From NYT: By SHERYL GAY STOLBERG
WASHINGTON — The military’s longstanding ban on service by gays and lesbians came to a historic and symbolic end on Wednesday, as President Obama signed legislation repealing “don’t ask, don’t tell,” the contentious 17-year old Clinton-era law that sought to allow gays to serve under the terms of an uneasy compromise that required them to keep their sexuality a secret.
“No longer will tens of thousands of Americans in uniform be asked to live a lie or look over their shoulder,” Mr. Obama said during a signing ceremony in a packed auditorium at the Interior Department here. Quoting the chairman of his joint chiefs of staff, Admiral Mike Mullen, Mr. Obama went on, “Our people sacrifice a lot for their country, including their lives. None of them should have to sacrifice their integrity as well.”
The repeal does not immediately put a stop to “don’t ask, don’t tell.” Mr. Obama must still certify that changing the law to allow homosexual and bisexual men and women to serve openly in all branches of the military will not harm readiness, as must Defense Secretary Robert Gates and Admiral Mullen, before the military can implement the new law. But the secretary and the admiral have backed Mr. Obama, who said ending “don’t ask, don’t tell” was a topic of his first meeting with the men. He praised Mr. Gates for his courage; Admiral Mullen, who was on stage with the president during the signing ceremony here, received a standing ovation.
While there is still significant resistance within the military to the change in policy, especially within the Marine Corps, at least one proponent — Representative Barney Frank, the openly gay Democrat from Massachusetts — insisted on Wednesday that this latest effort to integrate the armed services will go more smoothly than did racial or gender integration.
“Reality will very soon make it clear that there is nothing to worry about,” Mr. Frank said. He called the signing the biggest civil rights moment in the nation since the signing of voting rights legislation in the 1960s. “If you can fight for your country, you can do anything,” he said.
In the years since President Bill Clinton first enacted “don’t ask, don’t tell” in 1993, some 17,000 service members have been discharged under the policy. While many gay people in the military are now breathing a sigh of relief, the Servicemembers Legal Defense Network, which represents soldiers facing charges under the policy, is warning its members that they are “still at risk” because the repeal will not take full effect until 60 days after Mr. Obama, the defense secretary and admiral certify readiness.
“The bottom line is DADT is still in effect and it is not safe to come out,” the organization said.
For Mr. Obama, the ceremony — held at the Interior Department because the White House is tied up with holiday tours — marked yet another in a string of last-minute, bipartisan legislative triumphs, a surprising turnaround in the wake of the self-described “shellacking” his party took at the polls last month. He had already signed a bipartisan tax deal into law, and the Senate appears headed on Wednesday to approve a new nuclear arms pact with Russia, which will give him a significant foreign policy victory as he wraps up the first half of his term. He looked relaxed and upbeat as he soaked up the energy from an enthusiastic crowd.For the gay rights movement, which has been frustrated with the pace of progress under Mr. Obama, Wednesday marked a celebratory turning point. “Thank you, Mr. President,” someone shouted, as Mr. Obama took the stage, prompting a round of other shouts: “Chicago’s in the house, Mr. President! You rock, Mr. President!” Mr. Obama pronounced himself overwhelmed.
The audience for the ceremony included a who’s who of gay activists, among them Frank Kameny, who was fired from a civilian job as an Army astronomer in 1957 — an act that prompted him to found a gay rights advocacy organization in Washington D.C. and to file a lawsuit which went all the way to the Supreme Court. In 1965 he picketed the White House, in the first ever demonstration there by gays.
Now white-haired at 85, Mr. Kameny also served as an enlisted Army soldier; he signed up in May 1943, he said, three days before he turned 18, and saw “front line combat” in Germany during World War II. He said he was asked if he had “homosexual tendencies” and denied it. “They asked, and I didn’t tell,” he said, “and I resented for 67 years that I had to lie.”
Showing posts with label Obama on DADT. Show all posts
Showing posts with label Obama on DADT. Show all posts
Wednesday, December 22, 2010
Thursday, September 23, 2010
DOJ to Judge: Keep Enforcing DADT
From Advocate.com: The Department of Justice asked a federal judge Thursday to continue enforcing the military's ban on gay and lesbian service members, despite a ruling earlier this month that struck down "don't ask, don't tell" as unconstitutional.
In a 14-page filing, Justice Department attorneys argued that an immediate, permanent injunction against enforcing the law —one supported by Log Cabin Republicans, which successfully challenged DADT in court and has argued for a halt to all discharges of gay service members — would be "untenable." (A PDF of the government’s brief is here.)
"Because any injunction in this case must be limited to [Log Cabin Republicans] and the claims it asserts on behalf of its members – and cannot extend to non-parties – plaintiff’s requested world-wide injunction of [DADT] fails as a threshold matter," assistant U.S. attorney Paul Freeborne wrote.
DADT repeal advocates and attorneys representing Log Cabin Republicans immediately slammed the Justice Department's filing. Dan Woods, lead attorney for the national gay Republican group, called the arguments "ridiculous" and said his team would file a response as soon as Friday.
"It’s our view that the objections fail to recognize the implications of the government's defeat at this trial," Woods told The Advocate. "This case was never limited to only Log Cabin members. And the request for a stay ignores the harm that would be suffered by current and potential service members during a period of the stay."
In a late Thursday statement, White House press secretary Robert Gibbs said the filing "in no way diminishes the President’s firm commitment to achieve a legislative repeal of DADT — indeed, it clearly shows why Congress must act to end this misguided policy."
But Servicemembers United executive director Alex Nicholson said the Obama administration "had a choice to take several different routes [with the injunction], from the moderate and reasonable to the extremely ridiculous. It appears that they decided to go with the latter end of the spectrum."
Nicholson said the DOJ's filing further erodes faith in the administration for many gays and lesbians seeking substantive change. "Lately a lot of us were holding out hope that there would be a semi-reasonable response to this judicial victory. It appears that [Obama] might be disappointing us yet again," he said.
The Justice Department's arguments against an injunction come two days after legislative repeal of DADT was blocked in the Senate due to a Republican filibuster of the defense authorization bill, of which a repeal on the ban against openly gay service members is a component.
In Log Cabin Republicans v. United States of America, U.S. district judge Virginia A. Phillips ruled earlier this month that the DADT statute, passed by Congress in 1993, violates free speech and due process rights of gay service members. She also ruled that LCR is entitled to a permanent injunction against DADT and gave Justice Department attorneys until Thursday to object to Log Cabin's proposed judgment in the case.
The Justice Department has argued that Phillips does not have the authority to issue a sweeping injunction against the ban on openly gay service members (Phillips rejected that argument in a February court hearing).
"[DOJ] has ignored all the law about deference to the military. [Judge Phillips] said before that deference does not mean abdication when constitutional rights were involved," Woods said.
The Justice Department has not yet filed an appeal in the case.
Among the government’s arguments in Thursday's filing, Freeborne wrote that an injunction would preclude the government from litigating other legal challenges to DADT, as well as prevent it from considering the terms of a stay banning discharges of gay soldiers. An immediate halt of discharges, they argued, would jeopardize successful implementation of repeal by interfering with the “ability of the Department of Defense to develop necessary policies, regulations, and training and guidance to accommodate a change in the DADT law and policy.”
“Contrary to [LCR's] repeated suggestions that the Court can simply order the immediate cessation of DADT without any disruption of the military’s operations,” Freeborne wrote, “the Secretary of Defense has stated that, to be successful in implementing a change to the DADT law and policy, the Department of Defense must ‘understand all issues and potential impacts associated with repeal of the law and how to manage implementation in a way that minimizes disruption to a force engaged in combat operations and other demanding military activities around the globe.’”
Woods criticized that argument as a been-there, done-that tactic. "It's the same argument they made before the trial. 'Let us have time to study it. Congress is considering repealing it.' Judge Phillips has rejected it before."
In a 14-page filing, Justice Department attorneys argued that an immediate, permanent injunction against enforcing the law —one supported by Log Cabin Republicans, which successfully challenged DADT in court and has argued for a halt to all discharges of gay service members — would be "untenable." (A PDF of the government’s brief is here.)
"Because any injunction in this case must be limited to [Log Cabin Republicans] and the claims it asserts on behalf of its members – and cannot extend to non-parties – plaintiff’s requested world-wide injunction of [DADT] fails as a threshold matter," assistant U.S. attorney Paul Freeborne wrote.
DADT repeal advocates and attorneys representing Log Cabin Republicans immediately slammed the Justice Department's filing. Dan Woods, lead attorney for the national gay Republican group, called the arguments "ridiculous" and said his team would file a response as soon as Friday.
"It’s our view that the objections fail to recognize the implications of the government's defeat at this trial," Woods told The Advocate. "This case was never limited to only Log Cabin members. And the request for a stay ignores the harm that would be suffered by current and potential service members during a period of the stay."
In a late Thursday statement, White House press secretary Robert Gibbs said the filing "in no way diminishes the President’s firm commitment to achieve a legislative repeal of DADT — indeed, it clearly shows why Congress must act to end this misguided policy."
But Servicemembers United executive director Alex Nicholson said the Obama administration "had a choice to take several different routes [with the injunction], from the moderate and reasonable to the extremely ridiculous. It appears that they decided to go with the latter end of the spectrum."
Nicholson said the DOJ's filing further erodes faith in the administration for many gays and lesbians seeking substantive change. "Lately a lot of us were holding out hope that there would be a semi-reasonable response to this judicial victory. It appears that [Obama] might be disappointing us yet again," he said.
The Justice Department's arguments against an injunction come two days after legislative repeal of DADT was blocked in the Senate due to a Republican filibuster of the defense authorization bill, of which a repeal on the ban against openly gay service members is a component.
In Log Cabin Republicans v. United States of America, U.S. district judge Virginia A. Phillips ruled earlier this month that the DADT statute, passed by Congress in 1993, violates free speech and due process rights of gay service members. She also ruled that LCR is entitled to a permanent injunction against DADT and gave Justice Department attorneys until Thursday to object to Log Cabin's proposed judgment in the case.
The Justice Department has argued that Phillips does not have the authority to issue a sweeping injunction against the ban on openly gay service members (Phillips rejected that argument in a February court hearing).
"[DOJ] has ignored all the law about deference to the military. [Judge Phillips] said before that deference does not mean abdication when constitutional rights were involved," Woods said.
The Justice Department has not yet filed an appeal in the case.
Among the government’s arguments in Thursday's filing, Freeborne wrote that an injunction would preclude the government from litigating other legal challenges to DADT, as well as prevent it from considering the terms of a stay banning discharges of gay soldiers. An immediate halt of discharges, they argued, would jeopardize successful implementation of repeal by interfering with the “ability of the Department of Defense to develop necessary policies, regulations, and training and guidance to accommodate a change in the DADT law and policy.”
“Contrary to [LCR's] repeated suggestions that the Court can simply order the immediate cessation of DADT without any disruption of the military’s operations,” Freeborne wrote, “the Secretary of Defense has stated that, to be successful in implementing a change to the DADT law and policy, the Department of Defense must ‘understand all issues and potential impacts associated with repeal of the law and how to manage implementation in a way that minimizes disruption to a force engaged in combat operations and other demanding military activities around the globe.’”
Woods criticized that argument as a been-there, done-that tactic. "It's the same argument they made before the trial. 'Let us have time to study it. Congress is considering repealing it.' Judge Phillips has rejected it before."
Monday, July 12, 2010
Why is the Military Polling Troops About Gays?
From Time.com:
When Harry Truman wanted to integrate blacks into the U.S. military in 1948, he simply ordered it done. When the Navy wanted women on ships beginning in 1978, it commanded its admirals to do so. When the Clinton Pentagon decided women should become fighter pilots, it issued orders telling the military to make it happen. For generations, the military mind-set has been, If we want you to have an opinion, we'll issue you one. So why is the Pentagon asking troops how they'll feel if forced to serve alongside openly gay comrades?
"This is a very dangerous precedent," says Lawrence Korb, who ran the Pentagon's personnel office during the Reagan Administration. "It gives the troops the feeling that they have a veto over what the top people want." Not everyone agrees. "What matters is the morale of the force in the field," says Ralph Peters, a retired Army officer and military scholar. "The survey is an honest attempt to suss out what the effects on morale might be."
(See a brief history of gays in the military.)
But even a top officer acknowledges some unease. "We've never done this," Admiral Gary Roughead, the chief of naval operations, said in February after Pentagon leaders endorsed ending "Don't ask, don't tell" and said they would survey the troops about it. "We've never assessed the force because it is not our practice to go within our military and poll our force to determine if they like the laws of the land or not," he told an activist from the University of California's Palm Center, which monitors the issue. "I mean, that gets you into [a] very difficult regime."
(See the case of a murdered sailor.)
Aaron Belkin, director of the Palm Center, says the poll is simply a political tool designed to ease a decision that would be better made quickly. Instead, it's part of a prolonged process that polarizes those involved and hurts both national security and gays. "If we were asking questions about any other identity group — Would your wife mind living on post next to a Chinese family?, Would you take orders from a Baptist officer?, Would you mind serving alongside an African American? — these kinds of questions make those groups second-class citizens," he says.
But the polling and a Pentagon study now under way — after President Obama, Defense Secretary Robert Gates, Chairman of the Joint Chiefs of Staff Admiral Mike Mullen and the House all have declared the ban should end (the Senate is expected to do so soon) — does serve a purpose. "We've had to do these political somersaults," Belkin says, "involving a basically fake study process, in order to give the Pentagon a sense that they have some buy-in." Gates said Thursday that it's "very important for us to understand from our men and women in uniform the challenges that they see" accompanying such a change, and added that the survey is "being done in a very professional way."
(Read TIME's 1991 article "Marching Out of the Closet.")
But the confidential survey, sent out via e-mail last week to 400,000 active and reserve troops, is already controversial. Gay-advocacy groups obtained copies of the poll Friday and it quickly flew around the Internet. The survey "stokes the fires of homophobia by its very design, and will only make the Pentagon's responsibility to subdue homophobia as part of this inevitable policy change even harder," said Alexander Nicholson of Servicemembers United, a former Army interrogator who was discharged under the existing "Don't ask, don't tell" legislation. He complained that the survey uses "bias-inducing" words "such as the clinical term homosexual," and focused too much on the negative implications of repeal. Pentagon spokesman Geoff Morrell called such criticism "nonsense."
(Comment on this story.)
The Servicemembers Legal Defense Network, perhaps the leading gay-rights group dealing with "Don't ask, don't tell," took a tough line against the survey. "No survey of the troops should be done," director Aubrey Sarvis said Friday. "Surveying the troops is unprecedented — it did not happen in 1948 when President Truman ended segregation and it did not happen in 1976 when the service academies opened to women. Even when the military placed women on ships at sea, the Pentagon did not turn to a survey on how to bring about that cultural change."
Troops have until Aug. 15 to complete the survey, which asks some 100 questions about how troops would feel serving alongside openly gay comrades or commanders. ("If 'Don't ask, don't tell' is repealed and you are working with a service member in your immediate unit who has said he or she is gay or lesbian, how, if at all, would it affect your immediate unit's effectiveness at completing its mission?" asks a typical question. The six multiple-choice answers range from "Very positively" to "Very negatively" and also include "No effect.") A second confidential survey, assessing how 150,000 family members feel about the prospective repeal, is slated for next month.
Congress passed "Don't ask, don't tell" in 1993 to thwart President Clinton's bid to lift a ban on gays serving openly. Until then, the White House had unilaterally barred open gays from serving in uniform. Under the 1993 law, recruits were no longer asked if they were gay ("don't ask"). They could serve so long as they kept their mouths shut about their private lives ("don't tell"). It was a crude compromise, which still allowed the military to kick out nearly 14,000 troops, including more than 400 last year while the nation was waging two wars.
But the public mood has shifted since 1993, when only 44% of the public supported openly gay men and women in uniform. It's now supported by 75%, according to a Washington Post poll. But never mind newspaper polls. Korb, the former Pentagon personnel chief now at the Center for American Progress think tank, is more concerned over what might happen if military surveys like this catch on. "Are they going to poll the troops on whether they want happy hours or discount cigarettes?" he asks. "Where does it stop — should we get out of Afghanistan?"
Read more: http://www.time.com/time/nation/article/0,8599,2003075,00.html?xid=rss-topstories&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+time%2Ftopstories+%28TIME%3A+Top+Stories%29#ixzz0tV8OA5RU
When Harry Truman wanted to integrate blacks into the U.S. military in 1948, he simply ordered it done. When the Navy wanted women on ships beginning in 1978, it commanded its admirals to do so. When the Clinton Pentagon decided women should become fighter pilots, it issued orders telling the military to make it happen. For generations, the military mind-set has been, If we want you to have an opinion, we'll issue you one. So why is the Pentagon asking troops how they'll feel if forced to serve alongside openly gay comrades?
"This is a very dangerous precedent," says Lawrence Korb, who ran the Pentagon's personnel office during the Reagan Administration. "It gives the troops the feeling that they have a veto over what the top people want." Not everyone agrees. "What matters is the morale of the force in the field," says Ralph Peters, a retired Army officer and military scholar. "The survey is an honest attempt to suss out what the effects on morale might be."
(See a brief history of gays in the military.)
But even a top officer acknowledges some unease. "We've never done this," Admiral Gary Roughead, the chief of naval operations, said in February after Pentagon leaders endorsed ending "Don't ask, don't tell" and said they would survey the troops about it. "We've never assessed the force because it is not our practice to go within our military and poll our force to determine if they like the laws of the land or not," he told an activist from the University of California's Palm Center, which monitors the issue. "I mean, that gets you into [a] very difficult regime."
(See the case of a murdered sailor.)
Aaron Belkin, director of the Palm Center, says the poll is simply a political tool designed to ease a decision that would be better made quickly. Instead, it's part of a prolonged process that polarizes those involved and hurts both national security and gays. "If we were asking questions about any other identity group — Would your wife mind living on post next to a Chinese family?, Would you take orders from a Baptist officer?, Would you mind serving alongside an African American? — these kinds of questions make those groups second-class citizens," he says.
But the polling and a Pentagon study now under way — after President Obama, Defense Secretary Robert Gates, Chairman of the Joint Chiefs of Staff Admiral Mike Mullen and the House all have declared the ban should end (the Senate is expected to do so soon) — does serve a purpose. "We've had to do these political somersaults," Belkin says, "involving a basically fake study process, in order to give the Pentagon a sense that they have some buy-in." Gates said Thursday that it's "very important for us to understand from our men and women in uniform the challenges that they see" accompanying such a change, and added that the survey is "being done in a very professional way."
(Read TIME's 1991 article "Marching Out of the Closet.")
But the confidential survey, sent out via e-mail last week to 400,000 active and reserve troops, is already controversial. Gay-advocacy groups obtained copies of the poll Friday and it quickly flew around the Internet. The survey "stokes the fires of homophobia by its very design, and will only make the Pentagon's responsibility to subdue homophobia as part of this inevitable policy change even harder," said Alexander Nicholson of Servicemembers United, a former Army interrogator who was discharged under the existing "Don't ask, don't tell" legislation. He complained that the survey uses "bias-inducing" words "such as the clinical term homosexual," and focused too much on the negative implications of repeal. Pentagon spokesman Geoff Morrell called such criticism "nonsense."
(Comment on this story.)
The Servicemembers Legal Defense Network, perhaps the leading gay-rights group dealing with "Don't ask, don't tell," took a tough line against the survey. "No survey of the troops should be done," director Aubrey Sarvis said Friday. "Surveying the troops is unprecedented — it did not happen in 1948 when President Truman ended segregation and it did not happen in 1976 when the service academies opened to women. Even when the military placed women on ships at sea, the Pentagon did not turn to a survey on how to bring about that cultural change."
Troops have until Aug. 15 to complete the survey, which asks some 100 questions about how troops would feel serving alongside openly gay comrades or commanders. ("If 'Don't ask, don't tell' is repealed and you are working with a service member in your immediate unit who has said he or she is gay or lesbian, how, if at all, would it affect your immediate unit's effectiveness at completing its mission?" asks a typical question. The six multiple-choice answers range from "Very positively" to "Very negatively" and also include "No effect.") A second confidential survey, assessing how 150,000 family members feel about the prospective repeal, is slated for next month.
Congress passed "Don't ask, don't tell" in 1993 to thwart President Clinton's bid to lift a ban on gays serving openly. Until then, the White House had unilaterally barred open gays from serving in uniform. Under the 1993 law, recruits were no longer asked if they were gay ("don't ask"). They could serve so long as they kept their mouths shut about their private lives ("don't tell"). It was a crude compromise, which still allowed the military to kick out nearly 14,000 troops, including more than 400 last year while the nation was waging two wars.
But the public mood has shifted since 1993, when only 44% of the public supported openly gay men and women in uniform. It's now supported by 75%, according to a Washington Post poll. But never mind newspaper polls. Korb, the former Pentagon personnel chief now at the Center for American Progress think tank, is more concerned over what might happen if military surveys like this catch on. "Are they going to poll the troops on whether they want happy hours or discount cigarettes?" he asks. "Where does it stop — should we get out of Afghanistan?"
Read more: http://www.time.com/time/nation/article/0,8599,2003075,00.html?xid=rss-topstories&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+time%2Ftopstories+%28TIME%3A+Top+Stories%29#ixzz0tV8OA5RU
Sunday, July 11, 2010
Obama Can't Shake Gay Rights Fight
From Politico.com:
By: Josh Gerstein
July 10, 2010 07:03 AM EDT
When President Barack Obama agreed to back legislation in May that could eventually repeal the military’s "don’t ask, don’t tell" policy, the resolution seemed to offer twin benefits for the White House:
Quell the anger of gay activists who accused Obama of foot-dragging on the issue, and allow the question of gays in the military to cool for a while, perhaps until after the November election.
That didn’t last long.
The issue leapt back into the news this week after the Pentagon sent a survey to 400,000 troops to assess their attitudes on whether openly gay soldiers should be allowed to serve — with questions being criticized by gay rights advocates as inaccurate, inflammatory and biased.
Next week, a lawsuit brought by the Log Cabin Republicans is going to trial in California — and Obama’s Justice Department is in the uncomfortable position of trying to prevent the "don't ask, don't tell" policy from being overturned as discharged veterans testify about its dramatic impact on their careers.
Some gay rights activists who were cheered by Obama’s decision in May now say they’re frustrated by what feels like a two steps forward, one step back approach to the issue — especially in light of Obama’s delay in seeking to repeal of the policy in the first place.
“This has got to be a nightmare for the White House political office, especially as Organizing for America ramps up efforts to rebuild a coalition for the midterms which includes gays,” said Richard Socarides, a senior adviser to President Bill Clinton on gay rights issues. “I want the Democrats to keep both houses of Congress more than most. It’s very important that we do that if gay rights are important to you. So I can’t understand why the president’s senior advisers permit the Justice Department to defend this case. … It’s incomprehensible.”
Spokespeople for the Justice Department and the White House declined to comment for this story. However, officials have said that Justice is obligated to defend any law Congress passes as long as there is a plausible legal basis to do so, even if the current administration disagrees with the statute.
Some lawyers in the gay rights movement scoff at that. They note that from time to time, Justice has refused to stand behind laws under challenge as unconstitutional. For instance, in 2005, the Justice Department declined to defend a law barring the D.C. Metro transit system from accepting ads that promote legalizing marijuana.
For the attorneys from the Justice Department’s Civil Division assigned to handle the Log Cabin case, it’s essentially a Catch-22. If they get tough or confrontational with the ex-service-members or experts called to testify, the government lawyers risk being accused of insensitivity.
If they hold back, Republicans and social conservatives could accuse the administration of taking a dive in a case it never really wanted to win.
“This is a pincer” for the government’s lawyers, said Stephen Gillers, a law professor at New York University. However, he didn’t have much sympathy. “It comes with the territory,” he said.
Even ahead of the Log Cabin case, conservative Republicans have been attacking Obama on gay rights as well, insisting that the Justice Department isn’t really trying very hard to defend the "don’t ask, don’t tell" policy.
During the confirmation hearings for Supreme Court nominee Elena Kagan last week, Sen. Chuck Grassley (R-Iowa) and Sen. Jeff Sessions (R-Ala.) suggested that the Justice Department wasn’t going all-out to fight lawsuits against the gays-in-the-military policy, and over a law denying federal recognition to same-sex marriages, the Defense of Marriage Act.
Kagan denied the charge. “I have acted in the solicitor general's office consistently with the responsibility, which I agree with you very much that I have, to vigorously defend all statutes, including the statute that embodies the 'don't ask, don't tell' policy,” Kagan said.
A federal judge’s rulings Thursday holding part of the Defense of Marriage Act unconstitutional triggered a round of complaints from conservatives that the Obama administration was making a politically correct and less-than-forceful defense of that law.
“The Justice Department’s half-hearted defense in this case — exemplified by DOJ’s own attorney asserting that President Obama opposes DOMA — is unacceptable. The president’s personal views have nothing to do with the defense of a law passed by Congress,” said Rep. Lamar Smith of Texas, the ranking Republican on the House Judiciary Committee.
Gillers said, though, that government attorneys were not obliged to rip apart the opposition the way a private litigator might. “Because you’re a government lawyer, you’re not given the same deference to be a junkyard dog for that client,” he said. “A government lawyer has a broader mandate.”
Written briefs in gay-rights-related cases have already landed the Justice Department in hot water with the Obama White House after gay activists complained the filings compared same-sex marriage to forms of incest and marriages involving minors. Sources say some filings in such cases are now coordinated with White House lawyers.
But the give-and-take of live courtroom testimony is even more treacherous and can’t be vetted so easily from Washington. The lead lawyer for the Log Cabin group, Dan Woods of White & Case in Los Angeles, said he expects the trial to stretch for two weeks and involve testimony by seven expert witnesses and as many as six former service members. Justice Department lawyers have said they plan to call no witnesses at the bench trial to be held before Judge Virginia Phillips, without a jury, Woods said.
With the new Pentagon survey under fire for its questions about open-bay showers and even its use of the term “homosexual,” it is almost certain that Justice Department lawyers handling the Log Cabin case will be accused of asking insensitive or homophobic questions as they cross-examine witnesses.
On the other side of the political spectrum, social conservatives say they’ll be watching closely to see whether DOJ is going easy. “We hope the administration’s politically motivated position against 'don’t ask, don’t tell' will not be a factor in defending the regulations,” said Daniel Blomberg of the Alliance Defense Fund.
The political minefield the trial presents may be one reason the Justice Department has tried mightily to head it off.
Last month, government lawyers asked Phillips to put the case on hold indefinitely because of the steps Congress took in May toward a repeal of the "don’t ask" statute passed in 1993. On May 27, the House voted, 234-194, in favor of a measure that would repeal "don’t ask" next year if top military leaders certify the repeal can be carried out without impacting force readiness and unit cohesion. On the same day, the Senate Armed Services Committee voted, 16-12, for the same language.
However, the judge noted that the bills involved have not cleared Congress and that the repeal depends on several actions by the military and Obama that may or may not happen. “Given the many contingencies involved — including the threshold contingency of congressional approval — and the lack of clear timelines, any ultimate repeal that may result from this legislation is at this point remote, if not wholly speculative,” Phillips wrote Tuesday as she ordered the trial to go forward.
Government lawyers also have asked Phillips to deny a trial as unnecessary, to exclude all of the expert witnesses and most of the other witnesses. Phillips, a Clinton appointee, denied all the motions.
Woods pointed to one specific episode that he said highlighted the contradictions in the government’s case. He said the plaintiffs asked the government to admit that Obama said last year that "don’t ask" weakens national security and that the statement is true. The government admitted Obama made the comment but declined to say whether it was true. After a judge required the government to answer, it denied Obama’s assertion.
“They keep saying they have no choice but to defend the law because it is the law and that’s their job at the Justice Department, but the hypocrisy of this emerges all the time,” Woods said. “They are in a very awkward position.”
There are a few breaks for the administration in the trial set to start this week. The location in Riverside, Calif., far from Washington’s political press, should diminish coverage. And the ban on cameras in federal trial courts means TV coverage will have to rely on courtroom sketches.
But the gay Republicans who filed the case back in 2004 are doing their best to keep the legal and public pressure on the Obama administration. The Log Cabin group said Friday that Woods plans a daily press availability after the trial session, that principals in the case will be readily available to the media, and that the group plans a daily bulletin on trial developments.
By: Josh Gerstein
July 10, 2010 07:03 AM EDT
When President Barack Obama agreed to back legislation in May that could eventually repeal the military’s "don’t ask, don’t tell" policy, the resolution seemed to offer twin benefits for the White House:
Quell the anger of gay activists who accused Obama of foot-dragging on the issue, and allow the question of gays in the military to cool for a while, perhaps until after the November election.
That didn’t last long.
The issue leapt back into the news this week after the Pentagon sent a survey to 400,000 troops to assess their attitudes on whether openly gay soldiers should be allowed to serve — with questions being criticized by gay rights advocates as inaccurate, inflammatory and biased.
Next week, a lawsuit brought by the Log Cabin Republicans is going to trial in California — and Obama’s Justice Department is in the uncomfortable position of trying to prevent the "don't ask, don't tell" policy from being overturned as discharged veterans testify about its dramatic impact on their careers.
Some gay rights activists who were cheered by Obama’s decision in May now say they’re frustrated by what feels like a two steps forward, one step back approach to the issue — especially in light of Obama’s delay in seeking to repeal of the policy in the first place.
“This has got to be a nightmare for the White House political office, especially as Organizing for America ramps up efforts to rebuild a coalition for the midterms which includes gays,” said Richard Socarides, a senior adviser to President Bill Clinton on gay rights issues. “I want the Democrats to keep both houses of Congress more than most. It’s very important that we do that if gay rights are important to you. So I can’t understand why the president’s senior advisers permit the Justice Department to defend this case. … It’s incomprehensible.”
Spokespeople for the Justice Department and the White House declined to comment for this story. However, officials have said that Justice is obligated to defend any law Congress passes as long as there is a plausible legal basis to do so, even if the current administration disagrees with the statute.
Some lawyers in the gay rights movement scoff at that. They note that from time to time, Justice has refused to stand behind laws under challenge as unconstitutional. For instance, in 2005, the Justice Department declined to defend a law barring the D.C. Metro transit system from accepting ads that promote legalizing marijuana.
For the attorneys from the Justice Department’s Civil Division assigned to handle the Log Cabin case, it’s essentially a Catch-22. If they get tough or confrontational with the ex-service-members or experts called to testify, the government lawyers risk being accused of insensitivity.
If they hold back, Republicans and social conservatives could accuse the administration of taking a dive in a case it never really wanted to win.
“This is a pincer” for the government’s lawyers, said Stephen Gillers, a law professor at New York University. However, he didn’t have much sympathy. “It comes with the territory,” he said.
Even ahead of the Log Cabin case, conservative Republicans have been attacking Obama on gay rights as well, insisting that the Justice Department isn’t really trying very hard to defend the "don’t ask, don’t tell" policy.
During the confirmation hearings for Supreme Court nominee Elena Kagan last week, Sen. Chuck Grassley (R-Iowa) and Sen. Jeff Sessions (R-Ala.) suggested that the Justice Department wasn’t going all-out to fight lawsuits against the gays-in-the-military policy, and over a law denying federal recognition to same-sex marriages, the Defense of Marriage Act.
Kagan denied the charge. “I have acted in the solicitor general's office consistently with the responsibility, which I agree with you very much that I have, to vigorously defend all statutes, including the statute that embodies the 'don't ask, don't tell' policy,” Kagan said.
A federal judge’s rulings Thursday holding part of the Defense of Marriage Act unconstitutional triggered a round of complaints from conservatives that the Obama administration was making a politically correct and less-than-forceful defense of that law.
“The Justice Department’s half-hearted defense in this case — exemplified by DOJ’s own attorney asserting that President Obama opposes DOMA — is unacceptable. The president’s personal views have nothing to do with the defense of a law passed by Congress,” said Rep. Lamar Smith of Texas, the ranking Republican on the House Judiciary Committee.
Gillers said, though, that government attorneys were not obliged to rip apart the opposition the way a private litigator might. “Because you’re a government lawyer, you’re not given the same deference to be a junkyard dog for that client,” he said. “A government lawyer has a broader mandate.”
Written briefs in gay-rights-related cases have already landed the Justice Department in hot water with the Obama White House after gay activists complained the filings compared same-sex marriage to forms of incest and marriages involving minors. Sources say some filings in such cases are now coordinated with White House lawyers.
But the give-and-take of live courtroom testimony is even more treacherous and can’t be vetted so easily from Washington. The lead lawyer for the Log Cabin group, Dan Woods of White & Case in Los Angeles, said he expects the trial to stretch for two weeks and involve testimony by seven expert witnesses and as many as six former service members. Justice Department lawyers have said they plan to call no witnesses at the bench trial to be held before Judge Virginia Phillips, without a jury, Woods said.
With the new Pentagon survey under fire for its questions about open-bay showers and even its use of the term “homosexual,” it is almost certain that Justice Department lawyers handling the Log Cabin case will be accused of asking insensitive or homophobic questions as they cross-examine witnesses.
On the other side of the political spectrum, social conservatives say they’ll be watching closely to see whether DOJ is going easy. “We hope the administration’s politically motivated position against 'don’t ask, don’t tell' will not be a factor in defending the regulations,” said Daniel Blomberg of the Alliance Defense Fund.
The political minefield the trial presents may be one reason the Justice Department has tried mightily to head it off.
Last month, government lawyers asked Phillips to put the case on hold indefinitely because of the steps Congress took in May toward a repeal of the "don’t ask" statute passed in 1993. On May 27, the House voted, 234-194, in favor of a measure that would repeal "don’t ask" next year if top military leaders certify the repeal can be carried out without impacting force readiness and unit cohesion. On the same day, the Senate Armed Services Committee voted, 16-12, for the same language.
However, the judge noted that the bills involved have not cleared Congress and that the repeal depends on several actions by the military and Obama that may or may not happen. “Given the many contingencies involved — including the threshold contingency of congressional approval — and the lack of clear timelines, any ultimate repeal that may result from this legislation is at this point remote, if not wholly speculative,” Phillips wrote Tuesday as she ordered the trial to go forward.
Government lawyers also have asked Phillips to deny a trial as unnecessary, to exclude all of the expert witnesses and most of the other witnesses. Phillips, a Clinton appointee, denied all the motions.
Woods pointed to one specific episode that he said highlighted the contradictions in the government’s case. He said the plaintiffs asked the government to admit that Obama said last year that "don’t ask" weakens national security and that the statement is true. The government admitted Obama made the comment but declined to say whether it was true. After a judge required the government to answer, it denied Obama’s assertion.
“They keep saying they have no choice but to defend the law because it is the law and that’s their job at the Justice Department, but the hypocrisy of this emerges all the time,” Woods said. “They are in a very awkward position.”
There are a few breaks for the administration in the trial set to start this week. The location in Riverside, Calif., far from Washington’s political press, should diminish coverage. And the ban on cameras in federal trial courts means TV coverage will have to rely on courtroom sketches.
But the gay Republicans who filed the case back in 2004 are doing their best to keep the legal and public pressure on the Obama administration. The Log Cabin group said Friday that Woods plans a daily press availability after the trial session, that principals in the case will be readily available to the media, and that the group plans a daily bulletin on trial developments.
Saturday, May 01, 2010
DOD Gates: Don't Repeal DADT This Year
From ThinkProgress.org: "As part of the Obama administration’s plan to repeal Don’t Ask, Don’t Tell (DADT), the Pentagon has convened a “Working Group” that is meeting with servicemembers, chaplains, and others individuals about how to repeal the ban on gay men and women serving openly in the military. The process is going to take until at least Dec. 1, 2010, and White House Press Secretary Robert Gibbs has said that the President is committed to letting the group complete its work before moving forward. Some members of Congress have raised the possibility of passing DADT repeal legislation this year — before the review process is complete — and delaying implementation until next year.
However, today Defense Secretary Robert Gates sent House Armed Services Committee Chairman Ike Skelton (D-MO) a letter (in response to an inquiry from Skelton) telling him that he doesn’t want Congress to take any action at all on DADT this year. From the letter obtained by ThinkProgress:
I believe in the strongest possible terms that the Department must, prior to any legislative action, be allowed the opportunity to conduct a thorough, objective, and systematic assessment of the impact of such a policy change; develop an attentive comprehensive implementation plan, and provide the President and the Congress with the results of this effort in order to ensure that this step is taken in the most informed and effective matter. [...]
Therefore, I strongly oppose any legislation that seeks to change this policy prior to the completion of this vital assessment process.
Gates’ moratorium on any DADT action this year is troubling. Thirteen Senate Democrats have introduced a bill to replace DADT with a new nondiscrimination policy that “prohibits discrimination against service members on the basis of their sexual orientation.” The Senate bill mirrors Rep. Patrick Murphy’s (D-PA) repeal bill in the House but goes several steps further, laying out a timeline for repeal and setting benchmarks for the Pentagon’s ongoing review of the policy.
Gates’ stance makes it significantly harder for Congress to help fulfill Obama’s pledge to repeal DADT and has some supporters of repeal questioning the Pentagon’s dedication to moving forward. Democrats in Congress will have a tougher time attracting moderate and Republican co-sponsors in light of this letter, and if Congress waits until next year — after the Pentagon review is completed — to move forward on legislation, the make-up of the legislature will be different and could again delay repeal.
Update Statement from Servicemembers United Executive Director Alexander Nicholson, who is a former U.S. Army interrogator discharged under DADT:
If the White House and the Department of Defense had been more engaged with us and had communicated with us better about the alternatives available, Secretary Gates would surely not feel that legislative action this year would disrespect the opinions of the troops or negatively impact them and their families. This is partly a failure of the Administration to substantively engage the gay military community in a timely manner, and it remains unacceptable. The Commander-in-Chief should strongly and immediately speak out about the need to move swiftly and decisively on this issue for the sake of military readiness. It is, after all, as the President said, "the right thing to do."
Update DADT repeal advocate Sen. Mark Udall (D-CO) is pushing back on Gates' recommendation, saying, “There is no reason why Congress shouldn’t pass legislation this year that would time the repeal to follow the conclusion of the study."
Update Response from the White House: "The President’s commitment to repealing Don’t Ask Don’t Tell is unequivocal. This is not a question of if, but how. That’s why we’ve said that the implementation of any congressional repeal will be delayed until the DOD study of how best to implement that repeal is completed. The President is committed to getting this done both soon and right."
However, today Defense Secretary Robert Gates sent House Armed Services Committee Chairman Ike Skelton (D-MO) a letter (in response to an inquiry from Skelton) telling him that he doesn’t want Congress to take any action at all on DADT this year. From the letter obtained by ThinkProgress:
I believe in the strongest possible terms that the Department must, prior to any legislative action, be allowed the opportunity to conduct a thorough, objective, and systematic assessment of the impact of such a policy change; develop an attentive comprehensive implementation plan, and provide the President and the Congress with the results of this effort in order to ensure that this step is taken in the most informed and effective matter. [...]
Therefore, I strongly oppose any legislation that seeks to change this policy prior to the completion of this vital assessment process.
Gates’ moratorium on any DADT action this year is troubling. Thirteen Senate Democrats have introduced a bill to replace DADT with a new nondiscrimination policy that “prohibits discrimination against service members on the basis of their sexual orientation.” The Senate bill mirrors Rep. Patrick Murphy’s (D-PA) repeal bill in the House but goes several steps further, laying out a timeline for repeal and setting benchmarks for the Pentagon’s ongoing review of the policy.
Gates’ stance makes it significantly harder for Congress to help fulfill Obama’s pledge to repeal DADT and has some supporters of repeal questioning the Pentagon’s dedication to moving forward. Democrats in Congress will have a tougher time attracting moderate and Republican co-sponsors in light of this letter, and if Congress waits until next year — after the Pentagon review is completed — to move forward on legislation, the make-up of the legislature will be different and could again delay repeal.
Update Statement from Servicemembers United Executive Director Alexander Nicholson, who is a former U.S. Army interrogator discharged under DADT:
If the White House and the Department of Defense had been more engaged with us and had communicated with us better about the alternatives available, Secretary Gates would surely not feel that legislative action this year would disrespect the opinions of the troops or negatively impact them and their families. This is partly a failure of the Administration to substantively engage the gay military community in a timely manner, and it remains unacceptable. The Commander-in-Chief should strongly and immediately speak out about the need to move swiftly and decisively on this issue for the sake of military readiness. It is, after all, as the President said, "the right thing to do."
Update DADT repeal advocate Sen. Mark Udall (D-CO) is pushing back on Gates' recommendation, saying, “There is no reason why Congress shouldn’t pass legislation this year that would time the repeal to follow the conclusion of the study."
Update Response from the White House: "The President’s commitment to repealing Don’t Ask Don’t Tell is unequivocal. This is not a question of if, but how. That’s why we’ve said that the implementation of any congressional repeal will be delayed until the DOD study of how best to implement that repeal is completed. The President is committed to getting this done both soon and right."
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