Obama's Awkward "Don't Ask, Don't Tell" Repeal Legal Dilemma

Obama Requests Emergency Stay Of "Don't Ask, Don't Tell" Order

Finding itself in a strange legal position, the Obama Administration filed an emergency request Wednesday with the 9th Circuit Court of Appeals to stop the military from allowing openly gay troops from serving.

In effect, the administration wants to continue barring gays from the military even though it ultimately favors repealing the policy known as "don't ask, don't tell."

"They are in a very bizarre position, frankly of their own making," said CNN senior legal analyst Jeffrey Toobin.

In court documents filed in San Francisco, California, the administration argued that don't ask, don't tell should remain intact for now.

The administration argued that changing it abruptly "risks causing significant immediate harm to the military and its efforts to be prepared to implement an orderly repeal of the statute."

Toobin said the administration would like Congress to deal with the issue on a political level and doesn't want the courts to take it on unilaterally.

The administration had already filed a motion Tuesday asking U.S. District Court Judge Virginia Phillips to stay her order last month that banned the enforcement of the policy.

When Phillips denied the request, government lawyers took their case to the 9th Circuit.

If the 9th Circuit overturns Phillips' ruling and Congress does not take any action, then don't ask, don't tell could be back.

"And the Obama administration would be responsible for that," Toobin said.

The Log Cabin Republicans, plaintiffs in the case that Phillips ruled on, said Wednesday that the group remained fully committed to defending this worldwide injunction because it is what is best for all service members.

"It respects their fundamental constitutional rights," said Christian Berle, deputy executive director of the group. "We'll continue to defend this ruling all the way to the United States Supreme Court if necessary."

The group was expecting the 9th Circuit to consider the request for a stay in the next five days. By the time there is a court ruling, don't ask, don't tell would have been suspended for almost two weeks.

The Pentagon has already begun advising recruiting commands that they can accept openly gay and lesbian recruit candidates, according to a Pentagon spokeswoman.

The guidance from the personnel and readiness office was sent to recruiting commands Friday, according to spokeswoman Cynthia Smith.

The recruiters were told that if a candidate admits he or she is openly gay, and qualify under normal recruiting guidelines, their application can be processed. Recruiters are not allowed to ask candidates if they are gay as part of the application process.

Berle said so far, there have not been any incidents of consequence the administration feared would occur.

"The armed forces continues to move along and succeed because it is the greatest military in the world," Berle said.

Dan Choi, an infantry officer who was discharged under the don't ask, don't tell policy, turned in paperwork Wednesday to re-enlist in the Army. He said the Obama administration ought not to lift a finger to defend discrimination.

"They should walk their talk," Choi told CNN after re-enlisting.

The Obama administration has said it needs more time to work with the Pentagon to repeal the policy, blasted by critics as blatantly discriminatory.

"This president has made a commitment, and it's not a question of whether that program, whether that policy will change, but when," Obama adviser David Axelrod told CNN. "We're at the end of a process with the Pentagon to make that transition, and we're going to see it through."


Sources: CNN