Pentagon worries that Congress won't end 'don't ask, don't tell'

By Ed O'Keefe and Craig Whitlock
Friday, December 3, 2010

The Pentagon is increasingly worried that Congress will not act to repeal the military's "don't ask, don't tell" policy, a scenario that defense officials fear would prompt federal courts to intervene and immediately allow gay men and lesbians to serve openly in the armed forces instead of giving the military several months or years to prepare.

In an appearance before the Senate Armed Services Committee on Thursday, Defense Secretary Robert M. Gates warned, "Those that choose not to act legislatively are rolling the dice that this policy will not be abruptly overturned by the courts."

But senior Democratic aides in the Senate concede that a vote this year to end the ban is growing highly unlikely because it is part of a massive defense policy bill that requires weeks of debate. With three weeks left before Christmas, senators are expected to consider tax cuts, a government spending plan and possibly a nuclear-disarmament treaty with Russia, leaving little time for other legislation. The aides spoke on the condition of anonymity because they were not authorized to discuss the matter on the record.

Gates and Joint Chiefs of Staff Chairman Mike Mullen, citing a Pentagon report released Tuesday, said there is a "low risk" to ending the ban only if the Defense Department can roll out changes gradually and keep the process under their control.

Court rulings this fall - which temporarily suspended the law and led to bureaucratic chaos at the Pentagon and recruiting stations - alarmed defense and military officials, who said they were caught by surprise.

"I think that woke a lot of people up," Gen. James E. Cartwright, the vice chairman of the Joint Chiefs, said in an interview Wednesday. Cartwright, the chiefs of staff of the Army, Navy and Air Force, and the commandants of the Marine Corps and Coast Guard will testify before the Armed Services Committee on Friday.

"Given the opportunity to choose on how and if the law is repealed, I'd rather have the legislature do it than the judicial side," Cartwright said. A federal court decision forcing an immediate end to the policy would put gays currently serving in uniform in an awkward position, he said.

Defense Department General Counsel Jeh C. Johnson, testifying Thursday before the Senate panel, recounted how two federal court rulings forced the Pentagon to shift course on "don't ask, don't tell" twice in eight days.

"This legal uncertainty is not going away anytime soon," he said, noting that a legal challenge brought by the Log Cabin Republicans remains under consideration by the U.S. Court of Appeals for the 9th Circuit.

The report written by Johnson and Army Gen. Carter F. Ham cited a survey of about 115,000 active-duty and reserve troops. It found that most combat troops oppose repealing "don't ask, don't tell" and are skeptical that it could be done correctly - a point seized upon this week by social conservatives and Republican lawmakers who want the law to remain.

Cartwright signaled that the military probably would instruct combat troops about any personnel changes over time, instead of all at once, because of their phased deployments.

"You need that time cushion. The Congress, I'm certain, is willing to work with us on that," he said.

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