Pentagon Can Implement Gay Ban Differently

On the heels of yesterday's announcement from Secretary Gates, my colleagues with expertise in military law are telling me that the Secretary of Defense does indeed have room to implement the gay ban differently. Here's what they are telling me:

Adminstrative Flexibility under "Don't Ask/Don't Tell"



1. The Secretary of Defense has the authority to alter the method of enforcement of the current ban on open military service by gays and lesbians. The "don't ask, don't tell" policy, as codified by Congress, grants authority to the Department of Defense to determine the procedures under which investigations, separation proceedings, and other personnel actions under the authority of 10 U.S.C. § 654 will be carried out. Section 654(b) states: "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 regulation." Under this section, the Secretary of Defense has
discretion to determine the specific manner in which "don't ask, don't tell" will be implemented. 



2. The "don't ask/don't tell" statute does not direct the military to make any particular findings of prohibited conduct or statements; it only states that members shall be separated under regulations prescribed by the Secretary if such findings are made. The Secretary has broad authority to devise and implement the procedures under which those findings may be made.



3. Judicial action has already altered the enforcement of "don't ask/don't tell." A recent decision of the Ninth Circuit Court of Appeals, Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008), calls into question whether "don't ask, don't tell," as implemented by regulations prescribed by the Secretary of Defense, violates the due process rights of service members under the Fifth Amendment of the U.S. Constitution. The court remanded the case for further findings on whether the separation of this specific service member would significantly further an interest in military effectiveness, and whether less intrusive means would be unlikely to further the same interest. The Secretary has authority under 10 U.S.C. § 654 to determine whether regulations implementing the statute are consistent with the ruling in Witt and whether the regulations should be revised.



4. The Secretary can revise the current implementing regulations that enforce the policy so that commanding officers no longer have broad latitude to pursue the discharge of servicemembers suspected of being gay. For example, the Secretary could set out specific instances in which investigation and separation is not warranted and instances in which they might be warranted (such as an act of misconduct that would already be punishable under the UCMJ). The Secretary could also require high-level approval of investigation and separation proceedings under the policy. Such an action would alter the enforcement of the three principal Department of Defense implementing regulations in force: Department of Defense Instruction 1304.26, "Qualification Standards for Enlistment, Appointment, and Induction" (July 11, 2007); Department of Defense Instruction 1332.14, "Enlisted Administrative Separations" (August 28, 2008); and Department of Defense Instruction 1332.30, "Separation of Regular and Reserve Commissioned Officers" (December 11, 2008).



5. The Secretary could also instruct each of the military services to exercise discretion by retaining suspected gay and lesbian servicemembers in the interests of national security. Implementing regulations already embrace this discretion: Department of Defense regulations governing the separation of members under 10 U.S.C. § 654 preserve discretion within the military chain of command to retain members under certain circumstances. "Enlisted Administrative Separations," for example, states at Enclosure 3, paragraph 8.d (7)(c), page 21: "Nothing in these procedures . . . precludes
retention of a Service member for a limited period of time in the interests of national security as authorized by the Secretary concerned." Military commanders have significant discretion to decide whether they should initiate investigations or separation proceedings, or whether no action should be taken at all: "They shall examine the information and decide whether an inquiry is warranted or whether no action should be taken" ("Enlisted Administrative Separations," Enclosure 5, paragraph 3.b, p. 39; "Separation of Regular and Reserve Commissioned Officers," Enclosure 8, paragraph
3.b, p. 23).



6. After an initial revision of the Secretary's guidance on implementing the policy, an orderly review of the relevant publications would ensue. No change is required to the military's criminal law or procedure, because no criminal statute or provision of the Manual for Courts-Martial (2008 ed.) makes specific references to homosexual conduct. Publications related to the collateral consequences of the homosexual conduct policy should be reviewed to ensure compliance with a revised policy. The most extensive of those modifications will involve personnel/human resources management publications.