Dr. Jillian T. Weiss

What Is Up With Don't Ask Don't Tell?

Filed By Dr. Jillian T. Weiss | July 15, 2011 9:00 AM | comments

Filed in: Politics
Tags: Department of Justice, Don't Ask Don't Tell, Don't Ask Don't Tell repeal, LCR, Log Cabin Republicans, Ninth Circuit, Obama Administration

DADT_crossword.jpgThere have been a series of confusing developments in the last few days that have wrong-footed some of the most astute observers of the DADT law.

First, the Department of Justice files a brief with the U.S. Ninth Circuit Court of Appeals that nowhere defends the constitutionality of DADT. Then, on July 6, the Court issues a ruling putting the lower court order banning DADT enforcement in effect immediately. Servicemember advocacy organizations cheer the Administration. Then, on July 11, the Court fires off an unsolicited order suggesting that the case be completely dismissed as "moot," meaning that there's no real dispute between the parties as to the unconstitutionality of the law. Alternatively, it suggests that the House of Representatives be empowered to intervene to defend DADT. Then, yesterday, the Department of Justice files two briefs. The first requests an emergency reconsideration of the stay, asking the Court to delay the lower court's ban on DADT enforcement. The second brief replies, a week early, to the Court's concern about whether the Administration is defending the DADT case, or if it should instead be given to Boehner et al. or dismissed as moot. The Administration's brief says:

"it has fully defended, and continues to defend, the constitutionality of 10 U.S.C. § 654, as it exists following enactment of the Don't Ask, Don't Tell Repeal Act of 2010" in a letter that argues that -- after the Don't Ask, Don't Tell Repeal Act was signed into law -- Section 654 became a "transitional provision."

In other words, the Administration is defending whatever is left of DADT after the repeal act was signed into law. That vague statement leaves a lot of wiggle room for the Administration to decide what parts of DADT it is defending, depending on what one thinks is left of DADT after the repeal act went into effect. The government's brief also said the Ninth Circuit misunderstood the effect of its brief in the unrelated DOMA case, where it agreed that DOMA is unconstitutional. While it didn't back off its stance in the DOMA case, it said there are issues here that are different, since Congress has set up a repeal process which needs to be respected by the courts. True enough, I suppose.

Servicemember advocacy organizations boo the Administration.

What in the world is going on here?

I believe that DADT is unconstitutional and should immediately be put on ice. However, because my years of practicing law have shown me time and again that the law is primarily a word game, I also know that the law has many strange twists and turns. An ill-considered move that seems like a good idea at the time can put you in a worse position, legally and politically. Even when you win, you can lose, and the courts breathe life into that hoary phrase "Pyhrric victory."

So what's up with Don't Ask Don't Tell?

The first thing to understand, as I argued late last week, is that it ain't over till it's over. We have all three of our government branches acting as Top Chefs nervously hovering over the DADT soup, and we know what happens to the broth when there are too many cooks.

First, we have the U.S. Ninth Circuit Court of Appeals, which is making everyone crazy with its back and forth orders. It wants some resolution as to what's being asked of it by the litigants. Second, we have the Administration and its military, which is working to certify repeal at something less than top speed. It wants to show its gay-friendliness, but it also wants to do things in its own time and in its own way, presumably to make the transition to the new policy smoother. Third, we have the House of Representatives, with Speaker Boehner et al. eager to get their hooks into the Administration and to gum up the works of the certification process and the Ninth Circuit.

As I argued on Tuesday, it would be better for the Administration to defend DADT on a "technical" basis than to let it descend into the maelstrom of notifying Boehner et al. that it is no longer defending, and giving them a chance to get into the case. Furthermore, if the case is dismissed as moot, the precedential value of the District Court decision banning DADT probably goes away. Even worse, there are still regulations on the books from the DADT days that can negatively affect servicemembers, and all those need to be found and revamped. As annoying as it is to have the Administration defending DADT on any basis, it's better to do this right.

The solution, to my mind, lies in letting the court process crawl along with the Administration firmly in the defendant's chair, and putting lots of political pressure on the Adminstration to finish the certification process.

I don't fault the servicemember advocacy organizations for raising the roof over the delays in the process of getting rid of DADT. After all, our servicemembers are still under threat of discharges, and some discharges are in active process.

As Chris Geidner noted in his report in MetroWeekly yesterday, (links omitted)

"On Jan. 10, however, in responding to the government's initial appeal to the Ninth Circuit, lawyers for LCR argued that, regardless of the reasoning, Section 654 -- DADT -- remained in effect, writing, 'During that time, the military will continue to refuse to process enlistments of individuals who openly declare their homosexuality. It will continue to require that serving personnel who are homosexual conceal that core aspect of their identity, and lie, in violation of their oath and their honor, if the subject arises.'

And, as has been seen, DADT does remain in effect, with administrative separation board hearings proceeding and discharges continuing under DADT. Although the emergency order states there only has been one DADT discharge since the passage of the repeal act, the Air Force has confirmed three discharges and one resignation related to 10 U.S.C. 654 in 2011."

Mr. Geidner quoted one of the plaintiffs in the lawsuit, Servicemembers United executive director Alex Nicholson: "The Administration's response to this latest development in the Log Cabin Republicans lawsuit is unfathomable and confusing. 'Don't Ask, Don't Tell' should be completely dead by now. Certification of legislative repeal has now been dragged out beyond a reasonable time frame, so the court stepped back in to get the job done. The President should just let this law die."

This is true in part. The Administration's response is confusing -- do they support DADT or don't they? But it's not unfathomable. As I've noted, there's good reason for the Adminstration not to let this case be defended by Boehner et al., and there's good reason not to let the District Court precedent die if the case is dismissed as "moot." I do agree that the President ought to get his game on and get the certification done ASAP.

But I do wonder at the outrage of the Log Cabin Republicans, which sounds a quite different note.

"LCR executive director R. Clarke Cooper called today's move "shameful" and said in a statement, "Let me be clear -- the president is asking the court for the power to continue threatening servicemembers with investigation and discharge, and the right to turn away qualified Americans from military service for no reason other than their sexual orientation. Even if the administration never uses that power, it is still wrong, and the Ninth Circuit was clear that there is no justification for continuing the violation of servicemembers' constitutional rights."

Shameful? The Administration's move isn't shameful. It's regrettable, and annoying, and leaves servicemembers in danger of discharge. But at the end of the day, it's clear to anyone with eyes to see that the Administration has little choice regarding the litigation. Defend it, or give it to Boehner et al. Who in their right mind would want that?

I agree with Bob Witeck, of Witeck-Combs Communications, an astute political observer:

"Having read Clark Cooper's message reminds me that if Log Cabin Republicans have one dominating political priority this year, it has very, very little to do with repealing DADT.

In their own words, Clark Cooper and Mitch McConnell (among others) have put aside all other high-minded policies, and instead surrender all other considerations to their total commitment to defeat President Obama in 2012, and the possible election of a Rick Perry, Michele Bachmann or Tim Pawlenty.

Another read on the DOJ action is quite simple, and it has zero to do with the President resurrecting "Don't Ask, Don't Tell." No serious person will read it in that light.

We are days away from certification and from Armed Services ownership of the hard-won repeal process. None of us want the policy remaining in place another day. But it is nothing but bloviation to distort the facts for partisan advantage -- and tilt the game towards their 2012 Presidential candidate who will work daily to defeat us and roll back our civil rights."

I certainly don't want that either. It would be nice if reality were less complicated. But it's not. So let's not quit one minute before the miracle. Push him to get the certification done -- yes! As you know, I'm not shy about criticizing the President, the Administration or Congress when it's merited. Let's not jump all over him for doing what he had to do in the courts.

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The Administration has been defended by fanatic partisans saying that every move is part of some convoluted 11-dimensional chess game.

That's BS. But in this particular case, yes, that's what they're doing. Not 11-dimensional chess, more like 4 at most, but I agree with your analysis. It's pretty much forced on them.

I'm not at all sure that certification is only weeks away though. Or even months. Perhaps it is - but I wouldn't count on it.

I have never got the DADT thing. Aside from the social justice issues all they are doing is creating a huge security issue for themselves. If someone theatens to out you and you can't be open about who you are without being dismissed then you leave every gay person open to blackmail and intimidation. Total security FAIL! Why the largest military and security organisations in the world can't see this totally escapes me.
Then we get to the social justice side.......treating a minority differently based on personal attributes....immediate FAIL on that front too. FAIL all round......

Adam Serwer brought up a point that I had forgotten that I think helps explain the administration's actions here: Obama assured Congress that the military would be in control of the repeal process -- that was the quid pro quo. Now the courts are interfering with that.

As for the painful slowness of the process, keep in mind that this is going through an officer corps that is not overwhelmingly enthusiastic about the idea -- remember, this is an officer corps that has periodic run-ins with the Establishment Clause.

Don Sherfick Don Sherfick | July 15, 2011 6:07 PM

As to the statement that the issues in DOMA versus DADT have some differences, I can appreciate that in the latter, the government has always argued the special deference that courts need to give to the military in its personnel matters. While I've always thought there was a lot of B.S. to that overly-broad assertion when it comes to LGBT issues, the overall principle of deference has some merit and represents some longstanding judicial precedent. On the other hand, the DOMA issues don't involve that facet, being more classic "equal protection" analysis unfettered by the additional "military deference" aspect.

Looking for a "good reason" for Obama's continuing to fight to keep DADT on the books two and a half years—and nearly 700 discharges—into his term is like John Wayne Bobbitt looking for a way to accept his wife Lorena cutting off his penis with a butcher knife and later throwing it out the car window. She had her reasons, too, and Bobbitt's history explained her rage, but....

Your attempts to justify both Obama's legal and procedural actions don't pass the smell test of anyone who's looked beneath Administration talking points. How would Boehner pursuing an appeal motivate the court to rule any more [or less] against gay equality than Obama's appeal? That's like saying you're more dead if shot by a Republican than a Democrat. And while Mr. Witeck does a lot of good for the Community, earlier this year he proved how little he understood what is going on in relation to DADT when he opined that all discrimination against gay and lesbian service members would end the moment actual repeal took place. That's not remotely true given that the Pentagon has explicitly said that gay service members will be treated as second class citizens by being denied the crucial protections against discrimination and harassment of the Military Equal Opportunity Program given nongays because of race, gender, ethnicity, and religious or political affiliation. As a "religion," people who clame to be witches will have more protections than gays. In addition, gay and lesbian partners of those in the military will be denied even those benefits that the Pentagon itself admits are NOT banned by DOMA such as access to military housing. And both of these acts of PREMEDITATED discrimination are possible only because Obama, per Nancy Pelosi, backed gone-too-late Repug holdover SECDEF Gates that the nondiscrimination clause in the original repeal bill be gutted. WHY would he do that if his intentions are so "gay friendly"? Now the upholding of the LCR case ruling is the ONLY thing that could legally prevent a future POTUS/Pentagon/Congress from reinstating some kind of ban even after Obama gets around to lifting it.

But Mr. Witeck's resurrecting a canard demolished by the facts two years ago is not just ignorant but also irresponsible. I'll never vote Republican, and have condemned LCR for any number of other things, but the fact is they first filed this lawsuit when Bush fils was President. By Witeck's "logic" one must assume they, therefore, were trying to embarrass Georgie Boy, too.

As for your assertion that "it's clear to anyone with eyes to see that the Administration has little choice regarding the litigation," with all due respect, I'll take the eyes that come with the credentials of George Washington University law professor and constitutional law expert Jonathan Turley over yours. What he wrote at the time of Obama's first, yes, shameless appeal in October of last year is just as valid now:

"Let us be clear on this point. The Administration is not required to appeal this decision. This is a discretionary decision. Whatever duty the president has to defend the existing statute was satisfied before the trial court. Moreover, the Administration did not have to oppose the injunction. It could have taken an appeal and allowed the injunction to stand. Once again, it is taking actions that appear in direct conflict with the President’s insistence that he opposes DADT. If DADT is discriminatory, why would the President be fighting to hard to resume discharges and preserve the policy? Would the Administration fight to preserve a racial or gender discriminatory policy? If the President believes that the Constitution does not protect against discrimination against gays, he should state so clearly. If he is opposed to the law, he also has wide discretion on when to enforce such laws."

As for your deepthroating of the Pentagon's/President's claims about the law having to stay in effect because they have to have time to fix all the paperwork and "train" so that the transition will be "smooth" [while, note, investigations of at least 100 per SLDN and recommendations for discharge of people who WANT to stay in continue], again I respectfully quote those with longer, more focused credentials on the subject than your own, emphasis mine:

Palm Center Director & DADT expert Aaron Belkin, Washington Blade, January 6, 2011:

"It shouldn’t be a long process because the Pentagon ALREADY ESTABLISHED A POLICY TO ALLOW GAYS TO SERVE OPENLY in the military when [in the LCR case] a California federal court in October issued an injunction that temporarily enjoined enforcement of the law. Although they haven’t acknowledged this in public, THE REPLACEMENT REGULATIONS HAVE ALREADY BEEN WRITTEN. The Pentagon could easily repeal the ban TODAY if there was the POLITICAL will. [Army Chief of Staff Gen. George] Casey in particular is leaving soon and doesn’t want to be known as the Army chief of staff who let gays in on his watch. THE FOOT-DRAGGING IS NOT ABOUT SOME SINCERE OR LEGITIMATE SENSE THAT THE TROOPS NEED TO BE TRAINED ON HOW TO DEAL WITH GAYS; it’s because they don’t want to be around when the policy happens.”

Casey left in April and Gates, the architect of the multi-pronged attempt to kill repeal any way possible while claiming to finally turning against it, retired last month, so what homohating dinosaurs in the Pentagon's Jurassic Park is Obama still willingly being Piss Boy for?

Palm Center report, December 2010: “Any claim that [implementation cannot happen] until after the completion of exhaustive training is inconsistent with DoD history and not based on military necessity. Whatever preparations are ultimately deemed necessary, the Pentagon ought to be able to pull them off faster than it did the implementation of DADT in 1994, which took approximately 40 days. Case studies demonstrate that training can take place quickly, even in combat zones, and that policies are generally implemented BEFORE OR CONCURRENT WITH training. Training is not a prerequisite...to claim otherwise is a vote of no confidence in members of the armed forces, is not supported empirically, and is suspiciously dilatory. Training, like the formal publication of instructions, can occur (and has occurred) ex post facto.”

Center for American Progress March 2010 study: "The experiences of foreign militaries and RAND’s 1993 study indicate that IMMEDIATE implementation not only can be done but is also the most effective way to make the policy change."

Maj. Gen. Dennis Laich (RET), Co-chair, SLDN’s Military Advisory Council, Stars & Stripes, March 25, 2011: “I am baffled by the length of time that the Army says it is going to take for our soldiers and other personnel to be trained in order for certification to take place and repeal to be enacted. That it would take a military that can go halfway around the world to unseat a dictator in 30 days more than six months to communicate such a simple set of fundamental moral principles to its force is unacceptable and unnecessary.”

And one for the road: "At what point do we say ‘ENOUGH’? At what point do we stand up and say we will not allow it to happen anymore?" - Harvey Milk.

Thank you.

DADT, a law written to protect Gay and Lesbian service members from harassment and constant questions about their sexuality and allow them to serve in the closet. But its only applied against those who are perceived as Gay or Lesbian.

I’ve never heard of a single instance where a person was charged under the “Don’t Ask”, “Don’t Harass” or “Don’t Pursue” provisions. NEVER! How is a law fair to anyone if 75% of the law is ignored? How is this law fair if 75% of it is ignored and every time I heard of someone being written up on those 3 points of the law always heard “well DADT isn’t for that” or “You need more than that, DADT isn’t meant to address that issue”.

Seriously, can someone please find me ONE instance where the DADT provisions regarding asking, harassing or pursuing. Just one and I’ll go away quietly.

For those unfamiliar with Professor Jonathan Turley, whom I quoted above, here are some of his credentials:

"Jonathan Turley is a nationally recognized legal scholar and constitutional law expert and "second most cited law professor in the county,” who has represented a variety of clients in major cases including four former Solicitor Generals of the United States. After a stint at Tulane Law School, Professor Turley joined the George Washington faculty in 1990 and, in 1998, was given the prestigious Shapiro Chair for Public Interest Law, the youngest chaired professor in the school’s history. He teaches courses on constitutional law, constitutional criminal law, environmental law, litigation, and torts. In 2008, he was given an honorary Doctorate of Law from John Marshall Law School for his contributions to civil liberties and the public interest. He is the founder and executive director of the Project for Older Prisoners (POPS). He has been named one of the Top 10 military law case attorneys in the country, as well as in the top 500 lawyers generally. He is a frequent witness before the House and Senate on constitutional and statutory issues. In 2011, Professor Turley filed a challenge to the Libyan War on behalf of ten members of Congress. He is also a nationally recognized legal commentator. He has written over three dozen academic articles that have appeared in a variety of leading law journals at Cornell, Duke, Georgetown, Harvard, Northwestern, and other schools. He was ranked as 38th in the top 100 most cited “public intellectuals” in the recent study by Judge Richard Posner. Professor Turley’s articles on legal and policy issues appear regularly in national publications with over 750 articles in such newspapers as the New York Times, Washington Post, USA Today, Los Angeles Times and Wall Street Journal. In 2005, Turley was given the Columnist of the Year award for Single-Issue Advocacy for his columns on civil liberties by the Aspen Institute and the Week Magazine. Professor Turley also appears regularly as a legal expert on all of the major television networks. Since the 1990s, he has worked under contract as the on-air Legal Analyst for NBC News and CBS News to cover stories that ranged from the Clinton impeachment to the presidential elections. Professor Turley is often a guest on Sunday talk shows with over two-dozen appearances on Meet the Press, ABC This Week, Face the Nation, and Fox Sunday."