Gates: Senate 'don't ask' vote leaves military 'at mercy of courts'

After the House voted to repeal the policy, the Senate took on the issue and also voted to lift the 17-year-old ban on gays in the military.
By Craig Whitlock
Washington Post Foreign Service
Friday, December 10, 2010; 9:50 AM

ABOARD A U.S. MILITARY AIRCRAFT - Defense Secretary Robert M. Gates said Friday that the military would be placed "at the mercy of the courts" by the Senate's failure to overturn the "don't ask, don't tell" law and warned that chaos could result if pending legal challenges are successful.

As he flew back to Washington from a week-long trip to Afghanistan and the Middle East, Gates said he was "disappointed" by the Senate's defeat of a measure that would have enabled gays and lesbians to serve openly in uniform. He said he hoped Congress would change its mind before it adjourns in the coming days.

"If they are unable to do that," he told reporters traveling with him, "my greatest worry will be that then we're at the mercy of the courts and all of the lack of predictability that that entails."

The Defense Department faces several lawsuits that are working their way through the federal courts and threaten to toss out don't ask, don't tell - regardless of whether Congress acts. The Obama administration has been placed in the awkward position of arguing to uphold the law in court, even as Obama lobbies Congress to change it.

One lawsuit resulted in a federal judge striking down the law in October, effective immediately. The ruling caught the Pentagon by surprise and forced it to change its policies on recruitment and retention for several days until the Justice Department won a temporary stay on appeal.

Gates noted that another pending case could result in the law being tossed out, but only in a large swath of western states under the jurisdiction of the 9th U.S. Circuit Court of Appeals. If that happens, he said, the military would be required to allow gays and lesbians to serve openly in some parts of the country, but not in others. "Again, the potential for extraordinary confusion," he said.

Gay rights groups have pressed the Obama administration to stop defending the law in court as long as it remains on the books. But Gates said that was unlikely to change. "I think that the government is kind of obligated to defend the law," he said.

In a report released last week, the Pentagon said it was confident it could permit gays and lesbians to serve openly with minimal disruption, but only if it had sufficient time to prepare the armed forces for the new policy. Defense officials have not said how long they'd need but have not ruled out a period of several months or even years.

Defense officials have described the report - which took nine months to produce and was largely based on survey results from 115,000 service members - as a blueprint for preparing gay and straight troops to live and work together, both in combat zones and on the home front. But military commanders told a Senate panel that, despite the report's findings, the transition would be difficult; they said they were not sure the time was right to make the change.

(Read the Pentagon report.)

Despite concerns that the courts could intervene suddenly, Gates said the military would not begin those preparations or education programs until the law is changed, one way or another.

"I think it would be a serious mistake to start training and preparing before the law is changed because it will just confuse the troops - what is the law, and what's not the law?" he said.

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