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Study: Gates Can Roll Back DADT
By William H. McMichael - Staff writer
Monday Jul 6, 2009

Defense Secretary Robert Gates could limit enforcement of the military’s prohibition against open homosexual service without waiting for Congress to reverse the ban, as President Obama has called for.

That is the conclusion of a legal memo issued Monday by the Palm Center, a think tank in Santa Barbara, Calif., that supports repealing the ban.

In May, the group released a study on how to end the so-called “don’t ask, don’t tell” policy by arguing that Obama has the authority to issue an executive order halting all discharges under the policy.

Congress passed the law in 1993, and the Pentagon began implementing the rules in February 1994. The Pentagon policy prohibits commanders from asking service members about their sexuality — that’s what “don’t ask” refers to — but allows commanders to initiate separation proceedings if given “credible information” about possible homosexual activity.

Three months ago, Gates said he and Obama wanted to push the issue “down the road a little bit” given the current high pace of operations and their efforts to revamp defense spending. Last week, Gates said he and the president had recently discussed the issue once again, and particularly whether they have the flexibility “to see if there’s at least a more humane way to apply the law until the law gets changed.”
Monday, the Palm Center obliged, saying Gates has “broad authority to design the procedures under which investigations are conducted and findings are made.”

According to the group, Gates could:
• Invoke his authority to retain all service members identified under don’t ask, don’t tell, “who are otherwise eligible for continued service, for a limited period of time in the interests of national security.” The “limited period” would be the time it took Congress to repeal or amend the law. The group said this would be one of the most effective actions Gates could take “provided ‘retention’ meant that affected service members were assigned to full duty without restriction, including deployment.”
• Require that no investigations be initiated without his specific approval. This would concentrate authority to investigate with the defense secretary rather than individual commanders, “reducing inconsistent application.” This option, the group said, “would also be effective in limiting enforcement of the policy in the interests of national security.”

The group offered four other possibilities but said all would involve too much red tape, be subject to abuse, would accomplish little or be ultimately unsatisfactory.
Most Americans — 59 percent — favor allowing gays to serve openly in the military, while 32 percent are opposed, according to a poll released in March by the nonpartisan Pew Research Center. In the latest Military Times poll, released in January, nearly 10 percent of respondents said they would not re-enlist or extend their tours of duty if the policy was repealed, but 71 percent said they would continue to serve.

A total of 10,507 troops have been discharged under the policy since the Pentagon began tracking such discharges in 1997 through December 2008. In a report released in June that urged repeal of the law, the Washington, D.C.-based Center for American Progress said that more than 13,000 troops have been discharged since 1994. At least 1,000 of those troops were in “critical occupations” such as language interpreters and engineers, the group said.

A bill that would repeal the law remains alive in the House, where 150 co-sponsors have signed on to an effort now championed by Rep. Patrick Murphy, D-Pa. The legislation was first introduced in 2005 but has never made it out of committee.

The Palm Cente report is online.