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JUSTICE: Repeal DADT This Year

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Last week, the Washington Post reported that a Pentagon study group concluded that “the military can lift the ban on gays serving openly in uniform with only minimal and isolated incidents of risk to the current war efforts.” The report, which is due to President Obama on Dec. 1, found that more than 70 percent of active-duty and reserve troop respondents said the effect of repealing “Don’t Ask, Don’t Tell” (DADT) would be “positive, mixed, or nonexistent.” More than that, the survey’s authors concluded that once troops are allowed live and serve with openly gay soldiers, objections to ending DADT would drop. The Pentagon‘s findings closely mirror American civil ian attitudes to ending the policy as well. Many recent public opinion polls have found that large majorities of Americans support ending DADT. Moreover, the findings suggest that, as the Center for American Progress has documented in several studies on DADT, the U.S. is likely to see the same smooth transition to open service experienced by its allies in the U.K. and Canada. Yet, the federal government appears loathe to act. Secretary of Defense Robert Gates said the courts would eventually strike down DADT but that he would like to see Congress take action in the lame duck session. And with Republicans — many of whom support DADT — set to take control of the House and more joining the Senate in January, repealing DADT this year is the best chance for ending the discriminatory policy.
COURTS OR CONGRESS: The legal battle over ending DADT is in full swing. Last month, a federal judge barred the Pentagon from enforcing the policy — saying it violated the due process clause of the Fifth Amendment and freedom of speech under the First Amendment — but the Obama administration appealed and the Ninth Circuit Court of Appeals reversed the decision, keeping the ban in effect. The Republican gay rights group Log Cabin Republicans (LCR) then appealed to the Supreme Court but the high court refused to stop enforcement while the lower court hears a challenge to the ban. While the ban lingers in the courts, Sens. Joe Lieberman (I-CT), Mark Udall (D-CO), and Kirsten Gillibrand (D-NY ) are trying to build momentum to repeal DADT in the lame-duck session of Congress. “The Senate should act immediately to debate and pass a defense authorization bill and repeal ‘Don’t Ask, Don’t Tell’ during the lame duck session,” the senators wrote last week, adding, “If Congress does not act to repeal ‘Don’t Ask, Don’t Tell’ in an orderly manner that leaves control with our nation’s military leaders, a federal judge may do so unilaterally in a way that is disruptive to our troops and ongoing military efforts. It is important that ‘Don’t Ask, Don’t Tell’ be dealt with this year, and it appears that the only way that can happen is if it is on the defense bill.” Like Gates, Joint Chiefs Chairman Adm. Mike Mullen has said that changes to DADT should be done in Co ngress rather than in the courts. If Congress passes the current DADT repeal language in the National Defense Authorization Act, the repeal would require certification from President Obama, Gates and Mullen and then Congress would have 60 days to review the certification before the Pentagon implementation. For his part, Senate Majority Leader Harry Reid has not firmly committed to moving on the legislation, saying, “If we could get some agreement from the Republicans that we could move the bill without a lot of extraneous amendments, I think that is something we can work out. Time agreements on a few amendments, that would be my goal.”

MCCAIN’S SHAME: Sen. John McCain (R-AZ) is considered the leading Republican voice on military issues in the Senate and he has repeatedly changed the standards by which he would support repealing DADT. First he said he would defer to military commanders, but when Gates and Mullen came out in favor of ending the ban, McCain decided that the opinions of the service chiefs were more significant and came up with a new line — letting the Pentagon finish its study. Now that the findings of the study have been leaked, McCain is still in full denial mode. Asked yesterday on NBC’s Meet The Press about the Washington Post’s report on the Pentagon’s conclusion about ending DADT, McCain stuck to his talking point that the study was flawed because, he said, it “was directed at how to implement the repeal, not whether the repeal should take place or not.” “I wanted a study to determine the effects of the repeal on battle effectiveness and morale. What this study is, is designed to do is, is to find out how the repeal could be implemented. Th ose are two very different aspects of this issue,” McCain said. Yet, the Pentagon study does precisely what McCain wants it to do: finding that ending DADT would be inconsequential to a large majority of active duty and reserve troops. “McCain seems to be saying he wants a do-over because he doesn’t like the findings and recommendations in the Pentagon report going to Secretary Gates,” the Servicemembers Legal Defense Network, a gay rights legal group which works to end DADT, said in a statement responding to McCain yesterday. “In other words, McCain is telling the Pentagon: Keep working until you produce the outcome I’m looking for.”

EXECUTIVE POWER?: The White House issued a statement last week saying that it wants a DADT repeal measure to stay in the Defense Authorization Bill, but fell short of offering a veto threat if it gets taken out and did not propose executive action, such as using the President’s stop-loss authority to suspend discharges. And the Obama adm inistration doesn’t even list ending DADT as a priority in the upcoming lame-duck session. The Wonk Room’s Igor Volksy noted that last week, the President announced that he would invite Congressional leaders to the White House to discuss “what we need to get done during the lame duck session” and only identified extending the Bush tax cuts for middle class Americans, “a whole range of other economic issues,” and foreign policy concerns like ratifying the START treaty, as priorities, yet DADT was notably absent. While White House communications director Dan Pfeiffer said repealing the ban in the lame duck session is “worth a shot,” the White House isn’t doing much leaning on potential Republican votes to repeal DADT. LCR executive director R. Clarke Cooper said he h as met with four persuadable GOP offices recently and has discovered that the White House has not lobbied any of them on ending DADT. “[T]hese are all senators who would be willing to have a dialogue, and they have not heard from the White House Office of Legislative Affairs, which is an arm of the Executive Office of the President,” said Cooper. “So again, if President Obama is serious about this as a legislative priority, there are Republican offices that need a phone call.” As CAP’s Laura Conley and Alex Rothman write today, “It’s time for Congress to act in the interest of the American people by ensuring that the 2011 National Defense Authorization Act is passed with the current ‘Don’t Ask, Don’t Tell’ repeal language and sent to the president without delay.”

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JUSTICE: Uncertainty Around DADT


Last week, the Justice Department asked Judge Virginia Phillips to stay her broad injunction barring the military from enforcing the Don’t Ask, Don’t Tell policy until it has an opportunity to appeal the decision to the U.S. Ninth Circuit Court of Appeals. In the appeal notice that accompanied the stay request, the government argued that ending enforcement of the policy “before the appeal in this case has run its course will place gay and lesbian servicemembers in a position of grave uncertainty.” “If the Court’s decision were later reversed, the military would be faced with the question of whether to discharge any servicemembers who have revealed their sexual orientation in reliance on this Court’s decision and injunction,” the government wrote. “Such an injunction therefore should not be entered before appellate review has been completed.” Meanwhile, the Department of Defense has also issued new orders via email late Thursday afternoon “informing all five branches of the military that they must comply with an injunction ordered by a federal judge” until the judge grants the government’s request. The Pentagon warned gay and lesbian servicemembers against changing their behavior in the interim. “We note for servicemembers that altering their personal conduct in this legally uncertain environment may have adverse consequences for themselves or others should the court’s decision be reversed,” Under Secretary of Defense for personnel and readiness Clifford Stanley wrote on Thursday.

FRUSTRATION OVER APPEAL: DOJ‘s appeal of the decision comes after intense lobbying from House and Senate Democrats — including House Speaker Nancy Pelosi (D-CA) — to allow the recent ruling to stand. As DADT scholar Nathaniel Frank explained, “The court case, I think, is one of the more likely now, for the President to say, this actually is unconstitutional and although there is a tradition of defending standing law, it’s not obligated to defend a policy that it believes is unconstitutional.” President Obama has previously implied that DADT is constitutional and Republicans and two Democrats successfully filibustered repeal in the Senate (the measure passed the House in May). But Obama has consistently argued that he would continue to try to repeal DADT through the legislative process to accommodate the work of the Pentagon’s ongoing review. “I don’t think it’s too much to ask, to say ‘Let’s do this in an orderly way’ — to ensure, by the way, that gays and lesbians who are serving honorably in our armed forces aren’t subject to harassment and bullying and a whole bunch of other stuff once we implement the policy,” Obama told Rolling Stone magazine in late September. The appeal comes a day after Secretary of Defense Robert Gates warned that ending the ban is “an action that needs to be taken by the Congress and that it is an action that requires careful preparation, and a lot of training.” “It has enormous consequences for our troops,” Gates said, ignoring research by the Center for American Progress’ Larry Korb, Sean Duggan, and Laura Conley which has found that repeal is actually a simple process and has been completed without incident by many other countries, including some of our closest allies.

MILITARY RESISTANT TO CHANGE: Gates, along with other military leaders, has resisted and delayed changing the policy before the Pentagon releases its review of the ban during the first week of December. Following Gates’ remarks, The Palm Center established a website to track his prediction that the court’s decision to suspend the policy would have “enormous consequences,” including all reported instances of harm to unit cohesion, discipline and privacy that have arisen during this period of open gay service. “Now that the ban has been suspended, we are searching vigilantly for such consequences, and we will use the new web site as a hub for reporting what we find,” Palm Center Director Aaron Belkin said. Last week, the group also submitted a Freedom of Information Act request for all documentation of reported negative consequences of the suspension of DADT. Meanwhile, the Pentagon task force that has been studying the consequences of ending the policy, is “well along” in formulating its recommendations, and officials don’t expect ruling or the moratorium to affect its work. According to some military officials, “[t]he task force found deep resistance to the idea of repealing the law in some elements of the armed services, especially within the combat units, an officer familiar with the findings said. But the surveys also have found segments of the military who were not overly worried about allowing gays and lesbians to serve.”

ENDING THE BAN THROUGH CONGRESS: During an MTV/BET/CMT sponsored town hall on Thursday, Obama told young voters that the policy should be repealed by Congress, not through an executive order or the courts. Distinguishing himself from President Harry Truman — who desegregated the armed forces via executive order in 1948 — Obama explained that “the difference between my position right now and Harry Truman’s was that Congress explicitly passed a law that took away the power of the executive branch to end this policy unilaterally. So this is not a situation in which with a stroke of a pen I can simply end a policy.” Obama stressed that he’s been able to convince Gates and Joint Chiefs of Staff Chairman Mike Mullen to support repeal and promised that the policy would end “on my watch.” “But I do have an obligation to make sure that I’m following some of the rules,” Obama said. “I can’t simply ignore laws that are out there, I’ve got to work to make sure that they are changed.” On Thursday, White House Press Secretary Robert Gibbs promised that Obama would work to end the policy during the lame duck session of Congress, telling the Advocate’s Kerry Eleveld that the President would be “actively involved in that.” Obama should also suspend discharges using his stop loss authority, thus ending the discharges of qualified men and women during wartime.