congress, not the courts, to repeal the law. It's a delicate balance for the administration, which has sought a stay of the district judge's ruling while the Defense Department completes a yearlong study on how to repeal the policy.
It's unclear when the court of appeals will rule on the government's appeal, but the unnamed Defense Department official said he expected a ruling sometime next year.
U.S. District Judge Virginia Phillips issued the injunction against "don't ask, don't tell" after she found that the policy violated service members' First Amendment rights. The case was brought by the Log Cabin Republicans, which represent gay GOP members.
Wednesday's decision was the second time the courts ruled on the legal validity of "don't ask, don't tell" in the last week, leaving the military in disarray over what to do.
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