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Palm Center: President Can Halt Discharges of Gay Military Personnel

A new study by the Palm Center concludes that President Barack Obama has the power to stop discharges of gay military personnel by executive order and without the approval of Congress, should he so choose. The Center has released a "Roadmap of Political, Legal, Regulatory, and
Organizational Steps to Equal Treatment". From the Palm Center's press release:


Dadt Under the law “the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States” during a “period of national emergency.”  The statute specifically defines a “national emergency” as a time when “members of a reserve component are serving involuntarily on active duty.”

The second and third bases of presidential authority are contained within the “don’t ask, don’t tell” legislation itself. The law grants to the Defense Department authority to determine the process by which discharges will be carried out, saying they will proceed “under regulations prescribed by the Secretary of Defense… in accordance with procedures set forth in such regulation."  Finally, the law calls for the discharge of service members “if” a finding of homosexuality is made, but it does not require that such a finding ever be made. According to the study, these provisions mean that the Pentagon, not Congress, has the “authority to devise and implement the procedures under which those findings may be made.”

Read the Palm Center's blueprint here (PDF).

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Comments

  1. Too bad that Obama is too much of a gay hater to do that.

    Posted by: Eric | May 11, 2009 7:30:58 PM


  2. I included the link to this excellent study and posted a comment at whitehouse.gov. At the very least, they can READ this.

    Posted by: Terry | May 11, 2009 7:57:53 PM


  3. We just had a president that took every chance to circumvent the government to make sure he got what he wanted. I am glad that Obama isn't doing this because this is why we have elected officials in congress! We don't need another president giving a big fuck you to the will of the people every time we happen to disagree, I have already had to put up with 8 years of it and am glad that's over and done with.

    Posted by: Ryan | May 11, 2009 8:07:45 PM


  4. Eric, come on, I don't think Obama hates gays.

    Posted by: Peter | May 11, 2009 8:23:12 PM


  5. Let's say Obama reversed DADT by executive order, if a Republican president got elected in 2012 or 2016 he could (if he wanted to) reverse Obama's executive order and reinstate DADT.

    In order to kill DADT for good, Congress (which passed DADT in the first place) needs to do its job and repeal DADT.

    Posted by: elg | May 11, 2009 8:40:35 PM


  6. How is this new information?

    I certainly knew it as I was being arrested nearly 3 years ago while I sat-in at a military recruitment center because they wouldn't let me enlist.

    Posted by: Derek in Madison | May 11, 2009 10:05:31 PM


  7. This is a tough one. While I agree that in order to make the decision last, the DADT needs to be repealed by congress, Dan Choi made an excellent point in his interview with Rachel Maddow. It's the president's responsibility to make sure the military is as strong as it can be. And like it or not, we're at war (disorganized charlie-foxtrot thought it may be). We can't really afford to be discharging personal for a reason that has consistently been proven to be complete bunk.

    Posted by: Karl | May 11, 2009 10:08:50 PM


  8. There is absolutely no reason to believe that President Obama “hates gays.”

    Tying for a close second in ignorance is the curious but no less pathetic attempt to equate the entirely legal suggestions of the Palm Center with the extralegal actions of Mr. Bush and the absurd insistence that the President do nothing to protect the potential thousands of gays who would otherwise be discharged during his term[s] in office because a future president might do something else. Of course, why didn’t Robert Kennedy think of that in 1960? Why get Martin Luther King out of jail in Georgia after he was sentenced to four months of hard labor for a trumped up driving violation, where he was likely to be killed, when he’d just end up in jail again [which he did], and murdered in other circumstances [which he was]?

    There’s no fathoming the first ridiculous accusation, but, for their shallowness, the latter two can only be assumed to be motivated by a shameful attempt to provide an excuse for the President doing nothing. Is that you, Gen. Pace? Or you, Elaine Donnelly?

    Had they deigned to read the 29-page analysis by the Palm Center’s experts, they would see both a detailed explanation, with relevant statutory references, of why such actions would NOT be illegal AND the recognition that elimination of the full DADT law is dependent upon Congress acting. [If Chicken Little is so afraid of the future sky falling in regards to the office of the president, why not identically suggest that there’s no point in trying to get this Congress to repeal DADT because a future Congress could bring it back?]

    That the actions suggested by the Center treat the symptoms and not the cause is functionally irrelevant in the near term. That that treatment is vital to avoid further damage to both the lives of individual gay servicemembers AND our national security. As Lt. Daniel Choi and others have pointed out, any number of then discharged gay Arabic linguists could have translated the message intercepted on September 10, 2001, whose meaning, “Tomorrow is zero hour” was not discovered until after over 3000 Americans had been murdered in the World Trade Center, the Pentagon, and a Pennsylvania cornfield. One President Obama saves from discharge through these entirely legal actions might prevent a future terrorist attack.

    In the interim, he can return to the course of action he outlined in November of 2007:

    “As President, I will work with Congress and place the weight of my administration behind enactment of the Military Readiness Enhancement Act, which will make nondiscrimination the official policy of the U.S. military. I will task the Defense Department and the senior command structure in every branch of the armed forces with developing an action plan for the implementation of a full repeal of don’t ask, don’t tell. And I will direct my Secretaries of Defense and Homeland Security to develop procedures for taking re-accession requests from those qualified service members who were separated from the armed forces under Don’t Ask, Don’t Tell and still want to serve their country. The eradication of this policy will require more than just eliminating one statute. It will require the implementation of anti-harassment policies and protocols for dealing with abusive or discriminatory behavior as we transition our armed forces away from a policy of discrimination. That work should have started long ago. It will start when I take office. America is ready to get rid of the Don’t Ask, Don’t Tell policy. All that is required is leadership.”

    I urge everyone to call or e-mail the White House demanding these actions be immediately implemented in the interest of both justice and national security.

    Posted by: Michael @ LeonardMatlovich.com | May 11, 2009 10:28:54 PM


  9. He won't do it. He can repeal it and then implore congress to do what they need to do to stop it from happening again. But, that won't happen.

    And congress won't jump on it either because everyone there, Rs and Ds alike, know that they are not popular and a lot are on their way out. They don't want to piss off "the majority." Hell, Congress has a lower approval rating that Bush ever did...why do some of you pretend that they care at all?

    Posted by: BC | May 11, 2009 10:30:59 PM


  10. I have written to the president asking him to do the right thing and stop this wrongful discrimination. However, I no longer believe he will do this... a person who wants to achieve consensus is not one to step out and lead! I hope to be wrong, but I am losing faith in this man.

    Posted by: mIKEM | May 11, 2009 11:42:15 PM


  11. RE: Post by: elg | May 11, 2009 8:40:35 PM

    This is all the more reason to do it now and not later. The longer that gays are allowed to serve openly in the military, the longer its affect can be viewed and not just theorized about. You can bet with a Republican president or even a congressional majority it would not even be up for discussion.

    Posted by: Marc | May 12, 2009 12:32:49 AM


  12. President Barack Obama also has the power to launch a nuclear assault on China or Russia or Canada.

    But that probably wouldn't be a smart use of his power either.

    I find it hard to believe everyone at the Palm Center is under the age of 16, but their determination to repeat Bill Clinton's mistake of trying to ram through open service for gays in the military without first nurturing the trust and respect of the military brass strongly suggests to me that the entire staff must have been born after 1993.

    Their plan to have Obama circumvent DADT—now, during his first six months in office—will almost certainly bring us the same exact result it did then. Who's up for another 8 to 16 years of DADT? Anybody?

    Posted by: 24play | May 12, 2009 12:32:54 AM


  13. Well, duh.... of course the President can stop DADT... this is not news. I sure hope they didn't spend a lot of money coming up with this report.

    The problem now is the same as it was with Clinton. You you have to be willing to stand up to the military and to Congress to allow open gays in the military. Clinton didn't want to spend the political capital to do it, and I'm not sure that Obama will either. While it is obviously the right thing to do, allowing gays to serve openly in the military is an issue that is of importance to only a very very small percentage of the population. And, as with Clinton, the failure to follow up on your campaign promises may piss off the gay base but it doesn't turn us into Republicans, so the downside is limited.

    Posted by: Buster | May 12, 2009 12:37:51 AM


  14. I find it hard to believe everyone at the Palm Center is under the age of 16, but their determination to repeat Bill Clinton's mistake of trying to ram through open service for gays in the military without first nurturing the trust and respect of the military brass ...

    I'm straight and served in the Marines when DADT was enacted. Had I stayed in I'd be 'the brass' now. Or at least a Master Gunnery Sergeant.

    I like to think I'm typical of my generation: I don't care how you swing as long as you do your job. Didn't then, don't know.

    Posted by: Brian Dunbar | May 12, 2009 1:34:13 AM


  15. Truman figured this out 60 years ago.

    Posted by: Rick in Robbinsville | May 12, 2009 2:46:58 AM


  16. Mikem, I, like, you have personally written the President on this very issue. I campaigned for Obama and believed him when he campaigned on his platform of 'change we can believe in.' Change does not happen overnight, we are all adults and realize the monumental nightmare this administration inherited. Yet, with each passing day, I am beginning to fear his words to our community were only campaign rhetoric and, once more, we were sold a handful of 'magic beans.' I hold my breath and hope that my darkest fears are not going to be realized but if history is any teacher, god help us all.

    Posted by: Parker | May 12, 2009 4:13:32 AM


  17. I still like Obama more than not....but, are you all forgetting what we learned, practically back in kindergarten, about politicians?

    Posted by: JT | May 12, 2009 5:39:12 AM


  18. i admit that i was unaware of the palm cent. for those of you who do not want to bother with clicking on the link, i got the following from their website:

    The Palm Center is a research institute of the University of California, Santa Barbara, committed to sponsoring state-of-the-art scholarship to enhance the quality of public dialogue about critical and controversial issues of the day. For the past decade, the Palm Center's research on sexual minorities in the military has been published in leading social scientific journals. The Palm Center seeks to be a resource for university-affiliated as well as independent scholars, students, journalists, opinion leaders, and members of the public.
    The Palm Center is an official unit of the Institute for Social, Behavioral, and Economic Research at the University of California, Santa Barbara.

    still, one should go to the website and read the conclusions of the study. it is a good read. it serves to disabuse anyone who thinks the prez is limited by congress as it pertains to the hemorrahging of talent from the military.

    Posted by: nic | May 12, 2009 7:40:09 AM


  19. Obama has a great wishlist of things he'd like to see happen, unfortunately, it seems he has little insight on how to get there.

    Posted by: NYSmike | May 12, 2009 10:47:19 PM


  20. Karl, thanks for noting the study's underlying legal foundation.

    Marc, indeed, the Palm Center staff were all around and aware during the political drama that led to DADT. In fact, my colleague at the Center, Nathaniel Frank, wrote a book detailing the issue (Unfriendly Fire) and explaining how the very leaders who were instrumental in creating the law now admit it was literally based on nothing.

    It is with this in mind, and the recognition that there are significant political differences between 1993 and now, that makes this study and its findings worth considering.

    Indra Lusero, Palm Center Assistant Director

    Posted by: Indra Lusero | May 13, 2009 11:00:38 AM


  21. Countries that ban homosexuals from millitary:

    USA,Brazil, Cuba, Egypt Greece, Singapore, South Korea, Syria, Turkey, Venezuela, Yemen, Iran, North Korea, Saudi Arabia.

    Countries that ALLOW gays in the military (and the respective date if available):

    Australia, Bermuda, Canada (1992), Germany, Israel (1993), Italy, The Netherlands (1974 - WTF), Romania, United Kingdom, Switzerland, Uruguay.

    Which group SHOULD the USA be part of?

    Posted by: bluprntguy | May 14, 2009 5:51:01 PM


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