Pentagon issues rules for gays Military commanders given broad discretion


WASHINGTON -- The Pentagon closed a year of controversy over gays in the military yesterday by issuing a new policy that gives commanders broad discretion to oust or investigate homosexuals in their units.

Under the controversial "don't ask, don't tell, don't pursue" policy, which was first announced by President Clinton last July, the only gay men or lesbians who will be allowed to remain in the service are those who can prove they do not engage in homosexual sex and will not.

The policy will take effect Feb. 5, replacing a sweeping, 50-year-old ban on gays in the military and a year-old interim policy that was intended to ease that ban.

"Formulation of the new policy," Defense Secretary Les Aspin said at a Pentagon news conference, "has sharply reduced and almost eliminated the anxiety among the forces concerning this issue." He said that the policy, a compromise between civilian and military leaders and codified by Congress, fits into "the broad middle" of controversy over the issue.

Mr. Aspin released a hefty sheaf of regulations, directives and official guidance that is intended to help the military services implement a policy that requires thousands of gay military personnel to keep their sexuality a secret.

He acknowledged how "enormously divisive and emotional" the issue of gays in the military has been since President Clinton took office promising to lift the ban entirely. The president was forced to back down, and Mr. Aspin suggested that the administration would hold to this policy "for the foreseeable future."

Under the regulations, a service member who has "a sexual attraction" to a person of the same sex may avoid discharge, but only if that attraction is "an abstract preference" that does not indicate "a likelihood" to engage in homosexual acts.

Under training guidelines issued to the armed services, military commanders would have to decide whenever "credible information" existed to trigger an "informal fact-finding inquiry" or discharge proceeding against someone for suspected homosexual conduct. While an article in a gay newspaper that "outs" members of his unit should not start an inquiry, a second-hand report of homosexual conduct from a source deemed by the commander to be "credible" would be enough.

The guidelines also indicate that military police will be barred from staking out gay bars or pursuing gays whose names were found on any list of homosexuals.

The key feature of the new regulations is the degree to which the Pentagon's military and civilian leaders will leave enforcement to commissioned officers and warrant officers who directly command soldiers and sailors. To act against a gay, a commander must have specific facts about gay conduct, "not just a belief or suspicion."

Tanya Domi, legislative director of the National Gay and Lesbian Task Force, said giving commanders wide latitude will mean that investigations against suspected homosexuals could vary enormously from one unit to another.

"This will be totally at a commander's discretion. These regulations are fair guidance and will serve those commanders who are fair-minded," she said after receiving a briefing from the Pentagon's top legal officer. "A prejudiced commander, however, who wants to get a gay person out will be able to do so."

Gay rights organizations said they would file a new constitutional challenge to the policy within the next several weeks. Gay rights activists who spoke at a news conference here all argued that the policy is unconstitutional and would be struck down in the courts.

At the same time, however, those activists were openly split. Some said they wanted to give some credit to the Pentagon's lawyers for trying to give gay members of the military some hope that they would not be targets of "witch hunts." Others said they would not offer any praise for a policy they believed was so clearly based on bias against homosexuals.

The regulations feature these key points:

* No one seeking to enlist in the military will be asked about his or her sexual orientation, but will be advised before enlistment that homosexual conduct -- a homosexual act, statement or marriage -- is grounds for discharge.

* Most investigations aimed at gays will be done outside the military's criminal investigative system. They will be done by commanders of their own troops, and not by military criminal investigators.

* If a commander gets word that a service member engaged in sexual activity prohibited by military law, but did so in private and with the adult partner's consent, there will be no criminal investigation. But the unit commander may gather facts and decide whether to take action.

* All investigations of claims of sexual misconduct are to be carried out "in an evenhanded manner," putting no more emphasis on homosexual misconduct than on heterosexual acts.

Gay individuals now in the military probably will not know with any certainty for weeks what rules actually will apply to them.

Although the new policy goes into effect in February, the four military services must issue their own separate rules, and Pentagon leaders are still unsure who the policy will cover. Some service members with discharge proceedings pending against them will continue to have their cases controlled by the previous rules.

Issued in far broader detail than officials had provided when the "don't ask, don't tell" policy was announced last July, the new regulations appeared to have been written in several parts to improve the chances that they could be defended successfully in court against constitutional challenges.

Five recent decisions in federal courts have set a strict standard that the new regulations will have to satisfy in order to be upheld, at least in lower courts. Pentagon lawyers have been counting on building a case that they felt they could win when the issue finally reaches the Supreme Court, and Mr. Aspin suggested that would be aided by defending the new policy, not the old.

President Clinton ignited a firestorm of criticism among military and congressional leaders by promising to repeal the military's ban on homosexuals, so Mr. Aspin persuaded him shortly after the inauguration to abandon a plan to issue an executive order lifting the ban. Instead, Mr. Aspin got six months to forge a compromise with the Joint Chiefs of Staff.

Although Mr. Clinton hailed the resulting policy as "a substantial advance" for gay rights, top civilian and military officials said it essentially retained the same grounds for discharge as the old policy and did not seek to create a "zone of privacy" for homosexuals within the military.


The examples below come from a Pentagon training manual for military commanders to illustrate how they might handle different situations.


1. A member of the military is seen entering and leaving "a downtown gay bar. The commander is notified of the observations, but isn't sure what action, if any, she should take."


"Given the absence of any information, credible, or otherwise, of the occurrence of either a crime or otherwise proscribed conduct, the commander should not begin an inquiry in this matter."


2. An applicant visits a recruiting station with the hope of enlisting but states that he is gay, although he is not asked about his sexual preference. The applicant should not be asked about his sexual preference.


But if he offers it voluntarily, the applicant will be rejected unless he can "demonstrate that he does not engage in homosexual acts and does not have an intent or propensity to do so."


3. "An officer observes two male junior enlisted service members walking and holding hands while off-duty and on liberty." He reports the incident to a commanding officer who says he will call the two men into his office and question them.


The "hand-holding in these circumstances indicates a homosexual act and therefore the commanding officer may follow up and inquire further." Before the men are questioned, the officer should inform them of the military's policy on homosexuality, and if they decline to discuss the incident, the questioning should be halted. "At that point, the commanding officer may consider other relevant information and decide whether to initiate" discharge proceedings.

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