[edit: I left out another big player here. Servicemembers United is also happy with this compromise.]
This diary is no way an attempt to disparage, directly or indirectly, all the work that Clarknt67 has been putting into this issue. But I disagree with the assessment that he and others are making of the policy compromise, and I wanted to offer some history - both of the policy and of the strategies involved - to explain why we shouldn't treat this as a negative development or a dead end. Some of the groups that have been fighting hardest for this repeal, and that are most knowledgable about the legal and policy implications of various versions, have come out in support of the compromise, and I wanted to make sure their version gets heard.
I am optimistic about this compromise, and I want to outline why we should be, too (or at least why we should temper our skepticism). In support of that, I want to outline everything that's on the table, why it's important, and how you can get involved:
First, most of you who follow this topic know the Servicemembers Legal Defense Network by now. Since 1993 the SLDN has been the main source of information about DADT policy, because they represent the legal support system for troops who are most directly affected by it.
Likewise, most of you know the Palm Center at the University of California, Santa Barbara. The Palm Center is a think-tank with a broader public policy mandate, but they have spent most of the last ten years producing analyses and recommendations related to Don't Ask, Don't Tell.
Most famously, they produced this set of recommendations (pdf) in May of last year, after Obama was elected, which they felt represented the clearest and most viable path to DADT repeal. That study was much-discussed at this site, with special emphasis on the first recommendation:
- The executive branch has the authority to suspend homosexual conduct discharges without legislative action.
- Legislative action is still required to permanently remove "don't ask, don't tell."
- The President should not ask military leaders if they support lifting the ban.
- [additional analysis supporting point 3]
- Studying the issue further would cause waste, delay, and a possible backlash.
- Equal standards and leadership are critical to a successful policy change.
What caused no end of grief between activists last year was the stop-loss question, and whether the President did indeed have that authority. That disagreement wasn't just a matter of supporters versus detractors, or of optimists versus cynics: the SLDN advised the president against this path, citing both its legal ambiguities and likely troop backlash against an unpopular order (that is, stop-loss itself.)
If an executive order were issued, not only would there be an unnecessary and distracting showdown with the legislative branch, the next president could come along and wipe it away. Moreover, repeal by an act of Congress, coupled with a non-discrimination policy for the military, is the only sure-fire way to protect against future employment discrimination in the ranks based on sexual orientation.
So our two most best and most knowledgeable centers on this policy did not agree on the correct path for repeal, which isn't uncommon once discussions turn to strategy. Agreeing on the proper outcome is easy, but agreeing on the best path for getting there never is.
Meanwhile Obama and Congress seemed set on two possible paths for repeal: Obama's route a consensus-building exercise in explicit opposition to the Palm Center's recommendations 3-5, and Congress more in line with the SLDN recommendations.
Neither has proven successful: fearing losses in November, neither Congress nor most of the LGBT activist base are willing to wait until December to go ahead with legislative repeal, but Congress has not succeeded in getting the necessary votes for repeal as planned. Whatever the reasons for this, whether we could have had a better outcome through more forceful advocacy, whether certain Senators are stonewalling just because they can, whether LGBT lobbyists have been inefficient - all of these are subject for a later post-mortem, but this diary is about where we go from here.
And where do we go? With a compromise that wins us the necessary margins of votes in the Senate to repeal the Congressional side of the military ban, and that means courting people like Ben Nelson and Jim Webb. Both of these Senators have proven wishy-washy on the repeal, citing the need for patience, for further analysis, and especially for the thumbs-up from the Pentagon and Joints Chiefs of Staff. Nelson has explicitly tied his vote to Gates' and Mullen's green light. Webb is still unsure. But let's be clear: the issue is not delayed implementation: the issue is that Nelson (etc.) does not want to see the policy repealed without Gates' and Mullen's support, and this compromise grants them the eventual say.
That gives us two options here, from a legislative point of view: gamble on the original repeal+protections despite promises of opposition from key Democrats, or gamble on a later executive order that gets us, in the meantime, a Congressional repeal.
Look: neither version is ideal, so we're gambling either way. In writing this diary, I'm not trying to suggest that there's a single correct and clear path that we should be taking. Politics and strategy are messy businesses, and all of us are banking on the future.
What we know is that this compromise, should it be accepted, gains us certain things:
- There will be no law against open service by gay, lesbian, and bisexual servicemembers;
- There will be no legal hurdle against an executive order abolishing the ban;
- At best, the compromise shows support of repeal from each of the major players: Congress, the President, and most importantly the military.
We also risk certain things:
- There will be no law preventing discrimination against gay, lesbian, and bisexual servicemembers;
- There will be a risk that certain members of the Pentagon and/or Joint Chiefs (ahem, Gates) will oppose the repeal and jeopardize the executive order;
- The order could be reversed by a future president.
With that in mind, I wanted to close by returning to the beginning, and looking at how the SLDN and Palm Center are reacting to the proposal. As it turns out, they are showing none of our skepticism. Here's the SLDN:
If enacted this welcomed compromise will create a process for the President and the Pentagon to implement a new policy for lesbian and gay service members to serve our country openly, hopefully within a matter of a few months. This builds upon the support Defense Secretary Robert Gates and Admiral Michael Mullen, Chairman of the Joint Chiefs of Staff, expressed for open service during the February hearing in the Senate, and further underscores that this Administration is committed to open service.
Nor do they expect us to declare victory and go home: the announcement ends with a plea to activists to focus their attention on getting this compromise passed. Immediately on the heels of that press release they issued another, specifying where we can best focus our energies: CALL THE HILL NOW.
But the fight is not won yet. With critical votes in the Senate Armed Services Committee and the House floor in the next 24-72 hours, we need your help to reach a winning vote.
Call your representative today and say that the time to vote for repeal is now.
Back to the Palm Center, whose recommendations from last year have remained the centerpiece of our strategy debates. Yesterday they released a brief but overwhelmingly positive statement in favor of the compromise:
"The President’s actions today keeps his promise to lift the ban by establishing the terms on which ‘don’t ask, don’t tell’ will be dismantled," stated Aaron Belkin, Palm Center Director. "For the past seventeen years, every expert who has studied this policy has emphasized that dismantling it would require leadership. Leadership is what the President showed today."
Today, Aaron Belkin has come out asking us not to be overly skeptical about this compromise.
I'm sure that future Republican administrations will try to force gay troops back into the closet. And it would be much better to have a legal promise of nondiscrimination than an executive order or Pentagon regulation. That said, the regulatory path will be durable. Ex-president George Bush tried to undo a Clinton-era executive order mandating non-discrimination among non-military federal employees, and he couldn't get away with it. As Ana Marie Cox has pointed out, racial integration was wildly unpopular when President Truman implemented it via executive order, and that policy has persisted for more than six decades.
The bottom line is this. The main obstacle to equality is the "don't ask, don't tell" law.
Both centers could be wrong, and for the first time they're both on the opposite side of people like Lt. Dan Choi, who is "pissed" about this compromise. Not to mention a lot of the more vocal advocates here. But for as long as I've been blogging on this site, I've thrown my lot in with the SLDN - and to see them in full agreement with the Palm Center makes it much harder for me to be as skeptical about this process.
I appreciate and respect the passion that people like Lt. Dan Choi have put into this issue. I read and rec all of Clarknt7's diaries because, even when I disagree with them, action is far better than words. But I'm allowing myself to be cautiously optimistic on this issue, because even in the worst-case scenario we will be making one undeniable gain: eliminating the Congressional ban on openly gay service. And that's the worst-case scenario.
That's only going to happen if make it happen.
With that in mind, you know what to do.