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This week may have marked the slow demise of “don’t ask, don’t tell” -- albeit in rather unremarkable fashion.
In an interview that largely went unnoticed, Defense Secretary Robert Gates told reporters traveling with him through Europe that Pentagon lawyers were evaluating whether there’s “flexibility in how we apply this law,” referring to the military’s gay ban. Gates said he’d had a conversation with the president about the policy last week.
It probably seemed somewhat ho-hum to the casual onlooker, and that’s just the way the White House wants it.
The approach of restructuring how the Department of Defense enforces the policy’s regulations is something akin to the wimpy little brother of the much bolder and more widely publicized idea of issuing an executive order to halt discharges altogether.
The executive order concept gained traction two months ago when the Palm Center, a California research institute, released a legal analysis concluding that President Barack Obama has the authority to issue a stop-loss order against discharging gay soldiers. The Center for American Progress, a D.C.-based think tank with very close ties to the administration, also endorsed the strategy last week as the first step on the way to full repeal of the policy.
But regardless of how many legal scholars and people of import support an executive order, it’s seemingly been DOA from the get-go over at the White House. Any questions posed about it during briefings have turned press secretary Robert Gibbs into an automaton of talking points about “durable solutions” and “legislative repeal” usually followed by a reassurance that the president “is working with” Congress and the Pentagon.
Well, until this week, not so much as a smoke signal had emerged to suggest that President Obama was working any DADT angles behind the scenes. In fact, we had seen just the opposite, with Gates and National Security Adviser Gen. Jim Jones questioning whether the policy would be overturned at all.
The revelation that DOD is now considering altering its regulations “until the policy gets changed,” according to Gates, is basically a complete one-eighty -- even if it didn’t grab the usual high-profile flip-flop headlines this nation has come to know and love.
But how far the policy shift will go still remains to be seen since Gates also couched his remarks with, "What I discovered when I got into it was it's a very restrictive law. It doesn't leave much to the imagination, or a lot of flexibility."
First of all, as a journalist who’s reported on many a legal conundrum, I’ve found that the law can pretty much always be reimagined by any lawyer worth their salt. Not surprisingly, when I spoke with “don’t ask, don’t tell” scholar Nathaniel Frank, he rejected Gates’s assertion entirely.
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