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Justice Dept Asks for Stay of Injunction on DADT, Declares Intent to Appeal

Jim Burroway

October 14th, 2010

The Justice Department today filed an application (PDF: 16 KB/3 pages) before U.S. Federal District Judge Virginia A. Phillips, asking that the injunction ordering the immediate suspension of the enforcement of “Don’t Ask, Don’t Tell” be lifted. The primary objections to the injunction was outlined in a declaration (PDF: 1.4MB/48 pages) by Under Secretary of Defense for Personnel and Readiness Clifford L. Stanley. The Under Secretary is responsible for personnel policy decisions in the Defense department, and he is a member of the Defense Department’s working group assessing the impact of DADT’s repeal and developing the plan for implementing the repeal.

Stanley asks the Judge to set aside the injunction because, since the administration intends to appeal the decision, “the military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years, particularly during a time when the Nation is involved in combat operations overseas.” Stanley says that the working group has determined that the magnitude of the impact of repealing DADT is too great to be undertaken on short notice. Instead, he says that an immediate injunction stands in the way of President Barack Obama’s call for the repeal to be implemented in “an orderly way.”

Stanley describes the tasks that the working group has identified in order to end the enforcement of DADT. They essentially break down into two areas:

  • Implement changes to written policies and DoD regulations “to address the issues associated with repeal and to mitigate any potentially negative impacts repeal may have.”
  • Develop tools and training for the leadership and servicemembers. Stanley complains, “It will be difficult, if not impossible, to provide timely education to forces engaged in combat operations.”

It’s that second point that forms the main part of Stanley’ argument. He warns such training for all levels of service is essential to avoid a chaotic transition:

It is important to keep in mind that thousands of military personnel have enforced the DADT policy for many years. Any change to the policy will require that these personnel receive training and instruction in a number of areas, including: (i) how the policy has changed; (ii) why the policy has changed; (iii) how the change in this policy affects other existing policies; (iv) appropriate treatment of gay and lesbian servicemembers who reveal their sexual orientation; (v) appropriate treatment of servicemembers who object to serving with servicemembers they know to be gay or lesbian; and (vi) principles to consider when handling other issues that may arise the elimination of the DADT policy. Thus, it is not simply a matter of saying that a particular statute shall no longer be enforced.

Stanley also states that the injunction places LGBT servicemembers and the DoD under great uncertainty on how to act during the repeal process:

The military also should not be required to restructure military policy and law during the pendency of the Government’s appeal. If the Court’s judgment is overturned on appeal, and Congress has not since repealed the statute, the Department of Defense will be obligated by statute to reinstate DADT. Removing and then reinstating DADT will be extremely disruptive, as well as unduly costly and time-consuming, particularly at a time when this Nation is involved in combat operations overseas.

Enjoining the operation of the statute before any appeal is concluded, moreover, would 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.

Stanley warns that “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.” Later, he reiterates:

If the DADT policy is eventually abolished, the military will only get one chance to implement the change. For a change of this magnitude, the initial stages are extraordinarily important to the long-term success of the project. That is one reason why the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff have emphasized the need for careful planning of this transition. A poorly implemented transition will not only cause short-term disruption to military operations, but will also jeopardize the long-term success of the transition. Either outcome would irreparably harm our military and the national security of the United States.

Log Cabin Republicans, who brought the successful suit against the government in Federal Court, pledged to fight the Administration’s application:

We are not surprised by the government’s action, as it repeats the broken promises and empty words from President Obama avowing to end ‘Don’t Ask, Don’t Tell’ while at the same directing his Justice Department to defend this unconstitutional policy,” said Dan Woods, White & Case partner who is representing Log Cabin Republicans. “Now that the government has filed a request for a stay, we will oppose it vigorously because brave, patriotic gays and lesbians are serving in our armed forces to fight for all of our constitutional rights while the government is denying them theirs.”

Christian Berle, Deputy Executive Director of Log Cabin Republicans, also urged Senate Majority Leader Harry Reid to bring DADT’s repeal back up for a vote during the lame duck session following the November election.

Comments

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Lael
October 14th, 2010 | LINK

I read the Under Secretary’s reasons and immediately thought, “Bullsh1t!”

They suspend investigations all the time for those deployed overseas in the fighting constantly. When the tour is up, then they boot the person. His argument is false, misleading and a plain lie.

Rank and file will fall in line with the officers. The officers will do as they are ordered or face court martial.

The whole thing does not rest on the wars or policy or anything else. It rests on the unconstitutionality of the law. That will not wait for anyone.

Other Fred in the UK
October 14th, 2010 | LINK

Allowing gays and lesbians to serve openly in the British armed forces was a military non-event. I am curious as to why the Department of Defence is so concerned suspending DADT could lead to chaos?

werdna
October 15th, 2010 | LINK

Who is the “Stevens” referred to in the third paragraph?

Jim Burroway
October 15th, 2010 | LINK

That was a typo. It should have read “Stanley.” It was very late at night after a long day at jury duty.

Matt
October 15th, 2010 | LINK

Dunno how to take this. On the same day Obama makes a speech saying that being gay is “part of one’s makeup” rather than a choice, we get this.

Ben in Oakland
October 15th, 2010 | LINK

My dad always used to say:

There are three ways to do anything. the irght way. the wrong way. and the military way.

Their whole approach reminds me of kids around a campfire telling themselves spooky stories. They get off on the thrill of it all, and then can’t get to sleep.

I wonder if this has anything at all to do with their unsuccessful prosecution of the last two (at the minimum)wars we’ve been in

justsearching
October 15th, 2010 | LINK

Honestly, I’d be more comfortable if the disassembly of DADT didn’t come from a judge. Even though most Americans support dropping DADT, I think that many might feel this is not the best way to do it. I’ll accept this gladly, but I wish that it comes from elsewhere.

Doctor Whom
October 15th, 2010 | LINK

justsearching:

One could have said the same thing about school desegregation. Nonetheless, in both cases, courts had a job to do under Articles III and VI of the Constitution.

JandyA Says
October 15th, 2010 | LINK

Since reading the DoD’s rationale on the immediate repeal, even as a former Navy career man and also a closeted gay man, I can’t help but question the order for immediate change to have been issued and wonder if it wasn’t created just to cause this major S.N.A.F.U. (The acronym for: Situation Normal, All Fu**ed-Up).

Obviously the rationale in the counter-argument is sound. So what EVER was this judge who issued the initial order thinking, other than creating chaos and confusion.

Much as I want the change to happen, this is NOT the way. And I think this Judge KNEW it would create this kind of chaos. Thanks a lot, Judge.

J L
October 15th, 2010 | LINK

They could have said, “Please let us keep the darkies until at least next year’s harvest. We know slavery is wrong, but we can’t just let them all go.”

Priya Lynn
October 15th, 2010 | LINK

Jandy, what puts the lie to this “it’ll create chaos and confusion” line is that the air force has already stopped enforcing DADT. Obviously it was no big deal to them and it’ll be no big deal to the reast of the service.

Dennis W
October 15th, 2010 | LINK

Obama pledged to preserve, protect and defend the Constitution when he took office. This ruling says that DADT is not constitutional. The reason to put a stay on the recent court ruling is not a challenge to constitutionality of DADT but because of ‘disruption in implementing the policy’. Sounds like a maangement problem. If the law is unconstitutional, end the practice now. If management does not know how to implement the ruling, get new managemet.

Stefano A
October 15th, 2010 | LINK

If management does not know how to implement the ruling, get new managemet.

Or as I say, Obama better be lining up his next job.

It’s doubtful I’d vote for a Republican, but unless Obama runs unopposed on the 2012 Democratic ticket, and unless the other Democratic candidate is a complete nightmare, no way will I vote for Obama’s re-election.

Timothy Kincaid
October 15th, 2010 | LINK

Develop tools and training for the leadership and servicemembers. Stanley complains, “It will be difficult, if not impossible, to provide timely education to forces engaged in combat operations.”

To rephrase Stanley: Until such time as we can develop training programs for heterosexuals, the gays should be fired.

I’m sorry, Mr. Stanley, but I don’t accept your argument or the arrogant heterosexist premise on which it stands. Yes, training will be needed. But this change has been obviously projectable for years and it is unconscionable to demand that gay soldiers pay the price for the Pentagon’s lack of readiness.

Timothy Kincaid
October 15th, 2010 | LINK

And Dan Woods is one of my new heroes.

Elliot
October 15th, 2010 | LINK

You know, I want to sympathize with the administration and DOD, but our “fierce advocate” has made me a little cold to the military’s whining that we’re trying to go too fast. We have to keep in mind that while they’re hmming and hawwing, people are having their careers destroyed.

If it’s going to be too troublesome to do it overnight, that’s fine. Put the current discharges on hold, start up those briefings and sensitivity training NOW. This discriminatory policy has been going on for too long as it is, and the DOD wants us to nod complacently while they sit on their hands.

No. Not going to happen.

Ben in Oakland
October 15th, 2010 | LINK

Even the assumption that major tools and training are going to be needed, and that the need will apply to the majority instead of a very possibly small minority, are heterosexist assumptions of gargantuan proportions.

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