Obama Loses Control Of "Don't Ask, Don't Tell" Debate

Why Obama Pushed To Reinstate Don't Ask, Don't Tell

A Federal Appeals Court has, at the urging of the White House, granted a temporary stay on an Oct. 12 order by a district court judge to stop enforcing "don't ask, don't tell," which bars openly gay men and women from serving in the military. Many observers are surprised to see the Obama administration, which has opposed the policy and sought its repeal through Congress, lobbying the appeals court to keep the ban in place.

The stay is temporary and is designed to maintain the status quo until the appeal court can formally review the policy. The Pentagon announced on Wednesday that it would begin allowing openly gay recruits; the New York Times reports that this court stay "almost certainly means the government will go back to enforcing" don't ask, don't tell. Here's what people are saying about this development and what it means for the controversial policy.


Obama Explains the Move.

The Associated Press's Lisa Leff reports, "President Barack Obama said last week that the Clinton-era law 'will end on my watch' but added that 'It has to be done in a way that is orderly, because we are involved in a war right now.'

He said he supports repeal of the policy, but only after careful review and an act of Congress. ... Government lawyers argue that striking down the policy and ordering the Pentagon to immediately allow openly gay service members could harm troop morale and unit cohesion when the military is fighting two wars."

The Department of Justice issues a statement:

“Proper implementation of ‘Don’t Ask, Don’t Tell’s’ repeal cannot occur overnight,” the Justice Department filing says, indicating that the amount of time needed to end the policy is the subject of a Pentagon working group review due out on December 1.

“An abrupt, court-ordered end to the statute would pretermit (sic) the Working Group’s efforts to ensure that the military completes development of the necessary policies and regulations for a successful and orderly implementation of any repeal of § 654. The significant impairment of the Department’s efforts to devise an orderly end to the statute would cause irreparable harm,” the Justice Department wrote.


Legal Complications if DADT Repealed Too Quickly.

The New York Times' Sabrina Tavernise and John Schwartz write, "Military officers have argued that if the change is made too quickly, it will place the military on a collision course with federal statutes. Families and spouses of soldiers have access to benefits like housing, health care and education through marriage, which the federal government does not recognize for same-sex couples."

Now Obama Owns a Policy He Opposes.

The American Prospect's Adam Serwer warned before the White House secured its sought-after stay, "if the administration successfully appeals Judge Phillips's decision, it will find itself obligated to enforce a policy the president himself says he opposes and that he says undermines national security, a policy with no empirical, legal, or moral basis.

The administration will have effectively instituted its own Proposition 8, retroactively denying rights to individuals who already have them. That will be significantly harder to explain or justify than simply maintaining the status quo. After having promised to repeal DADT, Obama would be responsible for its ongoing survival."


Obama Is Losing Control.

Liberal blogger Joe Sudbay fumes, "Well, DADT is the law of the land again -- at least for now. This has gotten absurd. The White House has lost control of this situation and it looks bad. I hope whoever concocted the Obama administration's strategy on DADT (and those who enabled it, meaning HRC and Winnie Stachelberg at CAP) grasp the magnitude of how screwed up this is. The people who are suffering here are the men and women who are willing to put their lives on the line for the rest of us.



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Virginia A. Phillips: "Don't Ask, Don't Tell" Judge Denies Stay

"Don't Ask, Don't Tell": An End To Court Deference To The U.S. Military?



President Obama's battle over gays in the military escalated on Tuesday, as a federal judge refused to back down from her order to stop the enforcement of "Don't ask, don't tell" and the Pentagon for the first time ordered recruitment centers across the country to welcome potential recruits who are openly gay or lesbian. The Pentagon's guidance to recruiters was a remarkable development, ending — for the moment — a blanket ban on gays serving openly in the military, even as the Obama Administration scrambled to put the ban back in place.

The Pentagon's message to recruiters warned that while they were to welcome gay potential recruits, they must also notify those would-be soldiers, sailors and Marines that if the Obama Administration succeeds in putting Judge Virginia Phillips' decision on hold or, ultimately, has it reversed, their enlistments will be stopped. But Phillips has rebuffed the Obama Administration's efforts to delay her ruling long enough to appeal. And in doing so, she has tossed aside muscular arguments from top military officials who warn of dire consequences if her ruling stands.

Her easy dismissal of such arguments comes on the heels of a string of other gay-rights rulings that appear to have outpaced the will of voters and state lawmakers alike. It has prompted some legal scholars to argue that the case's importance goes well beyond the legality of "Don't ask, don't tell." They say it also triggers key questions about the proper role of the judiciary and whether courts are losing their reluctance to interfere in military policymaking, even in times of war.

Throughout the 20th century, the Supreme Court deferred again and again to the military when it came to setting important policy, even when those policies apparently conflicted with fundamental rights. For instance, the court upheld rules denying Jewish soldiers the right to wear a yarmulke; it allowed rules limiting the roles women can play in combat; and, infamously in the case of Korematsu v. United States, it deferred to the military's argument that Japanese Americans on the West Coast should be interred in camps during World War II.

"Part of what is interesting here is that while Judge Phillips' order formally puts 'Don't ask, don't tell' and its constitutionality front and center, right behind that issue are important questions about the deference shown by the judiciary to the military where a military policy has been duly enacted by the Congress and signed by a President into law," says Marc Spindelman of Ohio State University's law school. Those questions are likely being debated in the Justice Department as the Administration decides whether to make an immediate appeal of Phillips' decision to the Ninth Circuit Court of Appeals, or instead to simply seek more time to sort out its options by asking a special panel of higher-court judges to do what Phillips refused to do on Tuesday — stay her order until the matter can be resolved on appeal.

The President's decision about how to proceed will be made against a rising chorus of gay-rights groups and others who insist that he not appeal at all, a decision that would leave Phillips' order in place permanently and automatically make good on Obama's many promises to end discrimination against gays in the military. In the view of one leading constitutional scholar, the President's protestations that tradition requires him to defend the statute are unfounded. "It is entirely up to the President to decide whether or not to appeal," Dean Erwin Chereminsky of the University of California at Irving School of Law tells TIME. "The President takes an oath to uphold the Constitution and need not defend laws that he believes are unconstitutional. I think that if Obama wants an end to the policy, the simplest path is to not appeal the nationwide injunction."

But so far, Obama has insisted that he will appeal, in the hope that Congress, not the courts, will decide whether gays and lesbians can serve openly in the military.



So what's the next step? Chances are, the Administration won't appeal the full ruling — not yet. Instead, the Justice Department will likely ask judges from the Ninth Circuit Court of Appeals to review Phillips' refusal to stay her order. That's a procedural matter that will be handled by a special rotating panel of three judges. Two of the judges serving this month — Circuit Judge Diarmuid F. O'Scannlain and Senior Circuit Judge Stephen S. Trott — were put on the bench by Ronald Reagan; the third, Circuit Judge William Fletcher, was nominated by Bill Clinton.

"Everything always comes down to which judges are deciding," says Vikram Amar, associate dean for academic affairs at the University of California at Davis School of Law. "Especially in this case, where the legal standards are not so self-executing, it really does depends on who you draw. Any of the conservatives on the Ninth Circuit are going to be more likely to give the military deference." No matter what happens with the stay, Amar says it's likely the Ninth Circuit will speed up review of Obama's promised appeal, probably setting oral arguments within a few months, just as it did with the Prop 8 gay-marriage case that is currently being appealed within the circuit.

Meanwhile, if Phillips' order stays in effect, things could get awkward for both the military and Obama. Douglas Smith, a spokesman for the U.S. Army Recruitment Command at Fort Knox in Kentucky, tells TIME that recruits who are open about their sexual orientation won't be turned away while the judge's order is in effect. "We continue to not ask what one's sexual orientation is," Smith says. "And if an applicant tells us they are gay or lesbian or bisexual, we are going to say O.K. and process their applications like any other applicant."

Obama has repeatedly insisted that "Don't ask, don't tell" is ripe for repeal. Now supporters are asking why, if the President is truly serious about a repeal, his Defense Secretary is issuing warnings that Phillips' ruling could have dire consequences for the military.

Chereminsky, for one, calls the Administration's response hypocritical. "I think it is stunningly hypocritical for the President to say [the policy] should be ended and for the Secretary of Defense to say that ending it would harm national security," he says. "It is strange that Secretary Gates now says that ending 'Don't ask, don't tell' will harm the military. The government presented no such evidence in court. Second, there is no reason why this is inherently more [appropriate] for Congress than the courts. Federal courts decide issues of rights — such as here, the First Amendment — all the time."

Whatever strategy the White House ultimately adopts in the case, Phillips' ruling, and her insistence on Tuesday that it be respected despite the military's objections, has added gasoline on a fire over gay rights that Obama has tried to keep to a low burn since his election. As the parade of gays and lesbians entering recruitment centers looking for enlistment papers swells in the coming days, that blaze will only get bigger — and probably harder to extinguish.



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U.S. Military Recruiters Accept Gay Applicants: Obama Appeals

U.S. Military Recruiters Told To Accept Gay Applicants, As Gov't Appeals Court Decision


U.S. Defense Department said Tuesday that it is accepting openly gay recruits, but is warning applicants they might not be allowed to stick around for long.

Following last week's court ruling that struck down a 1993 law banning gays from serving openly, the military has suspended enforcement of the rule known as "don't ask, don't tell." The Justice Department is appealing the decision and has asked the courts for a temporary stay on the ruling.

The Defense Department said it would comply with the law and had frozen any discharge cases. But at least one case was reported of a man being turned away from an Army recruiting office in Austin, Texas.

Pentagon spokeswoman Cynthia Smith on Tuesday confirmed that recruiters had been given top-level guidance to accept applicants who say they are gay.

Recruiters also have been told to inform potential recruits that the moratorium on enforcement of "don't ask, don't tell" could be reversed at any point, if the ruling is appealed or the court grants a stay, she said.

The uncertain status of the law has caused much confusion within an institution that has historically discriminated against gays. Before the 1993 law, the Defense Department banned gays entirely and declared them incompatible with military service.

Douglas Smith, spokesman for U.S. Army Recruiting Command based at Fort Knox, Ky., said even before the ruling recruiters did not ask applicants about their sexual orientation. The difference now is that recruiters will process those who say they are gay.

"If they were to self admit that they are gay and want to enlist, we will process them for enlistment, but will tell them that the legal situation could change," Smith said.

He said the enlistment process takes time and recruiters have been told to inform those who are openly gay that they could be declared ineligible if the law is upheld on appeal.

"U.S. Army Recruiting Command is going to follow the law, whatever the law is at the time," he said.

U.S. District Judge Virginia Phillips, who had ordered the military to stop enforcing "don't ask, don't tell," was expected to deny the administration's request to delay her order. That would send the case to the 9th Circuit Court of Appeals.

After Phillips' ruling last week, Omar Lopez — discharged from the Navy in 2006 after admitting his gay status to his military doctor — walked into an Army recruiting office in Austin and asked if he could re-enlist. He said he was up front, even showing the recruiters his Navy discharge papers.

"They just said, 'I can't let you re-enlist because we haven't got anything down from the chain of command,'" Lopez, 29, told the AP in a telephone interview. "They were courteous and apologetic, but they couldn't help me."

Smith was unable to confirm the account. She said guidance on gay applicants had been issued to recruiting commands on Oct. 15.


Sources: Chicago Tribune, CNN

"Don't Ask, Don't Tell" Ruling To Be Appealed By Obama Admin.

Obama Administration Expected To Appeal Ruling On Gays In U.S. Military

The Obama administration is expected to appeal as soon as Wednesday a federal judge's ruling that halted the Defense Department from enforcing its policy that bars openly gay people from military service, according to senior administration officials familiar with the government's plans.

U.S. District Court Judge Virginia Philips issued an injunction Tuesday that bans enforcement of the "don't ask, don't tell" policy throughout the military services.

While the government has up to 60 days to file an appeal to the Ninth Circuit Court in San Francisco, California, officials familiar with the case said that could happen in the next day or two.







Federal Judge Orders U.S. Military To Stop Enforcing "Don't Ask, Don't Tell" Policy


A Federal judge on Tuesday ordered the U.S. military to stop enforcing the "don't ask, don't tell" policy, putting an end to the ban on openly gay troops.

U.S. District Judge Virginia Phillips' permanent worldwide injunction -- praised by gay rights organizations -- orders the military "immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced" under the "don't ask, don't tell" policy.

The judge, a Clinton appointee based in the Central District of California, previously ruled that the policy regarding gays serving in the military violated service members' Fifth Amendment rights to due process and freedom of speech, but had delayed issuing the injunction.

The military was sued by Log Cabin Republicans, a gay rights group.

Justice Department spokeswoman Tracy Schmaler would say only that the department is "reviewing the ruling." The department has 60 days to appeal, but is not required to do so.

The Defense Department is reviewing the ruling to determine whether it has immediate impact and is consulting with the Justice Department, Pentagon spokeswoman Cynthia Smith said.

Air Force lawyers in a recent case argued the military -- not the courts -- is in the best position to evaluate and enforce the "don't ask, don't tell" policy.

President Barack Obama is pushing for a repeal of the controversial policy. A bill currently before Congress would overturn the measure after a Pentagon review is completed in December.

In her ruling Tuesday, Phillips stated the policy infringes on the rights of military personnel. "Furthermore, there is no adequate remedy at law to prevent the continued violation of servicemembers' rights or to compensate them for violation of their rights," the judge wrote.

More than 12,500 people have been booted from the military since "don't ask, don't tell" went into effect. Along with barring known gay, lesbian and bisexual individuals from serving, the policy prevents the military from asking them about it.

Log Cabin Republicans praised the ruling but urged "caution by servicemembers considering coming out at this time, as the Obama administration still has the option to appeal."

The group said the ruling is a victory for strong national defense.

"No longer will our military be compelled to discharge servicemembers with valuable skills and experience because of an archaic policy mandating irrational discrimination," it said in a statement following the ruling.

Servicemembers United, which describes itself as the nation's largest organization of gay and lesbian troops and veterans, also hailed the judge's ruling but urged gays who serve to be careful about coming out now.

"This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking," said executive director Alexander Nicholson.

The ranking member of the House Armed Services Committee called on the administration to immediately file a motion to stay the injunction so Congress can address the issue.

"We are a nation at war. This decision could have a negative impact on military and family readiness since the Department of Defense is unprepared to address the issues that are bound to arise from such a hasty change, Rep. Howard P. "Buck" McKeon, R-California, said in a statement.

Aaron Belkin, director of the Palm Center, a research institute of the University of California-Santa Barbara, said he expects the Obama administration to appeal Tuesday's order.

"The case could be done next week if the administration decides not to appeal, or it could take five years if there is an appeal, or Congress could move faster than the Justice Department, which would render this case moot," said Belkin, whose institute researches sexual minorities in the military and advocates an end to the ban.


Sources: CNN, MSNBC, Youtube

"Don't Ask, Don't Tell" Stopped By A Federal Judge!

Federal Judge Orders U.S. Military To Stop Discharging Gays


A Federal judge Tuesday ordered the government to immediately stop discharges of gay service members under the military's "don't ask, don't tell" policy.

U.S. District Judge Virginia Phillips found the policy unconstitutional in September. On Tuesday, she rejected an Obama administration request to delay an injunction and ordered enforcement of the policy permanently stopped.

The Justice Department has 60 days to appeal. Legal experts say the government is under no legal obligation to do so and they could let Phillips' ruling stand.

The Federal government is reviewing the ruling and has no immediate comment, said Tracy Schmaler, spokesman for the Justice Department.

Phillips declared the law unconstitutional on Sept. 9 after a two-week nonjury trial and said she would issue a nationwide injunction. But she asked first for input from Department of Justice attorneys and the Log Cabin Republicans, the gay rights group that filed the lawsuit in 2004 to stop the ban's enforcement.

The Log Cabin Republicans asked her for an immediate injunction so the policy can no longer be used against any U.S. military personnel anywhere in the world.

"The order represents a complete and total victory for the Log Cabin Republicans and reaffirms the constitutional rights of gays and lesbians in the miltiary for fighting and dying for our country," said Dan Woods, an attorney for the Log Cabin group.

Government attorneys objected, saying such an abrupt change might harm military operations in a time of war. They had asked Phillips to limit her ruling to the members of the Log Cabin Republicans, a 19,000-member group that includes current and former military service members.

The Department of Justice attorneys also said Congress should decide the issue — not her court.

Phillips disagreed, saying the law doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services by hurting recruiting during wartime and requiring the discharge of service members with critical skills and training.

She said the law violates the free-speech and due process rights of service members after listening to the testimonies of military officers who have been discharged under the policy.

Legal experts say the Obama administration could choose to not appeal her ruling to end the ban — but Department of Justice attorneys are not likely to stay mum since Obama has made it clear he wants Congress to repeal the policy.

"The president has taken a very consistent position here, and that is: 'Look, I will not use my discretion in any way that will step on Congress' ability to be the sole decider about this policy here,' " said Diane H. Mazur, legal co-director of the Palm Center, a think tank at the University of California at Santa Barbara that supports a repeal.

Gay rights advocates say they worry they lost a crucial opportunity to change the law when Senate Republicans opposed the defense bill earlier this month because of a "don't ask, don't tell" repeal provision.

If Democrats lose seats in the upcoming elections, repealing the ban could prove even more difficult — if not impossible — next year.

Woods said the administration should be seizing the opportunity to let a judge do what politics has been unable to do.

The "don't ask, don't tell" policy prohibits the military from asking about the sexual orientation of service members but bans those who are gay from serving openly. Under the 1993 policy, service men and women who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base, are subject to discharge.


Sources: CNN, MSNBC, Youtube