Clinton's Policy on Gays in Military Leaves Many Questions, Gray Areas

ON July 20, Marine field units around the world received an unclassified message somewhat misleadingly labeled "routine." The subject: how commanders should now treat homosexuals, or suspected homosexuals, in their ranks.

The message lays out elements of the administration's new policy on gays in the military. It notes that homosexual conduct is still grounds for dismissal. "Commanders will ... continue to initiate inquiries or investigations when there is credible information that a basis for discharge or disciplinary actions exists," it says.

Yet the terse page-and-a-half memo contains little discussion of what constitutes "credible information." Does chance eavesdropping on a private conversation count? What about attendance at a gay-pride day in drag?

Perhaps in time, headquarters will provide further guidance. For now, the message illustrates several important aspects of the new Clinton policy:

* Many people remain confused about what the policy really is. In a Senate hearing Tuesday, even Secretary of Defense Les Aspin appeared to contradict himself.

* In practice, it may be commanders in the field who will determine what the policy becomes. They will decide what kind of evidence should launch an investigation of sexual conduct, and how zealous that investigation will be.

"That's an issue people haven't focused on yet: the amount of discretion commanders have here," says a congressional aide who has followed the subject closely.

Instead, when it comes to gays in the military the focus in Washington this week was on Sen. Sam Nunn (D) of Georgia.

The influential chairman of the Senate Armed Services Committee held a series of hearings on the new policy, with the stated purpose of determining whether Congress would accept the so-called "don't ask, don't tell, don't pursue" approach.

Senator Nunn appeared supportive of the policy - not too surprising, considering that it contains a large measure of his own handiwork. Open opposition from Nunn and quieter complaints from the Joint Chiefs were what caused President Clinton to pull back from flatly lifting the ban on gays in the military in the first place.

With Nunn's backing and the full support of the Joint Chiefs, Mr. Clinton's new policy now seems likely to survive a legislative challenge from conservative lawmakers who want an even more restrictive approach.

The new policy says that, in general, sexual orientation is a private matter and no bar to military service - if it remains private. But military personnel can still be kicked out for homosexual conduct.

And, as gay-rights groups have been quick to point out, for the purpose of the policy, speech is conduct. "A statement by a service member that he or she is a homosexual or bisexual" is grounds for dismissal, according to the memo to Marines.

Secretary of Defense Aspin insisted that prior to the Clinton administration, homosexual service members had to actively lie to remain in the closet, since they were asked their sexual orientation upon entry into the service. Under the new policy, by contrast, "they will have to work to get on the radar screen," he said.

But he conceded that there were gray areas in the new directive. Members of Congress peppered Mr. Aspin and Joint Chiefs chairman Gen. Colin Powell with theoretical situations:

If a private said he was gay, would he be investigated? (Yes.) What if he just said he thought he was gay? (Talk to the private with a chaplain.) What if he kept his mouth shut but went to a gay bar every week, read gay magazines, and marched in gay parades? (He would likely be investigated.)

The policy almost certainly will be challenged in court - that was inevitable, according to administration officials. The issue is too complex and too many people view it emotionally.

"We've had some confusion today, and I'm afraid it's going to get bigger rather than smaller," said a frustrated Nunn at one point in a hearing.

In the real world, it is unit commanders who will have to sort out the confusion. Under the new policy, they alone have authority to launch investigations of homosexual conduct of troops under their control.

CREDIBLE information of homosexual activity will be required before an investigation begins. And the ultimate definition of "credible information" will rest with thousands of mid-level US officers around the world.

It is inevitable that some of these captains and colonels will be quicker to pry into soldiers' lives than others. But administration officials insist that the scarce investigatory resources of field units should not lightly be turned on suspected gays and lesbians. Officers may find that numerous or questionable hunts for homosexuals in their command may affect their own promotions.

"I think it is a significant shift in emphasis on how commanders are supposed to deal with this," General Powell insisted.