March 25, 2010 at 11:28 am EST | by Chris Johnson
Gates unveils new ‘Don’t Ask’ regulations

Defense Secretary Robert Gates (left) and Chairman of the Joint Chiefs of Staff Adm. Michael Mullen are changing how the Pentagon will implement "Don't Ask, Don't Tell." (DC Agenda photo by Chris Johnson)

Defense Secretary Robert Gates announced Thursday that the Pentagon is changing how it will implement “Don’t Ask, Don’t Tell,” including limiting third-party outings and raising the rank of the officers handling inquiries.

Joined by Chairman of the Joint Chiefs of Staff Adm. Michael Mullen, Gates unveiled the changes to enforcing the ban on gays serving openly during a Pentagon press conference.

“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,” Gates said.

Gates said Mullen, Vice Chairman of the Joint Chiefs of Staff Gen. James Cartwright and the service chiefs are unanimous in their support for these new regulations.

While unveiling the changes, Gates said in response to a DC Agenda question that he doesn’t recommend legislative action to repeal the “Don’t Ask, Don’t Tell” law until the Pentagon working group completes its review of the law.

Gates established the working group in February to examine the implications of repealing the 1993 ban on open service. The group’s study is set for completion by Dec. 1.

“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 and trying to get the views of our families.”

Gates said the working group also is necessary to examine changing regulations for benefits and look at other implementation issues.

“I think we need to do this thoroughly and professionally,” he said. “I think we need to do this right, if you will, and I think doing it hastily is very risky and I think does not address some of the concerns that have been expressed by the chiefs of staff of the services and a number of the questions that have been raised associated with this.”

Mullen, who testified in favor of open service for gays, lesbians and bisexuals last month, said he would “echo” Gates’s remarks with regard to legislative action on “Don’t Ask, Don’t Tell” before the working group completes its study.

“It’s very important for us to go through this process — and doing it with haste could easily generate a very bad outcome,” he said. “So understanding where we are — having that information from those it will affect most — is a very important part of this process.”

Asked whether the White House shares this view on the timing of repeal, Gates replied, “You would have to ask them, but I would tell you that my impression is the president is very comfortable with the process that we’ve laid out, and certainly with the changes that I have announced today.”

A senior defense official, who spoke on the condition of anonymity, later clarified for DC Agenda that the Pentagon isn’t taking a position on legislation related to “Don’t Ask, Don’t Tell” before the working group’s review is complete.

“It’s been very consistent out of here that the issue is not whether, it is how,” said the official. “In doing this, because this is the military, they wanted to do this in a way that is professionally thorough. So they are not going to be taking any position on any legislation at all. They’re not going to be supporting any legislation; they’re just not taking any position on legislation.”

The official said that Gates’ remarks during the press conference were consistent with his congressional testimony and other statements.

“This is not taking sides,” said the official. “There is no position on legislation. The position is follow through with this process, and he basically stated that they’d like to see this process be done to inform legislation.”

In a statement, Human Rights Campaign President Joe Solmonese said Congress should undertake repeal of “Don’t Ask, Don’t Tell” as the Pentagon continues work on its study.

“Two branches of government can and should work concurrently toward repeal,” he said. “There is no reason for Congress to wait for the details on implementation when Secretary Gates and the president have made it clear that this law should be repealed.”

Also during the press conference, Gates noted that the goal of the working group’s study on “Don’t Ask, Don’t Tell” is to determine how to implement repeal.

“The study is about how you implement it — if the law changes, how we deal with it,” Gates said. “This study is not about should we do it; this study is about how we do it.”

Gates added the working group will take into consideration the feelings of service members and their families.

“We need to identify where [there] might be problems and issues — or just issues to be addressed — whether it’s a change in regulations or benefits or something like that, so then when the time comes we have some idea of what we have to do in order to carry forward with the change,” Gates said.

But the new regulations issued Thursday will change implementation of the law until legislative action is taken. Specifically, the new changes will:

• raise the rank of the officer who can start fact-finding inquiries or separation proceedings to a general or admiral;

• raise the rank of the person who can conduct fact-finding inquiries to lieutenant colonel or Navy commander or above;

• raise the level of the officer who can separate an enlisted service member to general or admiral;

• raise the bar for what constitutes credible information to start an inquiry or separation proceeding, by mandating, for example, that information from third parties be given under oath and that use of overheard statements and hearsay are discouraged;

• raise the bar on what constitutes a reliable person upon whose word an inquiry can begin, with special scrutiny of third parties who may want to harm a service member;

• and specify that certain confidential information cannot be used for discharge proceedings, such as information provided to lawyers, clergy or psychotherapists; information provided to medical professionals for medical treatment; information provided in seeking assistance for domestic or physical abuse; or information about sexual orientation discovered during security clearance investigations.

Gates said the new regulations will take effect immediately and would apply to all open and future discharge cases. He noted that the services have 30 days to conform their own regulations to these changes.

Following the briefing by Gates, Jeh Johnson, the Pentagon’s general counsel who helped draft the new regulations, offered additional details.

In response to one question regarding what would happen in pending cases if a service member was outed by what is now considered unreliable information, and, following the start of an investigation, the service member acknowledged they were gay, Johnson said he didn’t know what would happen in such a situation.

“That’s a good question — and we’ll have to work that through,” he said.

In a statement, Rep. Patrick Murphy (D-Pa.), the sponsor of “Don’t Ask, Don’t Tell” repeal legislation in the U.S. House, praised the Pentagon for implementing the changes, but said full repeal is still necessary.

“Today’s announcement from Defense Secretary Gates is another step forward in the fight to repeal the discriminatory policy of ‘Don’t Ask, Don’t Tell,’ and a signal that momentum for change continues to build,” he said.  “While I am encouraged by the Pentagon’s announcement, I remain committed to working toward full legislative repeal of this law, which hurts our national security and military readiness.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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