WASHINGTON — The Defense Department on Thursday declared that "don't ask, don't tell" is once again the law of the land but set up a new system that could make it tougher to get thrown of the military for being openly gay.
Defense Secretary Robert Gates on Thursday ordered that all dismissals under the 1993 law be decided by one of the four service secretaries in consultation with the military's general counsel and Gates' personnel chief.
Defense officials said the change was not intended to slow the rate of discharges. In his memo, Gates wrote that the purpose of narrowing those in charge was to "ensure uniformity and care in the enforcement" at a time of "legal uncertainty."
Still, the move puts the question of who can be dismissed from the service for being openly gay in the hands of just six people – all of them civilian political appointees who work for an administration that thinks the law is unjust. Before Thursday's order, the dismissal of gay enlisted personnel could be done by any commanding officer at a rank equivalent to a one-star general.
The change follows an eight-day suspension of the ban after a federal judge in California ordered the military to stop enforcing it. An appeals court on Wednesday agreed to the administration's request to a temporary stay of the court order, although that could be overturned too within a matter of days.
The legal wrangling has left many gay troops uncertain as to whether they could still be kicked out of the service for speaking up. At the same time, some former service members discharged for being gay have tried to re-enlist although the fate of their applications remains uncertain.
The Pentagon says it doesn't know how it will handle any cases of gay troops who may have disclosed their sexual orientation during the law's moratorium or cases of gay troops who tried to enlist. Officials also say they don't know how many cases might present a legal challenge.
A senior official said the Pentagon "will evaluate each case, one at a time."
The official, who demanded anonymity in turn for speaking about the case, said the Pentagon believes that most gay troops stayed quiet during the week the ban was lifted because of warnings by gay rights advocates that they could still lose their jobs.
The official also said that the Pentagon would use the same criteria to determine whether a service member violated "don't ask, don't tell," even though each case must be decided at the senior echelons of the Pentagon.
The official said that the order does not mean the Pentagon "will separate more or fewer people."
The official briefed reporters Thursday for the first time since the court's Oct. 12 injunction. While press officials cited protocol as the reason for demanding anonymity, the official's reluctance to speak publicly seemed to indicate an unwillingness to wade into the spotlight as such a political case makes its way through the courts.
President Barack Obama has said he supports repeal of the law, but wants Congress – not the courts – to decide its fate. He also has agreed to the military's request that it be given more time to implement any changes.
But Obama's decision to appeal the court order has put his civilian appointees in the awkward position of defending the law just weeks away from congressional midterm elections. Several gay rights advocates have said they are angry and frustrated with the administration's handling of the case and with congressional Democrats for not acting sooner to repeal the law.
"It can't be OK to be gay on Tuesday and not on Thursday," said Richard Socarides, a former Clinton White House adviser on gay rights. "That's no way to run a military."