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64 posts categorized "Military"

December 19, 2010

Implementing the repeal

The armed forces will face an array of questions large and small as the repeal process moves forward.  From the NY Times, here is the first of what will doubtless be many reports:

You are a commander of a ship, and one of your top-performing officers, who is known to be a lesbian, is at war with her roommate to the point that it is disrupting the entire unit. The officer asks you for new berthing. What do you do?

You are the senior officer at a busy military recruiting station, and your best recruiter has just told you that his religious beliefs prevent him from processing an outstanding applicant who volunteers that he is gay. What do you do?

These scenarios and their solutions — the commander may reassign roommates, and the recruiter could face disciplinary action — are outlined in a detailed and at times explicit 87-page Defense Department plan for carrying out the repeal of the “don’t ask, don’t tell” law.

In the wake of the Senate vote to end the 17-year-old policy, which forced gay men and women in the military to keep their sexual orientation secret or face discharge, military officials said they did not yet have a timetable for putting the change into effect. President Obama is expected to sign the bill early this week.

“There will certainly be pressure to get it done in 2011,” one military official said, indicating that repeal will be a relatively slow but not years-long process, as Defense Secretary Robert M. Gates has suggested in recent statements.

Phasing in the repeal by service branch, with some parts of the military affected before others, was “highly unlikely,” said the official, who asked for anonymity to talk more freely about internal deliberations at the Pentagon.

Under the terms of the legislation that passed the Senate on Saturday and the House earlier last week, the Defense Department will not carry out the repeal until Mr. Gates, Mr. Obama and Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, “certify” that the military is ready to make the change. After that, the legislation requires a 60-day period before the change takes place.

Gay rights advocates said Sunday that repeal should be carried out as quickly as possible, preferably in the first quarter of next year.

Mr. Gates has acknowledged that the president will be watching closely “to ensure that we don’t dawdle or try to slow-roll this” and that Mr. Obama expects the military to prepare “as quickly as we properly and comprehensively could.”

To that end, the military’s plan for the repeal — little noticed when it was released at the same time last month as an exhaustive nine-month Pentagon study on the effects of ending “don’t ask, don’t tell” — demands education and training for commanders as well as combat units, but notes that training “should be efficient and should not burden the force.”

The plan also calls for new Defense Department guidelines to prohibit separate bathrooms and housing assignments on the basis of sexual orientation, although it recommends that commanders be allowed the discretion to make changes. In the case of bathrooms and bathing facilities, the plan says that “commanders have the authority to accommodate privacy requests on an individualized, case-by-case basis, in the interest of maintaining morale, good order and discipline, consistent with performance of mission.”

The plan, written by Jeh C. Johnson, the Defense Department’s general counsel, and Gen. Carter F. Ham, commander of the United States Army in Europe, does not specify how privacy requests might be carried out.

In a frank, lengthy section at the end of the plan, various hypothetical problems and solutions are posed, including what a commander should do about two junior male service members in civilian clothes seen kissing and hugging at a shopping mall, or how to handle reports that another service member has been seen “hanging around” a gay bar.

In the case at the shopping mall, the plan says that if the kissing and hugging “crosses acceptable boundaries” of standards of conduct for the commander’s unit, “an appropriate correction should be made.” The plan notes that “public displays of affection are orientation-neutral” and that the standards should apply equally to gay and straight service members.

In the case of the gay bar, the report says commanders at a military base may place establishments off limits “for certain reasons,” like known or suspected criminal activity or drug use. But, it says, “an establishment would not be placed off-limits just for catering to a gay clientele.”

In the case of the recruiter whose religious beliefs prevent him from processing an openly gay applicant, the plan says that although he could face disciplinary action, if his performance and professionalism “are otherwise high,” he might be reassigned to another job.

The plan offers few specifics on the substance of the training to be provided, although it recommends that commanders “keep it simple” and work it into existing programs whenever possible. The report also warns that for service members deployed overseas, training and education “must not in any way impede the operations of forces directly engaged with the enemy.”

The plan also warns that until repeal takes effect, openly gay service members still face expulsion from the military, even though the Defense Department has a de-facto moratorium in place, which gay rights advocates called on Mr. Gates to make official.

“I fail to see how we can be preparing for open service and conducting education and training for open service and during the same time period have ‘don’t ask, don’t tell’ investigations and discharges,” said Aubrey Sarvis, an Army veteran and the executive director for the Servicemembers Legal Defense Network.

Mr. Gates and Admiral Mullen repeatedly urged Congress in recent weeks to move forward on repeal, but some military service chiefs said now was not the right time because the United States was at war. The commandant of the Marine Corps and the service chief most opposed to repeal, Gen. James F. Amos, suggested last week that repeal could cost Marine lives because it would be a “distraction” on the battlefield.

On Sunday, General Amos said in a statement that “the Marine Corps will step out smartly to faithfully implement this new policy.”

The DoD report referred to in the article is the Support Plan for Implementation

Dreams deferred

Even at its best, it seems, American politics mixes the bitter with the sweet.

Yesterday's vote setting up the final glide path for repeal of DADT was certainly sweet. It vindicated the blood, sweat and tears of thousands of gay Americans who have served the nation honorably only to be disserved, dishonorably by the nation. It will lead to the end of a policy that was never justified or justifiable, the monstrous product of a rookie President who botched his own efforts to do the right thing, a vicious conservative opposition, blindly intransigent military leadership, and a horribly wrong man in a key position, Senator Sam Nunn. 

It took 17 years of hard work by an almost countless number of people to right the wrong of DADT. And of course the ban on military service by openly gay Americans long pre-dates DADT, as do the efforts to end the ban. The list of men and women who had the courage to insist on the dignity of honest service goes way back: Leonard Matlovich, Vernon Berg, Perry Watkins, Miriam Ben-Shalom. The litigation challenge brought by the ACLU on behalf of Matlovich was filed in 1975.

It is impossible to count how many lives were ruined by the various iterations of this policy. For so many of the young men and women who enlist, the military seems to offer a ticket out - of poverty or near poverty, of a future with nothing but dead end jobs, or just of a numbing daily existence. Military service looks like a fresh start, maybe ultimately the chance to go to college. The old policies closed that door for gay kids or forced them to live in terror that they would be found out and forced out. It is sweet to see that era end.

But it is also deeply ironic that the vote to end it came in tandem with the failure to enact the DREAM Act. For thousands of young people, the DREAM Act would have offered a fresh start and the chance to get a better education or to serve in the military without fear. Although the anti-immigrant phobia that led to this defeat is not specifically about gay people, it is profoundly a gay issue in all but name. For starters, it's the same dream. It is also anyone's guess how many gay and lesbian immigrant youth will continue to be hurt by current immigration policy - maybe as many as the number of gay Americans who enlist? More centrally, the DREAM Act is about ending a fundamental injustice that stratifies human beings based on an irrelevant characteristic.

Let's hope it doesn't take 17 years to rectify yesterday's bitterness.

December 17, 2010

Off we go into the wild blue Senate: key DADT repeal vote tomorrow

This could be it - Harry Reid has scheduled a cloture vote on the stand alone bill to repeal DADT for tomorrow, and if that is successful, the final vote could come later in the weekend or early next week.

 HR 2965 repeats the language regarding the process of transition agreed to last summer, and will take effect 60 days after the President and the Pentagon effectively declare that they are ready to pull the plug on this noxious policy. For the record, here's the operative language:

(b) Effective Date- The amendments made by subsection (f) shall take effect 60 days after the date on which the last of the following occurs:

(1) The Secretary of Defense has received the report [that was issued November 30].

 (2) The President transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating each of the following:

(A) That the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have considered the recommendations contained in the report and the report's proposed plan of action.

(B) That the Department of Defense has prepared the necessary policies and regulations to exercise the discretion provided by the amendments made by subsection (f).

(C) That the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.

(c) No Immediate Effect on Current Policy- Section 654 of title 10, United States Code, shall remain in effect until such time that all of the requirements and certifications required by subsection (b) are met. If these requirements and certifications are not met, section 654 of title 10, United States Code, shall remain in effect.

(d) Benefits- Nothing in this section, or the amendments made by this section, shall be construed to require the furnishing of benefits in violation of section 7 of title 1, United States Code (relating to the definitions of `marriage' and `spouse' and referred to as the `Defense of Marriage Act').

(e) No Private Cause of Action- Nothing in this section, or the amendments made by this section, shall be construed to create a private cause of action.

(f) Treatment of 1993 Policy-

(1) TITLE 10- Upon the effective date established by subsection (b), chapter 37 of title 10, United States Code, is amended--

(A) by striking section 654...

December 10, 2010

It's not over til the last gavel strikes: How to repeal DADT this session

By Guest Blogger Michelle Benecke

Yesterday's Senate vote was disgraceful and disheartening.  Contrary to the claims of some, however, this fight is not over.  It is still possible to repeal Don't Ask, Don't Tell (DADT) in this Session, if we have the will to fight.  There are at least two options:  amending the Omnibus bill pending in the Senate, and a stand alone bill.

The Omnibus spending measure is the one piece of legislation that will pass before the Senate goes home for the holiday.  It funds every federal agency.  While supporters would need to show "germaneness" under Senate rules, this should not be a high hurdle given the sheer breadth of the Omnibus and its many additional provisions for the Department of Defense.  Once it passes the Senate, the Omnibus would be sent to the House for a vote.

The White House could help by releasing Secretary Gates to ask Congress to include DADT repeal in the Omnibus.  Attorney General Holder sent such a letter recently concerning the Guantanamo detainees.  Ideally, Representative Pelosi or Hoyer, the House workhorse, would say publicly they would consider the measure if sent to them, cutting off any arguments for delay.  

On the stand alone measure, a Senate provision called Rule 14 is one way to do it.  Basically, if we have the stomach to take one or two more shots at this -- as we must -- supporters can introduce Section 591 of the National Defense Authorization Act (or a clean repeal) as a freestanding bill, and have it Rule XIV'ed whereby it will go directly to the Calendar, bypassing the usual Committee process.  Then they could work to get an agreement to take up this bill with no amendments and seek to get cloture on it.  Having the tax bill on the floor will buy them some time to tee it up.  If there is time left after taxes, they could give it one more shot.  If successful, this bill would be sent to the House for a vote. 

These paths are difficult, but they are absolutely possible.  Senator Lieberman is right in pressing to stay until the job is done.  Last year, Senator Reid (Majority Leader) kept the Senate in session 24/7 all the way through Christmas Eve to pass the health care bill, and he could do the same here to demonstrate this is a priority.

When I first developed the idea to start Servicemembers Legal Defense Network (SLDN) more than twenty years ago, I was serving in the Army, surrounded by witch hunts and utterly alone.  Although I survived the witch hunts, I ultimately resigned my commission and reluctantly left the military because of the previous policy and the ethical dilemmas it imposed.

While today's military members now have somewhere to turn for legal advice (SLDN), they continue to experience profound isolation and ethical dilemmas because of DADT, which requires them to live a double life and forbids them from confiding in parents, friends, doctors, anyone without risk of being outed and discharged.  Like the sword of Damocles, this law hovers constantly, ready to take them out.

If we miss this window, it will be another five to ten years before legislation can make its way back to the fore - another five to ten years of living in constant fear for gay military members, having to guard against "friendly fire" under DADT even as they risk their lives fighting the enemy before them in Afghanistan and Iraq.

The time for repeal is now, in this Session.  Military members who cannot speak for themselves under DADT are depending on us.  It’s not over until the last gavel strikes. 

Michelle Benecke is a former Army Captain and Battery Commander, and a founder and former Executive Director of Servicemembers Legal Defense Network, which is dedicated to repealing DADT and has provided direct legal assistance to more than 10,000 military members under this law. 


December 09, 2010

Deconstructing DADT beltway-ese

Chris Geidner summarizes where things stood at the end of Wednesday on DADT repeal, heading into a possible vote today:

The repeal train was constantly teetering from side to side and likely almost fell off the tracks a few times, were it not for Sen. Joseph Lieberman (I-Conn.) and a potentially repeal-saving blink from Senate Majority Leader Harry Reid (D-Nev.).

Read in between each line, and you see a picture of today painted pretty clearly:

WASHINGTON, D.C.—U.S. Senator Susan Collins, who supports repeal of “Don’t Ask, Don’t Tell,” [Noted.] released this statement tonight.

“Senator Joe Lieberman and I continue to negotiate in good faith with the Majority Leader [Collins is pretty directly claiming Lieberman as being on "her side" in this, which appears fitting in light of Lieberman's strong defense of her earlier today.] to try and come up with a fair process under which the important Defense Authorization bill could be considered in the limited time remaining in this session. [Important. Limited.] Without a fair process, the motion to proceed to the bill would likely fail in the U.S. Senate. [By acting in a way in which she gets to define the terms, however, she's pushing Reid.]

"Senator Lieberman and I requested a meeting with Senator Harry Reid last week [Both of them. She's making it clear that she believes she has been looking to reach a deal for a while.] during which we outlined a specific plan for allowing debate and amendments similar to how the Senate has considered the authorization bill in the past.
"It wasn’t until 1:35 pm today that I received a legitimate offer from Senator Reid [Slam. Without noting Reid's morning call for a "likely" vote this evening, she implies that any "bad faith" here came from him. Her qualifier of "legitimate," however, does soften the blow of that. Also, there are several sentences here that could prompt a response from Reid; this is the most clear of those.], which I consider a good starting point. [Negotiations are ongoing.] We made a counter offer which would provide sufficient time for debate, and includes protections to help ensure that Republicans would be able to offer a limited but fair number of amendments that are relevant to this legislation. [She did -- "15 guaranteed votes on amendments (10 for Republicans, and 5 for Democrats), and somewhere around four days to debate the bill" -- and he has it.]

"I am encouraged that the Majority Leader decided to postpone the vote he had scheduled for tonight. [This is true. Had he not, and had she held by her pledge to vote no, the odds are fairly certain that DADT repeal would be dead for the year. It would have set up a partisan vote, and Reid could have then attempted to use that to move on to a stripped-down NDAA. That would have caused an uproar, no doubt, but a losing vote tonight would have been a killer.] I urged him to do this so that we could consider the tax legislation first, which I believe could be on the floor as early as tomorrow and completed quickly.  At that point, I believe we could move immediately to the Defense Authorization bill under a fair agreement, and I would vote to do so. [This is could be essential for there being enough time left for the debate on the NDAA that Collins is requesting. It also appears to be the key to Sen. Scott Brown (R-Mass.)'s vote as well.] I would hope he carefully considers our proposal.  I believe we have outlined a very clear path forward for the Majority Leader to take that would allow this very important debate to occur." [It's this, as with the above statement about the "fair process," where one could question Collins's motives. Does she personallywant all 10 GOP amendments to the NDAA, etc., or is she pushing a partisan agenda regarding the NDAA in spite of her personal support for DADT repeal? That's not to make a judgment on whether she or Reid is the one being more partisan; it's just the obvious counter-point to the direction of the statement issued by Collins.]

The bottom line for today is that neither side blew up negotiations, Collins laid her demand on the table, and repeal prospects likely improved heading into Thursday.


December 01, 2010

Essence Magazine: Defend the sisters in uniform

From Essence:

"Don't Ask, Don't Tell" (DADT) poses an Imgres imminent threat to gay and straight black women. So, where is the outrage?

Black women have taken up arms alongside their male counterparts for decades, dedicating their lives to defending our freedoms even at the expense of their own. Today, however, our sisters in the military are under attack, not just from ominous enemies abroad but by discriminatory practices at home that put them in harm's way and lead to career-ending discharges.

The military's DADT policy, which bans gays and lesbians from serving openly, threatens all servicewomen regardless of their sexual orientation. But Black women are bearing the brunt. Pentagon data shows that DADT has been used to kick Black women out of the military at a much higher rate than any other group. 

The military has served as a pathway to economic empowerment for minorities and women for generations. It offers health care and housing benefits that support their children, helps them to afford college, and secures stable civilian careers.

So imagine the hardship faced by Black servicewomen who are unduly targeted for dishonorable discharge from the military because they are gay or simply accused of being gay. Many of them are also mothers and heads of households. Their careers are shattered, and their children and families suffer.

Even when Black servicewomen play by the rules they fall prey to the perils of the DADT policy regardless of their real or perceived sexual orientation. Fellow servicemen, male and female, have exploited this policy to discredit superior officers, and they've used it as a gag order to retaliate against women who have rebuffed their sexual advances.

Throughout history Black women have been degraded and forced to exchange their bodies to safeguard their families. Under the guise of DADT, our sisters in the military today continue to be subjected to sexual blackmail and harassment, and forced to trade their personal freedoms to protect their honor, livelihood and jobs.

A telling case in point is the tragic story of African-American Army Sgt. Tracey L. Cooper-Harris, who wrote to President Barack Obama earlier this year appealing for an end to DADT. In her letter, Sgt. Cooper-Harris relayed the horrendous ordeal she experienced as a teenage guard.

"The signal from command was clear: being gay was a far more serious offense in the military than sexually harassing a fellow service member," she wrote. "I ultimately chose what I believed was the best decision for me at the time. I let these men have their way with me in exchange for their silence."

The facts are clear, and the statistics are undeniable. Black servicewomen are losing their dignity, their jobs, and their opportunity to pursue the American dream because of the legalized discrimination that is DADT.

Where is the outrage?

Time and time again, when members of the Black community have been disproportionately harmed by public policy or faced with institutionalized discrimination, we have rallied around the victims. Yet with DADT, the Black community's silence has been deafening.

Sgt. Cooper-Harris' silence did not protect her from the harassment she endured, and our silence does not protect the hundreds of Black women who are victimized each year under DADT. We can no longer sit idly by while our military sisters are singled out for discrimination. It is time for us to stand up and defend our sisters who defend us on the front lines each day.

HT: Sharon Daly

November 30, 2010

Pentagon report finds almost 70% of service members already know someone gay in their unit

For an overall view of today's Report of the Comprehensive Review of the Issues Associated with a Repeal of “Don’t Ask, Don’t Tell”, I'm using the Williams Institute's statement:

...Described as the “largest and most comprehensive” review and engagement of the military forces on any personnel-related matter, the report concludes that repeal of the military’s Don’t Ask/Don’t Tell (DADT) policy, which prohibits lesbian, gay, and bisexual (LGB) Service members from serving openly, would produce only a low risk of compromising overall military effectiveness. The report suggests that any disruptions are likely to be short-term and isolated, and can be managed with effective leadership, professionalism, and respect for all within the military.

A large portion of the report focuses on a survey of over 115,000 Service members, 70% of whom said that repealing DADT would have a positive, mixed, or no effect on a unit’s ability to “work together and get the job done.”

Research by Williams Distinguished Scholar Dr. Gary J. Gates has shown that there are an estimated 71,000 LGB men and women currently serving on active duty and in the guard and reserve forces of the US military.

Gates notes, “I am not surprised that more than two-thirds (69%) of Service members said that they had worked with someone whom they believed to be LGB.  What is striking is that among that group, 92% stated that their unit’s ability to work together was very good, good, or neither good nor poor. In general, the survey shows that fears associated with working with openly-LGB colleagues are much lower among those who have already done so.”

This was even true among Service member units who were most concerned about the possible negative effects of allowing LGB people to serve openly. While 58% of those in Marine combat units predicted that a DADT repeal would have negative effects on the unit’s ability to “work together and get the job done”, only 16% of those in these same units who said that they had worked with an LGB colleague thought that their unit’s “ability to work together” had been poor.

The report also reviews the history of other personnel changes in the military, such as racial integration, and considers the experiences of other militaries, for example, those of the United Kingdom, Canada, and Israel, which allow LGB individuals to serve openly. The report concludes that historical evidence and evidence from other countries, shows that surveys tend to overestimate the negative consequences of change and underestimate the military’s ability to quickly and effectively adapt.

Today’s report by the Pentagon will also impact current and future legal challenges to DADT. In defending the constitutionality of the policy, the federal government has argued that it is necessary for military effectiveness. However, the two most recent federal court challenges to the policy rejected these arguments, based in part on the same prior research and the experience of other countries relied upon in the Pentagon’s new Report.

In the Log Cabin Republicans case decided this fall, a federal district court judge in San Diego found that the government’s arguments about military effectiveness were further undermined by the number of LGB Service members already serving in the military, and by the fact that the military delayed the discharge of many Service members deployed in Iraq and Afghanistan until after they returned home. The Pentagon report confirms that almost 70% of Service members report having served with an LGB person. The Department of Justice has appealed the Log Cabin Republicans decision to the Ninth Circuit Court of Appeals.

“The conclusions of today’s Report will make the federal government’s constitutional arguments very difficult to make,” says Professor Nan Hunter, Williams Institute Legal Scholarship Director and Professor of Law at Georgetown University Law Center. “Essentially, the government’s expert witness – the military leadership – has changed its opinion. The rationale for courts’ deference to the military is that the armed services have a particular expertise with regard to their unique personnel system and that the consequences of disruption could be especially dire during a time of conflict. In light of today’s Report, I do not think that the Justice Department can credibly continue to make the arguments that it has made in its past briefs.”


"Member-designated" benefits may expand to meet the needs of openly gay servicemembers (and others!)

By Guest Blogger Nancy Polikoff

The long-awaited Defense Department report on issues associated with repeal of Don't Ask, Don't Tell (DADT) is now out. One of its tasks was to address the impact of repeal on various benefits available to servicemembers. The report takes great pains to explain the Defense of Marriage Act (DOMA), which requires federal law to recognize as married only different-sex couples. (A footnote in the report does reference a recent federal trial court ruling finding that portion of DOMA unconstitutional). As a result of DOMA, the report says, the spouse of a gay servicemember cannot be entitled to any of the many benefits available to heterosexual spouses. But the report goes on to catalogue certain benefits that are, in its words, "member-designated." These include naming a life insurance beneficiary, a person to be notified if the servicemember is missing, and a person entitled to hospital visitation. Repeal of DADT, the report notes, would allow a gay servicemember to designate a partner without having to hide the true nature of his or her relationship with the person named. The report then recommends review of other benefits to determine whether they should be added to this "member-designated" group. The most important of these might be military housing, but the report takes that off the table. "Military family housing is a limited resource and complicated to administer," the report states, "and a system of member designation would create occasions for abuse and unfairness." The report also recommends against creating a category of "same-sex partner" within the definition of "dependent" for purposes of eligibility to live in military housing. The report's rationale is worth quoting in full:

We are convinced that, to create an environment in which gay and lesbian Service members can win quick and easy acceptance within the military community, repeal must be understood as an effort to achieve equal treatment for all. If, simultaneous with repeal, the Department of Defense creates a new category of unmarried dependent or family member reserved only for same-sex relationships, the Department of Defense itself would be creating a new inequity—between unmarried, committed same-sex couples and unmarried, committed opposite-sex couples. This new inequity, or the perception of it, runs counter to the military ethic of fair and equal treatment, and resentment at perceived inequities runs deep in military families.

This analysis will likely irk many gay rights supporters, who are content to champion same-sex only domestic partner benefits on the theory that different-sex couples can marry. I have never liked that way of thinking. The military should not be in the business of telling its members how to define their family for purposes of determining who they live with, and committed partners should not have to marry to live together. (Think about the heat that the town of Black Jack, Missouri took a few years ago when it announced that a straight couple with three children, one of whom was the woman's child from a previous relationship, could not legally occupy the home they bought because they were not married.) I believe the analysis in this report lays the groundwork to uncouple housing benefits from marriage altogether, albeit down the road. I acknowledge that in the short run same-sex couples will be burdened by lack of access to military housing, but if it spurs them to seek common cause with unmarried different sex couples, there will be a vast upside. With housing off the table, the report suggests that the benefits that could become "member-designated" include access to free legal services and access to services provided by the DOD family centers, such as relocation and crisis assistance. Here's how the report defends its "member-designated" approach:

There is an element of fairness and equality to this approach, and it provides Service members with greater discretion to decide who in their life has access to benefits and support services. Both homosexual and heterosexual Service members could avail themselves of this type of expanded member-designated eligibility, and the Department of Defense would be enhancing the vital role of a Service member’s “supporters”—people in a Service member’s life who may not be his or her spouse, but may be a long-time partner, boyfriend, girlfriend, parent, or friend. Obviously, this approach requires some limit on the number of people the member could designate, and it should be constrained by other policy, fiscal, and practical considerations.

The report supports this "member-designated" approach and explicitly rejects making "same-sex partners" a category eligible for other benefits, such as commissary shopping privileges and space-available travel. Benefits make up a larger part of military life than civilian life, the report notes, and, as with the housing benefit, a "same-sex partner" category would create a new inequity, this one between unmarried, committed straight and gay couples. The report acknowledges that on the civilian side, the government has come up with specific criteria to judge a "committed relationship," but it is recoils from giving the military such a task. "Within the military community, where benefits are much more prominent and visible than in civilian life," the report notes, "administering such a system distracts from the military’s core mission and runs counter to the Secretary of Defense’s basic direction that implementation of a repeal of Don’t Ask, Don’t Tell be done in a way that minimizes disruption to the force." For the record, I think this assertion is so much hogwash. But member-designation is consistent with the "valuing all families" methodology in my book, and a move in that direction in the military might resonate down the road in civilian life.

November 22, 2010

Georgetown Law hosts conference of experts on DADT

With signs increasing that the Senate actually will take up DADT repeal as part Posterof the defense authorization bill in the week after Thanksgiving, but no guarantee that the effort will succeed, some of the top experts on seeking reform in the administrative, judicial and congressional arenas gathered at Georgetown Law to analyze the possibilities. It's an impressive program available via webcast

In the first panel, Professors Diane Mazur and Jackie Gardina, together with Aaron Tax from SLDN, lay out possible avenues for executive action if repeal fails. Attorneys in the Log Cabin Republicans case (Dan Woods) and Witt case (Aaron Caplan), together with counsel for Victor Fehrenbach (Seth Galanter), discuss litigation strategies in the second panel. The third panel focuses on Congress, with reps from SLDN, HRC, and Servicemembers United, among others. Yours truly does the wrap-up at the end.

Mucho congratulations to the Georgetown students for organizing such an outstanding event.

On a related note - for a lovely tribute to one of the early pioneers on this issue, see Karen Ocamb's interview with former Sgt. Miriam ben-Shalom, who in 1987 won one of the few judgments ever entered in favor of a gay soldier. Last week, ben-Shalom returned to the White House fence where she had also protested in 1993, and once again did her duty.

November 15, 2010

Dems scramble for DADT repeal strategy; Leader of survey project to testify

From The Hill:

Senate Majority Leader Harry Reid (D-Nev.) may not be able to secure enough votes to pass the [defense authorization] bill because of language repealing the ban on gays in the military. Stripping that provision may be the only way to pass the legislation, which authorizes funding and sets policy for the Pentagon.But abandoning the effort to repeal the “Don’t ask, don’t tell” policy would be a political disaster for President Obama, who made a campaign promise to end the ban...

Sen. John McCain (Ariz.), the panel’s leading Republican, has been pulling out all the stops to see that provision removed from the Pentagon’s massive policy bill. The Senate minority leader, Mitch McConnell (R-Ky.), backs him.

The defense authorization bill will not be part of the Senate’s schedule this week. But one of the military officers leading the Pentagon’s study into the implications of repeal is scheduled to testify before the Senate Armed Services Committee on Thursday. Gen. Carter Ham has been nominated to lead Africa Command and will appear for a confirmation hearing, offering a chance for lawmakers to press him on the matter.

The Pentagon study — which both sides will likely use to make their respective cases — is due on Dec.1. Results leaked recently to The Washington Post showed the military could lift the ban with minimal risk to the current war operations. But, at the very least, Republicans will insist on hearings on the findings. The pressure of the running clock could further diminish the chances of passage of the defense bill containing the repeal provision...

Informal deliberations between the House and Senate committees over the defense bill already broke down [last] week over the politics of repeal. But congressional sources said the committees may attempt to revive discussions [this] week. Much depends on how Reid handles the issue...

November 12, 2010

Justice Kagan recuses herself from DADT case

In a thoroughly unsurprising decision, the Supreme Court today denied the application by Log Cabin Republicans to reinstate Judge Phillips' injunction blocking enforcing of the DADT policy. LCR lawyers sought to lift the stay granted by the Ninth Circuit, but the Court left it in place. 

What was noteworthy is that Justice Kagan took no part in the deliberation or decision. There was no reason stated for the recusal, but it likely was based on Justice Kagan's participation as Solicitor General in other challenges to DADT. It means that if the repeal effort fails and the litigation continues, she will not participate if and when a DADT case reaches the Supreme Court. 

With the policy remaining in effect, the LCR lawyers may well ask the Ninth Circuit to expedite the appeal, as has been ordered in the Prop 8 case before the same court.

November 09, 2010

Barney Frank sees quick effort to repeal DADT

From an interview conducted yesterday by Lou Chibbaro of The Blade, in which Barney contradicts reports that DADT repeal is dead:

Rep. Barney Frank: I’ve been working today on “Don’t Ask, Don’t Tell.” In fact, I think it’s time for people to hold the Republicans’ feet to the fire because we didn’t get any votes from them. Last time around, they had the excuse – some of them – that they didn’t want to vote because [Senate Majority Leader] Harry [Reid] was going to put the DREAM Act in there on immigration. He now says he’s not going to put the DREAM Act in there. He’s going to put that in some other place. So now the question is why do Republicans — Sen. Snow, Sen. Collins and Sen. Brown — what reason would they have for voting against the whole bill?

And I spoke today to Pete Rouse [the acting White House Chief of Staff] and to Sen. Reid and Sen. [Richard] Durbin [D-Ill.] and Sen. [Carl] Levin [D-Mich.], and they all agree. They want to pass the defense bill with ‘Don’t Ask, Don’t Tell’ in it. They have two weeks. The question is whether Republicans filibuster it to death. But the Democrats are going to try very hard to do it. I think by the way, that’s why [Secretary of Defense Robert] Gates spoke out. I am sure, nobody’s told me this, but I’m sure the president said to Harry Reid, look, we’ve got to get this done. And Reid said fine, would it be helpful if I got some military support? And eventually Gates spoke out as he did...

I’ve spent — I made a lot of phone calls today. Plus, one fear was I saw, oh well, they’ll take ‘Don’t Ask, Don’t Tell’ back out of the defense bill. It won’t pass in the House if they do that. I believe the speaker [Pelosi] wouldn’t allow it to come up [unless the bill included repeal]...

The thought was that the Republicans would say if they took ‘Don’t Ask, Don’t Tell’ out of the [defense] bill this year in the lame duck session they would get it passed. And my answer is that’s not going to get them anywhere because we wouldn’t pass it in the House. We will not accept — there’s been some speculation about that — and the answer is no, the House—we’re going to tell the Senate that’s not going to work. And I don’t think the Senate is planning to do that. Harry is not planning to do that.

… ‘Don’t Ask, Don’t Tell’ repeal is in the defense authorization bill... [T]here was some suggestion that [Sen. John] McCain [R-Ariz.] would say strip that out and I’ll let you pass the defense bill [without repeal]. And the answer is that won’t work because the House won’t pass it. In other words, the Democratic leadership is thoroughly committed to getting ‘Don’t Ask, Don’t Tell’ repealed... 

Blade: Did Harry Reid give an indication of when he might bring it up?

Frank: Right away — they only have two weeks. He’s committed to getting it done. He and I talked to the three — the Democratic leader, the Democratic whip, the Democratic committee chairman … They all agree they want to get it done. Unfortunately, if we have no Republican votes it can’t be done. So the question is will any Republicans and their supporters get us anything?

I hope he's right about the level of commitment from the White House and Senate leadership.

November 07, 2010

The DADT repeal dance begins again

Over the weekend, politicos and one service Chief of Staff  Imgres began weighing in on the post-election landscape for the repeal of "Don't Ask, Don't Tell." The lame duck session of the Senate will probably begin November 15, break for Thanksgiving, and then return for the first half of December. Without strong leadership, there will be no DADT repeal anytime soon.

From Metro Weekly:

On Saturday, Defense Secretary Robert Gates told reporters, "I would like to see the repeal of 'don't ask, don't tell' but I'm not sure what the prospects for that are," according to the Associated Press. Gates said Congress should act in the lame-duck session to do so.

The comments came on the heels of comments from the new Marine commandant, Gen. James Amos, who said Saturday that combat is "intimate" and that this intimacy makes him uncertain of the impact of repealing DADT on "unit cohesion" and "combat effectiveness.

According to the Associated Press, Amos said, "There is nothing more intimate than young men and young women – and when you talk of infantry, we're talking our young men – laying out, sleeping alongside of one another and sharing death, fear and loss of brothers. I don't know what the effect of that will be on cohesion. I mean, that's what we're looking at. It's unit cohesion, it's combat effectiveness."

Back in May, it was at this point in the legislative process -- right before congressional action was thought to begin happening (and did happen) -- when all of the service chiefs issued letters questioning the timing of the amendment being considered in both chambers' Armed Services committees...

With preliminary reports about the survey of servicemembers suggesting that opposition to openly gay and lesbian service is not as widespread as some of the service chiefs have suggested, and with questions about the ongoing appeal of Log Cabin Republicans v. United States as the background scene, it is not clear that -- despite the comments from Amos -- all of the service chiefs would be willing to send a similar letter opposing lame-duck passage of the repeal amendment...

The people in the military leadership to watch in the next few days, then, are the chairman of the Joint Chiefs of Staff Adm. Mike Mullen -- who made a strong statement in support of repeal before the Senate Armed Services Committee in February -- as well as Army chief of staff Gen. George Casey Jr., chief of naval operations Adm. Gary Roughead and Air Force chief of staff Gen. Norton Schwartz.

If Amos stands alone in the military leadership as speaking out against DADT repeal in the lame-duck session -- or if Casey, Roughead or Schwartz speak out in favor of lame-duck repeal -- the momentum for action in the lame-duck session could get a major boost. If Amos finds his comments echoed in coming days by his colleagues, repeal advocates will need to confront that reality with political strength in order to offset the military leaders' comments...

But the Wall Street Journal calls the repeal effort "all but lost:"

The drive in Congress to repeal the military's "don't ask, don't tell" policy appears all but lost for the foreseeable future... Advocates on both sides believed the issue had a chance of coming up in this month's post-election session of Congress. Now that looks unlikely.

Sens. Carl Levin of Michigan and John McCain of Arizona, the top Democrat and Republican on the Senate Armed Services Committee, are in talks on stripping the proposed repeal and other controversial provisions from a broader defense bill, leaving the repeal with no legislative vehicle to carry it...

Moving the defense bill is complex, especially if it includes controversial measures, because it could take two weeks or longer on the Senate floor, and the coming session is expected to last only three or four weeks...

 "I would like to see the repeal of 'don't ask, don't tell,' but I'm not sure what the prospects for that are," Defense Secretary Robert Gates told reporters traveling with him in Australia.

Asked what the White House priorities are for the coming congressional session, press secretary Robert Gibbs named four issues—tax cuts, a nuclear-arms treaty with Russia, a child nutrition bill and confirmation of Jack Lew as White House budget director. Asked why he wouldn't put gays in the military on the list, Mr. Gibbs said it looked like Republicans would block action.

November 02, 2010

Split 9th Circuit panel stays injunction against DADT

After taking almost two weeks to decide and with one judge dissenting, a panel of Ninth Circuit Court of Appeals judges has granted a stay pending appeal of the injunction against the Don't Ask Don't Tell policy issued in the Log Cabin Republicans case. Although the policy can again be enforced, the court's actions sent yet another signal that legal support for it is dwindling. Normally it would take the court about a minute to stop an injunction against a federal statute that previous courts have upheld multiple times. Recall the same court's reaction to a similar motion for a stay of Judge Walker's ruling against Prop 8 - the stay was granted in less than a day.

The two judges who formed the majority wrote that "there are three reasons that persuade us to grant a stay pending appeal."

The reasons included that "Acts of Congress are presumptively constitutional," that "'judicial deference . . . is at its apogee' when Congress legislates under its authority to raise and support armies" and that "the district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal" [citing Cook v. Gates in the 1st Circuit; Able v. U.S. in the 2d Circuit; Richenberg v. Perry in the 8th Circuit; and Thomasson v. Perry in the 4th Cir.].

We ... conclude that the public interest in ensuring orderly change of this magnitude in the military - if that is what is to happen - strongly militates in favor of a stay. Furthermore, if the administration is successful in persuading Congress to eliminate [DADT], this case and controversy will become moot.

In dissenting, Judge William Fletcher wrote that he "would allow the district court's order to continue in effect insofar as it enjoins the Defendants from actually discharging anyone from the military [under DADT] during the pendency of the appeal." Fletcher would have let the military officially continue the DADT policy (as to recruiting, for example), but would have halted discharges. Judge Fletcher also stated that he would have granted oral argument on the stay motion, but the court rules require that at least two judges request oral argument on a motion before one will be scheduled.

Arguably, the Gates memorandum freezing DADT discharges unless they are approved by a new civilian-dominated process achieves what Judge Fletcher would have ordered.

In a separate scheduling order, the court set deadlines for the full briefing of the case (no.10-56634). The government will file its appeal brief by Monday, Jan. 24, 2011. Attorneys for LCR are required to file their response by Tuesday, Feb. 22, and the government's reply is required to be filed by 14 days following the LCR filing. 

With luck, the policy will be dead before the first brief is due.

October 28, 2010

Obama: DADT is wrong but won't answer whether he believes it is unconstitutional

From Joe Sudbay's transcript of his exchange with the President during Obama's session with five bloggers:

And one of the things I’d like to ask you -- and I think it’s a simple yes or no question too -- is do you think that “don’t ask, don’t tell” is unconstitutional?

THE PRESIDENT: It’s not a simple yes or no question, because I’m not sitting on the Supreme Court. And I’ve got to be careful, as President of the United States, to make sure that when I’m making pronouncements about laws that Congress passed I don’t do so just off the top of my head.

I think that -- but here’s what I can say. I think “don’t ask, don’t tell” is wrong. I think it doesn’t serve our national security, which is why I want it overturned. I think that the best way to overturn it is for Congress to act. In theory, we should be able to get 60 votes out of the Senate. The House has already passed it. And I’ve gotten the Secretary of Defense and the Chairman of the Joint Chiefs of Staff to say that they think this policy needs to be overturned -- something that’s unprecedented.

And so my hope and expectation is, is that we get this law passed. It is not just harmful to the brave men and women who are serving, and in some cases have been discharged unjustly, but it doesn’t serve our interests -- and I speak as Commander-in-Chief on that issue.