Congress should repeal 'don't ask, don't tell' and let the Pentagon do the rest

By John M. Shalikashvili
Saturday, May 22, 2010

Defense Secretary Robert Gates wrote a letter last month urging Congress to delay legislation that would end the "don't ask, don't tell" ban on gay men and lesbians serving openly in the military until after Dec. 1, when the results of a 10-month Pentagon working-group review are due. While the request is reasonable, it is the military that will pay the highest price if Congress does not act now.

"Don't ask, don't tell" is both a federal law and a Pentagon policy. The law ties the military's hands on this issue. If Congress fails to repeal it, the Pentagon's study process will be compromised because the Defense Department will not have the authority to implement its own recommendations.

Fortunately, there is an option that fully respects the secretary's request to Congress while moving forward on a reasonable timetable. Congress could repeal the federal statute and return authority to the military to set rules about gay troops, just as the armed services had before "don't ask, don't tell" became law in 1993.

Indeed, acting now to remove the constraints imposed by that law is the most faithful response that Congress can offer to the working group's efforts to engage service members and their families, to fully assess the impact of ending the policy, and to develop comprehensive recommendations for how to make the change.

Current efforts to end "don't ask, don't tell" have focused on repealing the law and on replacing it with a policy that requires equal treatment of gay, lesbian and bisexual troops. This is a tougher sell to moderates in Congress and has the downside of perpetuating congressional meddling in military policy.

By contrast, the "repeal only" option would leave to the Pentagon any questions about the possibility, content and timing of policy changes, while eliminating the law that straitjackets military leaders' ability to craft the most sensible policy. Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, who also signed the letter, wrote that they "oppose any legislation that seeks to change this policy prior to the completion" of the study. But repeal-only, without language instructing the Pentagon on what to do, would not impose change on the military. Rather, it would allow the Defense Department to study and implement the change as the military deems fit, while fully respecting the review that is underway.

Repealing the law while avoiding action on a nondiscrimination statute will not please everyone. Proponents of ending unequal treatment of gay troops have insisted that an anti-discrimination statute replace the current law because they do not trust the military to move forward on its own and they fear that a future president or Congress might again impose a discriminatory policy.

It is true that without a mandate from Congress, the Pentagon would have the discretion to leave current regulations in place as it determines how best to implement repeal. There is, however, little cause to fear that the ban would remain indefinitely, and it is highly unlikely that a future administration or Congress would roll back equal treatment once the Pentagon adopts it. Although some wish to see equality written into law, the current political climate calls for reconsideration. This is why a repeal-only option has merit. Such a change would not impose a solution but, rather, the opposite: It would remove constraints on the military's ability to do its job. Congress should repeal the law, providing the secretary and the chairman with enough maneuvering room that, when the time is right, they can implement policies that end discrimination and maximize military readiness.

The writer, a retired Army general, was chairman of the Joint Chiefs of Staff from 1993 to 1997.

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