Jarrod Chlapowski

So About That Executive Order Thing

Filed By Jarrod Chlapowski | August 12, 2010 8:00 PM | comments

Filed in: Politics
Tags: Don't Ask Don't Tell, gays in the military, Rachel Maddow

I'm sure by now many of you have seen the Rachel Maddow Piece on Wednesday that focuses most of its attention on pressuring the White House, also bringing two more faces to the DADT repeal movement (John, Katie: Welcome. You have no idea what you're in for).

Though of course Rachel brought up That Thing Which We Don't Talk About, which is whether Obama should do an executive order halting discharges, and if so, when.

So let's talk about it.

First, context: what would an executive order mean?

Well, before Legislative Repeal TM, it would use vague 'stop-loss' legislation to halt discharges, maybe. Know that stop-loss is a very bad phrase in the defense community due to repeat deployments and the associated stress on psyche and families that are implied with the concept. Using it to stop discharges is shady and will be unpopular outside the progressive community and in the defense community.

More importantly, an executive order would very loudly buck the Pentagon review process in place. Like it or not, the legislation that is our only chance of Congressional repeal this year specifically is designed to allow the Pentagon working group's review to complete in December before any sort of implementation plan can be introduced. As it has been repeatedly stated the review is not about 'if' but 'when,' some see that as no big deal. We're going to end discharges anyway, right? Why not right now?

But it's important to consider that the review also allows the Pentagon to create an implementation plan - at least in the eyes of many of our more centrist supporters. An executive order would stop discharges without that 'plan,' which would strip away at least a few supporters of the bill as it stands, particularly as the method will be viewed by many as shady. Legislative repeal could very well be put in jeopardy, when we could knock out this very necessary piece in just a few months.

Now, ok. Let's say we get through Congress, and the President doesn't veto the defense bill over alternate engines or allocation of troops to the border. Or whatever else is thrown in there by showboating politicians looking to derail DADT,

Assuming the bill is signed in October, we have mid-terms in November to get ready for, and the completion of the review in December, so we probably won't see an executive order before then. January, following the winter recess, review is complete, and now implementation is waiting on the President, C/JCS, and SecDef to sign and pass on to Congress to review for 60 days. An executive order at this point, while not rife with the same political intricacies of Congress, would still be the President saying "I don't have confidence in this process set up by legislation I said I supported." And because implementation has not gone forward, halting discharges would still rest on stop-loss legislation.

So we wait until the 60 days are over. Now a plan is in place, and it's up to the Pentagon to implement the plan. The Executive Order at this point is very different than before. With DADT off the books, it is again within the President's power to end discharges absolutely, plan be damned. And if the Pentagon is taking too long to implement open service, this is definitely a tool that could speed up the process.

In summary:

Executive order right now- probably unwise, as it could jeopardize legislative repeal, which may or may not cause more discharges in the long-term than simply wading through the existing process;

Executive order immediately after signing the bill - possible, but not likely given the language of the legislation;

Executive order next year - hopefully won't be necessary if the Pentagon is moving quickly enough to implement open service.

In super-short summary:

This is really complex, folks, and, whatever your stance, an executive order to halt discharges would not occur in a vacuum.

Anyway, would love to hear your thoughts on this.

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There's no chance of an executive order to end discharges. As much as some people would like it, it's just not going to happen. If Obama wanted to do it, he would have done it in 2009.

Jarrod you make some really good points and present them in a very clear way. And I figure if this all actually happens for open service early next year that is great and not too much longer to wait. But that is a big if in my opinion. I don't trust the President or the process. Also, your article is all about why an executive order would not be wise now. Okay, but I think he whould have done one last year sometime. No study to worry about getting in the way of and no bucking the Pentagon review process in place and no lack of faith in the process set up. But I know we cannot go back in time. I just think we need our fierce advocate and I have yet to see him. By the way,thanks for all the work you and your organization do!

Justin Elzie | August 12, 2010 9:28 PM

I need to correct something’s or assumptions you make here.

1. Your statement "Using it to stop discharges is shady and will be unpopular outside the progressive community and in the defense community."

Wrong - 75% of Americans think that gays should be able to serve in military and many of those Americans are independents outside of the progressive community. So support for a stop loss is way outside the progressive community. And the reason that Title 10 U.S.C. 12305 which is the stop loss provision is only unpopular with the military is because it is constantly used for deployments. The recent rank and file have never faced this provision being used in this way so you can’t say they would mind it being used to stop discharges specifically of gays.

2. Your statement: "As it has been repeatedly stated the review is not about 'if' but 'when,' some see that as no big deal."

Wrong - recent statements or should I say slip ups by Gates, Service Chiefs and more importantly the questions recently on the biased Survey put out by the Pentagon to the troops do state "if" not "when". So the military hierarchy is not totally on board with repeal.

3. Your statement: "Executive order right now- probably unwise, as it could jeopardize legislative repeal"

Wrong - This statement or assumption by you is not based in Fact but is an assumption. Nobody knows what would happen the head of the military, Commander in Chief of the US Armed Forces President Obama used his powers which were given to him by Congress under Title 10 U.S.C. 12305. The truth is that during the first Gulf War President Bush at that time used this provision to stop discharges, which included gays and lesbians because we were in time of war. The last time I looked we were in time of war and need every soldier to fight terrorists. If Obama was smart he could easily make that argument to the 75% of the public that thinks gays should serve and if he told the military which he is in charge of that this is going to happen it would happen. And he could also put pressure on Congress in other ways. Bottom line is there is never in life an absolute and if the President really wanted this he would find a way. Political excuses are all that are being used right now to explain why "he can't" do it. The truth about Obama is that he doesn’t want to be seen as weak on the military like every other President so there is no way he is going to go up against the military under him and in effect you in your assumptions are admitting he is weak and the military (which is supposed to be ran by civilians) is really in charge.

In summary you make alot of assumptions with no facts of how it all could go down. While politicians dither in DC our brothers and sisters continue to be fired and lives ruined. But those who are opponents of a stop loss refuse to acknowledge these 400+ discharges now and how they could stop tomorrow if the President used some political capital and did the right thing morally and ethically.

Those who don’t want a stop loss are complicit in the face of these continuing discharges and have bought into the misguided notion of political expediency with no bases in Fact. As Martin Luther King said: "Justice Delayed is Justice Denied."

May God forgive those who are fighting against stopping the discharges, by fighting a stop loss and are complicit in the ruination of all who have been fired under Obama so far.

Justin Elzie
Former USMC
First Marine Discharged under DADT

Hi Justin,

Some counterpoints:

1). Yes, over 75% support open service. But using stop-loss to do so? Not quantified, and wouldn't be nearly as high. And you can bet Republicans will jump all over Obama stretching his power;

2). Slip-ups aside, it has been repeatedly said, and repeated. In fact, the Pentagon has been very defensive about that point. But, anyway, the corresponding point was focusing on the idea of 'why not now,' which you don't address in this bullet;

3). It is a very real risk. I made a point not to speak in absolutes. But losing legislative repeal this year is not, in my book, ok;

The rest: By going the current path of legislative repeal, we can hopefully have a repeal bill signed, which will decrease discharges by default, as will the new regs introduced earlier this year. We frankly don't know how many will be discharged before implementation, but you can bet it won't be nearly 400. And the balance is we take this off the books for good and don't have to go through the process of getting Congress to move on this all over again. If it's not taken off the books this year, we risk allowing a conservative President to rescind whatever executive order is in place, which is only good through wartime anyway.

RE: May God forgive..., Ugh. Please don't be so dramatic. Don't forget I served too, so don't imply my interests are not in line with those still in.

Well the lack of creativity astounds me. The President, as Commander in Chief, could easily implement requirements that do not stop discharges but require them to go through additional processing. Here is my suggestion to President Obama.

1. Require the Secretary of defense to review each case personally and make a recommendation to the President citing specifics and affirming that the Secretary recommends discharge.

2. Upon receiving the Secretary's recommendation then submit the case for review and consent to the Senate.

There is always more than one way to put lipstick on a pig.

We keep forgetting that this "review" is completely under the Pentagon's control. If it comers back with a negative, it doesnt matter what Congress says: DADT stays "for reasons of national security". That's definitely an if, not a when, and the chances of it going past the "if" are slim to none as long as we have the same brass in charge.

What *should* be infuriating progressives is the shell game we're being played by not only the Pentagon but the administration and congress. The way this has all been set up, Congress can look like it's passed something and, when the Pentagon says no, can look at us all weepy eyed and say "Well, we tried! Honest we did!"

Sad part Sean is I think that's exactly what is happening and this administration is playing groups like SLDN. President Obama has shown no political courage on this and other GLBT issues. I hope our leaders aren't getting played. Sadly it is a real possibility.

Well said. The non-compromise, non-repeal "Compromise Repeal" is a charade manufactured by Gay Inc. and Democrats. It is only intended to make the "look good," and it will not pass the US Senate.

Later this year we'll here "we were sooooo close, please send money."

Thank you, Jarrod, for this interesting post. I hadn't thought about the potential loss of Senate votes should Obama try an executive order. I imagine giving Gates and Mullen deference for review was a key vote-securing move for Obama (especially since he needs to secure 60 votes with only 58 democrats). Not a pleasant business, but the Senate has not been a particularly pleasant place the past few years.

Putting pressure on Obama to do an Executive Order doesn't necessarily mean that's what we want. There's a vacuum. It needs to be filled with discussion. And it needs to feel urgent.

I think Jarrod makes some outstanding points and I tend to agree. Justin's counter argument also is logical. My concern about Justin's points is related to the misuse of information for political gain. There is a huge gap between facts, e.g., the huge support among the polled population, and the way a subsequent action by the President, executive order to stop DADT discharges, may be used politically against him and his party. The only thing the republican party seeems to do very well is to take advantage of such situations--usually requiring overt lies on TV, but their collective values seem to promote this behavior. Note already over every level and about every issue, the republicans are saying that only they are supporting the "will of the people." That is a lie. Anyway, while I'd like to see DADT end yesterday (and marriage eqality, and.....), I do think the serious political issues (along with moral, ethical, etc.) cannot be overlooked.

What if his order said it was temporary to preserve the balance of forces pending the recommendation of Gates et al? Wouldn't that take care of the "he doesn't trust the process thing"?

Thanks for the easiest to understand explanation of the process and logic, Jarrod. I appreciate it. You laid it out succinctly and I agree with your evaluation.

Bridget Wilson | August 13, 2010 11:50 AM

Only comment-Justin, agree with much. But, the Bush Sr. stop-loss order of Gulf I did not include separations for homosexuality. There was a functional stop-loss in many cases, much as we have seen in this war, but the stop-loss did not include gay discharges in Gulf I.

This is the same type of logic, that groups like HRC used when they tried to prevent the gay marriage issue from heading to the courts. EVERY case, from Ma. to Iowa, to the recent court case in CA. HRC and other groups tried to prevent. If people had listened to them we would have no gay marriage. Your opinion here falls into the exact same tip toeing, do not upset anybody, mindset. I feel sorry for you that you seem to have truly bought into the idea that gays are less than, and lucky for anything they get, or you are more loyal to a political party than you are to civil rights. Either way it is sad.

Justin Elzie | August 13, 2010 6:28 PM

I do have agree with Jarrod, that the President will not touch a stop loss until after the first of the year.

However, Jarrods view is not exclusive or monolithic in the LGBT community to include the military veterans. There are many many people involved in this issue in the movement that disagree with not pushing for a stop loss to stop the firings.

There are the 77 Members of Congress that last year wrote to Obama asking for a Stop Loss, Dan Choi, David Mixner, GetEqual, The news media, notably Rachel Maddow who just this last week again asked the question: "why are we kicking people out while we are waiting for the views of the commander in chief, the chairman of the joint chiefs of staff. If you are changing the policy soon why not hold off the ruinnation of lives under the policy now? why not? I'll tell you why because that would take some political capital that would take guts."

Also SLDN and HRC pushed the idea of a Stop Loss for the past year and this was reported in the Palm Center report - "A Self-Inflicted Wound: How and Why Gays Give the White House a Free Pass on 'Don't Ask, Don't Tell" by the Palm Center."

The majority of Americans support equality and that includes 75% in support of repeal. We need to stop echoing our opponents warnings that this is a contentious issue.

As Jarrod correctly alludes to the fact that after the first of the year and the report comes out that at that point he may do a stop loss but even that is questionable.

As Rachel Maddow said it comes down to using political capital. I am hoping that people will stop looking at this issue as a political issue or shell game to play around with, but one that is an ethical and moral issue. 400+ people have been fired under Obama so far. The ban on gays in the military is a crime against humanity.

While we all agree it needs to go away, the disagreement comes as to strategy and to whether 400+ people are expendable while the politians dither around in DC and the Pentagon controls the issue.

More Counterpoints:

You're right: 77 members of congress did sign a letter endorsing an Executive Order halting discharges. Last year. At that time, there was no Senate bill, Patrick Murphy just took over the House bill and had not yet reached 160, 170 cosponsors, Mullen and Gates had not announced the review, and the community and Congress had barely enough time to absorb the concept of an executive order - introduced for the first time Spring of 2009 - before the letter (written by Palm staff) was dropped. The House bill itself did not allow time for a review because there was no review; the bill did not require certification of the review by the SecDef, C/JCS, and Pres because there was nothing to certify. We were also not at the cusp of a sharp turn in Congressional makeup.

In other words, the 2009 and 2010 contexts are very different, making the letter not applicable.

Otherwise, clearly, yes, there are activists and prominant figures in favor of the EO. We wouldn't be having this debate if there weren't. None have provided a compelling argument why an EO would be wise in the current political context.

Also, I know for a fact HRC has not taken a formal position on the EO as preferable to legislative action. Stronger statements otherwise you will find in the 2009 context. But it was never pushed. Always, Congressional repeal has been, and is ideal.

And again, unless Congressional repeal fails this year, there will not be 400 more discharges in the interim. Not nearly. For reasons already stated.