DADT Deal Met for "conditional future repeal"

There once was a very good bill.

It went to Washington, and on its route to law, all the good stuff got taken out of it. And a hapless administration sat by watching mutely, declining to fight for the good stuff, and engaged only at the 11th hour. The bill was left with no real teeth to initiate change for the actual people it was supposed to help.

And once it passes, the change it promised remains a long way off in the future. And all the power to make—or not make—that change was turned over to the same people who created the problem in the first place.

But, in the end, a vote had to be taken. And passing it into law will allow the Democratic party to at least say they did something. But did they actually solve the problem? It's hard to say.

It might be good bill if the best case scenarios play out as optimists predict they will.

And if the worst case scenarios play out as pessimists fear, the disenfrachised will be left with few options for reprieve or redress. And the one opportunity to bite at the apple will have passed for another generation.

Sound familar? I'm talking about Rep Patrick Murphy's House Bill 1283, the repeal of the military's "Don't Ask, Don't Tell" law.

Richard Socarides, a lawyer, and former senior adviser to President Clinton wrote this:

"I know we are all thrilled tonight that there may be a break in the logjam over DADT legislation. And it is always important to keep focused on the art of the possible. This has been a long fight and it is not over.

"I am concerned, however, that the bill released tonight is being mis-characterized. I was expecting to see a bill providing for repeal of DADT now with delayed implementation. As far as I can tell, the proposed legislation instead makes repeal conditional on a future discretionary certification which may or may not occur.

"It may be the best we can get, and if so, I say let's grab it. But it is not repeal with delayed implementation. It's conditional future repeal."

In fact, the House Bill always had delayed implementation of 180 days. Had Congress voted for it as is, DADT policy change would not have gone into effect until April 2011, or later. So it's odd to see the "compromise" be framed as having been found on the issue of "delayed implementation." If that was the objection, there was never anything to object to. Patrick Murphy, May 5, 2010, here on Kos:

My bill allows for several months after passage for DOD and the services to create regulations. This will allow the working group to finish its work and for Congress to change the law.

By "several months" Murphy is understating the reality, the text of the original bill called for 180 days, six months.

So, what really got "compromised" away?

Well, any and all hard and fast end-dates for the law to actually be repealed:

The Secretary of Defense has received the report required by the memorandum of the Secretary referred to in subsection (a). (2) The President transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating each of the following: (A) That the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have considered the recommendations contained in the report and the report’s proposed plan of action. (B) That the Department of Defense has prepared the necessary policies and regulations to exercise the discretion provided by the amendments made by subsection (f). (C) That the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.

[Full text of the compromise bill here.]

Optimists see the DOD moving swiftly after the release of the December 1st report. I am not so sure. It worries me the Pentagon fought this bill tooth and nail, when its deadline to change policy was always April or May of 2011. They fought a bill that maintained the status quo, unchanged, for another year, but intend to move swiftly? I fear their idea of swiftly is not so swift.

At this point we are only assured the law will go away when, or presumably even if, three men in a room, decide to do away with it. When—or if—it is determined it's "consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces." Whatever that means. In reality, it could mean whatever those three men in the room decide it means.

And who gets to decide if it's "consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces?" The very institution that has been witch-hunting LGB soldiers for the entirety of the last century. What could go wrong there? Congress has turned the keys to the henhouse over to the fox. Power to set this policy has been returned to the Pentagon, which "progresses us" back to pre-1993 era, legally.

And remember how it would be bad idea for President Obama to exercise one of the identified Executive powers to end discharges? It was argued it was not a good idea because a GOP President could easily reverse it. Well, that threat is back. As Craigkg pointed out last night, this isn't durable. There is apparently nothing barring another administration to reinstate the DOD ban on gays that Clinton attempted to do anyway with by introducing "Don't Ask, Don't Tell." Should Robert McDonnell ascend to the Presidency, the clock can be turned back easily enough.

Also bargained away, is the non-discrimination language, which would bar discrimination on the basis of sexual orientation. I knew it was a possible sticking point, and on May 5th, I asked Representative Patrick Murphy about it. His aide assured me:

I can tell you that Congressman Murphy is 100% committed to keeping the non-discrimination language in his bill.

But it's gone. Our LGB soldiers—like the residents of 29 states—will be vulnerable to continued discriminate based on sexual orientation and if they are victimized by it, they will have no recourse.

Absent both non-discrimination language and a firm timeline, there is no legal guarantee that this deal is not just a shell game. There is no disincentive for the DOD study in December to reveal that honest service IS NOT "consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces." Or that amidst two wars, it's a bad time.

And the bite at the apple will be gone for generation. There will be lawsuits, and perhaps another legislative fight. But still, LGB servicemembers and their advocates will be fighting an uphill battle, as Congress has passed an opportunity to affirm their equal standing in the eyes of law. Like LGBT Americans in 29 states, they will continue to live as second-class citizens in exchange for their service to the country. It will be frowned up in polite society to discriminate against them, but there is no legal disincentive or reprimand for anyone who does it. This "win" is every bit as progressive as Bob McDonnell's take on LGBT employees of VA state: "You're advised against—but not forbidden—to discriminate."

What's good: If and when repeal actually comes to pass, it frees the LGBT community of the constraint to have the stars align with a pro-equality Congress in both houses, and a President willing to sign the bill. That is an enormous hurdle, apparently.

And, it places responsibility for the equal treatment of our servicemembers squarely at the feet of President Barack Obama. If discrimination, abuses and witchhunts continue, gone will be the days when anyone can say, "His hands are tied." He will own the issue in its entirety. LGBT advocacy groups will have to stay on high alert to ensure our LGB troops are being treated respectfully. And hopefully, if an alarm is sounded that they are not, America will listen.

But let's NOT call this a win. It may be a political win, but it isn't a win for equality. It's a win for three straight men in a room gathering to discuss when, or if, and how LGB servicemembers—and by extension all LGBT Americans—might be afforded more equal treatment. It is incrementalism at its worst.

I have to agree with Socarides though:

It may be the best we can get, and if so, I say let's grab it.

Privately, I've been telling my friends I thought Thursday's vote would probably fail. So the reality exists that failing to consent to the changes in all likelihood means delaying any movement on this issue for years. The days of bold moves on Civil Rights seem to be behind this country. Triangulation is the new black. Go with it.

But, on the flip-side, it took our community 18 years to assemble the critical mass to get to a Senate vote on the issue. Having just "done something for the gays" in 2010, who knows how long it will take to motivate the American people and Congress to address continued discrimination for LGB servicemembers? This will release the steam valve for many who feel the problem has been "fixed." (As they did for at least a decade after Clinton's compromise.) But, it offers no guarantees of fixing the problem.

It also is a bad omen for Congress to boldly assert via the Employment Non-Discrimination Act, that LGBT Americans are indeed, equal citizens, deserving of equal treatment. On LGB servicemembers' claim to equality, they punted this question over to the Pentagon and the White House, rather than step-up and lead. They will not be able to punt ENDA to anyone.

But, LGBT community leaders have lined up and declared a win. Much of the grassroots is not so sure, it seems. Some leaders have been denounced as not speaking for our community, both in the past, and on this development.

Some may be putting a brave face on for the cameras. After all, what are they going to say in a press release, "Hey, yeah, it kinda sucks, but, it was this or nothing!" Naw, they'll save that for the cocktail parties and the pillow talk, and for the damage control effort needed to maintain their careers as part of the Gay, Inc. advocacy machine.

And, of course there are those who just put up a righteous fight, and recognized the clock was running out on the game. Absent a united coalition to reject the compromise, what could they do? They stood alone, as few progressive allies watched their backs on the fight. That the bill got this far is, indeed, remarkable.

Representative Patrick Murphy is a hero I will salute by name. Tears come to my eyes when I think of the fight he put in for our community. Thank you, Representative Murphy. You were the man for the mission.

On the subject of heroes, I've been inspired by Lt. Dan Choi for his fearless and unapologetic committment to our equality. He uplifts our community and reminds us we don't have to settle. Only when we insist, even demand we deserve full equally, we will be become equal. He and many of us demanded this, and power ceded this patronizing baby-step forward.

And, on the issue of Don't Ask, Don't Tell I've often said, "When Lt. Dan Choi is happy, I'll be happy." He tweeted yesterday:

Do not celebrate compromises. Do not post MISSION ACCOMPLISHED banners. #DADT is not dead. #LGBT

There is another great man that inspires me, and I know Dan has studied his work. He's a man who made it possible for Barack Obama to be our president. His words ring truer than ever:

"A right delayed is a right denied." --Martin Luther King, jr.

Should this compromise pass, repeal will be on indefinite delay that much is certain.

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Here is today's letter to the President, it's from Former Capt. Beth Schissel, United States Air Force. I was always fighting this fight for her, and so other LGB soldiers won't have to go through what she has, so they will be judged on the content of their character, and the quality of their work. Will this "compromise" deliver that future anytime soon? I'm not sure.

May 25, 2010

President Barack H. Obama
The White House
1600 Pennsylvania Avenue Northwest
Washington, DC 20500

Dear Mr. President,

On the morning of Tuesday, September 11th, 2001, I was monitoring the events unfolding in New York City while tending to patients in the Emergency Department at Duke University Medical Center.  The leadership of the department was activating our disaster plan to accept as many patients as possible from the New York area.  All too quickly, it became evident that there would be no need for our hospital to activate.

I knew that brutal attack would not go unanswered.  I knew my leadership and medical skills soon would be needed to care for those who would be sent into harm’s way.  Naively, I thought that mission needs would trump my being a lesbian, but a few weeks later, I received a notice in the mail.  It was signed on September 10th, 2001 by the Secretary of the Air Force.  I was discharged.

My military career was over.

I was a proud member of the tenth class of women to graduate from the United States Air Force Academy.  I graduated in the top 15 percent of my class and was named Academic All-American/All-American in women’s golf.  I entered active duty service as an acquisition officer and just three years later, was selected to the commanding general’s staff while only a first lieutenant.

With the encouragement of my mentor, the future Air Force Surgeon General, I applied and was accepted to medical school on a military scholarship.  Before I left for medical school, I was honored by two retired women general officers – each gave me one of their stars and told me they planned to be there to provide the match to the pair.

While in medical school, I fell in love with my best friend.  While most people are thrilled to have found their true love, their soul mate, I agonized over it.  That’s because my friend, my love, and my soul mate was a woman.

It was the fall semester of my final year of medical school.  I was forced to make a life-altering decision.   For nearly two years, I had been stalked.  My home had been broken into and I had received credible threats to be outed by a civilian with no attachment to the military.  I had to take control of the situation for my safety, for my sanity, and to protect my honorable service record.

The hardest call I ever had to make was to my mentor.  I was ashamed to have let him down and to have wasted his efforts in molding my career.  I felt like I had to apologize for breathing the same air as the rest of the world.  I was devastated that I couldn’t continue to be part of the air force family who’d raised me and counted on me.

My mentor was gracious and kind.  He didn’t care that I was a lesbian and considered it a mistake to let me go.  He assured me that I would only disappoint him if I didn’t use all I’d been given to make a difference in this world.

I have done my best.  I have supported two of my step children as they made their way from West Point to Iraq.  I have cared for the sick and injured children of my community as they arrive in the emergency department.

But it will never be the same as the best I could have given in uniform.  Every day my country is at war, I think about my military family; I am not there for them.  Every day, I am reminded that, simply because of who I love, my country has said I’m not good enough to help save the lives of our women and men in uniform.

Mr. President, thank you for helping us end “Don’t Ask, Don’t Tell” this year.

Respectfully,

Former Capt. Beth Schissel
United States Air Force

To raise awareness to the need for Presidential leadership, DADT repeal activists have launched “Stories from the Frontlines:Letters to President Barack Obama.”The new media campaign launched in partnership with Servicemember's Legal Defense Network,is intended to underscore the urgent need for congressional action and presidential leadership at this critical point in the fight to repeal “Don’t Ask, Don’t Tell” (DADT).

Participating blogs: 365 Gay, The Advocate, AfterElton, AmericaBlog , Ameriqueer, AKAWilliam, The Bilerico Project, BoxTurtleBulletin, BrandFabulousness, The Daily Kos, David In Manhattan, David Mixner, Fired Up Missouri, GoodAsYou, HRCBackStory, Kenneth In The 212, Lez Get Real, LGBTPOV, Michael in Norfolk, Mike Gets Real, Mile High Gay Guy, Open Left, Page One Q, Pam's House Blend, RepealNow, SayenCroWolf, Seattle PI Stepforward, Signorile's The Gist, The New Civil Rights Movement, The Queer Times, Towleroad, We Give A Damn.

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CALL TO ACTION! (Pick one or all.)
Fate of repeal will be decided in the month of May. As time grows short, repeal advocates have multiple strategies are in place. One thing they all share is a need to hear from the public the time is now. Now is the time for LGBT allies to get off the fence and call for equality for their fellow Americans.

• Contact the White House: The Servicemember's Legal Defnese Network has put out an action item: Not Another Year. They are asking people to call the White House and tell our Commander in Chief to call for repeal in 2010, repeal can't wait until 2011. The moment is now. They say: "Our Congressional allies are not giving up. SLDN isn't giving up. Tell President Obama not to give up either. Call the White House today. [phone]"

• Contact your Senators: Tell them to support adding repeal to the Senate Defense Spending Budget: these Senators are most key: Bill Nelson, Ben Nelson, Evan Bayh, Jim Webb, Robert Byrd and Scott Brown. But call them all. Show them there's a grassroots movement to vote now. SLDN contact tool here.

• Contact your House Representatives: Tell them to support Representative Patrick Murphy's plan to offer DADT repeal legislation as a floor amendment to the military bill. SLDN contact tool here.

• Contact Nancy Pelosi: Tell her to use her authority as Speaker of the House to bring DADT repeal up for a vote in the House. [phone]

• Contact Senate Armed Services Committee Chairmain Carl Levin (D-MI) and tell him Military Budget Attachment is the way to go. His office in Washington can be reached at: [phone]

• Become a citizen co-sponsor of repeal at Senator Udall's site.

Who's Voting how? Adam Bink At Open Left has a whip count  here.

He's reporting Scott Brown and a "no" (give him hell MA progressives) and Bill Nelson as a definite "yes" (a solidifying of his position leaning).