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'Don't ask, don't tell' back on; guidance revised

By Ed O'Keefe

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.

Leave your thoughts in the comments section below.

By Ed O'Keefe  | October 21, 2010; 6:52 PM ET
Categories:  Military  
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Lt. Choi is well known and respected by everyone. He's a West Point graduate and demonstrates great leadership skills and was popular with those under his command. He's not the problem. The problem is how things will play out with the worst, most inconsiderate, most offensive gays and lesbians. Gay and lesbian activists have shown us time and again that once they get a right, how others feel counts for nothing.

It's wrong to force a person at work to appear naked in front of anyone who could develop a sexual or romantic interest in him or her. That's what the court said when women sued to have their own locker rooms at factories long ago.

Sex-segragation is all about privacy. Everyone has privacy rights. We can assure them most efficiently and economically by bunking people together who have no potential for sexual or romantic interest in one another.

We don't require that a woman say or believe that all men are rapists in order for her to assert a privacy right from all men. Why do we call men bigots and homophobes when they assert a privacy right from all gays? Fair means fairness for all.

Posted by: blasmaic | October 21, 2010 8:12 PM | Report abuse

President Obama, like all presidents, has sworn to "support and defend" the Constitution. That means that he should fight AGAINST unConstitutional legislation. Unless he personally disagrees with the finding of the District Court that "Don't Ask, Don't Tell" is unConstitutional, he should not have sanctioned an appeal of the Court's ruling. Contrary to what many have said, there may well be a conflict between the executive duty to defend laws passed by the legislature (Congress) and the president's oath to defend the Constitution. Such a conflict becomes most clear when, as occasionally happens, Congress passes unConstitutional laws.

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Posted by: 1561705755 | October 21, 2010 9:16 PM | Report abuse

The DADT situation is beginning to resemble the Keystone Kops. But I am sure those whose lives are being ruined by this "will he won't he" dithering aren't finding anything whatever to laugh about.

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Posted by: yuyou38 | October 21, 2010 10:55 PM | Report abuse

It is amazing that other democracies whom we consider our allies have no issues about openly gay people serving in their military to protect their nations. It is only in an American democracy where the institutions of the military have a problem of defending the constitutional rights of all Americans particularly of those Americans who are gay and lesbian. What astounds me more is that a Dan Choi, a West Point graduate officer that was relieved of his position in the military because he revealed his sexual orientation re-enlisted to enter the military after a judge determined that the DADT policy was unconstitutional and placed a ban on the military’s policy toward gays and lesbians openly serving their country. Dan Choi is a bright intelligent soldier whose accomplishments include language skills in the Arabic language which most thinking Americans would consider invaluable in the current war effort in the Middle East. There were thousands of military men and women forced out of the military whose skills are in high demand and their translations may have in many situations given our effort a distinct advantage. The culpability of the Command enforcing DADT have led to what I believe as self sabotage by forcing out these talented and brave soldiers.

I am left wondering why anyone who is so discriminated against in this country would want to defend such a country as ours in the first place. Dan Choi must really love this country to so want to defend it with such a commitment that few of us could ever hold a candle to. My feeling is that we are not worthy of his devotion and I am ashamed of my fellow countrymen and women who allow such discrimination to stand both in the military and in general throughout the land that we claim to love.

Posted by: NEOPatriot1 | October 21, 2010 11:56 PM | Report abuse

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