Top Defense Officials Seek to End ‘Don’t Ask, Don’t Tell’
By ELISABETH BUMILLER
WASHINGTON — The nation’s top two defense officials called Tuesday for an end to the 16-year-old “don’t ask, don’t tell” law, a major step toward allowing openly gay men and women to serve in the United States military for the first time.

“No matter how I look at the issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens,” Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, told the Senate Armed Services Committee.

As a murmur swept through a hearing room packed with gay rights leaders, Admiral Mullen said it was his personal belief that “allowing gays and lesbians to serve openly would be the right thing to do.”

He is the first sitting chairman of the Joint Chiefs to support a repeal of the policy, and his forceful expression of his views seemed to catch not only gay rights leaders but also Senator Carl Levin, the Michigan Democrat who is the committee’s chairman, by surprise.

Mr. Levin, who has long supported ending the law, told Admiral Mullen that his testimony was “eloquent” and praised him for leading on the issue.

In 1993, Gen. Colin L. Powell, the chairman of the Joint Chiefs at the time, opposed allowing gay men and lesbians to serve openly but supported a compromise, which was the “don’t ask, don’t tell” bill passed by Congress. Under the policy, gay men and lesbians may serve as long as they keep their sexual orientation secret.

In contrast to Admiral Mullen, Defense Secretary Robert M. Gates was more cautious, even as he acknowledged that the question was not whether the law would be repealed but how the Pentagon might best prepare for the change.

Early in his testimony, Mr. Gates made clear that he was acting at the behest of President Obama, who reaffirmed his opposition to the existing law in his State of the Union address last week. Mr. Gates then threw the final decision back to the legislative branch.

“We have received our orders from the commander in chief, and we are moving out accordingly,” Mr. Gates told the committee. “However, we can also take this process only so far, as the ultimate decision rests with you, the Congress.”

Any change in the policy would not come any time soon, the two officials made clear. Both Admiral Mullen and Mr. Gates told the committee that there would be a Pentagon review, taking up to a year, to study how to implement any change before they expected Congress to act on a repeal.

Passage of repeal is far from assured, judging from the negative reaction from some Republicans on the committee, most notably Senator John McCain of Arizona, who pronounced himself “deeply disappointed” in Mr. Gates.

Mr. McCain said Mr. Gates’s testimony was “clearly biased” because of his not-if-but-when comments. He added that while the law was not perfect, its repeal was too much to ask of a military that is already under stress fighting two wars.

Gay rights leaders pointed soon afterward to comments Mr. McCain made in 2006 on “Hardball” on MSNBC about his willingness to change the policy if Pentagon leaders called for repeal. “The day that the leadership of the military comes to me and says, ‘Senator, we ought to change the policy,’ then I think we ought to consider seriously changing it,’ ” he said then.

To explain the apparent discrepancy, Brooke Buchanan, a spokeswoman for Mr. McCain, said that the senator thought Admiral Mullen was speaking personally, not on behalf of the Joint Chiefs, and that once a Pentagon review was complete, Mr. McCain would listen to military leaders as a whole.

To lead the review, Mr. Gates appointed a civilian and a military officer: Jeh C. Johnson, the Pentagon’s top legal counsel, and Gen. Carter F. Ham, the commander of the United States Army in Europe.

In the interim, Mr. Gates announced that the military was moving toward enforcing the existing policy “in a fairer manner” — a reference to the possibility that the Pentagon would no longer take action to discharge service members whose sexual orientation is revealed by third parties or jilted partners, one of the most onerous aspects of the law.

Mr. Gates said that he had asked the Pentagon to make a recommendation on the matter within 45 days, but that “we believe that we have a degree of latitude within the existing law to change our internal procedures in a manner that is more appropriate and fair to our men and women in uniform.”

Mr. Levin said he was considering introducing an amendment to this year’s defense authorization bill that would call for a moratorium on discharges under the existing law.
Mr. Gates said the review would examine changes that might have to be made to Pentagon policies on benefits, base housing, fraternization and misconduct, and would also study the potential effect on unit cohesion, recruiting and retention.

For further information, Mr. Gates said he would ask the RAND Corporation to update a 1993 study on the effects of allowing openly gay men and lesbians to serve. That study concluded they could do so if the policy was given strong support from the military’s senior leaders.

On one thing, Mr. Gates, Admiral Mullen and Republicans on the committee agreed: many gay men and lesbians are serving honorably and effectively in the military today, despite a policy that has led to more than 13,000 discharges, including those of much-needed Arabic translators.
“I have served with homosexuals since 1968,” Admiral Mullen told the committee. He added, “Everybody in the military has, and we understand that.”

Gay rights groups embraced the comments from Admiral Mullen and Mr. Gates, even as they criticized the Pentagon review as moving too slowly.

Polls now show that a majority of Americans support openly gay service — a majority did not in 1993 — but there have been no recent, broad surveys of the 1.4 million active-duty personnel.
General Ham, an Iraq veteran, is unusual among top military officers for speaking out about his struggles with post-traumatic stress after witnessing the devastation when a suicide bomber blew up a mess tent on an American base near Mosul, killing 22 people, including 14 United States service members. Mr. Johnson, a former assistant United States attorney, previously worked for the law firm Paul, Weiss, Rifkind, Wharton & Garrison.

After reading the text of the law, do you believe that this law should be repealed? Why or why not?

The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability. […]

A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:

(1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts. […]

(2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect. […]

(3) That the member has married or attempted to marry a person known to be of the same biological sex.