'Don't ask, don't tell' back on; guidance revised
Updated 7:29 p.m. ET
"Don't ask, don't tell" is back on the books, but just five senior military officials will be able to discharge service members for violating it, the Pentagon said Thursday. The change in policy makes it tougher to remove troops for being gay by prolonging the review process and adding extra layers of scrutiny before making a final decision, senior military officials said.
Effective immediately, the three service secretaries -- Air Force Secretary Michael B. Donley, Army Secretary John McHugh and Navy Secretary Ray Mabus -- will have to consult with the Pentagon's top lawyer, Jeh Johnson, and Undersecretary of Defense for Personnel Clifford Stanley before removing anyone from military service, according to a memo Stanley wrote Thursday.
"This latest twist highlights the legally uncertain period in which we now find ourselves," Stanley said in his memo.
A senior military official familiar with the matter said, "This is no way puts in place a moratorium, nor does it change the legal standard by which we'll judge these cases." The official conceded however that the review process will take longer since a greater number of officials will have to review a case before the service secretaries make a final decision.
"We're not raising the bar or lowering the bar, the bar has always been high, but we're going to put the separation authority in fewer, more senior hands who will be most up to date on this changing legal landscape," said the official, who was not authorized to speak on the record.
The policy is in effect until further notice, meaning it could end if the federal courts issue another injunction on the policy, or if Congress repeals the law. Additional guidance regarding military recruitment policy is forthcoming, the Pentagon said.
Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, called the decision "a major, constructive development for gay and lesbian service members." The change means both officers and enlisted service members will have to undergo a more serious review by the most senior military officials.
"Essentially the Pentagon appears to be saying to the court and to service members: We will treat enlisted service members the same way we now treat all officers," Sarvis said. SLDN is a group representing service members affected by "don't ask, don't tell."
The military can once again enforce the 17-year gay ban after a three-judge panel on Wednesday issued a temporary stay of an injunction on the law and policy until the 9th Circuit Court of Appeals can further consider appeals by the Obama administration. The Justice Department wants the appeals court to reverse the rulings of U.S. District Court Judge Virginia A. Phillips, who ruled in September that the law and policy are unconstitutional and issued an injunction last week that forced the military to stop enforcing the ban.
Elaine Donnelly, executive director of the Center for Military Readiness and one of the most vocal opponents of repealing the policy, blasted the new orders. "There's no reason for the Department of Defense to create such turbulence," she said. "There is no good reason to do that. ... There's only one possibly behind this: presidential politics. The election is two weeks away and the president is trying to curry favor with his [gay and lesbian voting] base."
President Obama is opposed to "don't ask, don't tell" but wants Congress to repeal the law through legislation. Lawmakers may do so during a lame-duck session of Congress after the midterm elections.
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| October 21, 2010; 6:52 PM ET
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