Repeal of 'don't ask' is far from certain

Top U.S. military officials testified Friday before the Senate Armed Services Committee, which is considering a bill to repeal the law that forbids openly gay men and women from serving in the military.
Top U.S. military officials testified Friday before the Senate Armed Services Committee, which is considering a bill to repeal the law that forbids openly gay men and women from serving in the military. (Chip Somodevilla)
By Philip Rucker and Ed O'Keefe
Sunday, December 5, 2010

This was supposed to be the year that the law banning gays from serving openly in the military would be repealed.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."

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