WASHINGTON -- Attorney General Janet Reno has been trying to steer the Pentagon away from a "don't ask, don't tell" policy for gays who remain in military service, apparently because she is troubled about being able to defend such a policy in court.
President Clinton is due to get a recommendation today from Defense Secretary Les Aspin on options for a new White House order to replace the current total ban on gay men or lesbians in any of the armed forces.
For several days, it has appeared that the final recommendations would be to allow gays to remain in the ranks so long as they do not reveal publicly or in private discussions that they are gay.
The policy would end past practices of asking about sexual orientation and aggressively investigating suspected gay men and women in the ranks.
Ms. Reno's efforts, disclosed to The Sun by individuals familiar with the Clinton administration's internal debate on the issue, illustrate the dilemma that government lawyers expect to face if, as appears likely, Ms. Reno fails in her attempts to influence those changes.
Any "don't ask, don't tell" policy would, if finally adopted, have to be defended by Justice Department lawyers, even though they and Ms. Reno reportedly harbor real doubts about the chances of making a successful defense.
A senior Defense Department official, who spoke on condition he not be identified, confirmed that Ms. Reno's worries have been heard at the Pentagon.
Although that official said, "I think the Justice Department's concerns will be answered in the final policy," he hinted in other remarks that some version of "don't ask, don't tell" is still likely to emerge.
Mr. Clinton, asked in a CNN interview in Des Moines yesterday whether he already had made up his mind on the issue, replied: "Well, I want to see what the military leaders say first. I think they're still debating it a little among themselves." He added that "it won't take long" for him to make a decision once he receives the options.
Attorney General Reno reportedly decided on her own to try to shape the new policy, telling top aides at the Justice Department that she would be uncomfortable personally with a duty to defend a "don't ask, don't tell" approach, and that she feared such a policy would only lead to more lawsuits.
"I don't think she should be comfortable" with that policy option, said Jon W. Davidson, chief staff counsel for the American Civil Liberties Union of Southern California and one of the lawyers active in constitutional challenges to the military's rules against gays. "It would be a real problem for the Justice Department," he suggested.
Kevin M. Cathcart of New York City, executive director of the Lambda Legal Defense Fund, a gay rights advocacy group, echoed that view: "Constitutionally, as well as practically speaking, a 'don't ask, don't tell' policy can't stand. Anything less than a complete lifting of the . . . ban and equal treatment for all personnel would be unconstitutional."
Mr. Cathcart vowed to pursue immediate legal challenges if Mr. Clinton adopts the expected Pentagon suggestion.
Legal disputes over gays in the military are pending in federal court but have been put on hold while the Clinton administration works on a new approach. The administration, however, now faces a Monday deadline for spelling out in court papers its legal position on that issue.
Deadline in court
It must do so in two federal appeals courts: one in Washington, considering a challenge to the Naval Academy's 1987 discharge of Midshipman Joseph Steffan because he admitted to being gay, and one in San Francisco, which is reviewing a Navy order last year to discharge sonar instructor V. Keith Meinhold after he revealed that he is gay.
One federal judge here rejected Mr. Steffan's challenge, but a judge in California struck down the gay ban in Mr. Meinhold's case. While both of those cases have been focused on the total ban on gays, lawyers said yesterday that those lawsuits could be converted quickly into constitutional challenges.
The core claim in such new challenges, it appears, would be that the "don't ask, don't tell" policy imposes unconstitutional punishment on members of the military who speak about being gay publicly or in private -- and thus puts too heavy a burden on First Amendment free speech rights.
Mr. Davidson, the ACLU lawyer, noted that, in the past, courts rejected claims that the military gay ban was a violation of First Amendment rights. But, he said, that claim would gain new force against a "don't ask, don't tell" policy that focused on the actual content of public or private remarks by gays in the military.
"In the past," Mr. Davidson noted, "courts said that gays were not being punished by being discharged for having said they were gay, but because they were gay. Now, if they can't say it, then it is the speech that becomes the disqualifying factor" in discharges of gays.
In addition to First Amendment challenges, a "don't ask, don't tell" policy would also face a renewed complaint that it is an unconstitutional form of discrimination against gays solely because they are gay -- the argument that already has worked for gay rights lawyers in the Keith Meinhold case. Members of the service who are not gay would not be punished for speaking about their sex lives.
Justice Department officials have given private hints recently that they would no longer try to convince the courts that the issue of gays in the military should be left solely to the military services to decide -- the position routinely taken by the Reagan and Bush administrations. Instead, Clinton administration attorneys were prepared to offer a narrower plea confined to a defense of the new policy that emerged from the White House.
Thus, the existing cases would not be used as opportunities to establish unchecked power for the government to do what it wished on gay service members, and thus would not send a signal to Congress that it could write the old flat ban into law without worrying about any constitutional problem.