Even President Obama, set to name a new Marine Corps commandant in the coming weeks, is likely to face significant pressure to select someone who is not too outspoken in his opposition to repealing the law. All of the candidates being considered for the job have expressed reservations about repeal during wartime, according to senior U.S. officials familiar with the process.

Gen. James Conway, the outgoing commandant, was the only service chief to actually oppose ending “Don’t Ask, Don’t Tell.” It hasn’t escaped anyone’s attention that the working group Defense Secretary Robert Gates convened to guide the implementing of the repeal of the 17-year-old ban on open gay service will report to Gates in December, after Conway has retired. At the same time, if the next commandant shares Conway’s perspective, then speculation about those two schedules is, at best, academic. We’ll find out when the confirmation hearing for the Conway’s successor gets underway, whoever that successor may be.

All this should underscore that ending “Don’t Ask, Don’t Tell” is easy — but integrating open gays into the military is a generation-long challenge. Anecdotal information, backed by the general polling trends in the country at large, indicates that junior and mid-career officers are significantly more comfortable with open gay service than the current crop of flag officers. Jaffe’s story illustrates that some challenges for integration — sure to be addressed by Gates’ working group — are the provision of partner benefits to married or partnered gay couples and the freedom of chaplain officers to preach that homosexuality is immoral. Not to fall victim to the complacency of belief in inexorability, but it’s hard to imagine circumstances under which those concerns don’t grow weaker with age. But that still leaves years’ worth of struggles for the military to figure out how to equitably recognize the gay servicemembers it has always had in its ranks.

Ari Shapiro had a piece for NPR this morning quoting Jamie Gorelick, the former deputy attorney general and 9/11 Commissioner, saying she heard from unnamed Justice Department sources that the department does have a more rigorous formula for making that determination. But she didn’t know what it was. And she didn’t know why the Justice Department hadn’t released it already.

Why, we heard it back in September, when the Senate Armed Services Committee held a big hearing into the scope of the new commissions, featuring the top Justice Department and Pentagon lawyers responsible for both the commissions and the balance between them and civilian trials. MacDonald testified alongside Defense’s Jeh Johnson and Justice’s David Kris, and he tended to resist their inclinations to make the commissions as much like civilian trials as possible. From a piece I filed after the meeting:

Both Kris and Johnson said that they believed the commissions ought to premise the admissibility of statements from terrorism suspects captured on the battlefield on whether the statements were voluntarily provided, in order to prevent the commissions from accepting coerced testimony — a standard the committee’s legislation does not employ, although it does reject evidence obtained through torture or duress. But Vice Adm. Bruce MacDonald, the Navy’s judge advocate general, told the panel that battlefield captures are “inherently coercive,” as soldiers do not read Miranda rights to their detainees, and so predicating admissibility on voluntariness creates too restrictive a standard. “This is an area where I do disagree with the administration and I think the [Senate Armed Services] committee got it right,” MacDonald said.

Kris and Johnson both argued that the courts are more likely to invalidate the commissions — which would be the third time since their creation, if you’re keeping score — the more the commissions deviate from the process rights allotted in civilian courts.

We’ll see if being involved with the commissions changes MacDonald’s perspectives. Those involved tend to either quit in disgust or emerge disillusioned.

Determine any impacts to military readiness, military effectiveness and unit cohesion, recruiting/retention, and family readiness that may result from repeal ofthe law and recommend any actions that should be taken in light of such impacts.

Determine leadership, guidance, and training on standards of conduct and new policies.

Determine appropriate changes to existing policies and regulations, including but not limited to issues regarding personnel management, leadership and training, facilities, investigations, and benefits.

Recommend appropriate changes (if any) to the Uniform Code of Military Justice.

Monitor and evaluate existing legislative proposals to repeal 10 U.S.C § 654 and proposals that may be introduced in the Congress during the period of the review.

Assure appropriate ways to monitor the workforce climate and military effectiveness that support successful follow-through on implementation.

Evaluate the issues raised in ongoing litigation involving 10 U.S.C § 654.

So far, Gen. James Conway, the commandant of the Marine Corps, has been the only military service chief to oppose the repeal. Gates’ first criterion speaks to Conway’s concerns.

Chairman of the Joint Chiefs of Staff Adm. Michael Mullen, right, and Defense Secretary Robert Gates at Tuesday's Senate hearing on "Don't Ask, Don't Tell" (James Berglie/ZUMApress.com)

The Pentagon’s top civilian and military leadership made an unequivocal and at times emotional appeal Tuesday to end the decades-long ban on gays and lesbians serving openly in the military, and spelled out a year-long process for securing uniformed and congressional support to change the policy.

Defense Secretary Robert Gates expressed his “full support” for President Obama’s call in the State of the Union address to end the so-called “Don’t Ask, Don’t Tell” law this year. He announced to the Senate Armed Services Committee that he had asked Pentagon General Counsel Jeh Johnson and Army Gen. Carter Ham to lead a panel studying the implications of repeal across a variety of military concerns: unit cohesion and discipline — the main concern that led Congress to embrace “Don’t Ask, Don’t Tell” in 1993; partner benefits; base housing; “fraternization and base conduct;” and others. In addition, Gates said he planned to ask the Rand Corporation, a leading defense think tank, to update its influential 90s-era study of the impact of gay service on unit cohesion.

[Security1]“It is clear to us we must proceed in a manner that allows for thorough examination of all issues” and “minimizes disruption” to a force stressed by two wars, Gates said. The panel will issue its recommendations before the end of 2010, and Gates told the senators he hoped its work would guide the Congress to pass a law overturning “Don’t Ask, Don’t Tell.”

But it was Adm. Michael Mullen, the chairman of the Joint Chiefs of Staff, who set the hearing’s tone. In 1993, when President Clinton attempted to overturn the ban, the uniformed military rejected the effort, particularly Mullen’s predecessor, Army Gen. Colin Powell. (Powell came out last year for “review[ing]” “Don’t Ask, Don’t Tell.”) In 2007, Mullen’s immediate predecessor, Marine Gen. Peter Pace, publicly called homosexuality “immoral” and likened it to adultery as a rationale for keeping the gay servicemember ban in place.

This time, however, Mullen — emphasizing that he spoke for himself and not the service chiefs — firmly and powerfully argued for repeal. “It is my personal belief that allowing gays and lesbians to serve openly would be the right thing to do,” Mullen said. He called it an issue of “integrity,” and said his personal experience and introspection led him to reject a policy that he said forces servicemembers to “lie about who they are in order to defend their fellow citizens.”

Several Republicans on the panel, led by Sen. John McCain (R-Ariz.), the committee’s ranking Republican, blasted President Obama’s decision to end the gay ban and Gates’ decision to announce his support for it before the Johnson-Ham panel has issued its recommendations. Some suggested that Mullen was carrying Obama’s water instead of presenting his own advice. “If it was a trial, perhaps we’d raise the undue-command-influence defense,” said Sen. Jeff Sessions (R-Ala.).

That drew Mullen’s ire. “I have served with homosexuals since 1968,” the chairman said, raising his voice. “Everyone in the military has… A number of things, cumulatively, for me, get me to this position.” Sen. Carl Levin, the committee’s chairman and a “Don’t Ask, Don’t Tell” enemy, called Mullen’s comments a “profile in leadership.” After the hearing, Mullen tweeted, “Stand by what I said: Allowing homosexuals to serve openly is the right thing to do. Comes down to integrity.”

A Gallup poll from last May found that 69 percent of American adults favor allowing gays and lesbians to serve openly, and that acceptance of open homosexual military service has increased across all surveyed demographics over the past five years. Several close American allies — including those who have contributed to coalition military efforts in Iraq and Afghanistan — allow open gay military service, including Australia, Israel, the U.K., France, Denmark, Italy, Canada, the Czech Republic and Spain. When asked, Mullen said he was unaware of any problems related to such service that impeded coalition efforts in either war.

Gates signaled that he was disinclined to take unilateral steps to mitigate the enforcement of “Don’t Ask, Don’t Tell,” contrary to a piece in Tuesday’s Washington Post. “We obviously recognize that this is up to Congress,” Gates, adding that it was “critical this matter be settled by a vote of the Congress.” Still, the Servicemembers’ Legal Defense Fund, which advocates for the rights of gay servicemembers, said yesterday it had noticed a 30 percent drop in “Don’t Ask, Don’t Tell” enforcement cases during the first year of the Obama administration.

Congressional repeal is far from certain. Rep. Patrick Murphy (D-Pa.), one of the few Iraq veterans serving in Congress, has introduced a bill in the House that would repeal “Don’t Ask, Don’t Tell” and claims the support of more than 180 representatives. Yet Rep. Ike Skelton, the chairman of the House Armed Services Committee, is opposed to repeal. Rep. Joe Sestak (D-Penn.), a retired Navy admiral who is running for Senate in Pennsylvania, urged Obama not to wait for Congressional action and urged him to issue an executive order halting “Don’t Ask, Don’t Tell” enforcement. “In a time of war, we cannot lose any more troops that we depend on to keep our country safe,” Sestak said in a statement emailed to reporters.

Murphy is 36 years old and Skelton is nearly 80. The difference in their attitudes is reflective of what Paul Rieckoff, president of Iraq and Afghanistan Veterans of America, called a “generational shift within the military” during a 2007 interview with the Los Angeles Times. “The average 18-year-old has been around gay people, has seen gay people in popular culture, and they’re not this boogeyman in the same way they were to Pete Pace’s generation.” Rieckoff’s quote was cited in a recent anti-”Don’t Ask, Don’t Tell” article in the military’s influential Joint Forces Quarterly publication. Among the article’s conclusions: “[T]here is sufficient empirical evidence from foreign militaries to anticipate that incorporating homosexuals will introduce leadership challenges, but the challenges will not be insurmountable or affect unit cohesion and combat effectiveness.”

Mullen indicated his respect for all points of view on “Don’t Ask, Don’t Tell,” and took pains to emphasize that he was not speaking for the entire military. But he said he believed there was a “gap between that which we value, the military — specifically the value of integrity — and where our policy is.”

Robert Gates, the secretary of defense, vowed to proceed in a “thorough” and “deliberate” manner to repeal the law over the next year. He’s creating an advisory panel on the issue. It will be chaired by two Pentagon luminaries: Jeh Johnson, the department’s general counsel, and Gen. Carter Ham, commander of Army forces in Europe.

Mullen, however, is the one who has set the tone for the uniformed military here. He just made repealing DADT kosher.

Update: I initially misheard Mullen as calling it the “right view.” I corrected the quote; apologies.

Pentagon General Counsel Jeh Johnson suggested to the Senate Armed Services Committee today that the difficulties inherent in bringing legal charges against (or deciding on preventive detention for) about 220 detainees at Guantanamo Bay means that some continued detention past President Obama’s January 2010 deadline for closing the detention facility was likely, “whether at Guantanamo or somewhere else.” That sounded like the first concession from a senior administration official that Guantanamo Bay wouldn’t definitely be shuttered by the deadline.

The Pentagon general counsel, July 24:

“Additional reviews are ongoing, and the process is on track,”, Johnson said. “We remain committed to closing the Guantanamo Bay detention facility within the one-year time frame ordered by the president.”

There are something like 230 detainees still at Guantanamo. There isn’t a plan in place for charging or repatriating or incarcerating the vast majority of them. Six months remain before the January time frame Obama laid out for shuttering the facility. Why believe it’s getting closed on time?

“As a legal matter, it is a non-outrageous statement,” says Ben Wittes, a self-identified centrist and legal expert with the Brookings Institution who has proposed a legal framework for preventive detention of suspected terrorists. “It is a very difficult political position to sustain however.” Ken Gude, a human rights and national security expert at the Center for American Progress, agrees. “Technically the government can continue to detain an individual after they’ve been acquitted in a military court, as a matter of law,” says Gude. “As a matter of policy, it’s a terrible decision.”

It doesn’t make any sense to say — as both Johnson and Assistant Attorney General David Kris did at Tuesday’s hearing — that the administration’s preferred method for adjudicating terrorism cases is prosecution in federal courts and also that any acquital could theoretically be met with a prompt detention. That’s a surefire way to destroy the credibility of the criminal justice system. Johnson, to be fair, was asked a politically difficult question: So, you guys gonna just let terrorists go after incompetent courts don’t convict ‘em? But he still waded the administration out into the perilous legal waters of endorsing show trials.

The first thing to say is that, somehow, the federal criminal justice system was capable of handling this terrorism case without detaining Warsame indefinitely. No extraordinary powers needed to be invoked. No standard of evidence needed to be reduced to secure a conviction and no baroque charges needed to be created to indict him. The competent and vigilant work of law enforcement was enough.

But there’s another question. Why bother with the supervised release? On Tuesday, Defense Department General Counsel Jeh Johnson told Sen. Mel Martinez (R-Fla.) that under the laws of war, if the government couldn’t convict a terrorist, it still retained the power to detain him after acquittal. Well, if so, what about post-conviction detentions? Warsame is a naturalized American citizen, but Johnson didn’t claim an exemption for U.S. citizens in his answer. Also, Warsame wasn’t captured on any battlefield, conventionally understood, but Johnson didn’t clarify that his perception of wartime detention authority was reserved for battlefield captures (or where the battlefield ends, for that matter). “If you have authority under the law of war to detain someone” under the Supreme Court’s Hamdi ruling, Johnson said, “that is true irrespective of what happens on the prosecution side.” Does the same hold for detentions after a prisoner serves his sentence?

Update: Adam Serwer reminds me that the Bush administration announced last year that Salim Hamdan — sentenced by a military commission to five and a half years — would again become an “enemy combatant” after his time is served. Obama eliminated the “enemy combatant” designation. What do Johnson and his Obama administration colleagues think of this?

“Continuing to detain a person indefinitely without charge or trial for a crime for which he has been acquitted is absurd and unconstitutional. If the government has sufficient evidence to warrant criminal charges against prisoners held at Guantánamo, it should file those charges and prosecute the prisoners in ordinary federal courts. But the government should not be holding prisoners indefinitely without charge or trial, and it should certainly not be holding show trials from which guilty verdicts will be honored but acquittals will be ignored. The suggestion that the government can protect the country only by disregarding the Constitution is an extremely dangerous one that should be unequivocally rejected.”