Clinton Delays Policy on Gays in Military as Nunn Plans ‘Don’t Ask, Don’t Tell’ Bill : Armed forces: The President pushes his decision back to next week. But legislation could undermine any executive order.

President Clinton, facing a surge of opposition and unresolved legal questions, on Friday delayed his decision on the status of homosexuals in the military until next week.

But in a move that could make any presidential order on the subject moot, his chief adversary on the issue, Senate Armed Services Committee chairman Sam Nunn (D-Ga.), vowed to introduce a bill to instate the so-called “don’t ask, don’t tell” compromise he proposed last winter. If approved, the new federal law would supersede any executive order issued by Clinton.

Senior White House and defense officials expressed confidence that the policy Clinton will announce--a highly restrictive form of “don’t ask, don’t tell”--would stand up to court challenges that gay activist groups have vowed to raise. The officials said they expect the policy to be formally unveiled Monday or Tuesday, as soon as the Justice Department reviews its legal defensibility.

Nunn has told the White House since January he would accept a “don’t ask, don’t tell” compromise, which would halt the military practice of asking recruits their sexual orientation but continue to allow the discharge of individuals found to be homosexual.

Before Friday, Administration officials had widely believed that Nunn would not lead a bid to codify the Pentagon’s policy regarding homosexuals unless Clinton showed clear disregard for Nunn’s concerns. As late as Wednesday, the White House had no clear assurances from Nunn to that effect.

But the conservative Georgian’s rebuff Friday came as an unwelcome surprise.

In a speech on the Senate floor, Nunn called it essential that Congress pass laws excluding openly gay men and lesbians from serving in the military. In an apparent bid to reclaim primacy in defining the issue, Nunn said that such legislation would provide “clear legislative direction to the executive branch.”

The proposed law could be similar to Clinton’s policy, provided the President chooses a course of action acceptable to Nunn. Nunn said that any policy would have to reflect that “the presence in the military of persons who, by their acts or statements, demonstrate a propensity to engage in homosexual acts, would cause an unacceptable risk to the high standards of morale, good order and discipline and unit cohesion that are essential to effective combat capability.”

Nunn added that there should be no restrictions on investigations of accused homosexuals except “common sense limitations because of the need to allocate scarce resources and to establish investigative priorities.”

Administration officials sought to portray Nunn’s declaration not as a threat but simply as an effort by a powerful senator to protect his legislative prerogatives.

“It’s benign,” Secretary of Defense Les Aspin insisted in an interview. The move was “protecting his options but not inconsistent with our aims.”

Further worsening Clinton’s political bind, a gay congressman who had once accepted the idea of a compromise appealed to Clinton to stick to his pledge to lift the military’s ban outright, even if it means defeat in Congress.

Rep. Barney Frank (D-Mass.), who had sought to broker a deal between Clinton and gay activists, appeared to back away Friday from his earlier conciliatory stance, saying he had advised Clinton to keep his promise to end the prohibition.

“The victims of the prejudice would rather lose with the President on their side than win a small gain with him being perceived as having moved away,” Frank said.

Frank added that he told White House adviser George Stephanopoulos Thursday night that he could not back the compromise presented to the President. Frank urged Clinton to “go for something which more clearly attacks the ban on all gay men and lesbians.”

Frank blasted Nunn as a man “motivated by both homophobia and a haunting fear that Bill Clinton will have a successful presidency.”

With the defection of Frank and Rep. Gerry E. Studds (D-Mass.), also openly gay, the White House has lost two allies it hoped to hold at the end of the policy debate.

As they delayed formal announcement of the policy, Administration officials held separate briefings at the White House and Pentagon on Friday to defend the policy that Clinton has not yet formally embraced. Further delay in announcing the policy extends the Administration’s public agony over the issue but also gives Clinton an opportunity to modify the proposal if details gradually leaking out provoke a storm of reaction.

In the White House briefing, senior officials insisted that late revisions to the draft policy should bar “witch hunts” against “discreet” gays and lesbians who do not engage in “homosexual conduct”--defined as such activities as public hand-holding and sharing a one-bedroom apartment.

They said that in its latest revision, the policy could best be described as “don’t ask, don’t tell, don’t pursue.”

Non-practicing gays would be protected in a “zone of privacy,” which would shield them from investigations begun without sufficient evidence. A military commander could not, they said, order an investigation of a subordinate who had simply described himself to a colleague as a homosexual and had not broken rules or engaged in “homosexual conduct.”

But they said that if a homosexual made such a comment twice, or made “two, three or four” acts suggesting he were gay--visits to gay bars or attendance in gay parades, for example--then he would enter a “danger zone” and could be investigated and discharged.

According to Pentagon officials, Nunn’s requirements are far more stringent than those set out by a working group of senior military officials who developed the Pentagon’s recommendations, which have guided development of Clinton’s emerging policy.

Pentagon officials described a tortuous six-month process that has culminated in meetings in which dozens of attorneys have hashed out the details of a “don’t ask, don’t tell” compromise.

Those attorneys have concluded that the compromise as drafted for Clinton would hold up under court challenges, given the deference that judges traditionally accord the military in setting its policies.

A knowledgeable defense official however, cautioned that if Congress and the Administration remain at loggerheads over a policy regarding gays, the courts might be more inclined to intervene to arbitrate the dispute.

However, if the two are united, the official said, the policy “is very likely to be sustained.”

As it edged toward completion, the White House policy was again assailed by gay rights groups.

“It’s an outrage,” said David Smith of the Campaign for Military Service, a gay rights lobby. “Even if this represented some incremental advance, there would be outrage from the (gay and lesbian) community over a complete reversal of a campaign pledge. But there is absolutely nothing here. It’s the same ban, the same underlying policy of discrimination.”

According to congressional counts by Campaign for Military Service, a vote on Nunn’s proposal would be very close, and could--with substantial efforts by Clinton--be won by the White House.