Gates Looks to Ease Rules Against Gays

WASHINGTON -- Defense Secretary Robert Gates said Tuesday he wants to make the law prohibiting gays from serving openly in the armed forces "more humane" until Congress eventually repeals it. He said he has lawyers studying ways the law might be selectively enforced.

"One of the things we're looking at is, is there flexibility in how we apply this law?" Gates said.

Gates made his comment the same day that a military administrative board recommended that a National Guard officer and combat veteran who publicly announced he's gay should be discharged for violating the military's "don't ask, don't tell" policy.

Lt. Dan Choi would be the first New York National Guard member discharged for violating the policy against homosexual conduct, said Lt. Col. Paul Fanning, a spokesman for the New York Army National Guard.

Gates, a holdover from the Republican administration of former President George W. Bush, told reporters traveling with him in Europe that the Clinton-era ban was written without much wiggle room. The Pentagon general counsel is looking at potential avenues around full enforcement as a stopgap, Gates said.

For example, Gates said, the military might not have to expel someone whose sexual orientation was revealed by a third party out of vindictiveness or suspect motives. That would include, Gates said, someone who was "jilted" by the gay service member.

"That's the kind of thing we're looking at, to see if there's at least a more humane way to apply the law until the law gets changed," Gates said, according to a transcript released by the Pentagon.

But even that kind of change would not help Choi, who revealed himself to be gay during an interview on a nationally televised news program.

Choi said discharging him for being gay amounted to firing him "for nothing more than telling the truth about who I am."

Choi, 28, appeared in Syracuse before a Federal Recognition Board, a panel of four military officers, which deliberated four hours before deciding to recommend the Army no longer recognize him as an officer -- effectively discharging him.

The recommendation must be approved by the First Army commander and the chief of the National Guard Bureau before Choi is discharged, a process that could take anywhere from a few weeks to a year, said Maj. Roy Diehl, who represented Choi. Until then, Choi remains an active member of the National Guard, he said.

"It's a recommendation, not a completed act," Diehl said, adding he hoped military commanders would reconsider Choi's value as a soldier. Choi is a West Point graduate who majored in Arabic and environmental engineering. He served in Iraq with the 10th Mountain Division for 15 months in 2006 and 2007, leading combat patrols through a region called the Triangle of Death and serving as a translator and language instructor. He also helped rebuild schools and hospitals.

In 2008, he left the Army and joined the 1st Battalion, 69th Infantry of the New York National Guard, based in Manhattan.

Choi likely will receive an honorable or a general discharge and could lose some of his veteran educational benefits, Diehl said.

"They are taking effective troops ... and kicking them out, removing them from the force just as effectively as if al-Qaida was blowing them up," said Diehl, who claimed the military is more tolerant of drug abusers, malcontents and adulterers.

Gay rights activists and others have criticized the Obama administration for not quickly following through on a pledge to lift the ban on openly gay military service.

President Barack Obama and his spokesmen say he remains committed to repealing "don't ask, don't tell," but neither the White House nor congressional leadership has moved swiftly to do so.

There is no timetable for the pending bill to repeal the 1993 law, which was intended as a compromise to get around a full ban on gay military service. Gay rights leaders, however, have said it is an insult.

Obama says he wants to build support for the change among military commanders before urging Congress to move ahead.

The chairman of the Joint Chiefs of staff and others have cautioned that repeal of the law must be done carefully so as not to disrupt military cohesion in wartime or to place an additional burden on an already overstretched uniformed force.

Gates said he discussed repeal of the no-gays policy with Obama last week, but he did not detail the conversation.

"We were talking about how do we move forward on this to achieve his objective, which is changing the policy, and the issue that we face is that how do we begin to do preparations and simultaneously the administration move forward in terms of asking the Congress to change the law," Gates said.

Several liberal legal experts and outside groups have urged Obama to issue an executive order that would make the law unenforceable, but Gates appeared to be considering measures short of that.