Washington (CNN) -- The controversial "don't ask, don't tell" policy banning gay men and lesbians from openly serving in the military remains the law of the land, except perhaps at the Department of Defense.
No service members have been discharged under the 1993 policy for at least 40 days. Last year, the Defense Department discharged an average of eight troops a week due to "don't ask, don't tell."
In spite of numerous requests, the Pentagon has been unable to say exactly when the last "don't ask, don't tell" discharge occurred. Defense Department spokesperson Cynthia Smith said Tuesday none had occurred since at least October 21.
On that day, Defense Secretary Robert Gates changed the rules to limit "don't ask, don't tell" discharge decisions to senior civilian leaders instead of the uniformed chiefs of the four branches of the service, all of whom have expressed opposition to repealing the policy.
The rules change came just as two federal courts issued rulings about the law.
"We have seen in the past year, the federal courts are increasingly becoming involved in this issue," Gates told reporters Tuesday. "Just a few weeks ago, one lower court ruling forced the department into an abrupt series of changes that were no doubt confusing and distracting to men and women in the ranks."
Under the new rules, only the secretaries of the Army, Air Force or Navy, in coordination with Clifford L. Stanley, the under secretary of defense for personnel and readiness and the department's top lawyer, Jeh Johnson, can discharge a service member under "don't ask, don't tell."
Johnson, the Defense Department general counsel, was asked why discharges had stopped.
"I can't tell you why," Johnson said. "I know that in October, we elevated the separation authority to the service secretaries in consultation with Dr. Stanley and myself."
Since then, he said, "I have not had the opportunity at this point to coordinate on a separation. That, for all I know, could change in a couple of days, depending on what's in the pipeline."
Pentagon Press Secretary Geoff Morrell said that "we have no kind of moratorium or hold on discharges." Morrell explained that the process for discharging troops has become more strict.
Last spring, Gates made changes that required any fact-finding inquiries about a possible "don't ask, don't tell" violation be started by a colonel or Navy commander or higher rank. He also initiated rules that made it more difficult for a service member to be removed because of a third-party "outing."
Then came the October 21 announcement that restricted the authority to order a discharge to higher levels.
According to Pentagon statistics, 428 service members -- an average of more than one a day -- were discharged under the policy in 2009. It was lowest annual number of such discharges since at least 2000.