For months and months we've kept hearing over and over from the White House that a legislative solution is the only durable way to get rid of the Don't Ask, Don't Tell policy. Actually I should put quotes around that: "the only durable way." We've been told that that is the only way to end the policy permanently.
Yet today the White House hosted a meeting between DADT repeal activists, Congressional leaders on the issue and Pentagon officials to work out a compromise.
While the details of this compromise haven't been announced, anonymous sources close to the discussion reported to Kerry Eleveld of the Advocate magazine,
[T]he proposal that is being considered would repeal the current statute this year, but implementation of repeal would not take place until after completion of the Pentagon’s working group study in December. Further, repeal would require certification from President Barack Obama, Secretary of Defense Robert Gates, and Joint Chiefs Chair Admiral Mike Mullen that the new law will not have a negative impact on readiness, recruitment, retention and other key factors that affect the military.
The language would not include a nondiscrimination policy but rather will return authority for open service by gays and lesbians back to the Pentagon.
This is in line with an editorial by retired Chairman of the Joint Chiefs, General John Shalikashvili in this weekend's Washington Post:
"Don't ask, don't tell" is both a federal law and a Pentagon policy. The law ties the military's hands on this issue. If Congress fails to repeal it, the Pentagon's study process will be compromised because the Defense Department will not have the authority to implement its own recommendations.
Fortunately, there is an option that fully respects the secretary's request to Congress while moving forward on a reasonable timetable. Congress could repeal the federal statute and return authority to the military to set rules about gay troops, just as the armed services had before "don't ask, don't tell" became law in 1993.
Indeed, acting now to remove the constraints imposed by that law is the most faithful response that Congress can offer to the working group's efforts to engage service members and their families, to fully assess the impact of ending the policy, and to develop comprehensive recommendations for how to make the change.
Current efforts to end "don't ask, don't tell" have focused on repealing the law and on replacing it with a policy that requires equal treatment of gay, lesbian and bisexual troops. This is a tougher sell to moderates in Congress and has the downside of perpetuating congressional meddling in military policy.
By contrast, the "repeal only" option would leave to the Pentagon any questions about the possibility, content and timing of policy changes, while eliminating the law that straitjackets military leaders' ability to craft the most sensible policy. Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, who also signed the letter, wrote that they "oppose any legislation that seeks to change this policy prior to the completion" of the study. But repeal-only, without language instructing the Pentagon on what to do, would not impose change on the military. Rather, it would allow the Defense Department to study and implement the change as the military deems fit, while fully respecting the review that is underway.
Repealing the law while avoiding action on a nondiscrimination statute will not please everyone. Proponents of ending unequal treatment of gay troops have insisted that an anti-discrimination statute replace the current law because they do not trust the military to move forward on its own and they fear that a future president or Congress might again impose a discriminatory policy.
He's damn right it won't please everyone. I fail to see how this is an improvement in the situation. Indeed it could be worse. Under this scenario, without a nondiscrimination clause and with a certification requirement, there is nothing preventing the administration from ignoring the issue entirely after this "repeal" passes. It give control to the Pentagon, an institution steeped in institutionalized bigotry and misogyny. It hands authority for ending the discrimination over to a man that has personally tried to stop repeal efforts and prior to testimony earlier this year publicly opposed a repeal of DADT.
But most of all, giving control to the Pentagon is in no way "durable." Taking it on faith that we can trust Obama on this, and I will say right now I don't, and he does implement an end to DADT and lets gays and lesbians serve openly, there is nothing to stop a subsequent President, say Caribou Barbie, and her Secretary of Defense from reimplementing DADT or, worse, banning gays from military service out right. This "compromise" they appear to have worked out does not meet the qualifications of being "durable." It can be changed on a whim depending on the temperature of the Oval Office.
Shalikashvili answers this by stating
It is true that without a mandate from Congress, the Pentagon would have the discretion to leave current regulations in place as it determines how best to implement repeal. There is, however, little cause to fear that the ban would remain indefinitely, and it is highly unlikely that a future administration or Congress would roll back equal treatment once the Pentagon adopts it. Although some wish to see equality written into law, the current political climate calls for reconsideration. This is why a repeal-only option has merit.
I think the general severely underestimates the resolve and insanity of the right wing. One need only look at Bush/Cheney to get a glimpse of how Palin, Romney, Huckabee, Paul, etc would run things on this issue. If it it within the purview of an executive order, they will act on it to appease their base just like they have in every way they can on abortion over the years.
But the larger issue about the durability isn't the fact that it could in theory or reality be reversed on a whim. It is the level of credibility and trust that is the larger issue. Over the last several months, the President was urged to issue a stop loss order halting all discharges on account of Don't Ask, Don't Tell. The answer the White House countered with each time was that such a temporary stop loss order was not a durable solution, that the legislative process was "the only durable way." We've had hundreds of servicemen and women discharged since Obama took office and assumed ownership of the DADT policy and they let it all happen because a stop loss order wasn't "durable."
In press briefing after briefing, that was the language the White House used. Not to over-belabor the point, but here is a sample of those briefings:
12 May 2009
Q: Robert, back to "don't ask, don't tell," you indicated that the President wants to change the policy, but that some legislative vehicle would be necessary. He is the Commander-in-Chief. I mean, if the President and the Secretary of Defense can bring about a new leadership in Afghanistan, replace the commanding general there, couldn't the President and the Secretary of Defense delay any more people getting fired under "don't ask, don't tell"?
MR. GIBBS: Well, there have been discussions about the best way to move forward, and the only sustainable way to do that is through -- sustainable and durable way -- is through legislation, which the President has promised and has continued to work for.
Q: Is he willing to let other men and women in uniform, then, be dishonorably discharged simply because they're gay and lesbian while he's waiting for legislation?
MR. GIBBS: Well, Bill, as I said a few minutes ago, I think the President believes now, as he believed -- has believed for quite some time, that the process does not serve our national interest. You've seen many speak out in opposition to it, and the President is working with the Joint Chiefs and members of Capitol Hill to come to a durable legislative solution.
15 May 2009
Q: And my second question was, I wondering if you could describe the difference between the President’s decision to intervene with regard to the abuse photos but not to intervene when it comes to discharging otherwise qualified soldiers because they’re gay.
MR. GIBBS: I’m sorry, I don’t understand the analogy.
Q: Well, the President says that releasing the detainee photos poses a danger to our troops, but doesn’t dismissing otherwise qualified soldiers also pose a danger? Is it a question of degree?
MR. GIBBS: No, no. What I talked about in terms of "don’t ask, don’t tell" was the President -- the President, as you know, supports changing that because he strongly believes that it does not serve our national interest. He agrees with former members of the Joint Chiefs in that determination.
But unlike photos, the only durable solution to "don’t ask, don’t tell" is through a legislative process, and the President is working with Congress and members of the Joint Chiefs to ensure that that happens.
Q: But couldn’t he in the meantime put a moratorium on these discharges until that can be accomplished?
MR. GIBBS: But again, the President has determined that that’s not -- that’s not the way to seek any sort of lasting or durable solution to the public policy problem that we have.
Q: Then how would you respond to the criticism, though, that dismissing a qualified linguist endangers the troops?
MR. GIBBS: I think I would respond by saying that the President has long believed that the policy doesn’t serve our national interest.
20 May 2009
Q: This isn't about Gitmo, but is about national security. Recently, three officers, West Point graduate Lieutenant Dan Choi, Air Force pilot Lieutenant Colonel Victor Fehrenback, and Army Second Lieutenant Sandy Tsao were all dismissed under "don't ask, don't tell." And is their dismissal a part of his national security strategy, or is their dismissal itself a threat to national security?
MR. GIBBS: No. As I've said I think when I was asked about these individuals -- I think it may have been last week -- I said that the President agreed that, and said during the campaign, and agreed with former members of the Joint Chiefs of Staff, that the policy wasn't working for our national interests, that he committed to change that policy, that he's working with the Secretary of Defense and the Joint Chiefs on making that happen, and that the only durable way to do that is to go through Congress and that's what the President intends to do.
21 May 2009
Q: So you had said that the President is working with the Pentagon and the Joint Chiefs of Staff on "don't ask, don't tell," but earlier this week the Pentagon said that the conversations were "initial" and that there is "no sense of any immediate developments in the offing on efforts to repeal 'don't ask, don't tell.'" So I wanted to give you a chance to correct the Pentagon on that.
And I have two other questions. What other policies are there --
MR. GIBBS: If you ask like that you're going to get bumped up to, like, the first row. (Laughter.)
Let me address the first question because, if I'm not mistaken, the Pentagon did correct that statement on efforts regarding the reform on "don't ask, don't tell."
Q: So there are active conversations happening now?
MR. GIBBS: Yes. Yes.
Q: Okay. And then I wanted to know if there are any other policies that the President believes to be, as you said yesterday about "don't ask, don't tell," not in our national interest but is content to let Congress take the lead on? And second, President Truman didn't see it necessary to clear desegregation through Congress, so how is this different?
MR. GIBBS: Well, I don't want to put words in your mouth, but maybe I was -- maybe I used some poor language, but the President is involved in these discussions. It was the President's commitment to overturn the policy that's not in our national interest that is the reason for these discussions and for the effort to overturn this. So I think the notion somehow -- the reason Congress is involved is the only durable and lasting way with which to overturn the policy is to do it by law. That's the --
Q: So when can we expect a durable policy on racial desegregation in the military, since that's never gone through Congress?
MR. GIBBS: Well, I'm out of my depth as a lawyer. And I'm not exactly sure the timing of when President Truman did that, but my sense is that there were also some legal proceedings around that. Try as one may, a President can't simply whisk away standing law of the United States of America. I think that's maybe been the undercurrent of some of the conversations we've had over the past few days on Guantanamo Bay. But if you're going to change the policy, if it is the law of the land, you have to do it through an act of Congress.
Q: And so there's pending legislation? I didn't see any.
MR. GIBBS: I don't know what's been introduced in Congress.
Q: Robert, if shouting helps, can I shout? Can I shout? I mean, it's been five weeks.
THE PRESS: Awwww!!
Q: Five weeks. But if you want --
MR. GIBBS: With that whining, I'm tempted to make it six -- (laughter) -- but I'm feeling charitable today, David.
Q: I'll go for a record -- I'm happy to go for a record.
MR. GIBBS: I think there's people sitting even farther back than you're standing today that might argue -- look, see? -- that it's been maybe longer than five weeks. (Laughter.)
28 May 2009
Q: Two quick questions, neither of them are about Judge Sotomayor. First one, on "don't ask, don't tell," you've said several times the President is working with Congress and the Joint Chiefs to review the policy and overturn it. But I spoke with the chairman of the subcommittee that has the bill now, H.R. 1283, last Friday, and based on what they told me, it doesn't sound like that's going to come up for a vote anytime soon, maybe sometime next year, in 2010. And Admiral Mullen doesn’t seem to be in any hurry to overturn the policy either. So given that the President -- if the President feels that the policy makes us less safe, is there anything that he can do to move it along?
MR. GIBBS: Well, we are working with Congress and people like --
Q: -- long time, though.
MR. GIBBS: Well, it's been noted to me in here that sometimes the legislative process doesn't move that quickly.
Q: The original question, though, was why not then put a moratorium on "don't ask, don't tell"? And if --
MR. GIBBS: Well, I've answered this before, that the President and the legal team here believe that in order to have a durable solution to this, legislation is the only way to go.
17 June 2009
Q: Robert, on that topic, yesterday, Senator Reid said he'd welcome a legislative proposal from the White House on "don't ask, don't tell" -- "welcome a legislative proposal from the White House on repeal so as to provide clear guidance on what the President would like to see and when. With presidential leadership and direction, I believe we can find the time to get repeal done in this Congress," not this session, but this Congress. Is the President --
MR. GIBBS: What you just referred to. (Laughter.)
Q: But does the President feel that that's -- that being supportive of repeal is enough, that he doesn't have to send something up to make it clear to Congress what Reid is asking for. He says he wants to know what the President wants and when.
MR. GIBBS: Well, and we are, as I've stated multiple times in here, working with members of Congress, as well as with the Pentagon and the Joint Chiefs of Staff and the military to get something that represents durable change. We're going to continue working on that and we're pleased that this is a priority not just of the President's but of those in Congress, and we're hopeful that something can get done.
25 June 2009
Q: Center for American Progress this week put out a report on how to undo "don't ask, don't tell" -- five steps. The first step is, the President signing an executive order banning further military separations based on "don't ask, don't tell" and sending a legislative proposal for the repeal to Congress, and then forming a presidential panel on how to implement the repeal. Can you tell me why the White House doesn't believe that seems to be the way to go?
MR. GIBBS: Well, the President has had meetings about this, has talked with members of Congress. His staff has talked with members of Congress. All of them have talked to Pentagon officials and the administration believes that this requires a durable, legislative solution, and is pursing that in Congress.
Q: I understand that for the long-term solution, but what do you take issue with about signing an executive order that will suspend the separations before an endurable solution is reached through the slow legislative process?
MR. GIBBS: I mean, I think there could be differences on strategy. I think our belief is that the only and best way to do this is through a durable, comprehensive legislative process.
Q: Can I follow up on that?
MR. GIBBS: Sure.
Q: Thank you. So there was a letter sent last week from 77 members of Congress that went about having this interim solution just slightly differently, not actually doing an executive order, but asking the President to implement -- or asking the President to qualify and tell the Department of Defense to implement the policy slightly differently, which is to not investigate whether someone is gay when they are told on, of course, "don't ask, don't tell."
This does not require an executive order. It's a change in how the Department of Defense does the regulations and actually whether or not they investigate these allegations. Does that seem like something -- and it's an interim step -- I mean, the members of Congress that were advocating for this suggested it as an interim step until congressional members could actually push through the legislation to full repeal.
MR. GIBBS: I have not -- I have not seen and have not heard about that letter. Let me find out who might have that and examine what's inside of it in terms of -- I'd have to look at the process before I have a better sense of the effectiveness of the interim step.
30 June 2009
Q: Thank you, Robert. So yesterday in the -- at the reception, President Obama said that he had asked Secretary Gates and Admiral Mike Mullen for some type of plan on how to implement a change in the "don't ask, don't tell" policy. Do we have any sense of what the time frame would be on when that plan would come forth from them? Did the President ask for any sort of time frame?
MR. GIBBS: No, not that I know of. Not that I know of. But again, I think consistent with what we've talked about in terms of working with the Pentagon to ensure that durable solution.
8 October 2009
Q: Yesterday you said the President was working with the Pentagon to ensure a change in "don't ask, don't tell." In the past you've repeatedly said that congressional repeal was the only sort of durable solution to overturning the policy.
MR. GIBBS: Right, right -- well, go ahead, finish --
Q: A couple questions. So first of all, do you --
MR. GIBBS: I'm not -- let me clarify. I think I see where you're going --
Q: I wonder if your comments yesterday indicate a shift in policy. I also wonder, if not --
MR. GIBBS: No, no -- and I realize now that you bring it up -- the administration -- (laughter.) What are you talking about? I don't know what you're -- (laughter.) All right. For the remainder of the day, I'll be working back there just -- (laughter.) Sorry. I'm in trouble now.
I see -- what I meant was, working with the Pentagon on how to do through this through a statutory -- through Congress. The administration continues to think that that's the only binding way to remove a policy that he thinks is unfair.
Q: So in that case, are you guys in discussions with any senators at this point to introduce "don't ask, don't tell" repeal bills?
MR. GIBBS: Let me check with Legislative Affairs. I think -- I don't know if one's been introduced --
Q: It has not.
MR. GIBBS: Has not?
Q: It has not, and --
MR. GIBBS: Let me check on this discussion's --
Q: -- Senator Reid is looking for guidance with you guys.
MR. GIBBS: Let me get some clear direction from them. Again, I just want to repeat that this is a proposal that the President is supportive of doing statutorily.
Q: Do you plan to set out a timeline for a repeal at any point?
MR. GIBBS: Let me talk to those guys about that, but again --
Q: I mean, a timeline is something that you guys have continually said, if we don't have a timeline for -- if you don't have a deadline in this town, nothing gets done.
MR. GIBBS: Right. You should -- I should bring you up to the Senate. (Laughter.)
22 Feb 2010
Q: Senator Lieberman is now planning to introduce a "Don't Ask, Don't Tell" repeal bill next week. Would the President like to see Congress pass repeal this year?
MR. GIBBS: Look, as you know, the President is strongly in support of this, working with Secretary Gates and Admiral Mullen. There is a process that's underway. You saw in Admiral Mullen the first joint chair to openly -- active joint chair to openly call for its repeal.
We have stated throughout this process that the only durable way for this to happen is through legislation. We think that Senator Lieberman's proposal is obviously an important step in that legislation. And I would point out that you heard from commanders in the field over the weekend on news shows as well as former Chairman Powell also come out strongly in support of repealing "don't ask, don't tell."
Now that the White House is poised to abandon that policy, or rather excuse, will the President used his authority under Title 10, Section 12305 of U.S. Code and stop the discharges? Or will we simply get another excuse for why they can't do that now that they are eviscerating their own "durable way" excuse? My guess is the later.
Also throughout this discussion, we've been told several times that the study whose report is due December 1 is about how to implement a repeal, not whether to implement a repeal. In that light, a stop loss order is more than justified. If the decision has truly been made to end the policy, there is no excuse really for continuing the discharges, especially in light of the President's comments that it harms national security.
We've gone from the White House refusing to consider a halt to DADT discharges because it wasn't durable to the White House poising to embrace a "compromise" that fails to repeal DADT "in a durable way." Last year the White House made changes to the language on their website, removing language calling for the repeal of Don't Ask, Don't Tell and replacing it with language calling for "changing Don't Ask, Don't Tell in a sensible way." The change in wording caused a firestorm in the GLBT community, who rightly saw it as the President backing off a crystal clear promise, trying to bait-and-switch it with something softer and easier for them to declare victory on. That ended up forcing the Administration to restore the word repeal, but they kept the "in a sensible way" language.
The White House will know doubt be looking to trumpet this "compromise" as the fulfillment of their promise to the GLBT community, but it is not. Until they follow through on their own promise to end the policy in a "durable way," they have not ended DADT by giving authority back to the Pentagon, they have actually endangered the service of GLBT servicemembers by permitting the Pentagon to reinstitute its pre-1993 policy of discharging any and all gays and lesbians, even if they abide by the conditions contained in DADT. Unless this "compromise" includes a provision halting all discharges, they have actually made the situation worse, not better.