Gates Mulls Changes to Gay Ban

Defense secretary Robert Gates indicated Tuesday that the Department of Defense is looking at alternative ways of implementing the department's regulations surrounding "don't ask, don't tell."

"One of the things we're looking at is, is there flexibility in how we apply this law," Gates told reporters aboard a military plane, according to AFP.

Gates reportedly discussed the policy with President Barack Obama last week, and the defense secretary's comments suggest that the changes the department is considering are in line with those called for in a letter sent to the president by 77 House members several weeks ago.

"We ask that you direct the Armed Services not to initiate any investigation of service personnel to determine their sexual orientation," read the letter, authored by Rep. Alcee Hastings, "and that you instruct them to disregard third party accusations that do not allege violations of the Uniform Code of Military Justice. That is, we request that you impose that no one is asked and that you ignore, as the law requires, third parties who tell."

In Tuesday's interview Gates said the department was looking at whether they could take into consideration the motive behind an outing.

"If somebody is outed by a third party, does that force us to take action?" he explained. "That's the kind of thing we're looking at -- seeing if there's a more humane way to apply the law until it gets changed."

The comments are a far cry from those he made in April in which he questioned whether the policy would be overturned at all.

"If we do it, it's important that we do it right, and very carefully,'' Gates said, according to The New York Times.

Policy analysts said the Defense secretary's remarks suggest that President Obama has tasked Gates with finding a short-term solution to the ongoing discharges.

"Short of an executive order, it looks like this has been put onto Gates's plate to maybe informally modify the implementation of the rules," said Aaron Belkin of the Palm Center, a research institute that released an analysis last month concluding that the president had the legal authority to issue an executive order halting gay discharges altogether.

Belkin added that the move appeared to be a crafty way for the White House to shift the burden of responsibility away from the president.

"This is no longer the civilians telling the military what to do -- you're letting the Republican secretary of Defense decide how to implement the law within his own agency," he said.

While the secretary's Tuesday interview is first concrete indication that the Pentagon is re-evaluating the military's gay ban, Gates also noted some hurdles to altering the policy.

"What I discovered when I got into it was it's a very restrictive law," he told reporters. "It doesn't leave much to the imagination, or a lot of flexibility."

But that's not the way Nathaniel Frank, a legislative scholar at the Palm Center, reads the law. Frank, who recently authored the book Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America, said there's room within the law for assessing both whether evidence of someone's sexuality is "credible" and whether to make a "finding" related to someone's sexual conduct.

"The law gives discretion to commanders to determine what's credible evidence," Frank said, "and we know that commanders do look the other way because in times of war, discharges plummet."

Frank noted that in accordance with historic patterns per-year discharges peaked at around 1,200 just before 9/11 and are now down to just over 600 a year.

Frank added that just as what's credible is open to interpretation, so is whether to issue a determination of someone's sexual conduct.

"The law says that a service member will be separated if a finding is made," he explained, "but nowhere does the law require that a finding actually be made."