[JURIST] US Defense Secretary Robert Gates [official profile] issued a memorandum on Thursday limiting the authority to discharge openly gay service members [press release] to five senior Department of Defense (DOD) officials. The memo is seen as a response to the uncertain future of the “Don’t Ask, Don’t Tell” (DADT) [10 USC § 654; JURIST news archive] policy, arising from the recent injunction [JURIST report] by the US District Court for the Central District of California [official website] and the subsequent temporary stay [JURIST report] issued Wednesday by the US Court of Appeals for the Ninth Circuit [official website]. According to the memo, the decision to expel can now result only from a consultation between one of the three relevant service secretaries, the Pentagon’s legal counsel Jeh Johnson and the undersecretary for personnel Clifford Stanley [official profiles]. Previously, the decision could be made by a larger number of less senior military and civilian officials.
The legal uncertainty of the policy has also led DOD officials to caution service members not to alter their conduct at this time, with Stanley issuing a warning that changing their status because of the injunction “may have adverse consequences for themselves or others depending upon the state of the law.” The appeals court decision [press release] as to whether the Pentagon will be able to continue to enforce the law could come as early as next week. The Ninth Circuit Court requested that the Log Cabin Republicans (LCR) [advocacy website], the conservative gay activist organization that brought the suit [LCR backgrounder], submit their opposition to the order after which the court will decide whether to issue a stay that will last until February when it hears the case.

Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy. In September, the Senate [official website] rejected a cloture motion [JURIST report] on a defense appropriations bill that would have repealed the policy. In May, the House of Representatives [official website] and the Senate Armed Services Committee voted to repeal the policy after President Barack Obama and Gates agreed to a compromise [JURIST reports] that would prevent the repeal from taking effect until the completion of a review to determine what effects the repeal would have on military effectiveness, soldier retention and family readiness. In March, Gates announced changes to the enforcement [JURIST report] of the policy to make it more difficult to expel openly gay service members from the military. The changes including raising the level of who can initiate and conduct investigations and revisions both to what constituted credible information to initiate an investigation, as well as to what constituted a “reliable person” for initiating an investigation.