Mr. Gates, who is expected to brief reporters on the matter later this week, called for a review of the current “don’t ask, don’t tell” policy to determine if there was a better way to handle service members identified as gay or lesbian by a third party.
Gates asked Pentagon lawyers to look at the issue after cases came to his attention in which some service members who had been “outted” were being forced from military service despite the fact that they had not violated the spirit of the law.
Repeal at least a year off
Repeal of that law, which would be made by Congress, appears to be at least a year away. But Gates has the authority to tweak the legal interpretation of the law in how it affects service members in specific cases.
“Hopefully, you’ll be seeing him later this week and can address the changes that he is going to be making to the department’s policy to provide for a more humane enforcement and application of the law,” said Pentagon press secretary Geoff Morrell.
Any change Gates would announce this week could give more nuance to a policy which in the past has been interpreted in black-or-white terms. In some cases, a service member who acknowledged that they are homosexual, regardless of the circumstances, could be discharged.
Under a change in the policy, the military might have to prove that someone's sexual orientation had an effect on morale or "military readiness."
The legal review of the matter Gates will discuss this week stems from cases like that of Margaret Witt, a former Air Force major whose command began to investigate her under the don't ask, don't tell policy in 2004.
Superiors had received an anonymous tip saying she was gay. Then, after 18 years of service – and two years short of a full, military retirement – Ms. Witt, a decorated veteran, was drummed out of the Air Force under the policy.
Such cases have caused an outcry, and last year Gates pledged to take a closer look.
Latitude under the law
"We believe that we have a degree of latitude within the existing law to change our internal procedures in a manner that is more appropriate and fair to our men and women in uniform," Gates said during testimony before a Senate panel in February.
The issue remains controversial within the armed services.
Last week, a retired Marine Corps general testified on Capitol Hill in opposition to repealing the current policy, repeating many of the talking points associated with opponents of repeal – that it would hurt unit cohesion and degrade military readiness.
John Sheehan, who retired as a four-star general in the 1990s, said “socialization” of many European militaries after the fall of the Soviet Union led to homosexuals being able to serve openly. In the case of the Dutch military, for example, Mr. Sheehan said Dutch soldiers failed to defend Srebrenica from Serbs in part because gay soldiers were part of the mission.
“The battalion was under-strength, poorly led, and the Serbs came into town, handcuffed the soldiers to telephone poles, marched the Muslims off and executed them,” Sheehan recalled for a Senate panel, adding that members of the Dutch military told him that the mission failed because gay soldiers were part of the force.
The Dutch leadership later denounced Sheehan’s remarks, calling the comments “disgraceful” and false.