'Don't Ask, Don't Tell': Justice Dept. Asks Judge to Reinstate Ban on Openly Gay Troops

Obama administration asked Judge Virginia Phillips to stay order against DADT.

October 14, 2010, 12:31 PM

WASHINGTON, Oct. 14, 2010— -- The Obama administration today asked a federal judge to suspend her order for an immediate, worldwide end to the military's "Don't Ask, Don't Tell" policy, which prohibits gay and lesbian service members from openly serving.

As of now, the Department of Defense is barred from implementing the policy, and on Thursday Pentagon spokesman Col. David Lapan said, "the Department will abide by the terms in the court's ruling, effective as of the time and date of the ruling."

Judge Virginia Phillips issued the order after ruling on Sept. 10 that the policy violated the free speech and due process rights of service members.

In court papers filed Thursday, lawyers for the administration argued that while President Obama supported the eventual repeal of "Don't Ask, Don't Tell," he wanted the change to come from the legislature, not the courts.

For months, the Pentagon has been conducting a comprehensive review of the statute and how best to change the policy. Today it warned that Phillips' order of an immediate halt would be dangerous.

"The precipitous changes to military policy required by the court's injunction would result in a host of significant and immediate harms to the recognized public interest in ensuring that the nation has strong and effective military operations," government lawyers wrote.

In a separate declaration filed with the request, Clifford Stanley, the under secretary of defense for personnel and readiness, warned Phillips that her injunction forces the military to "suddenly and immediately restructure a major personnel policy" during wartime with potentially serious consequences. "The stakes here are so high, and the potential harm so great, that caution is in order," he said.

Gay rights groups, which have anticipated that the administration might appeal the ruling and seek a stay of the injunction, expressed disappointment.

"If this stay is granted, justice will be delayed, but it will not be denied," said Christian Berle, deputy executive director of the Log Cabin Republicans, a gay and lesbian advocacy group.

Dan Woods, the plaintiffs' attorney, vowed to fight any appeal. "We will fight vigorously to defend Judge Phillips' lengthy, well-reasoned decision," he said.

The groups have advised caution to gay and lesbian service members currently serving warning them not to openly reveal their sexual orientation just yet.

"We're basically recommending that service members not change anything and operate as if DADT were still in effect," said John Alexander Nicholson, who is a plaintiff in the case and runs Service Members United, one of the largest advocacy groups in the country for gay and lesbian troops.

If the policy is reinstated, some pending investigations could also be allowed to continue.

"Right now, there's still a lot that could happen," said Drew Woodmansee, an attorney representing one of the highest-ranking military officers facing discharge under "Don't Ask, Don't Tell," Lt. Col. Victor Fehrenbach. "My hope is that the government will see the writing on the wall and do the right thing and decide to let Col. Fehrenbach stay in, but until they do that I feel we can't let down our guard."

White House Legally Defends Policy It Opposes

White House press secretary Robert Gibbs has reiterated President Obama's belief that the policy is "unjust," "detrimental to our national security" and promise that it will end. He declined to say whether the president found it unconstitutional.

The best way to end the policy is for the "Senate to follow the lead of the House of Representatives," Gibbs said Wednesday. "This is a policy that is going to end. It's not whether it will end. But the process by which it will."

The House approved a repeal as part of the annual defense budget earlier this year, but the Senate failed to approve the measure in a vote last month.

"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 and a lot of revision of regulation," Defense Secretary Robert Gates told reporters on a flight to Brussels Wednesday.

The administration's position has not been well received by many advocates for gay and lesbian rights, who insist a repeal should not be put on hold.

"We had hoped that if President Obama truly believed that 'Don't Ask, Don't Tell' is wrong, particularly because it violates the First and Fifth Amendments, that he would use Judge Phillips' ruling as a means to end the policy," said Christian Berle with the Log Cabin Republicans, a conservative gay rights group.

"It is really confusing and also heartbreaking for these service members who continue to put themselves in harm's way in service to their country," said Michael Cole, spokesman for the Human Rights Campaign. "Instead of the policy being repealed we've gone through seemingly endless legal wrangling and legislative posturing that has not served our national security interests."

The administration has said it is obliged to defend the policy in court, and Obama has said he would prefer it to be repealed legislatively.

"The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged," said Justice Department spokeswoman Tracy Schmaler in a statement.

The case was brought in 2004 by the Log Cabin Republicans, which argued that the military's 17-year-old policy violates gay service members' rights to free speech, open association and due process. Judge Phillips agreed.

The Log Cabin Republicans estimate that 13,500 gay military service members have been ousted under the rules since 1994.

Phillips' decision marked the first time a federal judge had found the law unconstitutional on the grounds of due process and First Amendment violations.

Seventy-five percent of Americans say gays who disclose their sexual orientation should be allowed to serve in the military, according to a recent ABC News/Washington Post poll, up from 44 percent 17 years ago.

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