DADT In Legal Shambles

By Faiz Shakir, Benjamin Armbruster, George Zornick, Zaid Jilani, Alex Seitz-Wald, Igor Volsky, and Tanya Somanader

   Last week, in a 56-43 vote, Senate Democrats failed to invoke cloture on the 2011 National Defense Authorization Act, falling several votes shy of the 60 need to break a Republican filibuster. Along with concerns about voting to repeal the Don't Ask, Don't Tell policy before the Pentagon completed its year-long review and the suggestion that the DREAM Act was unrelated to national defense, Republican Senators who say they support DADT repeal used procedural reasons to explain their vote against debating the measure. Republican  like Sen. Susan Collins (R-ME) took to the floor and equated repealing the ban against open service in the military to restricting the right of Republicans to offer alternative amendments. "I was the sole Republican on the Committee that voted for the Lieberman-Levin language on Don't Ask, Don't Tell. I think it's the right thing to do, I think it's only fair. I think we should welcome the service of these individuals who are willing and capable of serving their country," Collins insisted. "But I cannot vote to proceed to this bill under a situation that is going to shut down debate and preclude Republican amendments. That too is not fair." Sen. Blance Lincoln (D-AR) similarly voted against cloture but said that she supported repeal of DADT. As Democrats now prepare to take up the defense authorization bill after the midterm elections, a series of court decisions have severely weakened DADT in the interim and galvanized opponents of the policy to pressure the administration into looking for alternative ways to begin the gradual process of ending the ban before the end of the year.

   ENDING BAN THROUGH THE COURTS: Following the successful filibuster of the defense authorization act, several Democratic lawmakers and repeal advocates began arguing that the recent federal district court ruling, which found DADT unconstitutional, represented the fastest way to end the policy. "The focus will now turn to the White House and their decision on appealing the current ruling by Judge Virginia Phillips in the Federal District Court," the Palm Center's Christopher Neff said after the vote. The Center even released a legal memo laying the groundwork for allowing the Judge's decision to stand. The memo said that while the Department of Justice has an obligation to defend existing law, "it would be inaccurate to characterize this common practice as a mandatory requirement that DOJ must always defend federal laws in all cases, without exception." The New York Times similarly ran an editorial after Tuesday's vote arguing, "If the military's unjust policy is not repealed in the lame-duck session, there is another way out. The Obama administration can choose not to appeal Judge Phillips's ruling that the policy is unconstitutional, and simply stop ejecting soldiers." But on Thursday, the government signaled that it would pursue the case. The Department of Justice filed an objection to a country-wide injunction of the law, insisting that the judge's decision be limited to the plaintiffs in the suit. The government argued that a broad injunction would "foreclose the US from litigating the constitutionality" of DADT in other cases and frustrate the ongoing Pentagon review of the policy. A decision about whether to actually appeal the case will be made after the Judge enters her ruling, but so far, 69 Democrats have gone on record urging the government to let the ruling stand. "We acknowledge and appreciate your support and hope that together we can end this dishonorable policy once and for all," the lawmakers wrote. "We hope that you, as the Commander-in-Chief of the Armed Services, will take this opportunity to restore integrity to our military and decline to appeal Judge Phillip's ruling."

   MOVING AHEAD WITH REPEAL: Not appealing the Phillips decision may be the most likely scenario for ending the policy before the end of the year, but it's not Democrats' only option. The President could use his "stop loss" authority to issue an order "prohibiting the Secretary of Defense — and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating under the Navy — from establishing, implementing, or applying any personnel or administrative policies, or taking a personnel or administrative action, in whole or part on the basis of sexual orientation. The order should further prohibit sexual orientation discrimination within the armed forces and among people seeking entry into the Armed Forces" and include a ban on "further dismissals on the basis of DADT." Alternatively, the Senate leadership could attempt to pass the defense authorization bill in the aftermath of the midterm elections. But it's plausible looming Democratic defeats in November would only embolden supporters of DADT, making it far more difficult for the Senate to pass the defense measure with the gradual repeal amendment. Republicans have already unleashed a campaign to prevent the so-called lame duck Congress from taking up important progressive legislation and Democrats have shown no indication that they're capable of standing up to the GOP bullying. A further complicating factor is the Pentagon Working Group, which is scheduled to release its findings on December 1 and will likely provide opponents of repeal with further ammunition with which to delay any legislative action. Similarly, the President, who has thus far been reluctant to upset the repeal compromise the Democrats struck with Secretary of Defense Robert Gates, would have to issue his order after voters had theoretically "rejected" his agenda.

   DISCHARGED SOLDIER REINSTATED: On Friday, in another blow to DADT, a federal district judge in Washington ruled that former Air Force Major Margaret Witt — who was discharged under the ban — should be reinstated to her job. Judge Ronald B. Leighton found that the policy "violates Major Witt's substantive due process rights under the Fifth Amendment to the United States Constitution." Ironically, the Judge dismissed Witt's case in 2006, only to be overruled by the 9th Circuit Court of Appeals in 2008. That decision established a new precedent in the Circuit, preventing the military from discharging servicemembers under the policy it could prove that it furthered military goals. The 9th Circuit sent the case back to Leighton, and on Friday, he ruled that the government did not meet that burden of proof. "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," Leighton wrote. "The men and women of the United States military have over the years demonstrated the ability to accept diverse peoples into their ranks and to treat them with the respect necessary to accomplish the mission, whatever that mission might be."

 

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