WASHINGTON -- The Pentagon's top lawyer denied yesterday that the Clinton administration was creating a "zone of privacy" for gay soldiers and told Congress that homosexuals still ran the risk of being kicked out of the military if they went to a gay bar, read gay magazines or marched in a gay rights parade.
Pentagon General Counsel Jamie Gorelick, whom the administration sent to Capitol Hill to explain President Clinton's policy on gays in the military, told the House Armed Services Committee that a soldier who visited a gay bar more than once or also read gay magazines created a "pattern of activity" that military commanders could construe as a "nonverbal statement" that he or she was homosexual.
By emphasizing the Clinton policy's tough stance on homosexual activity in congressional hearings this week, she and other officials got the administration what it needed most: the firm support of Sen. Sam Nunn, the powerful chairman of the Senate Armed Services Committee who has been the president's chief rival on defense issues.
The Georgia Democrat gave his strongest endorsement yet to the Clinton policy yesterday, calling it "sound" and saying he would be prepared to fight on the Senate floor on its behalf. Mr. Nunn said he still wanted to write the Clinton policy into law, although that is not necessary for its implementation. The policy, contained in a Pentagon directive, takes effect Oct. 1.
He said it might be "possible" though not probable to gain support from a majority of committee members to write the Clinton policy into law. But he said support for codifying the old sweeping ban on homosexuals remained "very significant."
Speaking to reporters after the last of his committee's hearings on the issue, Mr. Nunn said testimony this week by Ms. Gorelick, Defense Secretary Les Aspin and the Joint Chiefs of Staff allowed him to see "the difference between the substance and the spin." He also noted, without drawing too much attention to the irony, that the policy was virtually identical to the one he had promoted since January.
On Monday, Mr. Clinton announced "a substantial advance" for gay rights by easing the 50-year-old ban on homosexuals in the military.
Gays could serve in the military as long as they kept their sexual orientation private and abstained from homosexual conduct -- homosexual acts, marriages and statements -- on or off base. White House aides said the new policy set a "zone of privacy" for gay soldiers that would not be violated by military witch hunts or intrusive questioning by commanders about their homosexuality.
At back-to-back hearings in the Senate and House, Ms. Gorelick sought repeatedly to dispel criticism that the policy condones homosexuality and creates a "special class" within the military, namely homosexuals who remain celibate and keep quiet about their status.
"We are not creating a zone of privacy," she said at the House hearing. "We are not creating privacy rights."
Under questioning by Reps. Ike Skelton, a Missouri Democrat, and Jon Kyl, an Arizona Republican, she said a provision that explicitly allows military personnel to visit a gay bar, read gay magazines and march in a gay rights parade was not new. But neither are the risks homosexual soldiers take by engaging in these activities, she said.
The Clinton policy states that none of these activities, "in and of themselves, constitute credible information that would provide a basis for initiating an investigation or serve as the basis for an administrative discharge."
In explaining this provision, Ms. Gorelick disclosed that military commanders would continue to have broad discretion to deal with any behavior that might become disruptive to their units. Commanders will have the flexibility under the Clinton policy to consider whether certain kinds of permissible behavior might upset morale and combat readiness, she said.
"A commander may consider that going to a gay bar is a nonverbal statement . . . and a commander can determine if a pattern of activity is a nonverbal statement," she said when asked by Mr. Skelton what a commander should do if he learns that one of his troops frequents gay bars, reads a lot of gay magazines and marches in a gay rights parade.