'Don't ask' probes were on wane before ban was struck down

It took the stroke of a presidential pen on Wednesday to put the final nail in the coffin of the "don't ask, don't tell" law barring openly gay troops from serving in the military. But the law had been effectively repealed months earlier when the Pentagon adopted bureaucratic changes making it extraordinarily difficult to investigate or discharge gay troops.

Pentagon statistics show that just 428 troops were discharged in 2009, the last full year for which data are available. That figure is down sharply from the 633 discharged in 2003 and the 1,273 drummed out of the military in 2001, the highest figure on record. Defense officials and advocates for gay troops expect the 2010 figures to be even lower. Several advocacy groups say they haven't heard of any discharges at all in months.

"They've been really falling off because people were reading the writing on the wall and seeing the inevitability of repeal," said Alexander Nicholson, the executive director of the Servicemembers United advocacy group and a former Army interrogator who was discharged under don't ask, don't tell in 2002. "As of this past summer, we stopped hearing about investigations, much less actual discharges."

The decline stems from a series of little-noticed changes that Defense Secretary Robert Gates put in place over the past year. Gates and Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, have been the most vocal public advocates of allowing gay troops to openly serve. They pushed lawmakers for months to repeal the ban, warning that the courts were likely to step in if Congress failed to act. Both men argued it was wrong for gay troops to have to lie about their identities and to live in fear of being outed.

But Gates didn't restrict himself to lobbying or speaking out publicly against the ban. Last March, the Defense secretary put new rules in place that limited the use of third-party accusations when investigating troops who were outed against their will. He also mandated that only Army colonels, Navy commanders, and other senior officers were allowed to open fact-finding proceedings against troops suspected of violating the "don't ask, don't tell" restrictions.

Gates went even further this fall. Under his second set of bureaucratic changes, troops can only be discharged for violating the don't ask, don't tell ban by the secretaries of the Army, Navy, or Air Force. Even then, the secretaries need the approval of two other high-ranking Pentagon officials -- Clifford L. Stanley, the undersecretary of Defense for personnel and readiness, and Pentagon General Counsel Jeh Johnson -- before the troops are actually drummed out of the military.

The two sets of changes slowed the number of investigations and discharges dramatically. In late November, Pentagon officials said that there hadn't been a DADT discharge of any kind in at least a month. Col. Dave Lapan, a Pentagon spokesman, said in an interview that there had since been some DADT-related discharges, but he didn't have exact numbers.

Aubrey Sarvis, the executive director of the Servicemembers Legal Defense Network, said that Gates's moves were instrumental in laying the foundation for both formal and de facto repeal of the don't ask, don't tell ban. Nevertheless, Sarvis cautioned that the military was still investigating troops suspected of violating the restrictions, which meant that gay troops couldn't yet safely come out of the closet.

"There's no doubt in my mind that the secretary's initiative had a chilling effect on the numbers of discharges," said Sarvis, a military veteran who served in Vietnam. "It's still too soon to say to [whether] it's had a chilling effect on investigations as well."

Nicholson, the former Army interrogator, said that some gay troops were still living under a "cloud of fear" because of the investigations. Still, he said he's seriously considering trying to rejoin the military when the ban is fully and finally struck down.

"I'd definitely like to go back in if possible," Nicholson said. "I think military law would be fascinating."