- The Washington Times - Friday, January 15, 2010

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 the 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.”

Adm. 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 Obama. Although allowing gays to serve openly in the military was one of Mr. 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.

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

Capt. John Kirby, a spokesman for Adm. 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 Adm. Mullen’s own views.

“They continue to have a dialogue about the policy and the law,” keeping in mind Mr. Obama’s “strategic intent” to lift the ban, Capt. Kirby said.

Adm. 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 Mr. 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.