DOD lawyers advise wait to lift military's gay ban

Lawyers for the nation's top military officer are recommending holding off on an internal Pentagon effort that could lead to the repeal of the ban on openly gay military service. The delay could push a decision by Congress to the middle of the next presidential election.

Other advisers at the Pentagon, however, argue that lifting the ban would not cause unmanageable problems or divisions among the uniformed military, according to two U.S. officials. They discussed internal conversations about the ban on condition of anonymity.

"Now is not the time," the in-house legal counsel for Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, wrote recently in a memorandum obtained by The Associated Press. "The importance of winning the wars we are in, along with the stress on the force, our body of knowledge and the number of unknowns, demand that we act with deliberation."

Mullen received the conflicting advice this month about whether to move quickly to lift the 1993 ban, and it is not clear what he will recommend to President Barack Obama. Although allowing gays to serve openly in the military was one of Obama's campaign promises, the issue was put on a back burner during his first year in office. Some liberal supporters and several congressional Democrats are pushing for action.

Mullen and other Pentagon leaders have quietly begun a new push to build consensus for the timing of a repeal that Mullen and others assume will come eventually. Strong opposition to swift repeal remains among top uniformed military leaders.

Capt. John Kirby, a spokesman for Mullen, would not discuss the legal advice and said there has been no decision among the Joint Chiefs about what to do or when. He would not characterize Mullen's own views.

"They continue to have a dialogue about the policy and the law," keeping in mind Obama's "strategic intent" to lift the ban, Kirby said.

Mullen was unable to get the full backing of other senior uniformed leaders during an unusual meeting of the top officers from each branch of the military last week, U.S. officials said. He is expected to hold a follow-up session within days.

Joint Chiefs legal advisers recommended delaying the start of the repeal process into 2011, with the Pentagon sending a proposed replacement law to Congress by late summer of that year. That would be after the White House says it will begin bringing troops home from Afghanistan, and a few months before all U.S. forces are due to leave Iraq.

Congress would follow with debate lasting six months to a year, the legal advisers wrote, meaning repeal would be unlikely until 2012. The memo does not spell it out, but that is a presidential election year when Obama will presumably run for a second term. The calendar calculates that the Iraq war would be over and the Afghanistan war smaller before the ban is lifted.

Mullen and other military leaders cautioned last year that repeal of the law must be done carefully so as not to disrupt military cohesion in wartime. Last April, Defense Secretary Robert Gates indicated the process could take years - if it ever happens.

At the time, Gates noted that it took five years for the U.S. military to racially integrate during the Truman administration.

"If we do it, it's imperative that we do it right and very carefully," Gates said then.

Sen. Carl Levin, D-Mich., chairman of the Senate Armed Services Committee, said he wants to begin work this year on repealing the ban. He said he expects testimony from Mullen and Gates, although no date has been set.

Two officials said a hearing could be held in late January or early February, but that does not mean Congress would truly begin work on a new law that would allow openly gay service. Levin has asked Gates to request that the RAND Corp. think tank update its 1993 study on gays in the military before he goes ahead. That outside study would be expected to take several months.

Several other Democrats say they want to lift the ban on gays in the military. But party leaders have yet to press the issue, as Congress remains consumed with debate on the Afghanistan war and closing Guantanamo Bay prison, along with pressing domestic issues like unemployment and health care.

Not every Democrat wants to change the law. Rep. Ike Skelton, D-Mo., chairman of the House Armed Services Committee, said in an interview Wednesday that he agrees with Mullen's legal counsel.

"It's not a good idea to change the law right now," he said.

---

Associated Press writers Anne Flaherty and Philip Elliott contributed to this report.