In Request To Bring Back DADT, DOJ Can’t List Single Specific Harm From Injunction

Following California District Court Judge Virginia Phillips’ official rejection of the government’s request to stay her injunction against enforcing Don’t Ask, Don’t Tell, the Department of Justice has filed an emergency stay request with the 9th Circuit Court of Appeals, requesting 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.”

The 25-page stay request argues, among other things, that the temporary injunction, “if not stayed immediately,” “risks causing significant immediate harm to the military and its efforts to be prepared to implement an orderly repeal of the statute.” Interestingly, DOJ lists at least three different harms, but doesn’t note a single specific instance in which the Pentagon has received a complaint about mass resignations or disruption in the time since it has complied with Philips’ order and stopped implementing the policy:

1. DADT is in the public interest: “Because an Act of Congress is deemed to be “in itself a declaration of public interest and policy which should be persuasive,”…ending “Don’t Ask, Don’t Tell” in this manner is itself irreparable harm.”

2. Military not ready for repeal: “The Court should defer to the considered judgment of Congress and the most senior leaders of the military that a repeal of § 654 and its implementing regulations should be done in an orderly manner to be successful, rather than result from an immediate court- ordered cessation of the statutory policy.”

3. The injunction is causing “confusion”: “Enjoining the operation of the statute before the appeal is concluded would create tremendous uncertainty about the status of servicemembers who may reveal their sexual orientation in reliance on the district court’s decision and injunction.”

Meanwhile, Voice of America reported yesterday that despite DOJ’s warnings, “A Pentagon spokesman said Monday that no disciplinary problems or mass-resignations have been reported since last week’s judicial injunction.”

Wonk Room

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