'Don't ask, don't tell' is back in US military

The U.S. Defense Department declared Thursday that the so-called "don't ask, don't tell" law once again is the military's law of the land but set up a new system that could make it tougher to be removed from the service for being openly gay.

Defense Secretary Robert Gates ordered that all dismissals under the 1993 law must now be decided by one of the four service secretaries in consultation with the military's general counsel and his personnel chief.

Defense officials said the change was not intended to slow down the rate of discharges. In his memo, Gates wrote that the purpose of narrowing down those in charge was to "ensure uniformity and care in the enforcement" at a time of "legal uncertainty."

Still, the move puts the question of who can be discharged for being openly gay in the hands of just five people, all civilian political appointees who work for an administration that thinks the law is unjust.

The change follows an eight-day period in which the ban was suspended, after a federal judge in California ordered the military to stop enforcing it. An appeals court on Wednesday agreed to the administration's request to a temporary stay of the court order, although that could be overturned too within a matter of days.

The legal wrangling has left many gay troops uncertain whether they could still be rolled out of the service for speaking up. At the same time, some former service members discharged for being gay have tried to re-enlist although the fate of their applications remains uncertain.

The Pentagon says it does not know how it will handle any cases of gay troops who may have disclosed their sexual orientation during the law's moratorium, or cases of gay troops who tried to enlist. Officials also say they do not know how many cases might present a legal challenge.

"We are clearly in a legally uncertain environment," and "we will evaluate each case, one at a time," said a senior defense official.

The official who demanded anonymity in turn for speaking about the case, said the Pentagon believes that most gay troops stayed quiet during the week the ban was lifted because of warnings by gay rights advocates that they still could still lose their jobs.

The official also said the Pentagon would use the same criteria to determine whether a service member violated "don't ask, don't tell," even though each case must be decided at the senior echelons of the Pentagon.

Prior to Thursday's order, the discharge of gay enlisted personnel could be done by any commanding officer at a rank equivalent to a one-star general.

"You should not interpret it to mean we will separate more or fewer people," the official said.

The official briefed reporters Thursday for the first time since the court's Oct. 12 injunction. While press officials cited protocol as the reason for demanding anonymity, the official's reluctance to speak publicly seemed to indicate an unwillingness to wade into the spotlight as such a political case makes its way through the courts.

President Barack Obama has said he supports repeal of the law, but wants Congress - not the courts - to decide its fate. He also has agreed to the military's request that it be given more time to implement any changes.

Obama's decision to appeal the court order has put his civilian appointees in the awkward position of defending the law just weeks away from congressional midterm elections. Several gay rights advocates have said they are angry and frustrated with the administration's handling of the case and with congressional Democrats for not acting sooner to repeal the law.