Gates alters rules for investigating gay troops

Defense Secretary Robert M. Gates on Thursday took steps to soften the military’s ban on openly gay service members while retaining the law’s core restriction that avowed homosexuals face discharge.

Mr. Gates said in a statement at the Pentagon that third-party, anonymous complaints identifying suspected gays no longer would be the basis for triggering investigation under the Pentagon’s “don’t ask, don’t tell” policy. Informants now must provide complaints under oath, and commanders are urged to discourage complaints based on hearsay.

“I believe these changes represent an important improvement in the way the current law is put into practice, above all by providing a greater measure of common sense and common decency, to a process for handling what are difficult and complex issues for all involved,” the defense secretary said.

But the effect of the policy change on reducing investigations is not known. The Pentagon has said it does not know how many service members are discharged each year based on confidential third-party complaints that begin the investigation process. Some advocacy groups say the percentage is small.

Mr. Gates, appearing at a news conference, also said he is requiring a general or admiral in the service member’s chain of command to decide whether to act on a complaint. Mr. Gates is requiring a more senior officer to head a probe: a lieutenant colonel, or commander in the case of the Navy. Acknowledgments of homosexuality to a doctor or therapist cannot be used to start an inquiry.

Mr. Gates said all ongoing cases would be restarted under the new rules.

In tweaking but not ending the ban on gays, the defense secretary is sticking by a pledge made during congressional testimony last month. In disclosing for the first time that he supports President Obama’s pledge to repeal the 1993 law, Mr. Gates said only Congress, not the administration, has the power to end the prohibition.

Mr. Gates said Thursday that “only Congress can repeal the current ’don’t ask, don’t tell’ statute. It remains the law, and we’re obligated to enforce it. At the same time, these changes will allow us to execute the law in a fair and more appropriate manner.”

So for now, service members who proclaim their homosexuality or who are identified as gay in on-the-record complaints still would be subject to honorable discharge.

Conservative groups were not happy with Mr. Gates’ action.

Elaine Donnelly, who heads the Center on Military Readiness, part of a coalition of groups that defend a ban on gays in the military, said Mr. Gates is creating confusion where none existed.

“By applying new regulations applying only to the small number of discharges that occur for homosexuality, he has invited noncompliance with the extant 1993 law in future cases and those that are still pending,” she said.

“Instead of taking the opportunity to clarify the meaning and intent of the law, Secretary Gates seems to be condoning unwarranted delays. Local commanders who are trying to do their duty by enforcing the law deserve support, not second-guessing by higher-level officials who seem more concerned about President Obama’s views than they are about the terms and intent of the law.”

The Family Research Council said in a statement that “these new guidelines undermine enforcement of the law banning homosexuality in the military. Generals and flag officers lack the time to launch such investigations. The new regulations only invite open defiance of the law.”

Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, which wants the ban repealed, called Mr. Gates’ changes “another major step forward in making the 1993 ban less draconian.”

But Mr. Sarvis added: “Let’s not forget that gay and lesbian troops are fired for reasons other than third-party outings. The Pentagon will continue to process hundreds of [don’t ask, don’t tell] discharges this year and thousands of service members will leave the services on their own because of [the policy]. This is why Congress must step up to the plate and repeal the law this year to bring these discharges to zero.”

Mr. Gates last month announced a working-group study, led by a four-star general and the Pentagon general counsel, to find out how to end the ban and what impact it will have on the armed forces. Democrats have not announced when a vote will take place. Some have argued that Congress should vote even before the Gates-ordered study is completed by Dec. 1.

Mr. Gates said Thursday that he opposes a vote before the study is finished.

“I do not recommend a change in the law before we have completed our study,” he said. “There is a great deal we don’t know about this in terms of the views of our service members, in terms of the views of their families and influencers.”

Rep. Howard P. “Buck” McKeon of California, the ranking Republican on the House Armed Services Committee, issued a short statement noting that the ban is refined but stays in place.

“I would like to draw your attention to his opposition to any efforts by congressional Democrats to move prematurely to either overturn the law or institute a moratorium before the study on the ramifications of overturning the law has been completed,” Mr. McKeon said.

Mr. Gates took the unusual step Thursday of rebuking a senior officer, Lt. Gen. Benjamin Mixon, commander of Army forces in the Pacific. Gen. Mixon sent a letter to soldiers urging them to tell Washington to keep the ban.

“I think that for an active-duty officer to comment on an issue like this is inappropriate,” Mr. Gates said.

Adm. Mike Mullen, Joint Chiefs chairman and an advocate for repealing the ban, appeared with Mr. Gates. He called Gen. Mixon’s letter “inappropriate.”

Adm. Mullen said officers who oppose Mr. Obama’s policies always have the option of quitting.

“In the end, if there is either policy direction that someone in uniform disagrees with, and I’ve said this before, and you feel so strongly about it, the answer is not advocacy,” Adm. Mullen said. “It is in fact to vote with your feet.”