Officials call gay policy 'tough as ever,' but concede it's ambiguous, confusing

July 22, 1993|By Richard H. P. Sia | Richard H. P. Sia,Washington Bureau

WASHINGTON -- Although President Clinton hailed his policy on homosexuals in the military as "a substantial advance" for gay rights, administration officials told Congress yesterday that the policy will be as tough as ever in expelling anyone with a "propensity" for engaging in homosexual acts.

The officials, trying for a second consecutive day to build congressional support for easing the military's 50-year-old ban on homosexuals, conceded that the new policy is ambiguous and confusing. But they said a clearer, more complete set of guidelines will be distributed to military commanders before the policy takes effect Oct. 1.

More than once, Pentagon General Counsel Jamie Gorelick, the Defense Department's top lawyer, told the Senate Armed Services Committee that she could not answer certain questions about how the policy will work because they had not occurred to her when she helped draft it.

When Sen. Sam Nunn, the committee chairman, asked if military discharge proceedings would be triggered if a soldier told his commander, "I have a homosexual orientation," instead of the more damaging admission, "I'm a homosexual," Ms. Gorelick replied: "That's one I haven't considered."

The policy announced by Mr. Clinton on Monday and strongly endorsed by the Joint Chiefs of Staff will allow homosexuals to serve in the military if they keep their sexual orientation secret and do not engage in homosexual conduct on or off base.

Under the policy, soldiers can be dismissed even for just saying they are homosexual, unless they can give convincing evidence that they have not and would not engage in homosexual acts.

Any declaration of one's homosexuality means "we presume you've engaged in homosexual acts or have a propensity or desire to do so," Ms. Gorelick said.

At the Senate hearing and a hearing by the House Armed Services Committee, conservative Republicans were the most vocal critics of the Clinton policy, attacking it as too ambiguous -- and "internally inconsistent," because it would treat openly gay troops differently from those with a homosexual "orientation" who stay in the closet.

"This policy is headed for the courts," complained Rep. Jon Kyl, an Arizona Republican.

Some supporters of the policy also expressed concern that the new policy may prove to be too difficult to implement in an even-handed way, which could prompt the courts to overturn it and allow open homosexuals in the armed services.

Though Mr. Clinton touted his policy as "a major step forward" for gays, the administration found itself yesterday trying to calm its conservative and moderate critics by playing down the rhetoric Mr. Clinton and his aides used to sell the new policy to gay rights groups.

Officials took pains to emphasize how many court-tested provisions they borrowed from the old policy, and even argued that some wording was improved to ensure that the military's right to discriminate against gays would survive legal challenges from gay rights activists.

"The discharge policy itself essentially is not changing," Ms. Gorelick told senators. "The fundamental legal premise [for military discharges] is stronger, not weaker."

The new policy continues to put "a very high burden" of proof on someone to rebut a presumption that he or she is homosexual and avoid a discharge, she said, "and no one has ever done it."

Defense Secretary Les Aspin told the House committee that the only major changes amounted to adding the "don't ask" and "don't pursue" concepts to an exiting policy of "don't tell." That means military personnel will not be asked about their sexual orientation and commanders and investigative agencies will not be allowed to launch "witch hunts" to pursue gays in the armed services.

Citing a July 19 memorandum from Attorney General Janet Reno, Mr. Aspin said that Mr. Clinton devised "a workable compromise . . . that is frankly more enforceable than the one that we had."

The memo says that the new policy is more explicit on three main legal points -- including a crucial distinction between homosexual orientation and conduct -- and that these technical changes "should improve the ability of the Department of Justice to defend the policy in court."

Although Mr. Nunn and Sen. Carl Levin, a Michigan Democrat, tried to make it clear to their colleagues that the new policy would not allow avowed gays to stay in the service, they were taken aback when Ms. Gorelick struggled over whether certain statements might cause a commander to presume that someone is gay and, therefore, undesirable in the military.

Mr. Nunn said he will try to get a consensus for adding language to the 1994 defense budget that is "consistent" with the Clinton policy, which he suggested still requires "clarification." But he said the Joint Chiefs of Staff persuaded him at a hearing Tuesday that the military can implement the policy without losing combat readiness.

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