Box Turtle Bulletin

Pentagon Releases Revised DADT Guidance

Chris Geidner reports that, in reaction to yesterday’s temporary stay by the Ninth Circuit Court of Appeals of an injunction prohibiting the enforcement of “Don’t Ask, Don’t Tell,” the Department of Defense has issued revised guidelines on the policy’s enforcement:

Until further notice, pursuant to a memorandum from Defense Secretary Robert Gates and a follow-up memorandum from Undersecretary of Defense for Personnel and Readiness Clifford Stanley, no service member can be discharged under DADT without the ”personal approval of the secretary of the military department concerned, and only in coordination with me and the General Counsel of the Department of Defense.”

The Court of Appeals will decide sometime after October 25 whether to make their stay permanent for the duration of the appeals process. A senior DoD defense lawyer, noting the temporary nature of the stay, concedes that “We are clearly in a legally uncertain territory.”

It is unclear how this new memorandum will affect recent enlistments of LGBT people into the military.

Ninth Circuit Court Stays DADT Injunction

I’ll bet you just had a feeling that this was too good to last, didn’t you? The Ninth Circuit Court of Appeals has granted the Justice Department’s request for a temporary stay of a lower court’s injunction ordering the Defense Department to halt all enforcement of “Don’t Ask, Don’t Tell.”

In a very brief order, Justices Diarmuid O’Scannlain, Stephen S. Trott and William A. Fletcher wrote (PDF: 24 KB/1 page):

This court has received appellant’s emergency motion to stay the district court’s October 12, 2010 order pending appeal. The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented.

Appellee may file an opposition to the motion for a stay pending appeal by October 25, 2010. To expedite consideration of the motion, no reply shall be filed.

“Appellee” here are Log Cabin Republicans, which brought the successful suit against the U.S. government in which Federal District Judge Virginia A. Phillips declared DADT unconstitutional. This is a temporary stay, allowing the court time to consider whether there should be a longer-term stay for the duration of the appeal.

It’s unclear what immediate effect this stay will have. Chris Geidner points out that the Defense Department memorandum requiring compliance with the injunction states (PDF: 96KB/1 page):

In the interim, the Department of Defense will abide by the terms of the injunction. It is possible that a stay of the injunction could be issued very soon, perhaps in a matter of days. In that event, I will issue additional guidance.

In other words, DADT remains suspended until the Defense Department issues a new memorandum. If a longer-term stay is granted sometime after October 25, then the Defense Department will probably issue a new memorandum requiring enforcement of DADT again for the duration of the appeals process. That process will likely take the better part of a year.

Update (Oct 21): A new memorandum may come sooner than first thought:

The Pentagon says it’s working to come up with new guidelines regarding gays serving in the military after a court ruling restored the “don’t ask, don’t tell” law, at least for now. Defense Department spokesman Col. Dave Lapan said Thursday that he expects the guidelines be announced later in the day.

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

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.

Dan Choi To Enlist in the Marines, SLDN Issues Caution

Lt. Dan Choi, who was discharged last summer from the New York National Guard under “Don’t Ask, Don’t Tell,” is taking advantage of the latest reports indicating that military recruiters will now take applicants from prospective LGBT servicemembers. Choi just Tweeted the following:

I’m gonna try to enlist in the Marines today. Anyone else can meet me at NYC Times Sq now.

Maanwhile, the Servicemembers Legal Defense Network today issued this word of caution:

“During this interim period of uncertainty, service members must not come out and recruits should use caution if choosing to sign up.  The ‘Don’t Ask, Don’t Tell’ law is rooted in any statement of homosexuality made at anytime and to anyone.  A higher court is likely to issue a hold on the injunction by Judge Phillips very soon.  The bottom line: if you come out now, it can be used against you in the future by the Pentagon.  As the DOJ fights to keep this unconstitutional and oppressive law, we are monitoring active-duty clients’ cases and fielding calls every day to our hotline.  Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington.”

Update: Oh the ignominy! The old fart just Tweeted an update:

In the recruiting station. Apparently I’m too old for the Marines! Just filled out the Army application

Pentagon Orders Recruiters To Accept Gay Applications

The Associated Press is reporting that the Pentagon has issued new guidance to recruiting offices in the wake of last week’s injunction barring enforcement of “Don’t Ask, Don’t Tell”

Spokeswoman Cynthia Smith said Tuesday that top-level guidance has been issued to recruiting commands informing them that the military’s “don’t ask, don’t tell” rule has been suspended for now. Recruiters also have been told to inform potential recruits that the moratorium could be reversed at any point.

It’s important to pay close attention to that last point. If the lower court’s finding that DADT is unconstitutional is overturned on appeals, the law would go right back into enforcement, and those who declare that they are gay will be subject once again to discharge under DADT. The Justice Department has already indicated that they intend to appeal the decision. That’s why Congressional repeal is still so important.

Last week, the Defense Department announced that they have called a halt to all DADT discharges for the duration of the injunction.

Judge Likely To Keep DADT Injunction

U.S Federal District Judge Virginia A. Phillips issued a tentative ruling yesterday rejecting Department of Justice arguments that keeping the worldwide injunction against enforcing “Don’t Ask, Don’t Tell” would be an undue burden on the military. In a hearing in which Judge Phillips called the arguments “vague” and “insufficient,” she issued a tentative ruling denying the government’s request for a stay of the injunction against DADT, with a final ruling expected this morning. She was particularly dismissive of the Government’s submittal of a Rolling Stone interview with President Barack Obama as evidence for their support, calling the submittal “hearsay.”

Last week, the Defense Department announced that they would halt all DADT discharges while announcing their intent to appeal the decision. However, recruiters are still refusing to allow self-acknowledging gay people to sign up for military service.

Judge Phillips’ ruling effectively places the issue now before the Ninth Circuit Court of Appeals.

McCain: “Absolutely I will Filibuster DADT Repeal”

John McCain appeared on a local Phoenix Sunday morning talk show in which he accused President Barack Obama of asking for the repeal of “Don’t Ask, Don’t Tell” because he “made this decision because of a political promise to the gay and lesbian community.” This is despite the fact that polls put the public support for DADT’s repeal at about 75%. McCain added, “Absolutely I will filibuster or stop it from being brought up until we have a thorough and complete study on the effect of morale and battle effectiveness.”

Defense Dept Ends All DADT Discharges

Even though the Justice Department has announced that they intend to appeal the Federal Court ruling that declared “Don’t Ask, Don’t Tell” unconstitutional while filing for a stay in the injunction prohibiting its enforcement, the Defense Department has announced that they will bring to immediate halt to all DADT discharges while the case is on appeal.

“Earlier today, the staff judge advocate generals from the military services, in consultation with the Office of the Secretary of Defense Office of General Counsel, sent to their service staff judge advocate counterparts in the field an e-mail informing them of the ruling by Judge Virginia Phillips of the Central District of California, issuing an injunction barring the enforcement or application of 10 United States Code 654, commonly known as the ‘Don’t Ask, Don’t Tell’ statute,” Pentagon spokesman Marine Col. Dave Lapan said in a written statement.

This builds on news from earlier that the Air Force had announced that they would no longer discharge servicemembers under DADT.

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

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.

Air Force stops enforcing DADT

From the AP

The Servicemembers Legal Defense Network circulated an e-mail on Thursday that it says was written by the Air Force’s Judge Advocate General Richard Harding. In that e-mail, Harding says the Defense Department “will abide” by a court order that says the military can no longer discharge service members who are openly gay.

Meanwhile, some in the Pentagon are all in a tither about what to do. Why, it could have “enormous consequences”. So, as a service to my nation, I offer the following Q&A.

Q: How do we administer the change???

A: Put any current investigations in the shredder.

Q: But where will the gay soldiers sleep?

A: In the bunk they’ve been sleeping in.

Q: But what about the homophobic soldiers? Don’t they get to make any input?

A: They get the exact same input as to where they will be shipped, what uniforms to wear, and whether they will serve with people of other races.

Q: But the public, what about the public?

A: The public really and truly couldn’t care less.

And if they have any more concerns, I’m sure there’s still room on my post-it note.

Christine O’Donnell Compares DADT Repeal to Adulterous Affairs

The Tea Party-backed Republican nominee for U.S. Senate from Delaware, Christine O’Donnell, appeared on a debate yesterday in which she expressed her opinion that the U.S. military is a law unto itself outside of civilian control, and that the courts have no role to play in enforcing the U.S. Constitution. She also said that repealing “Don’t Ask, Don’t Tell” would be like telling the military that they should endorse adulterous affairs among married personnel.

“A federal judge recently ruled that we have to overturn Don’t Ask Don’t Tell. There are a couple of things we need to say about that. First of all, judges should not be legislating from the bench. Second of all, it’s up to the military to set the policy that the military believes is in the best interest of unit cohesiveness and military readiness. The military already regulates personal behavior in that it doesn’t allow affairs to go on within your chain of command. It does not allow it you are married to have an adulterous affair within the military. So the military already regulates personal behavior because it feels that it is in the best interest of our military readiness. I don’t think that Congress should be forcing a social agenda on to our military. I think we should leave that to the military.”

Justice Dept Expected To Appeal DADT Ruling, Defense Dept Still Enforcing Military Ban

The Washington Post says that the Justice Department is expected to appeal the ruling by U.S. District Court Judge Virginia A. Phillips declaring “Don’t Ask, Don’t Tell,” the military ban on gays serving openly, unconstitutional. The administration is expected to seek a stay in the broad injunction issued Tuesday which bars enforcement of DADT immediately and everywhere. I think the Post sums up the situation very well:

The effort to repeal the law barring gay men and lesbians from serving openly in the U.S. military is nearing a chaotic endgame involving fast-moving courts, a slow-moving military, a lame-duck Congress and an administration increasingly caught in the middle. When the dust settles by the end of the year, the military’s “don’t ask, don’t tell” policy could be history – or it could remain on the books, with a new right-leaning Congress disinclined to do anything about it.

If true, then it will make Senate Majority Leader Harry Reid’s obstinance and cynicism behind his maneuvers before bringing DADT’s repeal up for a vote last month even more unforgivable. Reid, of course, doesn’t shoulder the blame alone. Certainly the Obama Administration’s lack of leadership and, specifically, absence of any lobbying efforts to pass the repeal can’t be ignored.

And, of course, there are the forty Republicans and two Democrats who voted against a measure that more than three-fourths of the American public agree should be passed.

Meanwhile, Defense Secretary Robert M. Gates has forgotten once again that under the U.S. Constitution, the military is under civilian control and is not a law unto themselves. Gates claims that following the court order will have “enormous consequences” for the military. Among the “consequences”:

Gates said the Pentagon needs until Dec. 1 to resolve questions such as whether heterosexual troops would be required to share housing with gays and whether the military would be required to provide benefits for same-sex partners of service members.

No other nation that allows gays to serve openly in the military has seen a need to provide segregated housing, an odious suggestion if there ever was one. As for providing benefits for same-sex partners, unfortunately it looks like existing marriage law and military regulations already takes care of it. Same-sex partners would get all the benefits of any other unmarried partner.

t LGBT people are already serving in the military, with many servicemembers aware of LGBT people serving in their ranks. There is no evidence to suggest that their presence has had any sort of impact on unit cohesion.

Twenty one Senate Democrats have written to U.S. Attorney General Eric Holder, Jr., urging that he not appeal the court ruling. Despite the injunction, the Defense Department is still enforcing DADT:

With a briefcase full of commendations under his arm, Omar Lopez walked into an Austin, Tex., recruiting office Wednesday. Mr. Lopez, 29, had served nearly five years in the Navy. He was honorably discharged in 2006 for “homosexual admission,” according to documents he carried. He wanted to re-enlist.

But recruiters turned him away hastily, saying they had no knowledge of any injunction or any change in military policy.

Judge orders immediate end to DADT

Judge Phillips has responded positively to Log Cabin Republicans’ request for an immediate and worldwide injunction against the military’s anti-gay Don’t Ask, Don’t Tell policy (CNN):

A federal judge ordered Tuesday that the U.S. military stop enforcing the “don’t ask, don’t tell” policy.

Judge Virginia Phillips ordered the military “immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced” under the “don’t ask, don’t tell” policy.

Updates (Jim Burroway): Log Cabin Republicans, who brought the successful lawsuit to federal court, cautioned servicemembers against coming out at this time, since the Justice Department still has sixty days in which it can appeal.

White House press secretary Robert Gibbs told The Advocate that he didn’t know whether the Administration would seek a stay of the ruling. He also didn’t know if any steps had been made to bring the Pentagon into compliance with the injuinction. Instead, he said, “, nor did he know if any steps have been taken to bring the Pentagon into compliance with the injunction. Gibbs said, “The president will continue to work as hard as he can to change the law that he believes is fundamentally unfair.” It seems to me that Judge Phillips already took care of that task. 

Here is the full text of the injunction:

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
This action was tried by Judge Virginia A. Phillips without a jury on July 13-16 and 20-23, 2010. The Court filed a Memorandum Opinion on September 9, 2010 (Doc. 232), and an Amended & Final Memorandum Opinion, and Findings of Fact and Conclusions of Law, on October 8, 2010. For all the reasons set forth therein, the Court:

(1) DECLARES that the act known as “Don’t Ask, Don’t Tell” infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.

(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;

(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.

(4) GRANTS Plaintiff Log Cabin Republicans’ request to apply for attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and

(5) GRANTS Plaintiff Log Cabin Republicans’ request to file a motion for costs of suit, to the extent allowed by law.

LCR responds to Justice Department’s ridiculous filing

The Justice Department argued that it would be beyond the scope of Judge Phillip’s authority to issue a world-wide injunction on the enforcement of Don’t Ask, Don’t Tell. LCR has replied, noting that this question has already been addressed by the court.

MR. FREEBORNE: With regard to the last point, this Court’s jurisdiction would only extend to this district. They are asking for nationwide relief, which this Court would not even have the power to effectuate a nationwide injunction. This is not a class action; this is a case brought within this district.

THE COURT: But how in the world could — if the plaintiffs succeed in this case on the relief that they are seeking, are you suggesting that an injunction would be only directed to service members serving within the Ninth Circuit?

MR. FREEBORNE: Your Honor, this Court does not have nationwide jurisdiction to issue an injunction.

THE COURT: Are you suggesting that, theoretically, if a district court orders that any regulation or federal law is unconstitutional, it only applies in the district where the Court sits?

MR. FREEBORNE: Well, Your Honor, we can put that issue aside. I just note that I think that —

THE COURT: That’s because I think you are incorrect.

As for the idea that it should only be limited to the Log Cabin Republican members,

The government’s first argument objecting to a worldwide injunction against DADT is that such an injunction should be limited to Log Cabin Republicans and its current members (who, in an appalling Catch-22, the government implies should be specifically identified as “bona fide LCR members”). This objection should be summarily rejected. This case was never litigated or tried on the basis that Log Cabin sought to invalidate DADT only for its own members; on the contrary, this case was brought as a facial challenge.

Judge Orders Lesbian Discharged Under DADT Reinstated

U.S. District Judge Ronald Leighton has ordered Air Force Reserve Major Margaret Witt reinstated as the result of her lawsuit challenging her dismissal under “Don’t Ask, Don’t Tell. Judge Leighton wrote:

The application of “Dont’s Ask Don’t Tell” to Major Margaret Witt does not significantly further the government’s interest in promoting military readiness, unit morale and cohesion. Her discharge from the Air Force Reserves violated her substantive due process rights under the Fifth Amendment to the United States Constitution. She should be restored to her position as a Flight Nurse with the 446th AES as soon as is practicable, subject to meeting applicable regulations touching upon qualifications necessary for continued service.

Major Witt, who had been in a committed six year relationship with a woman whose home she shared in Spokane, Washington, testified that she had never disclosed her sexual orientation to her colleagues and she never engaged in prohibited behavior while on duty or on military grounds. The Air Force learned of Witt’s sexuality when Witt’s partner’s ex-husband informed Air Force officials. The judge noted Witt’s exemplary performance in her unit and found that there was no evidence that her presence had any affect on unit cohesiveness or effectiveness:

The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion. To the contrary, the actions taken against Major Witt had the opposite effect. The 446th AES is a highly professional, rapid response, air evacuation team. It is comprised of flight nurses and medical technicians who are well-trained, well-led and highly motivated. They provide a vital service to our fighting men and women around the world. Serving within that unit are known or suspected gay or lesbian service men and women. … These people train together, fly together, care for patients together, deploy together. There is nothing in the record before this Court suggesting that the sexual orientation (acknowledged or suspected) has negatively impacted the performance, dedication or enthusiasm of the 446th AES. There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds.

Witt’s first legal attempt to challenge her discharge resulted in a court loss in 2006. But in 2008, the Ninth Circuit Court of Appeals ruled that the military can’t discharge gay servicemembers without proof that the discharge would further military goals.

This ruling represents yet another setback for “Don’t Ask, Dont Tell” in the courts. Earlier this month, another Federal Judge ruled the policy unconstitutional in a lawsuit brought by Log Cabin Republicans. Yesterday, the Justice Department asked the judge to limit the scope of that ruling to current LCR members only.

Which means that if the Justice Department’s request prevails in the LCR case, then there would be two legal exceptions carved out of DADT: current LCR members and Major Witt. For everyone else, the discharges will continue — unless everyone challenges their discharges in court. Is that really what it’s going to take to finally get rid of this sucker?