By Philip Rucker and Ed O'Keefe
Washington Post Staff Writers
Saturday, December 4, 2010; 7:11 PM
This was supposed to be the year that the law banning gays from serving openly in the military would be repealed. President Obama and the top Pentagon brass made clear their distaste for "don't ask, don't tell." Polling suggests the nation has moved past it. The Democrats who control Congress, as well as some Republicans, are ready to overturn it. And last week a final potential obstacle was removed when an exhaustive Pentagon study found little risk in undoing the law.
Yet with the lame-duck session of Congress hurtling toward a chaotic close, the effort to repeal the policy is in peril. A divided Senate panel heard stern testimony Friday from the Marine Corps commandant and the Army chief of staff, who warned against incorporating openly gay troops into combat units now serving in Afghanistan.
But the biggest barrier is the calendar. Although a repeal bill passed the House in May, and there appear to be enough votes for it in the Senate, there are only two weeks left in the lame-duck session. Other priorities, such as negotiating a compromise on extending Bush-era tax cuts, have consumed congressional leaders.
Repeal advocates are growing convinced that time may be running out. "The rules of the Senate can capture you when you end up in the 12th hour," said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network.
The White House summoned repeal advocates for a private meeting Friday at which, sources said, administration officials told them they would not trade this priority for others. The officials were bullish, saying that Defense Secretary Robert M. Gates and Joint Chiefs of Staff Chairman Mike Mullen would not have testified this past week if they did not believe the bill could reach Obama's desk before January.
That could be critical. The repeal effort would have to start over next year with the new Congress, which is decidedly more Republican and less energized to get rid of the policy.
"If we don't get it done this year, we'll have to start it all over again next year, and that will take many, many months," said Sen. Carl M. Levin (D-Mich.), chairman of the Armed Services Committee.
Pentagon officials fear that if Congress does not act soon, a federal judge could end the policy in an instant, making it difficult for the military to oversee an orderly transition. Recruiters would be unsure about whom to approve for service, and more critically, closeted gay and lesbian troops would be uncertain about whether they could discuss their sexual orientation.
"You will see a united Pentagon and White House trying to get some certainty," said a senior administration official intimately involved in the negotiations. "The right thing to do is to get this done right now."
Their efforts got a boost Friday when Sen. Scott Brown (R-Mass.) said he would support repeal, which is included as part of a broader defense authorization bill. He joins Sens. Susan Collins (R-Maine) and Richard G. Lugar (R-Ind.), who have signaled they would vote to end the ban if Democrats allow enough debate time to introduce amendments to the bill.Not if, but when
How an effort with such broad support could be in jeopardy is a classic Washington tale of competing priorities and shifting political realities, according to interviews with more than a dozen lawmakers, administration officials and other stakeholders.
Since Obama was sworn into office, the question has never been if, but always when and how, he would get Congress to overturn the law. It was a campaign pledge, and when Gates and Mullen met with Obama after his inauguration, a senior administration official said the president told them: "I don't believe in 'don't ask, don't tell' and I want it repealed. . . . We're going to do it together."
The three men decided 2010 would be the year, partly because they knew building a winning case would take time. Polling shows about six in 10 Americans support overturning the ban, but to sway skeptical lawmakers, proponents would need statistically sound evidence to alleviate concerns that allowing gays to serve openly would interfere with combat readiness.
In January, Obama called for repeal in his State of the Union address. The next month, Gates and Mullen testified in support, and in March, they ordered a comprehensive study of the impact to the armed services. Defense Department General Counsel Jeh C. Johnson and Army Gen. Carter F. Ham, who did not know each other but would soon bond over sweet potato pie, led the review. They held so many town hall gatherings and meetings that they came face-to-face with more than 23,000 troops and their families.
The study cost about $9 million and resulted in a 362-page report, released Nov. 30 - 17 years to the day after President Clinton signed "don't ask, don't tell" into law. It concluded that a large majority of troops were comfortable with overturning restrictions on gays in uniform and that they expected it would have little or no effect on their units.
Some lawmakers were critical of the administration's timetable, saying the White House was too cautious in tackling an issue that had roiled the Clinton White House.
"This is one of those times where you sit and say, wait a moment, can't you even see the nation has moved forward?" said retiring Rep. Joe Sestak (D-Pa.), a former vice admiral of the Navy. "When you have leaders lagging those they are supposed to be leading, you lose credibility."Back to an if
Politics has a way of knocking trains off their tracks. In May, with Democrats realizing they could well lose their majority in the House, the White House chief of staff, Rahm Emanuel, and Deputy Chief of Staff Jim Messina pushed for repeal with new urgency.
"For weeks, they tried to get Gates to understand that the political realities of life had changed," said a source with direct knowledge of the talks, who, like others interviewed, insisted upon anonymity to relay private conversations.
By late October, Obama called gay activists to the White House. Advocates feared their efforts could be stymied by a Republican House speaker. So, too, did the president.
"He looked us all in the eye and said, 'We're going to get this done this year. We need to get Republican votes. We need to stay committed on this,'â" said another source who was at the meeting.
December arrived with momentum on their side. On Thursday, after the report's release, Gates and Mullen faced the Senate Armed Services Committee again. Mullen, in his dress uniform, delivered a personal appeal to the panel's doubters, including the most celebrated veteran in American politics, Sen. John McCain (R-Ariz.).
"I've been serving with gays and lesbians my whole career," the bespectacled admiral said. "I went to war with them aboard a destroyer off the coast of Vietnam. I knew they were there. They knew I knew it. And what's more, nearly everyone in the crew knew it. We never missed a mission, never failed to deliver ordnance on target."
But McCain, a Navy pilot who was shot down in the Vietnam War and imprisoned in Hanoi, defied Gates and Mullen. He said allowing gays and lesbians to serve openly would have a negative impact in combat units.
"Mr. Secretary," McCain said, "I speak from personal experience."Dueling activists
While gay advocacy organizations and a broad network of policy groups have united behind repeal, conservative efforts to oppose lifting the ban have largely centered on a single activist, Elaine Donnelly. She has studied military personnel issues since the 1980s and founded the Center for Military Readiness, working from her home in Livonia, Mich.
Donnelly believes, and many retired officers and families of current service members agree, that allowing gays to serve openly would degrade the quality of the service. "It would be a strong disincentive for families considering military service for their sons and daughters," Donnelly said.
Donnelly and a veteran Republican operative she hired, Tommy Sears, orchestrated the right's opposition. She distributed exhaustive memos to Pentagon officials, lawmakers and reporters detailing her legal arguments against repeal, chiefly that there is no constitutional right to serve in the military and thus gays should adhere to the existing policy.
She lamented in a recent interview that traditionally conservative media, including commentators Glenn Beck, Bill O'Reilly and Rush Limbaugh, have not zeroed in on the debate.
For years, Democratic lawmakers have introduced bills to repeal "don't ask, don't tell," but their efforts never got far. "There was a bill, but there was no real movement," Sen. Kirsten Gillibrand (D-N.Y.) said.
This time, though, there were faces to help build a movement. Lt. Dan Choi, a West Point graduate and Army infantry officer who served in Iraq a few years ago, came out as a gay man on MSNBC's "Rachel Maddow Show" in March 2009. He was later discharged, even as he became a leading advocate for repeal.
Choi and several other gay veterans have lobbied lawmakers. Rep. Patrick J. Murphy (D-Pa.), an Iraq war veteran, and others also led the renewed push for repeal.
After meeting with Choi, Gillibrand said she was so moved that she quietly talked to her colleagues about repealing "don't ask, don't tell." "Surprisingly, I got much more support than I would've thought," she said.
The question now is whether there's enough time left to do anything about it.
"The one problem we've got here is the schedule," Levin said. "We have very little time left."