21 Senators Urge Obama’s Justice Department Not to Appeal Don’t Ask, Don’t Tell Injunction

By Karen Ocamb-

   We have heard repeatedly that the legislative repeal of Don’t Ask, Don’t Tell would be handled after the election, in the lame duck session of Congress. However, polls show that Senate Majority Leader Harry Reid, despite the GOP distancing itself from his opponent, is in trouble in his Nevada re-election race with Tea Party candidate Sharron Angle.
   Meanwhile, in an excellent piece of reporting, The Advocate’s Kerry Eleveld says Obama and his top military aides want to wait until after the Pentagon’s report is filed before any legislative action is taken:

“[It’s] best to pay attention when [Defense Sec.] Gates told reporters a couple weeks ago that he and the president both held the opinion that “the best legislation would be legislation informed by the review” that’s due out in early December. You can bet that Gates wasn’t freelancing that answer and that it’s likely a truer reflection of White House intent on repeal.
Unfortunately, we have also learned from some recent reporting by the iconic Bob Woodward of The Washington Post that the relationship between the Pentagon and the White House is a classic tail-wagging-the-dog folly in many instances.”

   Bottom line, from my point of view, President Obama is just as afraid of or stymied by the military as President Clinton was – which got us into this mess in the first place. Which is why ordering the Justice Department not to appeal Judge Virginia Phillips’ injunction against further enforcement of DADT might be the best way to go. Or they can just do nothing and let the order take effect. Meanwhile – Servicemembers Legal Defense Network urges all closeted gay servicemembers to stay in the closet until the policy is repealed or definitively overturned.
   There are at least 21 senators – up for re-election – who have signed a letter urging Attorney General Eric Holder not to appeal Judge Phillips injunction.  The Justice Department has 60 days to decide whether to appeal or not – which means Holder could wait until after the mid-term elections in 21 days. Either way – decide now or later -  this is a moment when the two civil rights scholars Barack Obama and Eric Holder – are faced with acting on principle, what they profess to believe in – or giving in to the way things have always been, despite the promise of “change.”


   Here is the senators’ just issued press release underscoring that position:

With Judge Ordering End to ‘Don’t Ask, Don’t Tell,’ Udall, Gillibrand, 19 Other Senators Urge White House not to Appeal
Senators: Appeal of Judge’s Ruling, Injunction would Harm Military’s and Government’s Interests

    Washington, D.C. – Today, after a federal judge in California ordered a halt to the “Don’t Ask, Don’t Tell” law banning gays from serving openly in the military, U.S. Senators Mark Udall (D-CO) and Kirsten Gillibrand (D-N.Y.) wrote a letter signed by 19 other Senators, urging U.S. Attorney General Eric Holder not to appeal the judge’s original decision and to allow the injunction to stand.
   Not appealing the decision would allow Congress to act to repeal the unconstitutional law, which harms our national security, the Senators argued in their letter.  An appeal of the recent federal court decision – and of the injunction issued today – could set back those congressional efforts, they added.
   Udall and Gillibrand originally sent the letter to Holder in September.  They are now joined by Senators John Kerry (D-MA), Charles Schumer (D-N.Y.), Roland Burris (D-IL), Sheldon Whitehouse (D-R.I.), Mary Landrieu (D-LA), Bernard Sanders (I-VT), Jeff Merkley (D-OR), Jeanne Shaheen (D-N.H.), Tim Johnson (D-S.D.), Al Franken (D-MN), Barbara Boxer (D-CA), Russ Feingold (D-WI), Frank Lautenberg (D-N.J.), Richard Durbin (D-IL), Bob Menendez (D-N.J.), Michael Bennet (D-CO), Barbara Mikulski (D-MD), Sherrod Brown (D-OH), and Ben Cardin (D-MD).  The additional signatures are a testament to the support in the U.S. Senate for repeal of “Don’t Ask, Don’t Tell.”
   “In light of important national security concerns, we respectfully request that you, in your capacity at the Department of Justice, refrain from appealing this decision or the permanent injunction granted against this law,” the Senators wrote.
   “President Obama, Defense Secretary Robert M. Gates and Admiral Mike Mullen, chairman of the Joint Chiefs, have all publicly advocated for the repeal of this harmful law,” the Senators continued. “There is no legal or military justification and not one shred of credible evidence that supports continuing the discriminatory DADT law, and considering the guidance of the commander-in-chief and the nation’s top two defense officials, we urge you to refrain from seeking an appeal.  The federal court decision was a step in the right direction, and we are confident that the Senate will take the ultimate step by voting this fall on the fiscal year 2011 National Defense Authorization Act to permanently lift the ban on gays in the military.  Although we understand that only action by Congress can bring real finality to this issue, we believe an appeal of the recent federal court decision could set back those congressional efforts.  Therefore, we request your assistance in ensuring that we can eradicate this discriminatory law permanently and urge the Justice Department to choose not to appeal any court decision that would keep this law in place.”

The full letter to Attorney General Holder follows:

Dear Mr. Attorney General,
We are writing to bring to your attention the recently issued decision of Judge Virginia A. Phillips of the United States District Court of the Central District of California in Log Cabin Republicans v. United States, which declared that the “Don’t Ask, Don’t Tell” (DADT) underlying law violates the U.S. Constitution’s guarantees of due process and free speech, thereby rendering DADT unconstitutional.   In light of important national security concerns, we respectfully request that you, in your capacity at the Department of Justice, refrain from appealing this decision or the permanent injunction granted against this law.
The following quote from the judge’s decision captures the overwhelming reason why the decision should stand:  “Among those discharged were many with critically needed skills … Far from furthering the military’s readiness, the discharge of these service men and women had a direct and deleterious effect on this governmental interest.”  As one of many criteria that the Justice Department will examine in deciding whether to appeal the permanent injunction to this policy, we ask that you examine whether or not an appeal furthers a legitimate governmental interest.  We would say any appeal does not.
Additionally, DADT harms military readiness, as well as the morale and the cohesiveness of our armed forces, at a time when our military’s resources are strained and unity is critically important.  For every person discharged after ten years of service, six new servicemembers would need to be recruited to recover the level of experience lost by that discharge. This not only weakens our military, but neither is it an effective use of our government resources or taxpayer monies.
President Obama, Defense Secretary Robert M. Gates and Admiral Mike Mullen, chairman of the Joint Chiefs, have all publicly advocated for the repeal of this harmful law.  There is no legal or military justification and not one shred of credible evidence that supports continuing the discriminatory DADT law, and considering the guidance of the commander-in-chief and the nation’s top two defense officials, we urge you to refrain from seeking an appeal.  The federal court decision was a step in the right direction, and we are confident that the Senate will take the ultimate step by voting this fall on the fiscal year 2011 National Defense Authorization Act to permanently lift the ban on gays in the military.
Although we understand that only action by Congress can bring real finality to this issue, we believe an appeal of the recent federal court decision could set back those congressional efforts.  Therefore, we request your assistance in ensuring that we can eradicate this discriminatory law permanently and urge the Justice Department to choose not to appeal any court decision that would keep this law in place. Thank you for your attention to this urgent matter.  We look forward to hearing from you.

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