Ending Confusion About "Don't Ask, Don't Tell"

Ending Confusion About "Don't Ask, Don't Tell."

Now that President Obama and Democrats in Congress have renewed promises to end the ban on open gays in the military, many have wondered what will replace it. The question, along with mixed messages from politicians about when and how they might end the ban, has caused some confusion among journalists and the public about what "don't ask, don't tell" actually is, and what is necessary to end discrimination against openly gay troops. One radio host who interviewed me the week before Obama's inauguration actually thought that when Obama was sworn in, "don't ask, don't tell" would "go away" (not so), and he asked if this meant that the Pentagon would then be allowed to make its own policy about gays (possibly, depending on the language of a proposed repeal bill, but extremely unlikely).

"Don't ask, don't tell" is a term that has been widely used to refer to both a federal law and a Pentagon policy that is governed by that law. While the phrase is not contained in the law and policy themselves, the title has stuck because it describes the outcome of Bill Clinton's failed effort to lift the ban entirely: encountering fierce opposition from military and conservative circles, Clinton agreed to a compromise designed to let gays serve if they conceal their sexual identity and refrain from any sexual activity.

The result was that Congress wrote a law governing the issue for the first time, and the Pentagon was charged with formulating a policy that conformed to the statute. The law and the policy are slightly different. For instance, the law, reflecting the politicking of conservatives who used the opportunity to cast gays and lesbians as a threat to the military, includes language calling homosexuals an "unacceptable risk" to unit cohesion, morale, order and discipline in the military. The policy, reflecting the more value-neutral language of a federal bureaucracy, avoids this language, and states that sexual orientation is a private matter and that one's suitability for service should be judged on conduct, not whether one happens to be gay or straight.

Because of the language of the law, some conservatives have sought to sow confusion about what it really says. Elaine Donnelly, president of the Center for Military Readiness, insists that the law makes homosexuals ineligible for service altogether, and has tried to re-name the law the "Military Personnel Eligibility Act." Donnelly's reading of the law is wrong, as the statute mandates discharge for a finding of "homosexual acts," not for being gay or lesbian. It also includes language clearly endorsing the "don't ask" provision of Clinton's compromise, reflecting lawmakers' wish that gays and lesbians would be able to serve so long as they were not open: a Sense of Congress that's part of the law says that the "suspension of questioning concerning homosexuality" during enlistment "should be continued."

Yet major news organizations have echoed Donnelly's fiction. A Reuters story this month, for instance, called the statute "a 1993 law stating that homosexuals are not eligible to work in the U.S. military," adopting the precise language of eligibility used by the Center for Military Readiness, exactly Donnelly's hope.

It is not clear what CMR hopes to accomplish by willfully misreading the law. It appears that the aim is to cast the Pentagon policy as illegal, and to lobby to have it modified to bar gays and lesbians entirely, which is what Donnelly (incorrectly) argues the law mandates. Yet the bottom line is that the policy does nothing that is forbidden by the law, and there is nothing it fails to do that is mandated by the law. The policy is in complete conformity with the law.

"Don't ask, don't tell" remains a quite sensible phrase to apply to both the law and the policy. They both provide for the discharge of anyone who engages in "homosexual acts" which includes a statement that one is gay, lesbian or bisexual, and they both endorse suspending the asking of recruits about their sexual orientation, which is meant to allow gays and lesbians who hide their orientation to serve.

Because there is both a law and a policy, it is possible that rescinding the law could leave the policy in place, which would allow the Pentagon to continue to discharge open gays (or worse). But if the law is repealed, it would most likely be replaced with a law barring discrimination, a product of the same political winds that would support legal repeal in the first place.

Could the policy be repealed without a change in the law? Some lawyers say it could: while the law mandates discharge for findings of homosexual acts, it does not require that such findings ever be made. This means that leadership in the White House or Pentagon could conceivably order an end to any such findings, forcing the law to remain, quite legally, unenforced.

No one knows how and when "don't ask, don't tell" will end. But it is important to understand the differences and similarities between the law and the policy, and to accurately represent what they both say.

Nathaniel Frank is Senior Research Fellow at the Palm Center and author of the new book, "Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America."