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‘Don’t Ask Don’t Tell’: Obama Doesn’t Like it, But DOJ Defends It

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  • ‘Don’t Ask Don’t Tell’: Obama Doesn’t Like it, But DOJ Defends It



    All of a sudden, there’s a lot going on on the “Don’t Ask, Don’t Tell” front. Last week, during the State of the Union, President Obama spoke specifically of his desire to end the policy, which allows gays and lesbians to serve in the military so long as they don’t announce their sexual orientation. Obama had made the same pledge on the 2008 campaign trail.

    Then, without much warning, the Senate Armed Services Committee held hearings on the matter, with two high-ranking Defense Department officials supporting the move to end the policy, allowing gays and lesbians to serve openly.

    Said Adm. Mike Mullen (pictured), the chairman of the Joint Chief of Staff: “No matter how I look at the issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens.”

    But both Admiral Mullen and Defense Secretary Robert Gates told the committee they needed more time to review how to carry out the change in policy, which Congressional action. Click here for the NYT story.

    All this puts the Obama Administration in a bit of a funny place. The Department of Justice continues to defend a lawsuit, originally filed in 2004, seeking to declare “Don’t Ask, Don’t Tell” unconstitutional. In fact, the day after the State of the Union, the lawyer for the plaintiffs in the case, the Log Cabin Republicans, received a whole bunch of stuff from the government, including interrogatories and requests for admission.

    So what’s going on here? Let’s put aside for the moment the irony in the fact that we’ve got a Democratic-led administration defending the policy in a case brought by a Republican group. For now, our question is this: Why doesn’t the Justice Department drop the case?

    The answer is simple, says Tracy Schmaler, a DOJ spokeswoman. It has to defend the suit. “The government’s filing makes clear that the Administration believes that Don’t Ask, Don’t Tell is a bad policy and should be repealed by Congress,” says Schmaler. But “the Department’s filing in this case upholds the rule of law in keeping with our obligation to defend federal statutes when they are challenged in court.”

    Indeed, this is the way things go. The Department of Justice is charged with defending the laws on the books, even if they’re ones an administration would like to change. Unless and until the law is changed — in this instance, it seems, though an act of Congress — the DOJ will continue the fight.

    Nevertheless, that the DOJ made a significant filing the day after the SOTU strikes some, including the lawyer for the plaintiff, White & Case’s Dan Woods, as ironic.

    “What does all of this mean?” asked Woods. “I wish I could tell you. What I know is that while the government is studying this, there are gay and lesbian soldiers fighting and dying for their country abroad.”

    The lawsuit, set to go to trial in June, initially argued that the DADT policy violates the equal protection clause of the 14th amendment, the due process clause of the 5th amendment and the free speech clause of the 1st amendment. The government succeeded in knocking out the equal protection claim, however.

    Woods disagrees, however, with the assertion that the DOJ is stuck defending this case. For starters, he thinks that Obama can end DADT “right now” with a simple executive order. “That’s how Truman desegregated the military,” says Woods. (Click here for more on executive orders, which includes an explanation of why sometimes it’s unclear whether a president can accomplish something through the use of an executive order, or whether he needs congressional approval.)

    Short of that, Woods feels that the military could choose to enforce the law differently. “It doesn’t need to be kicking people out,” says Woods. “There are other ways to enforce this.”

    Photo: AP






  • #2
    More On ‘Don’t Ask, Don’t Tell’ And Executive Orders



    It happens from time to time; we finish up a post knowing that we left business unfinished.

    That’s the way we felt on Tuesday after writing this post on the ‘Don’t Ask, Don’t Tell’ policy concerning gays and lesbians in the military. The stone we left unturned: Can the policy be changed by an executive order or does it need the sign off by Congress?

    The plaintiffs’ lawyer we talked to on Tuesday who’s challenging the law, White & Case’s Dan Woods, told us he thinks the Obama administration should be doing more to put its objection to the law into practice, which got us thinking about executive orders. President Truman desegregated the military with one swift signature back in 1948. Why can’t Obama do the same with gays and lesbians?

    We checked in with our old executive order expert, University of Wisconsin political science professor Kenneth Mayer, for a little help.

    Mayer told us that a change in DADT likely requires congressional action because the law is currently codified in a federal statute, 10 U.S.C. Sec. 654.

    Section (b) of the law states the following:
    Policy. - A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations: (1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings . . . [or] (2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect . . .

    This explicitly and clearly, says Mayer, “puts the law on statutory footing.”

    That said, Mayer thinks there’s some “wiggle room” in the statute. As far as federal statutes go, Congress hasn’t delegated to the executive branch all that much authority. But it has assigned to the secretary of defense a certain flexibility in enforcement. The notes on the implementation of the law state, for example, that: “the Secretary of Defense should consider issuing guidance governing the circumstances under which members of the Armed Forces questioned about homosexuality for administrative purposes should be afforded warnings . . . ”

    In any event, Mayer predicts that Congress will overturn the 1993 law, predominantly because military leaders, like Adm. Mike Mullen (pictured) are pushing in that direction. “And they weren’t in 1993,” he adds.

    “The only justification those in favor of keeping the law have is that homosexuality makes some soldiers uncomfortable,” he says. “The military believes there are ways of dealing with that, just as there were with some of the initial resistance to desegregation and to allowing women to serve.”





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