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14
Oct 10

BREAKING: Obama Justice Department Asks Judge To Put Injunction Of Don’t Ask, Don’t Tell On Hold

Moments ago, the Obama Justice Department asked Judge Virginia Phillips to stay her broad injunction barring the military from enforcing the Don’t Ask, Don’t Tell policy until it has an opportunity to appeal the decision to the U.S. Ninth Circuit Court of Appeals. From the Advocate’s Kerry Eleveld:

Sources said Justice Department attorneys are expected to file the request to U.S. district judge Virginia A. Phillips in Riverside, Calif. this afternoon.

Should Phillips deny the request for a stay, government attorneys are expected to file an emergency request to the U.S. court of appeals for the ninth circuit.

Repeal advocates have argued 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.” As DADT scholar Nathaniel Frank explained, “The court case, I think, is one of the more likely now, for the President to say, this actually is unconstitutional and although there is a tradition of defending standing law, it’s not obligated to defend a policy that it believes is unconstitutional.”

But in the days since Republicans and two Democrats successfully filibustered repeal in the Senate (the measure passed the House in May), it’s become increasingly clear that Obama still believes that the policy is, in fact, constitutional. Obama has consistently argued that he would continue to try to repeal Don’t Ask, Don’t Tell through the legislative process to accommodate the work of the Pentagon’s ongoing review. “I don’t think it’s too much to ask, to say ‘Let’s do this in an orderly way’ — to ensure, by the way, that gays and lesbians who are serving honorably in our armed forces aren’t subject to harassment and bullying and a whole bunch of other stuff once we implement the policy,” Obama told Rolling Stone magazine in late September. The request for a stay comes a day after Secretary of Defense Robert Gates warned that ending the ban is “an action that needs to be taken by the Congress and that it is an action that requires careful preparation, and a lot of training.” “It has enormous consequences for our troops,” Gates said.

Earlier today, The Palm Center submitted a FOIA request to the Department of Defense for any reports or information related to negative or “extreme consequences” from this injunction period of open service and Press Secretary Robert Gibbs said that the Pentagon was working on new guidelines to be released in the near future about how to deal with the injunction. Also, today, Dan Woods, the lead attorney in the case sent a letter to the Department of Justice citing a New York Times story claiming that Omar Lopez, a gay veteran, was prohibited from reinlisting. If the Times story is accurate, Woods says, “the Defense Department would appear to be in violation of the Court’s injunction and subject to citation for contempt.” SLDN also reported this afternoon that it had learned that an email was sent to JAG officers in the U.S. Air Force suggesting that the military was preparing to comply with the injunction. “At present, the United States Government is contemplating whether to appeal and to seek a stay of the injunction. In the meantime, effective 12 October, the Department of Defense will abide by its terms, as follows,” it read.

The DOJ’s stay request comes after intense lobbying from House and Senate Democrats — including House Speaker Nancy Pelosi — to allow the ruling to stand and seems to contradict Obama’s promise to end the policy before the end of the year, a pledge administration officials reiterated as recently as September 23.

Obama could still begin the process of ending the policy this year by using his “stop loss” authority to issue an order prohibiting the Secretary of Defense from establishing, implementing, or applying any personnel or administrative policies on the basis of sexual orientation. Or, the Senate could try to pass the measure after the Pentagon completes its review of the policy in December.

Wonkroom

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13
Oct 10

In Debate, O’Donnell Likens Repealing Don’t Ask, Don’t Tell To Adultery

During this evening’s Delaware senate debate, Christine O’Donnell — who has a spotty record on LGBT rights — repeatedly compared allowing gays and lesbians to serve openly in the military to “adultery” and condemned the recent court decision which banned the military from enforcing the Don’t Ask, Don’t Tell policy:

O’DONNELL: 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.

Pressed by debate moderator Wolf Blitzer about why the United States is one of the few NATO members to prohibit open service, O’Donnell reiterated her offensive simile and added, “If the heads of all four branches of the military said [they favored repeal], then it would be up to them, not me as U.S. Senator to impose my social agenda wether it’s for or against Don’t Ask, Don’t Tell.”

Watch a compilation:

O’Donnell recently dodged a question about DADT at a town hall event, but it’s still more likely that she’d support strengthening the ban against open gay and lesbian service than vote for legislation repealing it. After, all how can she allow gay people to serve openly if she believes they suffer from a psychological disorder?

“People are created in God’s image. Homosexuality is an identity adopted through societal factors. It’s an identity disorder,” O’Donnell told the Washington Post four years ago, taking a position that has been universally rejected by science and psychology since the early 1970s.

O’Donnell’s opponent Chris Coons, meanwhile, likened the push for open service to the civil rights movement and President Harry Truman’s executive order desegregating the armed forces.

Wonkroom

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13
Oct 10

Pelosi: I Hope Obama Administration Doesn’t Appeal Don’t Ask, Don’t Tell Ruling

This afternoon, in a conference call with progressive bloggers, Speaker of the House Nancy Pelosi (D-CA) joined a growing number of Democrats in calling on the Department of Justice not to appeal yesterday’s court ruling prohibiting the implementation of Don’t Ask, Don’t Tell. “I hope, I haven’t really heard officially that the administration is going to appeal this, but in any event, I hope they don’t,” she said in reply to a question from AmericaBlog’s John Aravosis. “I myself have always wanted a moratorium on any discharges.”

Pelosi, who celebrated the ruling in a tweet yesterday, reiterated that the House passed legislation ending the ban with a 40 vote margin and stressed that this “is not an issue for us, it’s a value that we mustn’t cede on.”

She predicted that the House could also pass the Employment Non-Discrimination Act (ENDA), a bill that has yet to be marked up before the House Education and Labor committee, if “we could hold our members” on the motion to recommit — a tactic under which the GOP could conceivably introduce an alternative that does not offer protections to transgender people and peel off several Democratic votes.

“It’s a choice, it’s a choice,” Pelosi stressed, speaking to disheartened LGBT voters. “We all haven’t gotten everything we want, but everything we got on these issues came from the Democrats and so that’s what I would say to them.” “It’s a fight and again, we don’t intend do lose it.”

ThinkProgress

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13
Oct 10

Pelosi: I Hope Obama Administration Doesn’t Appeal Don’t Ask, Don’t Tell Ruling

“It’s a choice, it’s a choice,” Pelosi stresseed, speaking to disheartened LGBT voters. “We all haven’t gotten everything we want, but everything we got on these issues came from the Democrats and so that’s what I would say to them.” “It’s a fight and again, we don’t intent do lose it.”

Wonkroom

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13
Oct 10

Gates: Immediate Repeal Of Don’t Ask, Don’t Tell Would Have ‘Enormous Consequences’ For Troops

Just a day after a federal judge ordered the military to stop enforcing Don’t Ask, Don’t Tell, Secretary of Defense Robert Gates reiterated his belief that abruptly ending the policy would have “enormous consequences” for the troops:

“I feel strongly this is an action that needs to be taken by the Congress and that it is an action that requires careful preparation, and a lot of training,” Gates said. “It has enormous consequences for our troops.”

Gates’ comments suggest that President Obama and DOJ will be under some pressure to appeal yesterday’s broad injunction, despite pleas from Democratic lawmakers to allow the decision to stand.

According to the Advocate’s Kerry Eleveld, at a White House press gaggle this morning, Robert Gibbs said that the courts have demonstrated that the time is ticking on the policy and that Obama believes that repeal most occur in an orderly fashion. “We want the Senate that didn’t act…to act,” he reportedly told Eleveld.

Asked if Obama believed that the policy was constitutional — he had previously indicated that it is — Gates said he and Obama had not discussed the issue.

Wonkroom

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13
Oct 10

New House Dem ad: Don’t compare me to that damned dirty hippie Nancy Pelosi

It’s come to this.

Comedy gold via Ben Smith from Georgia Democrat Jim Marshall, who reminds us that the cultural currency of Haight-Ashbury flower children circa 1967 is evergreen. Dig those trippy hand gestures, maaaaan. Marshall was a yes on TARP and a yes on the stimulus but an ass-saving no on ObamaCare, which means he fails to qualify […]

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Hot Air » Top Picks

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12
Oct 10

Federal Judge Bars Enforcement Of Don’t Ask, Don’t Tell

Earlier today, Judge Virginia Phillip — the California federal judge who ruled that Don’t Ask, Don’t Tell violated the due process clause of the Fifth Amendment and freedom of speech under the First Amendment — granted the Log Cabin Republican’s request for a broad injunction against further discharges:

(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 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.

Earlier this month, the Justice Department filed an objection to the proposed injunction, insisting that the judge’s decision be limited to the plaintiffs in the suit. The government argued that a wide injunction would “foreclose the US from litigating the constitutionality” of DADT in other cases and frustrate the ongoing Pentagon review of the policy. The Justice Department will now have 60 days to make a decision on whether or not to appeal the case to the U.S. Ninth Circuit Court of Appeals.

In an opinion that accompanied the injunction, Phillips explains that the plaintiff (the Log Cabin Republicans) “has established standing to bring and maintain this suit on behalf of its members. Additionally, Log Cabin Republicans has demonstrated the Don’t Ask, Don’t Tell Act, on its face, violates the constitutional rights of its members. Plaintiff is entitled to the relief sought in its First Amended Complaint: a judicial declaration to that effect and a permanent injunction barring further enforcement of the Act.”

Cross-posted on The Wonk Room.

Think Progress

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12
Oct 10

Federal judge halts enforcement of “don’t ask, don’t tell” worldwide

Readiness.

Not surprising. Remember, she’s already ruled that DADT is unconstitutional. The lingering question was whether it was unconstitutional only for the named plaintiffs in the case — i.e. the Log Cabin Republicans — or whether it’s unconstitutional for everyone. Surprise: “Unconstitutional” means unconstitutional. A federal judge issued a worldwide injunction Tuesday stopping enforcement of the […]

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Hot Air » Top Picks

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12
Oct 10

‘Don’t Ask/Don’t Tell’ Injunction, 10th Anniversary of USS Cole Attack, Insinuations Against Chamber — Today’s Q’s for O’s WH – 10/12/10

TAPPER: I was just wondering, first of all, if you had any reaction that a federal judge has granted an injunction of “Don’t ask, Don’t tell”?

Political Punch

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12
Oct 10

Federal Judge Enjoins Military From Enforcing Don’t Ask, Don’t Tell

Last month, Federal Judge Virginia Philips issued an opinion declaring the military’s Don’t Ask, Don’t Tell policy to be unconstitutional. For the past month, the Plaintiffs and the Federal Government have been engaged in a legal battle over the scope of the injunction that Phillips would issue in light of her order. Today, Judge Phillips pretty much gave the Plaintiffs everything they wanted and issued an injunction forbidding the military from enforcing Don’t Ask, Don’t Tell at all:

SAN DIEGO (AP) — A federal judge issued a worldwide injunction Tuesday stopping enforcement of the “don’t ask, don’t tell” policy, ending the military’s 17-year-old ban on openly gay troops.

U.S. District Judge Virginia Phillips’ landmark ruling was widely cheered by gay rights organizations that credited her with getting accomplished what President Obama and Washington politics could not.

“This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking,” said Alexander Nicholson, executive director of Servicemembers United and the sole named veteran plaintiff in the case along with the Log Cabin Republicans.

Servicemembers United is the nation’s largest organization of gay and lesbian troops and veterans.

U.S. Department of Justice attorneys have 60 days to appeal. Legal experts say the department is under no legal obligation to do so and could let Phillips’ ruling stand.

Phillips declared the law unconstitutional after a two-week nonjury trial in federal court in Riverside. She said the Log Cabin Republicans “established at trial that the Don’t Ask, Don’t Tell Act irreparably injures servicemembers by infringing their fundamental rights.”

She said the policy violates due process rights, freedom of speech and the right to petition the government for redress of grievances guaranteed by the First Amendment.

“Furthermore, there is no adequate remedy at law to prevent the continued violation of servicemembers’ rights or to compensate them for violation of their rights,” Phillips said.

She said Department of Justice attorneys did not address these issues in their objection to her expected injunction.

And, now, once again, the ball is in the Obama Administration’s court. They could. if they chose to do so, decide not to appeal Judge Phillips ruling. In that case, the injunction would remain in place and DADT would effectively be a legal nullity. Congress would still have the opportunity to act to repeal the policy entirely and allow gays and lesbians to serve openly without fear of reprisal, which they certainly should do, but until that time the policy would not be enforced. Since the Administration has sixty days to make this decision, there’s no reason for them to do anything before Election Day, of course, which may make it easier for the White House to finally make good on a promise that the President made during the campaign, and repeated against in January.

Outside the Beltway