Pentagon treads carefully in examining 'don't ask, don't tell'

As the US military explores what repealing “don’t ask, don’t tell” would look like, it is finding it must walk a fine line between obeying the controversial law and potentially running afoul of it.

From now until December, the Pentagon is “engaging the force,” in an attempt to determine what service members think about repealing the law that forbids gays and lesbians from serving openly and that President Obama has pledged to scrap. Military officials are also dusting off surveys and other polls used in the early 1990s that likely will be used to assess military attitudes toward gays serving openly.

But as Army Secretary John McHugh is learning now, the military will have to tread carefully as it prepares for potential repeal. Mr. McHugh told reporters Wednesday that he has had conversations with service members who voluntarily told him that they are gay – a technical violation of the current law forbidding service members from disclosing their sexual orientation.

But the only way top military leaders will be able to “take the temperature” of the rank-and-file on the issue is if they can speak candidly with service members, both gay and straight, he said.

A moratorium on discharges

Mr. McHugh, a former Republican congressman from New York, went a step farther, saying there is a “moratorium” on discharging gays or lesbians based on an admission of their sexual orientation for purposes of the review, when members of the “working group” or other military leaders poll them on their views.

“I’ve had men and women in uniform approach me and declare that they were gay and give me their opinion as to how they feel,” McHugh told reporters in Washington Wednesday.

That raises a question as to whether the don’t ask, don’t tell law, first implemented in 1993 after a long and controversial debate begun by President Clinton about gays and lesbians serving openly, will be upheld during this process. The review is due to Defense Secretary Robert Gates Dec. 1. Congress will then take up the issue to determine if the law should be repealed.

A spokeswoman for McHugh said the Army Secretary will abide by the law even though he must be able to conduct candid conversations with service members. The Pentagon’s top lawyer, Jeh Johnson, acknowledged last week that military officials are still trying to figure out how to talk with gay service members, but do it within the law.

“We are also looking at ways to solicit information from gay and lesbian service members, consistent with the law,” Mr. Johnson told reporters last week. “We’re looking at mechanisms for doing that.”

The military will have to engage gay and lesbian service members throughout this period, says Aaron Belkin, director of the Palm Center, a think tank at the University of California, Santa Barbara.

“There is no way to do it that eliminates risk for the service member,” says Mr. Belkin. “No way to inoculate the service member from risk.”

Belkin says when the Pentagon announced changes this month that essentially prevent third parties from outing gay and lesbian service members and made other changes to relax the law, they should have created a category for military leaders seeking information for the current review.

“If it were me, I would talk to the working group but I would be nervous about it,” he said. Last year, 428 service members were discharged under don’t ask, don’t tell.

It is also unclear during this process what service members or military leaders can say and can’t say.

Army general rebuked for speaking out

Last week, an Army three-star general was publicly rebuked by Mr. Gates and Adm. Mike Mullen, Chairman of the Joint Chiefs of Staff, for publicly advocating that service members write their congressman to express their views on repeal.

Lt. Gen. Benjamin Mixon’s letter to the editor of Stars and Stripes newspaper said most troops don’t believe repeal should occur. Mixon won’t be punished, and he will continue serving until he retires. But the public admonishment raises the question of what leaders can say. Earlier, Adm. Mullen had told a Senate panel that repealing the law was “the right thing to do.”

But service chiefs, including Gen. James Conway, commandant of the Marine Corps, have expressed more concern. Gen. Conway has said that this is the wrong time to repeal the law when troops are fighting two wars. And in an interview with Congressional Quarterly Tuesday, Army chief of staff Gen. George Casey cited various polls to show that troops don’t think the law should be changed,

“You get a sense that, at least within the Army, a little better than half the force is probably opposed to the repeal right now, given what they know,” Gen. Casey told the newspaper. He cited opinion polls and personal conversations. Some of those conversations have taken place in large groups of service members.

But such forums may not allow military leaders to hear the true sentiments of the force, which has so far not been effectively polled on the matter, says Belkin. Service members are more likely to be more neutral about changing the law when they are asked questions about it in private, he says.