Justice Dept. Files Emergency DADT Stay Request With 9th Circuit

Jim Burroway

October 20th, 2010

The Justice Department today has filed an emergency request with the Ninth Circuit Court of Appeals, asking that the court issues a stay of U.S. Federal District Judge Virginia A. Phillips’ injunction preventing the Defense Department from enforcing “Don’t Ask, Don’t Tell.”

In today’s filing (PDF: 156 KB/25 pages, via Politico), the Justice Department argues that “if not stayed immediately, the district court’s order precludes the administration of an Act of Congress and risks causing significant immediate harm to the military and its efforts to be prepared to implement an orderly repeal of the statute.” The Justice Department then asks:

We respectfully request that the Court enter an administrative stay by today October 20, 2010, pending this Court’s resolution of the government’s motion for a stay pending appeal, which would maintain the status quo that prevailed before the district court’s decision while the Court considers the government’s stay motion.

In giving the reasons for requesting the stay, the Justice Department repeats the reasons they gave to the District Court, except this time they chose to omit the “evidence” of the Rolling Stone interview with President Barack Obama, which Judge Phillips derisively dismissed as “hearsay.” The Justice Department argues:

The worldwide injunction also threatens to disrupt the ongoing efforts to fashion and implement policies to effect any repeal of § 654 in an orderly fashion. The President strongly supports repeal of the statute that the district court has found unconstitutional, a position shared by the Secretary of Defense and the Chairman of the Joint Chiefs of Staff. Although the Administration has called for a repeal of the statute, it has made clear that repeal should not occur without needed deliberation, advance planning, and training. To that end, the Secretary of Defense established the Comprehensive Review Working Group, which is currently nearing completion of a comprehensive review of how best to implement a repeal of § 654. The Working Group has visited numerous military installations across the country and overseas, where it has interacted with tens of thousands of servicemembers on this issue. The Working Group has also conducted an extensive, professionally developed survey that was distributed to a representative sample of approximately 400,000 servicemembers. An abrupt, court-ordered end to the statute would pretermit the Working Group’s efforts to ensure that the military completes development of the necessary policies and regulations for a successful and orderly implementation of any repeal of § 654. The significant impairment of the Department’s efforts to devise an orderly end to the statute would cause irreparable harm.

Meanwhile, the Pentagon has complied with the injunction barring enforcement of “Don’t Ask, Don’t Tell.” Former New York Guardsman Lt. Dan Choi yesterday successfully re-enlisted in the U.S. Army at a recruiting station in New York, while the Pentagon has announced that they have called a halt to all ongoing discharge procedures underway under DADT.

Karen Ocamb puts it nicely:

Obama, the DOJ and the Pentagon should acknowledge that DADT is broken and unfixable like Humpty Dumpty.


October 20th, 2010

It should be telling that the military itself is now in the process of ending DADT while the government continues to push for hanging onto it, for some unfathomable reason. I guess Obama wants more time to “study” the issue, and yet the military seems to have reached the conclusion that they don’t need to anymore.


October 20th, 2010

Well, the military is doing what the federal government is commanding it to.

I find it fascinating that the President feels that he has a responsibility to fight this, despite how weak the presidency is going to look as it struggles to undo what this judge has done. The President is the Commander in Chief of the military and this is making it look as if that office is powerless. He should have just given an executive order to end DADT. He could have even tailored it to come into effect in increments so that the policy would be dismantled in the “orderly fashion” that they seem to think is so important.


October 20th, 2010

I didn’t realize the constitution had an exception for “orderly repeal” of unconstitutional acts.


October 20th, 2010

DADT was broken before the ruling. Most people don’t support it. Many servicemembers know someone who is serving who is GLBT. Nobody cares who is gay or not. Somehow everyone isn’t being sexually assaulted in the shower despite that. The group most likely to be sexually assaulted in the military is women, not men, and DADT’s repeal won’t change that.

Rob San Diego

October 20th, 2010

I love how the administration wants to leave this to congress to undo. As if congress will still be in the Democrats control after the election.

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