Robert Gates

Secretary of Defense Robert Gates today unveiled the Pentagon’s plan for making enforcement of the current “Don’t Ask, Don’t Tell” policy “more humane and fair.”

The new plan is “not a moratorium on enforcement” of the policy, said Gates. The existing policy bars openly gay people from the service unless they can swear they never have and never will engage in homosexual conduct. Instead, it stipulates that service members “who are involuntarily outed by a third party” can no longer be discharged, and discharges under “Don’t Ask, Don’t Tell” (DADT) must be approved by a high-ranking officer—a one-star general or higher.

In a preliminary statement, the Servicemembers Legal Defense Network said this morning’s announcement is “another major step” in reducing the number of discharges under DADT.

“The question on the table is how, not whether, to repeal the ban,” said SLDN Executive Director Aubrey Sarvis. “As welcome as these very helpful changes are, these interim steps are not a substitute for full repeal to reduce DADT discharges to zero. An unjust law still remains on the books and the harsh reality is service members will still be discharged under it every day until Congress musters the courage to act to bury the law once and for all.”

Department of Defense General Counsel Jeh Johnson, in response to questions from reporters following Secretary Gates’ announcement, that third parties will still be able to offer information about someone’s sexual orientation but that the standards for those comments to trigger an investigation will be more stringent. The new regulations, he said, require that an officer determine the reliability of the informant and whether that person might have an ulterior motive in making a report.

The regulations, said Johnson, “discourage the use of hearsay or overheard conversations,” but “hearsay is not excluded under the revisions.”

Johnson acknowledged that “most” of the 428 gay-related discharges last year were initiated by the service member’s own acknowledgment that he or she was gay. Asked whether a discharge proceeding would be triggered if one service member confronted another with a question, such as “Are you gay?” and the latter responded affirmatively, Johnson said that was an issue they had not yet addressed and “we’ll have to work that through.”

For his part, Secretary Gates emphasized that he does not want the “Don’t Ask, Don’t Tell” policy to be repealed before his DADT working group hands in its report on December 1.

“I do not recommend a change in the law before we have completed our study,” said Gates, at Thursday’s press briefing. He said he thinks it’s important the working group have time to elicit the views of service members and their families before proceeding.

Gates said the changes announced today will take effect immediately, that they apply to “all open and future cases,” but that the services have 30 days to conform.

Today’s announcement is in fulfillment of Gates’ statement to a Senate Judiciary Committee on February 2 that he would present a plan within 45 days to ensure that, “within existing law,” enforcement of the policy will be conducted “in a more humane and fair manner.”