Pentagon issues rules for gays Military commanders given broad discretion

December 23, 1993|By Richard H. P. Sia and Lyle Denniston | Richard H. P. Sia and Lyle Denniston,Washington Bureau

WASHINGTON -- The Pentagon closed a year of controversy over gays in the military yesterday by issuing a new policy that gives commanders broad discretion to oust or investigate homosexuals in their units.

Under the controversial "don't ask, don't tell, don't pursue" policy, which was first announced by President Clinton last July, the only gay men or lesbians who will be allowed to remain in the service are those who can prove they do not engage in homosexual sex and will not.

The policy will take effect Feb. 5, replacing a sweeping, 50-year-old ban on gays in the military and a year-old interim policy that was intended to ease that ban.

"Formulation of the new policy," Defense Secretary Les Aspin said at a Pentagon news conference, "has sharply reduced and almost eliminated the anxiety among the forces concerning this issue." He said that the policy, a compromise between civilian and military leaders and codified by Congress, fits into "the broad middle" of controversy over the issue.

Mr. Aspin released a hefty sheaf of regulations, directives and official guidance that is intended to help the military services implement a policy that requires thousands of gay military personnel to keep their sexuality a secret.

He acknowledged how "enormously divisive and emotional" the issue of gays in the military has been since President Clinton took office promising to lift the ban entirely. The president was forced to back down, and Mr. Aspin suggested that the administration would hold to this policy "for the foreseeable future."

Under the regulations, a service member who has "a sexual attraction" to a person of the same sex may avoid discharge, but only if that attraction is "an abstract preference" that does not indicate "a likelihood" to engage in homosexual acts.

Under training guidelines issued to the armed services, military commanders would have to decide whenever "credible information" existed to trigger an "informal fact-finding inquiry" or discharge proceeding against someone for suspected homosexual conduct. While an article in a gay newspaper that "outs" members of his unit should not start an inquiry, a second-hand report of homosexual conduct from a source deemed by the commander to be "credible" would be enough.

The guidelines also indicate that military police will be barred from staking out gay bars or pursuing gays whose names were found on any list of homosexuals.

The key feature of the new regulations is the degree to which the Pentagon's military and civilian leaders will leave enforcement to commissioned officers and warrant officers who directly command soldiers and sailors. To act against a gay, a commander must have specific facts about gay conduct, "not just a belief or suspicion."

Tanya Domi, legislative director of the National Gay and Lesbian Task Force, said giving commanders wide latitude will mean that investigations against suspected homosexuals could vary enormously from one unit to another.

"This will be totally at a commander's discretion. These regulations are fair guidance and will serve those commanders who are fair-minded," she said after receiving a briefing from the Pentagon's top legal officer. "A prejudiced commander, however, who wants to get a gay person out will be able to do so."

Gay rights organizations said they would file a new constitutional challenge to the policy within the next several weeks. Gay rights activists who spoke at a news conference here all argued that the policy is unconstitutional and would be struck down in the courts.

At the same time, however, those activists were openly split. Some said they wanted to give some credit to the Pentagon's lawyers for trying to give gay members of the military some hope that they would not be targets of "witch hunts." Others said they would not offer any praise for a policy they believed was so clearly based on bias against homosexuals.

The regulations feature these key points:

* No one seeking to enlist in the military will be asked about his or her sexual orientation, but will be advised before enlistment that homosexual conduct -- a homosexual act, statement or marriage -- is grounds for discharge.

* Most investigations aimed at gays will be done outside the military's criminal investigative system. They will be done by commanders of their own troops, and not by military criminal investigators.

* If a commander gets word that a service member engaged in sexual activity prohibited by military law, but did so in private and with the adult partner's consent, there will be no criminal investigation. But the unit commander may gather facts and decide whether to take action.

* All investigations of claims of sexual misconduct are to be carried out "in an evenhanded manner," putting no more emphasis on homosexual misconduct than on heterosexual acts.

Gay individuals now in the military probably will not know with any certainty for weeks what rules actually will apply to them.

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