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Last month, the Hon. Virginia Phillips of the United States District Court for the Central District of California issued a nationwide injunction against enforcement of the discriminatory Don't Ask, Don't Tell law.  On Monday, November 1, the United States Government convinced the Ninth Circuit to grant a stay of that order pending appeal, allowing the policy to be enforced in the meantime.  Last Friday, the plaintiff Log Cabin Republicans petitioned Justice Anthony Kennedy to lift the stay and reimpose the ban.  

(Each Justice is assigned 1-2 geographic circuits to be the point person for emergency applications; they can rule on them alone or refer matters to the full Court. Justice Kennedy, as a veteran of the Ninth Circuit, has long been assigned to these cases.)

Today, the government filed its response with Justice Kennedy, arguing for a continuation of the status quo ante pending appeal.  Among other things, acting solicitor general Neal Katyal argues as a procedural matter that in order to merit such relief, LCR must show that at least four Justices would grant certiorari if the Ninth Circuit reverses the district court and finds the policy constitutional -- a showing LCR did not attempt in its pleadings. And since four Circuits have previously upheld DADT, it follows that if the Ninth joins them there's no circuit conflict and, therefore, likely no Supreme Court review.

What's of most interest to readers, though, is what the Obama Administration is saying about the substantive merits of DADT.  As to that, the argument they make mostly isn't about the merits, but is more about the disruption that judicial repeal of DADT could cause.  Yes, they argue that when it comes to military issues, the need of courts to defer to Congress is at its highest, and Congress determined "that the Act was necessary to preserve the military’s effectiveness as a fighting force .. and thus, to ensure national security.”  And they maintain that as a matter of constitutional law, this isn't Lawrence v Texas, which declared sodomy bans illegal, because that case did not involve "a federal noncriminal statute involving military service," and therefore the same rights aren't in play.

Instead, the focus is on the breadth of the order below -- because this wasn't a class action, the brief argues, Judge Phillips shouldn't have given relief to anyone other than these two plaintiffs, and this was "an extraordinary and unwarranted intrusion into internal military affairs.  Moreover, because acts of Congress are "presumptively constitutional," they should remain enforceable until some higher court strikes them down.

And in the meantime, the Working Group is really working on it, so let them spin down DADT in an "orderly," "thorough and deliberate" fashion:

As the government explained to the court of appeals, the Working Group has visited numerous military installations across the country and overseas, where it has interacted with tens of thousands of service members on this issue. It has also conducted an extensive survey of approximately 400,000 service members. The Working Group’s review will result in recommended changes to Department regulations and policies that would be necessary to implement an orderly and successful repeal of the statute. The Working Group is also developing guidance to properly train military commanders and service members with respect to any change in policy. Without sufficient time for such training and guidance, an immediate court-ordered repeal of the statute would risk disruption to military commanders and service members as they carry out their missions, especially in zones of active combat. There is thus nothing “exceptional” in the court of appeals’ conclusion that a momentous change in military policy should not occur overnight as the result of a global judicial decree.

(More below the fold ...)

And, finally, the Government insists that no one's getting discharged anytime soon (at least, not these plaintiffs), given the new procedures which require personal sign-off from top-level officers, including the Secretary of the Military Department concerned and the General Counsel of the Department of Defense.

An attached declaration from Working Group member Clifford Stanley, Under Secretary of Defense for Personnel and Readiness (and a retired Major General with 33 years experience in the Marine Corps) adds a few notes on what he believes the real-world implications are:

[A]n injunction 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. Such an injunction therefore should not be entered before appellate review has been completed.

And, moreover:

  1. For the tens of thousands of servicemembers serving in theaters of active conflict, there will be a tension between the requirement that the policy change take effect immediately and the need to avoid interference with ongoing operations. The exigencies of combat and other operations thus may delay the Department's ability to educate the forward-deployed servicemembers about a court-ordered change in policy.
  1. This is problematic because education and training will be essential to the implementation of any change in the DADT law and policy. It will be difficult, if not impossible, to provide timely education to forces engaged in combat operations. The Secretary of Defense specifically cited the need to avoid interfering with combat operations when charging the Working Group with developing a plan for implementing repeal of the DADT policy; the same concern applies to the judicial invalidation of the statute.
  1. Even for the hundreds of thousands of servicemembers not serving in forward-deployed areas, training and education will be essential to inform servicemembers of what is expected of them in this new environment. These training programs cannot be provided instantaneously.
  1. Invalidation of the DADT statute implicates dozens of DoD and Service policies and regulations that cover such disparate issues as housing, benefits, re-accession, military equal opportunity, anti-harassment, standards of conduct, rights and obligations of the Chaplain corps, and others. Amending these regulations would typically take several months. To change all of the implicated policies and underlying regulations will require a massive undertaking by the Department and cannot be done overnight.

And, finally, an argument that I can only describe as "haters gonna hate, and we've got to listen to 'em":

  1. A number of servicemembers have expressed concerns about, or opposition to, the repeal of DADT and its replacement with a policy that would permit gays and lesbians to serve openly. One of the purposes of the Working Group is to understand these concerns and to develop an implementation approach that adequately addresses them, through changes to policy where necessary and, more importantly, through education and training of the force. An immediate injunction would curtail the Working Group process and would send a very damaging message to our men and women in uniform that their views, concerns, and perspectives do not matter on an issue with a direct impact on their lives. This message would undermine the morale of the force – and not just among those servicemembers who oppose repeal, but of all servicemembers who have informed the Department of their concerns, insights, and suggestions.
  1. Overall, an abrupt change - without adequate planning or time to implement a plan - substantially increases the probability of failure or backlash in the early months of this transition, months that will be critical to our long-term success.

It's one thing to argue that there's a lot of policies which need to change, that it's not just about stopping the discharges.  I get that.  But that last paragraph seems to argue that members of our armed forces will have a problem obeying an order once handed down -- and that suggestion, as Rep. Patrick Murphy explained at a July 2008 hearing, is an insult to our men and women in uniform:

Originally posted to Daily Kos on Wed Nov 10, 2010 at 02:53 PM PST.

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Comment Preferences

  •  asdf (12+ / 0-)

    The Working Group’s review will result in recommended changes to Department regulations and policies that would be necessary to implement an orderly and successful repeal of the statute

    any ideas on how long it will take for the military to fully accept GLB servicemen and women after DADT is repealed by congress?

    Are we talking weeks, months, longer?

    You're watching Fox News. OH MY GOD--LOOK OUT BEHIND YOU

    by rexymeteorite on Wed Nov 10, 2010 at 02:59:42 PM PST

  •  As a gay veteran I take exception to almost (37+ / 0-)

    every single argument put forth by the Justice Department.

    Now granted, I served before DADT along with dozens of other gay and lesbian service members assigned to a field hospital in Vietnam.  We were appreciated for our contributions, many of us were quite openly gay, and no one objected to our being a cohesive part of our unit.

    Nor, might I add, did anyone complain about the medical care they received.

    "Bring back pre-existing conditions. Vote Republican."

    by rontun on Wed Nov 10, 2010 at 03:00:17 PM PST

  •  So Splain' to me Lucy (21+ / 0-)

    So if they allowed repeal to go forward immediately, it would be hugely disruptive. At the same time, they say they won't be actively discharging people who are known to be gay. Isn't that a huge contradiction? If it's not necessary to immediately discharge them, wouldn't that mean they are all doing just fine?

    Change takes time, so do donations. Nada until DADT is really, fully repealed.

    by gladkov on Wed Nov 10, 2010 at 03:00:55 PM PST

    •  Glad to know I'm not the only one (6+ / 0-)

      who read it that way. It's confusing as hell isn't it?

    •  Here's the reason: (3+ / 0-)
      Recommended by:
      Fabian, FG, Onomastic

      nobody wants to let the period of litigation decide "facts on the ground" that can't be taken back later.

      Discharging can't be taken back if the decision is upheld.

      But a current lack of enforcement also can't be taken back: if the decision ISN'T upheld, all the people who came out of the closet are screwed and the congressional objectives (which are presumably consitutional) are thwarted.

      So the safe thing to do is make sure nobody does nothing that can't be taken back regardless of the outcome.

      Yes, I'd give the Devil benefit of law, for my own safety's sake!

      by Inland on Wed Nov 10, 2010 at 03:07:47 PM PST

      [ Parent ]

      •  well, as we've argued ... (4+ / 0-)
        Recommended by:
        CWalter, kyril, Clarknt67, Onomastic

        ... this President could choose to suspend the discharges unilaterally, but a subsequent President could reinstate them.  You've argued with many of us, IIRC, that Obama should not use this power.

        •  He can always tell congress to stuff it. (2+ / 0-)
          Recommended by:
          Fabian, Onomastic

          It's just better to make arguments based on the law, not raw power, to a sitting justice.  Even Bush knew enough to hide it when he ignored statutes.  As we've argued before.

          Yes, I'd give the Devil benefit of law, for my own safety's sake!

          by Inland on Wed Nov 10, 2010 at 03:16:09 PM PST

          [ Parent ]

        •  Hey Adam (1+ / 0-)
          Recommended by:
          kyril

          Question:

          Pretend the WG declares repealing DADT will not harm military interests, and lists a set of new policies to transition from DADT. Couldn't the President's DOJ settle out of court with LCR, if the Senate will not act on repeal? Like say, go back to Judge Phillips, and have her issue a modified injunction that mandates the WG recommendations be followed, with a deadline for DADT's demise?

          I am not asking if its LIKELY, but if it is technically possible.

    •  Apparently, it takes months (6+ / 0-)

      just to change policies to say "treat LGBT members like everybody else."  MONTHS.  And can we really afford the toner and paper to reprint all those manuals?

      Invalidation of the DADT statute implicates dozens of DoD and Service policies and regulations that cover such disparate issues as housing, benefits, re-accession, military equal opportunity, anti-harassment, standards of conduct, rights and obligations of the Chaplain corps, and others. Amending these regulations would typically take several months. To change all of the implicated policies and underlying regulations will require a massive undertaking by the Department and cannot be done overnight.

      Maybe the geniuses in charge could have been working on drafting changes to those policies and regulations in tandem of the Working Group study.  I guess multitasking isn't our strong suit?

    •  In DC Think, it's gone beyond Orwell. (7+ / 0-)

      Even beyond Alice. It's no longer "Up is down." It's more like "up is radish and/or toy boat."

      Until we break the corporate virtual monopoly on what we hear and see, we keep losing, don't matter what we do.

      by Jim P on Wed Nov 10, 2010 at 03:12:55 PM PST

      [ Parent ]

    •  And, why are the non-gay soldiers opinions (1+ / 0-)
      Recommended by:
      hpchicago

      the only ones being considered.  Why hasn't a study been done on the negative impact that DADT has on our national security, taking into consideration opinions of the gay soldiers?

      "Whenever you have truth it must be given with love, or the message and the messenger will be rejected" ~Mahatma Gandhi

      by Kiku on Wed Nov 10, 2010 at 04:27:41 PM PST

      [ Parent ]

  •  As a lawyer (20+ / 0-)

    I do understand the process; however, as an individual interested in human rights in and out of the military, the argument that there needs to be a transitional period of months is bullshite.  This issue has been on the table for years.  If the military feels that it is incapable of training soldiers, sailors, marines to follow an order, then they need to regroup or toss those who can't follow an order.

    " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

    by gchaucer2 on Wed Nov 10, 2010 at 03:03:25 PM PST

  •  This president is not a leader (9+ / 0-)

    and fails miserably in his attempts to be commander in chief of our armed forces. Most members of the armed forces know how pathetic his "leadership" is. Especially those that support repeal of DADT.

  •  Another thing that needs to be addressed (6+ / 0-)

    will be the status of those discharged under DADT, such as Lt. Dan Choi and others. Would they be allowed to re-enlist if desired, and at pay grade and rank achieved at time of discharge? Or if they choose not to re-enlist, some sort of compensation should be due to them as well as restoration of any benefits lost due to their discharge (not sure where they stand in terms of VA access, pension once they hit the proper age, etc.).

    "When it gets harder to love, love harder" -- Van Jones, NN10, 7/23/10

    by Cali Scribe on Wed Nov 10, 2010 at 03:03:57 PM PST

    •  those are the accession policies (3+ / 0-)
      Recommended by:
      vacantlook, kyril, Clarknt67

      And they do need to be addressed -- but don't need to be resolved on day one.

      •  Exactly (4+ / 0-)
        Recommended by:
        vacantlook, sherlyle, kyril, Clarknt67

        people act as if things like spousal benefits have to be resolved overnight. No, they do not. Step 1: You follow an order, do not harass the gay person, just a you do not harass the black person or the or the woman, as you have been doing all along. Seems pretty simple to implement.

        Change takes time, so do donations. Nada until DADT is really, fully repealed.

        by gladkov on Wed Nov 10, 2010 at 03:12:18 PM PST

        [ Parent ]

    •  Well, yes (3+ / 0-)
      Recommended by:
      vacantlook, dharmafarmer, Clarknt67

      that needs to be addressed...but I suggest that we don't need to go on discharging people while we address it. (Same goes for the other issues regarding housing, benefits, etc)

      •  Are we discharging people? (0+ / 0-)

        As the writer explains:

        And, finally, the Government insists that no one's getting discharged anytime soon (at least, not these plaintiffs), given the new procedures which require personal sign-off from top-level officers, including the Secretary of the Military Department concerned and the General Counsel of the Department of Defense.

        The DOJ is arguing that discharges aren't happening and aren't imminent, so there's no need for an injunction to prevent them before repeal is implemented.

        Has anyone been discharged lately?  Are the discharge procedures still going forward, or has the new process stalled them, as the DOJ is claiming?

        I haven't seen any stories about additional discharges, but maybe they're happening and not being reported.

        Art is the handmaid of human good.

        by joe from Lowell on Wed Nov 10, 2010 at 04:14:44 PM PST

        [ Parent ]

        •  Kinda hard to argue (5+ / 0-)
          Recommended by:
          decca, vacantlook, DKinUT, kyril, Clarknt67

          "We need to be able to discharge gays" when they say in the same breath "Oh c'mon, we aren't really discharging them anyway".

          •  The DOJ's argument isn't based on... (1+ / 0-)
            Recommended by:
            exotrip

            the need to discharge people, but on the need to implement a policy in a certain manner.

            Anyway, have you seen any stories about discharges going forward lately?  I'm asking.

            Art is the handmaid of human good.

            by joe from Lowell on Wed Nov 10, 2010 at 04:30:09 PM PST

            [ Parent ]

            •  my understanding (1+ / 0-)
              Recommended by:
              joe from Lowell

              According to Spokeman Morrel, there have been no DADT discharges since the new guidances were issued by Gates in response to the legal uncertainties, related to LCR v. USA. I have seen no media reports which contradict his statements.

              •  Good to hear. Sort of a back-door EO, I guess. (1+ / 0-)
                Recommended by:
                exotrip

                Good enough for now, but it's only a stop-gap measure until repeal passes.

                Art is the handmaid of human good.

                by joe from Lowell on Wed Nov 10, 2010 at 05:52:34 PM PST

                [ Parent ]

                •  no, not good enough for now. (3+ / 0-)
                  Recommended by:
                  decca, Clarknt67, Keori

                  how many qualified people are we turning away from the recruiting offices?  How many GLBT service members are in combat but whose spouses won't be notified when death or injury occurs?  How many GLBT students at the military acadamies are reaching their two year point and having to decide whether to stay in the program and risk having to pay back their scholarships?

                  Obama has been given multiple opportunities to end this in multiple ways and has chosen not to.  He's either in love with the whole kumbaya process of trying to make everyone happy (not working) or he doesn't want it repealed. Or both.

                  My mom wrote a great book on the church & gay marriage - buy it here! http://www.ermalouroller.com/

                  by hpchicago on Wed Nov 10, 2010 at 06:28:44 PM PST

                  [ Parent ]

                  •  Or he actually wants it repealed, and doesn't... (0+ / 0-)

                    want this "not good enough" (your words) situation to endure forever.

                    Sheesh, you're arguing that executive action that stops discharges, but doesn't repeal the ban, is not good enough, and then criticizing Obama for not enshrining that very situation for the foreseeable future?

                    That does not make sense.  If an EO that doesn't actually repeal the ban is "not good enough," then AN EO THAT DOESN'T ACTUALLY REPEAL THE BAN IS NOT GOOD ENOUGH.

                    Art is the handmaid of human good.

                    by joe from Lowell on Wed Nov 10, 2010 at 06:34:47 PM PST

                    [ Parent ]

                    •  yes, he could have issued (3+ / 0-)
                      Recommended by:
                      decca, Clarknt67, Keori

                      an executive order, which would have been every bit as long lasting as the congressional action he's supposedly seeking.

                      Or, alternatively, he could have accepted the ruling of the district court and it would be over now.

                      Or, he could have pushed like hell in the Senate, twisted arms, used the power of his friggin office for once - and gotten the repeal through when we had overwhelming majorities in both houses.

                      Nope - he commissioned an insulting and ridiculous "study"

                      My mom wrote a great book on the church & gay marriage - buy it here! http://www.ermalouroller.com/

                      by hpchicago on Wed Nov 10, 2010 at 06:40:10 PM PST

                      [ Parent ]

                  •  Do not feed the troll (0+ / 0-)

                    This particular bridge-dweller comes into every LGBT diary to say the same insulting things about how we just need to be patient, and then cheerlead for his boyfriend Obama.

                    When are you going to understand that being normal is not necessarily a virtue? It rather denotes a lack of courage. - Practical Magic

                    by Keori on Thu Nov 11, 2010 at 07:51:15 AM PST

                    [ Parent ]

  •  It's such a special feeling (14+ / 0-)

    to be a citizen of this great land while my rights as said citizen are dragged from court to court or given to a majority vote. It makes for a compelling argument that all men and women in this country are created equal.

  •  This is a hot pile of steaming....... (14+ / 0-)

    This is bull! DADT or any other policy in any other place at any other time that denies somebody a right of citizenship without due process of law is ILLEGAL according to the 14th Amendment. The Supreme Court needs to extend sexual orientation based protections to all citizens. Case closed.

  •  I have a suggestion (7+ / 0-)

    ...anyone discharged under DADT gets to name one of the "haters" who gets the same discharge.

    When enough of the haters have been purged from the military, repealing DADT shouldn't be that much of a problem.

    America, we can do better than this...

    by Randomfactor on Wed Nov 10, 2010 at 03:05:03 PM PST

  •  meh, (8+ / 0-)

    I'm more than underwhelmed.

    And frankly, I don't really care that the argument is marginally more circumspect, or every-so-slightly less inflammatory than it could be.

    This is a disgusting, unnecessary appeal to keep bigotry in place.

    Show me on the doll where Rahm touched you.

    by taylormattd on Wed Nov 10, 2010 at 03:05:17 PM PST

  •  what a mess...I mean really, (3+ / 0-)
    Recommended by:
    DKinUT, kyril, hpchicago

    can somebody explain in common english what the hell is going on? I take it the Justice Dept. wants things to stay the way they are, yes? If so, they are not in line with the majority of Americans once again, whataa surprise. AS a gay man, maybe we oughta come up with our own party. Anyone? Anyone?

  •  If I read you correctly (3+ / 0-)
    Recommended by:
    exotrip, Fabian, sherlyle

    DoJ is not saying DADT is worth keeping. They are asking the court to let them kill it nice and slow and proper-like.

    The news about the lengthy bureaucratic process to discharge someone is good, though. If it requires an officer to create work clear up his entire chain of command, and thereby be noticed for something that is not praiseworthy, it is likely to be ignored as much as possible.

    In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra

    by blue aardvark on Wed Nov 10, 2010 at 03:06:29 PM PST

  •  This is getting tiresome. (10+ / 0-)

    Everyone--Congress, the Executive, the military--knows the policy is bunk. When is someone going to have the guts or simple sanity to say, "F this?"

    Shameless self-promo: songs at da web site!

    by Crashing Vor on Wed Nov 10, 2010 at 03:07:59 PM PST

  •  Very interesting new lawsuit LGBT lawsuit (10+ / 0-)

    Filed against the Department of Defense in Federal by the ACLU today.

    Now passing 1,000 Choi Units into the Obama administration.

    by Scott Wooledge on Wed Nov 10, 2010 at 03:09:27 PM PST

  •  It is also becoming (14+ / 0-)

    increasingly clear that repeal of the statute, as currently worded, would actually be less effective than a court ruling that it's unconstitutional. The reasoning is that the "repeal" statute doesn't contain nondiscrimination language, and the only way to ensure nondiscrimination is to have the court say that discrimination is unconstitutional.

  •  If Congressional action is so imporant (1+ / 0-)
    Recommended by:
    kyril

    ...stop fighting to keep DADT in the courts, and let the Republican-Controlled Congress pass a CONSTITUTIONAL version.

    If they can.  If they can get it past the Senate.  If they can override a veto.  If campaign promises are worth enough to prompt a veto.

    America, we can do better than this...

    by Randomfactor on Wed Nov 10, 2010 at 03:10:04 PM PST

  •  Was that a real brief or the Onion's version? (7+ / 0-)

    "Mr. President, I'm not saying we wouldn't get our hair mussed." General Buck Turgidson

    by muledriver on Wed Nov 10, 2010 at 03:14:05 PM PST

  •  Thanks Adam. (2+ / 0-)
    Recommended by:
    vacantlook, kyril

    I appreciate the clarity of your analysis/explanation.  This process is really frustrating.  They should just repeal already.

    Oba-MA bumaye! Oba-MA bumaye!

    by fou on Wed Nov 10, 2010 at 03:14:37 PM PST

  •  You know, my disabled Viet Vet and I talk about (6+ / 0-)
    Recommended by:
    lysias, Fabian, kyril, two roads, Clarknt67, T100R

    this.

    Both of us want DADT repealed permanently and have thought that the Administration's goal is just that.

    We both understand that there are theocratic forces in the military.

    We both understand that there are wingnut portions of the citizenry who apparently have no problem with our gay sons and daughters dying for us, as long as they're quiet about who they are.  

    We both get the political and cultural risk of a flash back from those same wingnut citizens.

    But this, we just don't get.

    At some point, the point is to lead.

    This would be one of those times.

    "I get up, I walk, I fall down. Meanwhile, I keep dancing." Daniel Hillel

    by Onomastic on Wed Nov 10, 2010 at 03:17:11 PM PST

  •  LCR already responded (8+ / 0-)

    "We have reviewed the government's opposition to Log Cabin's application to vacate the stay of Judge Phillips's injunction by the Ninth Circuit.  In our view, the government's lengthy, detailed, 29-page brief does not address the two key arguments we presented to the Supreme Court.  First, we argued that the premise of the government's position--that it needs time to conduct an orderly process of repealing DADT--is entirely speculative because Congress has not and very well may never repeal DADT; the government's filing today does not address that issue.  Second, we argued that the Ninth Circuit order did not take into account the harm to servicemembers and potential enlistees resulting from the stay; the government's filing today does not respond to that point either.  At this point, all we can do is to look forward to a favorable ruling from the Supreme Court."

    Now passing 1,000 Choi Units into the Obama administration.

    by Scott Wooledge on Wed Nov 10, 2010 at 03:18:59 PM PST

  •  asdf (10+ / 0-)

    Ah Yes - I still recall the halcyon days when Civil Rights were not 'sprung on everyone en masse; - but, instead, blacks were permitted to sit 1 row closer to the front of the bus every year for 15 years, so as not to upset the locals.......

    And mixed races were granted the right to marry 1 state at a time, starting in 1967, with new states added each year, moving from the edges of the South to, eventually, Alabama and Mississippi.....so as not to discombobulate the local KKK members.......

    Oh - wait, that ISN;T how it was done.......

    The Democratic Party. Never has so much been squandered so quickly for so little.

    by GayIthacan on Wed Nov 10, 2010 at 03:20:03 PM PST

  •  Adam B - thank you (6+ / 0-)

    For yet another thoughtful analysis of a legal issue in a manner that those of us who are not lawyers can understand and appreciate.

    "let's talk about that"

    by VClib on Wed Nov 10, 2010 at 03:21:19 PM PST

  •  Time for the President to step up (1+ / 0-)
    Recommended by:
    kyril

    President Obama should send a DIRECT order to the Chiefs.

  •  "to ensure national security"? (6+ / 0-)

    I think "don’t ask, don’t tell" is wrong. I think it doesn’t serve our national security, which is why I want it overturned.  
    Barack Obama Quote

    What?  Isn't DOJ talking to the President?

    What you believe determines what you can observe. Einstein

    by dharmafarmer on Wed Nov 10, 2010 at 03:26:03 PM PST

  •  Gates could do some investigating in Australia (5+ / 0-)

    while he's there. Their forces have admitted gays since before DADT was instituted.

    Now passing 1,000 Choi Units into the Obama administration.

    by Scott Wooledge on Wed Nov 10, 2010 at 03:26:39 PM PST

  •  I am getting the feeling (4+ / 0-)
    Recommended by:
    exotrip, dharmafarmer, kyril, Clarknt67

    this is all about politics.  Obama and his team may be afraid that Republicans may get some of the credit for bringing this down, god forbid.

    The child has grown, the dream is gone. I have become comfortably numb.

    by dark daze on Wed Nov 10, 2010 at 03:30:26 PM PST

  •  If/when this all falls apart.... (1+ / 0-)
    Recommended by:
    Clarknt67

    that is, repeal of a law which 75% of the American people support, including both Democrats and Republicans....could someone explain how it was possible to screw this up? 25 other countries, including Uraguay and Albania, managed to allow openly gay men and lesbians to serve in their militaries without this needless bullshit.

    •  How many of those countries have the filibuster? (0+ / 0-)

      Repeal would pass tomorrow if the filibuster went away.  Heck, it would have passed months, maybe years, ago.

      Art is the handmaid of human good.

      by joe from Lowell on Wed Nov 10, 2010 at 04:18:55 PM PST

      [ Parent ]

      •  of course, who was it (0+ / 0-)

        that voted in the filibuster rule at the beginning of the last congress (since Senate rules are up for modification at the beginning of each congress).

        Oh, that's right - it was the Democrats!

        My mom wrote a great book on the church & gay marriage - buy it here! http://www.ermalouroller.com/

        by hpchicago on Wed Nov 10, 2010 at 06:46:04 PM PST

        [ Parent ]

        •  You mean like every other majority for a century? (0+ / 0-)

          The obstruction in this Congress is unprecedented.  I can understand why Democrats wouldn't unilaterally throw out the tradition in January 2009, but the behavior of the minority in the current Congress changes the equation.

          I want to see some serious reform of the rules in January 2011.

          Art is the handmaid of human good.

          by joe from Lowell on Wed Nov 10, 2010 at 08:57:43 PM PST

          [ Parent ]

      •  About the filibuster (1+ / 0-)
        Recommended by:
        joe from Lowell

        There needs to be a law that when a filibuster is used to block a bill from advancing that would have passed under a simple majority, the president should be able to express his/her position about whether the law would be signed. If the president would sign it, then the new process I would propose is to send the law to the House, if it hasn't been voted on there already, and then to a vote of the people at the earliest Federal election.

        The point would be that if the House and the President would both support passage and the Senate did, except for the filibuster, then let the people's voice be heard. By limiting direct votes of the people to just laws defeated by filibuster, that addresses the whole "representative democracy" argument.(the citizen's representatives in the Senate would already have shown a majority in favor ).

        OR

        The Senate could simply do away with the filibuster.

        OR

        The Senate could pass a modified filibuster that lowers the requirements progressively until something can be passed.

        I think it would behoove Senators to ponder what the actual purpose of the filibuster was. The point was to give the minority a chance to be adequately heard by preventing the majority from passing legislation without adequate debate. The filibuster doesn't exist,theoretically, as a vehicle to stop legislation from passing.

        •  You know who had a good filibuster reform idea? (0+ / 0-)

          Joe Lieberman.  A few years ago, he proposed that the first cloture vote require 60 votes, and then two weeks later a second could be taken requiring 58, and then two weeks after that a third at 56, until it got down to a simple majority.  I think that's a pretty good system - it would actually protect the interest in allowing debate, without allowing this b.s. obstructionism.

          Of course, he's since abandoned that idea, once his Republican buddies decided they wanted to filibuster everything.

          Art is the handmaid of human good.

          by joe from Lowell on Wed Nov 10, 2010 at 08:55:46 PM PST

          [ Parent ]

  •  I don't see the problem (4+ / 0-)

    A number of servicemembers have expressed concerns about, or opposition to, the repeal of OWNA ("Only Whites Need Apply") and its replacement with a policy that would permit Blacks to serve. One of the purposes of the Working Group is to understand these concerns and to develop an implementation approach that adequately addresses them, through changes to policy where necessary and, more importantly, through education and training of the force. An immediate injunction would curtail the Working Group process and would send a very damaging message to our White men and women in uniform that their views, concerns, and perspectives do not matter on an issue with a direct impact on their lives. This message would undermine the morale of the force – and not just among those servicemembers who oppose repeal, but of all servicemembers who have informed the Department of their concerns, insights, and suggestions.

    "Any dictator would admire the uniformity and obedience of the U.S. media." -- Noam Chomsky

    by ratmach on Wed Nov 10, 2010 at 03:43:35 PM PST

    •  This disgusts me. (Not your snark... (7+ / 0-)

      ...but the original.)

      An immediate injunction would curtail the Working Group process and would send a very damaging message to our men and women in uniform that their views, concerns, and perspectives do not matter on an issue with a direct impact on their lives.

      If only they cared about the people who actually do feel a "direct impact on their lives" from DADT.  Clue to the DoJ, to Obama, and to the leaders of the military: it's not straight people, you arrogant, bigoted fucks.

  •  I completely agree with the administration... (1+ / 0-)
    Recommended by:
    exotrip

    on this one...an orderly plan with decrease the chance of failure and issues...and understanding the "haters" and miigate the risk that there will be issues...is just prudent planning...

    Obama - Change I still believe in

    by dvogel001 on Wed Nov 10, 2010 at 04:12:26 PM PST

  •  I am very disturbed by this diary. (0+ / 0-)

    I know at daily kos we are all brothers and sisters in arms, fighting for common cause.  But I am starting to think the main cause is creating cynicism, distrust, anger and fear.  The only point of this post was to read through a legal brief, find some objectionable language and then create controversy where none existed.  The brief clearly states that Obama supports repeal.  They feel they are on the road to repeal.  That nobody will be discharged now unless approved by the Secretary of defense and other high ranking officials.  Legally it makes three points.  One, that the court issued an injunction that far exceeded it's authority.   That is strictly a legal argument.  Second, that if this case or future cases should go to higher courts and the decision reversed, thousands of openly serving gay soldiers would be discharged.  That would be a grievous harm.  Really a crime.  And you can be sure our supreme court does not care about the rights of gay soldiers, unless they incorporate first.  So winning this case, actually means eventually losing  this case and in spectacular fashion.  Finally, that without education to the troops, gay soldiers will be at risk.  Can anyone guarantee me, that after George Tiller,  Mathew Sheppard, and with so much hate radio that no gay soldiers could potentially be harmed by the bigotry of others? Potentially fatally.  Is it possible training may prevent such harm? Those questions answer themselves.  It is important for us to remind ourselves that as important as we think we are, Obama is not the President of daily kos.  He's President of the Country.  His obligation is not only to win repeal but to protect the lives of soldiers, whether combat or otherwise, whether gay or heterosexual.  So to me, instead of peddling a story line Linda McMahon could be proud of, let's focus on the fact that we are down to the wire now.  We've got two months in the lame duck session and it seems like were close to repeal.   Can we get 2/3 republicans to come over?  Let's try that.  It's a hell of a lot more productive than this.  

    •  Obama could stop loss all people (5+ / 0-)

      that are still being discharged under DADT, it is within his powers, he hasn't, he won't and therefore is not in favor of repeal. He is picking know homophobes and bigots to run the military and this PRECISE moment when pretty much the majority of the country is for ending DADT. THAT IS NOT COINCIDENCE, open your eyes.

      •  He should not do stop loss (0+ / 0-)

        Stop loss is another example of us picking something up and then using it to vilify Obama.  But once we think it through, it seems apparent, Obama is either being reasonable or is right or just has an immensely difficult decision.  Stop loss is a policy used to staff a military that is understaffed.  Bush used it and it was a disgrace.  It was the backdoor draft and reservists went through he'll.  3/4/5 rotations.  All because the president didn't want us to fell the war here or in other words so he wouldn't take the heat.  Obama and gates have wound down stop loss and it will be gone at the end of the year.  Except, we are arguing to now apply stop loss to gay soldiers.  It would be an abuse of authority.  Stop loss is an emergency measure.  So it is temporary.  But here the application would be non uniform and uncertain as to length and to circumvent congress.  And not necessarily to do with staffing.

        Also, remember at this point, discharges are coming to a halt and can only occur at the highest levels of the Dod.  That essentially is a stop loss.  So here we are hating the president because of stop loss when Gates has pretty much said no more discharges.  We are on the verge, hopefully, of repeal.  And yet we just keep buying into all this cynicism.

        Finally, if we lose the election in 2012, forget it.  Gay people in the military would have no protections.  Even advocacy groups who want stop loss only argue that it should be used short term.  Long term there is no value.  The short term benefit does not outweigh the president duty to discharge laws faithfully.    Sometimes we can argue that he would be discharging the law faithfully by using a law creatively.  But that is a tough call and discretion should be the guide.    

        •  Wow (4+ / 0-)
          Recommended by:
          decca, i like bbq, Clarknt67, T100R

          It must be really nice to be able to treat the lives of others as mere academic exercises.

          When are you going to understand that being normal is not necessarily a virtue? It rather denotes a lack of courage. - Practical Magic

          by Keori on Wed Nov 10, 2010 at 05:31:34 PM PST

          [ Parent ]

          •  Wrong (0+ / 0-)

            An academic exercise is constantly complaining about things without assessing whether the complaint has merit.  An actual worthwhile exercise in the lame duck with two months to change this law would be to find a way to get repeal passed, which means somehow influencing two or three senators.  You see how you are asking me to embrace something which everyone agrees is temporary and if we don't won repeal dangerous to openly serving gay soldiers.  ANd nowhere can we find how we can actually try and win repeal and try and influence the process.   We may not like tea baggers but at least they fight for what they don't know.  We actually  know what we want and we just sit back and write how this person should do this, or that person that.  To the contrary, it must be nice to be you.

        •  You do realize that the DADT amendment in the (6+ / 0-)
          Recommended by:
          Adam B, lysias, decca, i like bbq, Clarknt67, T100R

          NDAA doesn't do what you are saying it will do.  It doesn't guarantee the right of LBG soldiers to serve openly.  

          You argument that the President's order for stop-loss can also be applied to the statute.  There is nothing requiring any policy for actual non-discrimination by the Pentagon in the future.  So it is also temporary in nature.

          •  Can you please provide (0+ / 0-)

            More information.  From what I see once the president repeals the law, a new law would have to replace it.  If I'm all wrong, please show me.

            •  My Understanding Is (2+ / 0-)
              Recommended by:
              Clarknt67, chuckgintn

              Judicially, once a law is repealed, the law reverts to the status before the law was applied. The status before DADT was that the military determined via their own rules and regulations who was an acceptable candidate to join the military. If I'm wrong on this somebody please point out where the rules are derived from.

              If I'm right, then it's up to the military if they allow gays to serve or not. Clearly, there would be no implication of a right to serve for gays. Absent an actual vote in Congress and signature by the president allowing gays to serve, the only other way for such a right to exist is via the courts determining that such a right exists.

              We need a court ruling forbidding bans on gays serving in the military.

            •  DADT says that a LBG soldier cannot live openly (4+ / 0-)
              Recommended by:
              Adam B, lysias, decca, Clarknt67

              as LBG while serving as a soldier.  The repeal makes it an issue of Pentagon policy rather than codified. law.  

              The Pentagon could choose to have the identical policy to DADT, it would just no longer be an issue for Congressional repeal.  Even if President Obama allows openly LBG soldiers to serve, there is nothing that would keep the next President from changing that policy.

              The non-discrimination language was in Rep. Murphy's bill and it was stripped at the request of the White House.

              •  What I read (0+ / 0-)

                And what I've just read in some articles written by repeal advocates is that authority for repeal is transferred to the President.  The pentagon. Will undertake a study.  Once that study is certified, repeal occurs but subject to the discretion of the military in terms of pace.  But they must allow gay soldiers to seve openly.  People have argued that repeal won't happen because the military may not agree to certify.  But that's not likely.  So it seems to me the next president can't simp.y discriminate without a new law.  The law has been triggered by the certification.  There is no second certification for the next president.  It's a one shot deal. Once it is done, at least to my eyes, dadt is over.  

                •  No, it is not. Because the next administration (2+ / 0-)
                  Recommended by:
                  lysias, decca

                  could choose decertify the certification.  There is nothing preventing that.  There is nothing in the statute that makes non-discrimination the law of the land.  It simply makes this a Pentagon decision. And nothing forces the Pentagon to do anything.

          •  I don't know from (0+ / 0-)

            What I am reading the law Is repealed.  The pentagon has discretion in Implementation but the law is repealed.  So it's different than stop loss.  One is completee repeal the other is a temporary emergency measure.  What we do seem to be saying in many posts is that the rule of law and our process of democracy should be bent to fit our needs and desires.  I disagree.  The process is important even if republicans don't respect it.

            •  The law is repealed which makes it an issue of (2+ / 0-)
              Recommended by:
              decca, Clarknt67

              policy.  

              There is no provision in the statute regarding non-discrimination for LBG soldiers.  Saying that the President shouldn't use his ability to stop-loss because it would be a temporary fix can also be applied to the policy.  He is in no way bound to have a policy that isn't exactly like DADT except without the force of law.

              As far as process, it is in the original DADT statute that the President can stop-loss soldiers who would have been seperated under DADT as long as the Reserves are active and they are vital to the national security.

              You are arguing that he shouldn't use the law as it is written because there might some day be a repeal of the law that simply makes it policy.

              •  It seems like (0+ / 0-)

                The Murphy amendment, and I don't know if thAt's the amendment that will pass, essentially requires repeal but gives the military great authority in developing a policy of repeal.  So it's repealed but the military can enforce how that's done.  That does not mean they can discriminate against gay soldiers.  I'm sorry what am I missing?

              •  Just to clarify (0+ / 0-)

                The amendment if it passes is not policy it is law.  It is a law that say the military must develop a policy to allow gay soldiers to serve openly.

                •  No, it says that the Pentagon can choose to see (2+ / 0-)
                  Recommended by:
                  decca, Keori

                  if a policy can be developed to allow gay soldiers to serve openly.  If they feel that it is not in their best interest, then they do not have to adopt the policy.  

                  That was why there was a study.  If on Dec 1st the study finds that LBG soldiers serving openly would be a detriment to unit cohesion, even if the repeal is passed, there is no language guaranteeing non-discrimination.  Even if it does, in two or four years the next President could say, "I don't agree" and change the policy to whatever he wanted.

                  There is nothing compelling non-discrmination in the statute. That language was removed.

                  •  I'm trying to find something (0+ / 0-)

                    To clarify this.  My impression is that the law is repealed.  If they want to institute a new study requiring the military to implement a new policy, it would necessitate a new law.  Where does it say different?

                    •  Ok. The law can be repealed (and that is a good (1+ / 0-)
                      Recommended by:
                      Keori

                      thing).  However, it does NOT enshrine non-discrimination in the military.  It makes it an issue of Pentagon POLICY.  Policy can be changed by any administration.  There is nothing preventing the President AFTER this law is repealed to still have a policy of discharging openly LBG soldiers.  

                      The non-discrimination part of the statute (the part that would have become law) was removed.  Therefore if this Pentagon study does not advocate LBG soldiers openly serving, or a future study doesn't, there is nothing preventing them from being discharged.

                      While the repeal of the law is GOOD, it does not do what you are saying it does. It does not require the military to allow soldiers to serve openly without repercussions.  

                      Even assuming a best case scenario (and that requires a lot of optimism), there could still be segregation of the LBG troops and it still allows for a policy that is more draconian up to the 1992 policy of discharging soldiers for being LBG.

                      The argument that this is the "best way" for DADT to be stricken because it is a permanent fix is not true because it only removes the statute. There is nothing affirmative to take its place.  If the next administration chooses to have another study, or if this study doesn't say glowing things, then it does not guarantee the rights of LBG servicemembers to serve openly.

                      That's assuming that it is kept in by the Senate to begin with (Sen. Levin may be trying to make a deal to cut it from the NDAA).  

                      Not to mention that it was declared unConstitutional by a federal court (which means it was unenforceable to begin with).  By your logic the President is just as guilty of trying to subvert the law as that is one reason we have a judiciare: to determine the Constitutionality of laws.

                      Your premise that the President is doing this within the law is also not completely honest as he has had the LEGAL power to stop-loss DADT the entire time WITHOUT using an executive signing statement (which I think you are conflating).  It is his right due to the original statute.

                      •  But the policy is the law. The military (0+ / 0-)

                        Must have a policy allowing people to serve openly.  That can't be decertified.  That can't be changed with the stroke of the pen.  You'd need a new law.

                      •  Section F (0+ / 0-)

                        Of both Lieberman and murphys amendments state that the military must by law, successfully implement a policy allowing gay service members to serve openly.  The law expressly requires the military to develop a policy to allow open service.  If certification occurs, it is the law.  Must be changed with a new law.    

                •  No, you have this all wrong. (4+ / 0-)
                  Recommended by:
                  Adam B, lysias, i like bbq, Keori

                  The amendment if it passes is not policy it is law.  It is a law that say the military must develop a policy to allow gay soldiers to serve openly.

                  The bill in the Senate creates no NEW law. It merely ALLOWS the repeal of the DADT law. It does NOT however MANDATE repeal of DADT. The discretion to repeal (or not) lies with Obama, Gates and Mullen.

                  If the law is repealed, the discretion lies with the DOD to make policy regarding gay's service in the military. There is no mandate or garantee that the new policy not be discrminatory.

                  There is also nothing to prevent President Palin from rewriting the regulations to ban gays.

                  Despite the talking points coming out of the White House, this legislative track is NOT a permanent fix, legally.

                  Now passing 1,000 Choi Units into the Obama administration.

                  by Scott Wooledge on Wed Nov 10, 2010 at 10:58:34 PM PST

                  [ Parent ]

                  •  If we get the senate votes then (0+ / 0-)

                    Gates, Mullen and Obama will certify the results of the study.  The law will require in section f that the military adopt a policy which "successfully" implement a policy which allows people to serve openly.  That's the actual text of the amendment.  President plain must change the law.  That's not to says
                    She would respect the law, but that's different.  Please show me something authoritative that says I'm wrong.

  •  "no one's getting discharged anytime soon" (1+ / 0-)
    Recommended by:
    lysias

    So the govt tells Kennedy no one is in danger of being tossed out of the military for being gay because the new administrative hurdles are such a hassle.

    Huh. Such serious serious consequences for the court halting the enforcement of the policy - are what?

    I love how the govt argues that gay servicemembers will be harmed because of the legal uncertainty of a court injunction. The poor GIs might get nervous indigestion! Sounds just like the arguments against courts requiring marriage equality - don't let 'em marry cuz the gays can never be certain their marriages won't be invalidated at some point in the future because there's no way they won't be!

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