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Gates: Courts should not set policy on gays in military

Defense Secretary Robert Gates said Wednesday that abruptly ending the U.S. military's "don't ask, don't tell" policy on gays as a federal judge has ordered would have enormous consequences.
/ Source: NBC News and news services

Defense Secretary Robert Gates said Wednesday that abruptly ending the U.S. military's "don't ask, don't tell" policy on gays as a federal judge has ordered would have enormous consequences.

The policy forbids the military from asking about a service member's sexual orientation but retains a ban on gays disclosing their status.

A day after a judge in California ordered the Pentagon to cease enforcement of its policy barring gays from openly serving in the military, Gates told reporters traveling with him to Brussels that the question of whether to repeal the law should be decided by Congress, and done only after the Pentagon completes its study of the issue.

"I feel strongly this is an action that needs to be taken by the Congress and that it is an action that requires careful preparation, and a lot of training," said Gates. "It has enormous consequences for our troops."

The defense secretary said that besides the changes in training, regulations will need revisions and changes may be necessary to benefits and Defense Department buildings.

The commanding general for Regional Command East in Afghanistan said Wednesday that the California court ruling won't have an effect on his troops in the war zone.

"Over here our soldiers, probably none of them even know that a judge said something about that," Maj. Gen. John Campbell said during a teleconference briefing.

Campbell said that his troops are "engaged in the fight" and that "they're not worried about the politics of what's going on back in the United States. They're not worried about the politics of 'don't ask, don't tell.'"

Campbell said that his soldiers are busy with "taking care of each other, taking care of their battle buddies, taking care and protecting the Afghan people."

He added: "They follow the law. They treat people with dignity and respect. And if that law is changed, then they will abide by the law."

In Washington, the White House said time is running out for the ban on gays serving openly. "This is a policy that is going to end," spokesman Robert Gibbs said Wednesday.

Yet, the battle in the courts over gays in the military may not be over. The Justice Department is considering whether to appeal the court ruling and its first response may well be another trip to the courtroom of U.S. District Judge Virginia Phillips in California to seek a stay, or temporary freeze, of her ruling. If Phillips turns down the request, the Justice Department would likely turn to the federal appeals court in California.

It was unclear whether Phillips' injunction against the 17-year-old policy on gays in the military would affect any ongoing cases.

If the government does appeal, that would put the Obama administration in the position of continuing to defend a law it opposes.

Gay rights groups warned gay troops not to disclose their identity for now. Aaron Tax, the legal director for the Servicemembers Legal Defense Network, said he expects the Justice Department to appeal the case to the U.S. 9th Circuit Court of Appeals.

"Service members must proceed safely and should not come out at this time," Tax said in a statement.

Gates, a Republican, and Mullen face disagreement among some senior general officers on whether lifting the ban would cause serious disruption at a time when troops are fighting in Afghanistan and winding down a long war in Iraq.

For example, the incoming Marine commandant, Gen. James Amos, and his predecessor, Gen. James Conway, both have told Congress that they think most Marines would be uncomfortable with the change and that the current policy works.

In part to resolve the question of how the troops feel, Gates has ordered a study due Dec. 1 that includes a survey of troops and their families.

Obama agreed to the Pentagon study. Obama also worked with Democrats to write a bill that would have lifted the ban, pending completion of the Defense Department review and certification from the military that troop morale wouldn't suffer. That legislation passed the House but was blocked in the Senate by Republicans.

Democrats could revive the legislation in Congress after the November election.

Coming just three weeks before voters go to the polls, Tuesday's ruling seemed unlikely to force a final weeks' change of strategy or message as candidates pounded home their plans to help put back to work the 15 million Americans lacking jobs.

Polls suggest the economy is driving voters' choices, pushing national security and social issues down on their list of concerns.