By Ed O'Keefe
Wednesday, October 20, 2010; A15
The Pentagon is instructing military recruiters to accept the applications of gay men and lesbians who wish to join the armed forces, but they must inform potential recruits that a moratorium on "don't ask, don't tell" could be lifted at any moment.
The guidance issued this week is consistent with the Defense Department's plan to abide by a federal judge's injunction on the 17-year ban on gays serving openly in the military. The Pentagon has advised senior military leaders not to ask service members or applicants about their sexual orientation, to treat the rank and file with dignity and respect, and to maintain good order and discipline.
U.S. District Judge Virginia A. Phillips set the injunction in place last week, and on Tuesday, she denied the government's request that she stay that action.
Her ruling forces the Justice Department to appeal to the U.S. Court of Appeals for the 9th Circuit in San Francisco. The government already plans to appeal to the higher court to overturn Phillips's earlier decision that "don't ask" is unconstitutional.
Phillips told government lawyers Monday that they had not proved that her order would harm troops or in any way impede efforts to implement new regulations for the military to deal with openly gay service members.
Despite the Pentagon's guidance, the Servicemembers Legal Defense Network, a group representing service members affected by the ban, cautioned gays not to apply for military service while the policy remains in legal limbo.
"The bottom line: If you come out now, it can be used against you in the future by the Pentagon," Aubrey Sarvis, the group's executive director, said in an e-mail.
Army Lt. Dan Choi, who was discharged in July for violating the ban, attempted to enlist Tuesday afternoon at a military recruiting station in New York's Times Square. In March, he was arrested after handcuffing himself to the White House fence, but prosecutors later dropped the charges.
"It's a little bit complicated, because I was an officer and I want to be enlisted, so they're trying to figure out what that might entail," Choi said in a phone interview from the recruiting office.
He interrupted the conversation to speak with military recruiters.
Choi said he expects his application to be processed and approved Wednesday.
The pro-gay Log Cabin Republicans filed suit against the "don't ask" ban, arguing that it is unconstitutional. Phillips ruled the law unconstitutional in September and last week ordered a worldwide halt to the Pentagon's enforcement of the policy.