View From the Hill: The End of DADT?

By Kerry Eleveld

Originally published on Advocate.com July 02 2009 11:00 PM ET

This week may have marked the slow demise of "don't ask, don't tell" -- albeit in rather unremarkable fashion.

In an interview that largely went unnoticed, Defense Secretary Robert Gates told reporters traveling with him through Europe that Pentagon lawyers were evaluating whether there's "flexibility in how we apply this law," referring to the military's gay ban. Gates said he'd had a conversation with the president about the policy last week.

It probably seemed somewhat ho-hum to the casual onlooker, and that's just the way the White House wants it.

The approach of restructuring how the Department of Defense enforces the policy's regulations is something akin to the wimpy little brother of the much bolder and more widely publicized idea of issuing an executive order to halt discharges altogether.

The executive order concept gained traction two months ago when the Palm Center, a California research institute, released a legal analysis concluding that President Barack Obama has the authority to issue a stop-loss order against discharging gay soldiers. The Center for American Progress, a D.C.-based think tank with very close ties to the administration, also endorsed the strategy last week as the first step on the way to full repeal of the policy.

But regardless of how many legal scholars and people of import support an executive order, it's seemingly been DOA from the get-go over at the White House. Any questions posed about it during briefings have turned press secretary Robert Gibbs into an automaton of talking points about "durable solutions" and "legislative repeal" usually followed by a reassurance that the president "is working with" Congress and the Pentagon.

Well, until this week, not so much as a smoke signal had emerged to suggest that President Obama was working any DADT angles behind the scenes. In fact, we had seen just the opposite, with Gates and National Security Adviser Gen. Jim Jones questioning whether the policy would be overturned at all.

The revelation that DOD is now considering altering its regulations "until the policy gets changed," according to Gates, is basically a complete one-eighty -- even if it didn't grab the usual high-profile flip-flop headlines this nation has come to know and love.

But how far the policy shift will go still remains to be seen since Gates also couched his remarks with, "What I discovered when I got into it was it's a very restrictive law. It doesn't leave much to the imagination, or a lot of flexibility."

First of all, as a journalist who's reported on many a legal conundrum, I've found that the law can pretty much always be reimagined by any lawyer worth their salt. Not surprisingly, when I spoke with "don't ask, don't tell" scholar Nathaniel Frank, he rejected Gates's assertion entirely.

1024 NATHANIEL FRANK BATTLING THE MILITARY BAN X390 (RICAHRD LATHAM) | ADVOCATE.COM

Frank explained that the law leaves two openings for commanders: what qualifies as "credible evidence" of someone's sexual conduct and, even if an investigation ensues, whether to actually issue a finding in that case.

"The law says a service member will be separated if a finding [of homosexual conduct] is made, but nowhere does the law require that a finding be made," says Frank.

And let's not forget that DOD itself has already done some tinkering since 1993. Indeed, the Pentagon seems to have engaged in a protracted effort to make the policy more restrictive than the statute originally intended.

Take the case of Navy lieutenant commander Zoe Dunning, who was in the process of coming out when President Bill Clinton scrapped efforts to let gay service members serve openly and settled for "don't ask, don't tell."

Dunning managed to escape discharge by showing that even though she identified as a lesbian, she wouldn't engage in homosexual acts, which is what the law is supposed to target -- conduct, not orientation.

Shortly after Dunning's victory, the Pentagon's general counsel, Judith Miller (not to be confused with the infamous New York Times reporter), issued a memo saying this would no longer be an acceptable defense.

"That completely took away the opportunity that the law had in mind to allow service members that said they were gay to prove that they wouldn't engage in homosexual conduct," says Frank, who detailed the case in his book, Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America.

So perhaps if the Defense secretary needs some help reinterpreting the law, he can simply retrace the steps of his own agency.

Zoe Dunning xlrg (SLDN) | advocate.com

But whatever Gates does, don't expect the White House to weigh in, at least not publicly. They clearly want the onus of this change to fall on their Republican holdover at the Pentagon, not the president.

In fact, the White House press office has done everything possible not to make headlines on this policy change even while not dismissing it altogether.

I asked Robert Gibbs last week if the White House would consider DOD regulation changes and he said he would have to check on the details. Another White House reporter, Tommy Christopher, followed up the next day and Gibbs said he hadn't checked yet. The press office has also declined two subsequent inquiries from me on the matter.

This may not demonstrate the decisive action LGBT activists are looking for, but in some ways, it is consistent with the administration's approach to other touchy legislative issues such as health reform, where they have diligently sidestepped the question of whether the president would sign a bill that doesn't include a public option.

During his Stonewall address at the White House, President Obama told LGBT attendees, "I suspect that by the time this administration's over, you guys will have pretty good feelings about the Obama administration."

Translation: trust me, we're going to take care of you.

Whether you believe the president on this -- or any other issue for that matter -- probably depends on some combination of how glass-half-full your outlook is and if you're inclined to trust the government. And let's be honest, the LGBT community has been abused for years by politicians and the federal government alike.

But one thing is clearer all the time, this administration pulls its strings behind the scenes, masterfully masking how they plan to get from point A to B. So if you are awaiting attention-getting acts of courage on LGBT issues like "don't ask, don't tell" or the Defense of Marriage Act, you could very well be left dangling.