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Defense Dept. to Halt Some Discharges During DADT Debate?

UPDATED

Interesting NYT article this morning on the forces — "a new generation in the military, a change in climate at the top levels of the Pentagon, pressure on the president from a critical interest group, even Senator Kirsten E. Gillibrand’s anticipated Democratic primary battle in New York" — that have compelled the 'Don't Ask, Don't Tell' debate to finally begin. Also the timeline up till now.

2_dadt And the second part of this paragraph would be welcome news:

On Tuesday, in the first Congressional hearing on the issue in 17 years, Mr. Gates and Admiral Mullen will unveil the Pentagon’s initial plans for carrying out a repeal, which requires an act of Congress. Gay rights leaders say they expect Mr. Gates to announce in the interim that the Defense Department will not take action to discharge service members whose sexual orientation is revealed by third parties or jilted partners, one of the most onerous aspects of the law. Pentagon officials had no comment.

Forces Pushing Obama on ‘Don’t Ask, Don’t Tell’ [nyt]

In an editorial this morning, the Washington Post calls on Congress to act on 'DADT'.

The Palm Center has more on the announcement from Gates mentioned in the NYT article, in a release sent to Towleroad.

The Palm Center has announced that President Obama’s executive changes to the “don’t ask, don’t tell” policy, expected to be announced Tuesday, could significantly impact the lives of gay troops. The expected statements from Defense Secretary Gates and Chairman of the Joint Chiefs of Staff Admiral Mike Mullen would protect some service members from investigations based on third-party allegations and set a new standard for what constitutes reliable sources and credible information that trigger a “don’t ask, don’t tell” investigation. It is also expected that the military brass will announce changes to the adjudication of potential discharges, whose effect could be to require a flag officer to sign off on any discharge for it to move forward.

“This ‘Obama Rule’ could provide a new standard for ‘don’t ask, don’t tell’ investigations,” said Dr. Aaron Belkin, Director of the Palm Center. “Depending on how it’s implemented, the executive action taken by the President could be seismic. ‘Don’t ask, don’t tell’ has rested on the belief that the presence of openly gay service members is always bad for the military. The new Obama Rule would mean a shift in the military’s focus toward keeping gay troops, reflecting the military’s belief that they are as essential as their heterosexual peers.”

Belkin also said the effectiveness of the changes would depend on what message was sent by top civilian and uniformed leaders to the officers responsible for approving discharges. “If new discretion is being granted to two-stars, then the actual impact of the Obama rule will hinge on whether the President, the Defense Secretary, and the Service Chiefs send a clear signal that discharges are to be minimized,” Belkin said.

Full release from the Palm Center, AFTER THE JUMP...

Michelangelo Signorile appeared on CNN Saturday night with Charles Moran of the Log Cabin Republicans to discuss the "bad signals" we've been receiving on DADT since the State of the Union speech.

Also, Jacob Reitan, founder of the Soulforce Equality Ride and an activist who has tried to sign up for the military three times and been denied because of his sexuality, posted a piece in the Huffington Post over the weekend.

Watch, AFTER THE JUMP...

RELEASE FROM THE PALM CENTER....

EXPECTED EXECUTIVE ACTION WOULD CHANGE “DON’T ASK, DON’T TELL” IMPLEMENTATION
Experts Caution Against Slow Roll of Implementation

SANTA BARBARA, CA, February 1, 2010 – The Palm Center has announced that President Obama’s executive changes to the “don’t ask, don’t tell” policy, expected to be announced Tuesday, could significantly impact the lives of gay troops. The expected statements from Defense Secretary Gates and Chairman of the Joint Chiefs of Staff Admiral Mike Mullen would protect some service members from investigations based on third-party allegations and set a new standard for what constitutes reliable sources and credible information that trigger a “don’t ask, don’t tell” investigation. It is also expected that the military brass will announce changes to the adjudication of potential discharges, whose effect could be to require a flag officer to sign off on any discharge for it to move forward.

“This ‘Obama Rule’ could provide a new standard for ‘don’t ask, don’t tell’ investigations,” said Dr. Aaron Belkin, Director of the Palm Center. “Depending on how it’s implemented, the executive action taken by the President could be seismic. ‘Don’t ask, don’t tell’ has rested on the belief that the presence of openly gay service members is always bad for the military. The new Obama Rule would mean a shift in the military’s focus toward keeping gay troops, reflecting the military’s belief that they are as essential as their heterosexual peers.”

Belkin also said the effectiveness of the changes would depend on what message was sent by top civilian and uniformed leaders to the officers responsible for approving discharges. “If new discretion is being granted to two-stars, then the actual impact of the Obama rule will hinge on whether the President, the Defense Secretary, and the Service Chiefs send a clear signal that discharges are to be minimized,” Belkin said.

Recent media reports have suggested the Pentagon leadership may promote a lengthy process of implementation that would unfold over several years, a prospect that Palm Center experts found problematic. Dr. Nathaniel Frank, Senior Research Fellow at the Palm Center and author of “Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America,” said the impact of the expected announcement would depend on an operational timeline that emphasizes strong leadership and swift implementation.

“The evidence is overwhelming that a quick turnaround on policy change minimizes disruptions to unit cohesion and morale,” he said. “If this is the goal, there should be no slow-rolling of the implementation process.” Frank pointed to the 1993 Rand Corporation report on implementing gay service that stated that openly gay service was entirely workable, but that a successful new policy must be “decided upon and implemented as quickly as possible” to avoid anxiety and uncertainty in the field. It said it was crucial “to convey a new policy that ends discrimination as simply as possible and to impose the minimum of changes on personnel.” Rand then outlined a Standard of Professional Conduct to guide interpersonal behavior that emphasized a uniform code of behavior for all service members.

“I’m encouraged by the apparent movement on this issue by the President and the military,” Frank said. “I’m also hoping they’ve reviewed the research on implementation and will create a plan that reflects the President’s commitment to ending this policy in 2010.”

In 1995, President Clinton lifted a ban at the CIA, which reversed an Eisenhower policy denying security clearances to gay agents. In 1992, a court ruling in Canada allowed gays to serve openly in the military nearly immediately. And in 1999, a court ruling forced the British military to allow openly gay troops within months. That transition, according to Frank, was implemented quickly and decisively, which is consistent with what is suggested by implementation research. “The CIA and foreign militaries provide successful models for implementing a new policy to allow openly gay service,” said Frank. “Each of them provided clear conduct rules, strong leadership and change on a short, definite timeline.” A 1993 General Accounting Office (GAO) report on the “Policies and Practices of Foreign Militaries” concluded that the smooth transition was attributed “to the military leadership’s support of the new policy and the military’s ability to keep a low profile on the issue.”

Christopher Neff, Deputy Executive Director at the Palm Center, noted the distinction between the military’s policy on openly gay service and the Congressional law, which remains unchanged. “The statute, 10 U.S.C. 654, remains on the books and Congress is responsible for changes to the law,” Neff stated. He advised service members to consult with Servicemembers Legal Defense Network with any questions they may have about how changes to the policy might affect them.

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Comments

  1. Sorry, not good enough.
    If Obama had any courage at all, he could sign an order to do away with DADT.

    Posted by: Zach | Feb 1, 2010 8:12:36 AM


  2. Agree with Zach-
    the lives ruined already number in the thousands.

    Posted by: NIck | Feb 1, 2010 8:22:02 AM


  3. This is yet another stalling tactic from Obama and the Democrats. They can see gay support slipping away from them, and are desperate to stem it. Well, I've got news for them. We will NOT tolerate anything less than a complete repeal IMMEDIATELY. No ifs, no buts.

    If Obama and the Democrats don't act NOW, we will desert them at the next Congressional election due in November this year.

    Posted by: jason | Feb 1, 2010 8:30:51 AM


  4. @Zach

    No he can't. He can sign an executive order for a stop loss. And even then, I believe that Congress could overturn that executive order with 2/3 majority in both houses (I think I'm right about that). Not that Congress would do that, but they could.

    DADT needs to be repealed by Congress.

    And even though Harry Truman did sign Executive Order 9981 racially desegregating the Armed Forces, it actually took about 5 or 6 years to implement EO.

    So...this seems to be a half-ass stop loss order. Which is half-ass progress, I suppose.

    Posted by: Chitown Kev | Feb 1, 2010 9:23:38 AM


  5. Michael M: I know you're going to read this and I know that you are somewhat an expert on this issue.

    Please, without emotion, I need 5 talking points on the actual legal things the President can do to end DADT. An executive order not being one of them. The political realities are never going to allow for for that.

    I need these points asap please.

    Btw, men, DADT is horrible for straight women in the service as well. If a guy wants to sleep with you and you refuse, all he has to do is go to your commander and say you are a Lesbian and the witch hunt begins. A female ends up sitting at a desk with no chance of promotion until the investigation is over. You can probably only endure so much of that until you consent to rape.

    Posted by: DEREK WASHINGTON | Feb 1, 2010 10:28:02 AM


  6. Kev, Congress can't overturn a stop loss order unless they repeal the law granting the President the stop loss authority. That means Congress has to pass the bill (and we know this Congress passing anything requires a miracle). The President would almost certainly veto it, which would then require a 2/3 majority of both houses to override the veto, thus making the bill law.

    That said, a stop loss order should have been issued months ago. It is the only sure fire way of guaranteeing the eventual repeal of DADT since a stop loss would allow the tens of thousands of GLBT servicemembers to come out and server openly. Once the conditions that allow the stop loss order to be issued end, they'd be left with the prospect of discharging those tens of thousands of openly GLBT members, which would significantly and adversely effect our military readiness and morale.

    Posted by: Craig | Feb 1, 2010 11:11:58 AM


  7. @Craig

    Thanks.

    @Derek

    Well, that would be the "Don't Pursue" part of DADT that's rarely talked about but which President Obama seems to be amending here.

    till, I would like to read the specifics of the immediate relief they are proposing herebefore I pass judgment one way or the other. Based on what Andy's story says is being proposed, that scenario with the false accusations would need a much higher burden of proof. Also, situations that resemble Victor Feherbach's (sp?) may be helped by the immediate relief that is being proposed here.

    Still, a full-blown stop loss is needed.

    Posted by: Chitown Kev | Feb 1, 2010 11:26:31 AM


  8. While I don't quite understand why it should take "months or years" to implement a transition with the DoD, there are ALREADY thousands of G/L military personnel. Since DOMA is still in-place, they don't have to change any of the housing benefits, on-base housing or family benefits policies. And they certainly don't need to establish any quota targets or diversity goals.

    I can see where they'll want to tighten-up and clarify the sexual-misconduct rules and ploicies, although they have already started doing-so dealing with heterosexual haressment, misconduct and on-duty pregnancy in combat zones. And the various branches already have fraternization and anti-haressment policies in-place that just need to be amended to insert "gay" in their implementation.

    The whole shared-showers, close quarters and bunking arrangements is a smoke screen; since they ALREADY HAVE G/L personnel in the services, on-base and in combat, etc...

    Posted by: Ted B. (Charging Rhino) | Feb 1, 2010 11:47:54 AM


  9. @ Ted:

    With respect, there is NO need "to tighten-up and clarify the sexual-misconduct rules and policies." They are definitive already and violations, gay or nongay, punishable under the UCMJ.

    @ Kevin:

    Yes, Craig’s belief is reasonable that Congress could not assemble the supermajority required to successfully override the President’s Executive Order in this case [needed twice, in fact, as the President would, assumingly, veto their initial attempt]. In addition to the issue of member disarray he raised, consider that Congress did not override Truman’s Executive Order to racially integrate the military even though racism was FAR more pervasive and openly virulent in the Congress and their constituencies of 1948 than homophobia in the Congress and constituencies of 2010. And, despite Congressional and public racism during later administrations, neither was the Executive Order of President Eisenhower desegregating schools nor those of Presidents Kennedy and Johnson barring racial discrimination in federal housing, hiring, and contracting overturned by Congress.

    “Don’t Pursue” is not source of the changes in application of the policy the Palm Center is predicting. DP is entirely about the military INITIATING investigations on a whim without any justification save their own desire to discover gays. More colloquially, it means no “witch hunts.”

    @ Derek:

    Thank you for your question, but you have assumed a situation that bars ANY meaningful answer. If your assertion is correct that “political realities are never going to allow for” an Executive Order freezing discharges pending repeal, then NONE of the options I could suggest, based on the options described by the Palm Center above and elsewhere, are viable either because they EQUALLY depend upon the exercise of LEGAL authorities of the President, Secretary of Defense, and local commanders. In other words, whatever opposition homophobes in and out of Congress would attempt to incite in response to one they would attempt incite in response to the other.

    For just like many in Congress under Truman, Eisenhower, Kennedy, and Johnson claimed that their primary reason for objecting to those Presidents’ Executive Orders [and legislative initiatives] to advance racial equality was that the Executive branch was exceeding its authority [violating “states rights,” illegally forcing “social experimentation,” etc.], when it was actually race hatred, homophobes will, as they did in 1992/3 in response to Clinton’s efforts to lift the ban, falsely cry "legal foul" for they hate gays more than they love the law. Saying that they will and saying they could SUCCEED are two very different things.

    While a variety of factors contributed to the failure of Congressional opponents to override the race-related Executive Orders of those four Presidents, the main reason was the strength of commitment and will those Presidents showed. They publicly articulated their motivations, which included not just moral right but practical reason. Put most simply, they WILLED it into reality. Obama COULD do the same.

    Though some have argued differently, the legal authority of the President through Article II, Clause 2, Section 1 of the US Constitution [“Commander-in-Chief”] and 10 United States Code § 123 (“Authority to Suspend Officer Personnel Laws During War or National Emergency”) and 10 United States Code §12305 (“Authority of the President to Suspend Certain Laws
    Relating to Promotion, Retirement, and Separation”), and the authority of the Secretary of Defense under 10 United States Code § 654 [“DADT”] Section 654(b) ["A member of the armed forces shall be separated from the armed forces under regulations PRESCRIBED BY the Secretary of Defense....”] are just as unequivocal in LEGALLY determining HOW and IF DADT is implemented as the legal authority of the Congress to pass laws because 12305, 123, and 654 ARE laws PASSED BY Congress.

    Denials of that are NOT LEGAL arguments but POLITICAL ones, and NO ONE on “our side” should be giving an inch to our political enemies. Surrender is unacceptable!

    The situation is not analogous to the “political reality” regarding Candidate Obama’s promises regarding repealing DOMA. That remains, in the short term, “a dog that won’t hunt,” but ending DADT by a combination of Executive Order and legislative repeal is, IF aggressively framed both in terms of moral/Constitutional right AND national security, is not just a dog that will hunt but one that can quickly and mortally chew its opponents to bits.

    Obama has been compared to FDR, but he’s failed to be the bold-“Dare oppose me!”-leader that Roosevelt was. FDR repeatedly asked more from Congress than he expected to get because he understood that if the reach was not long the grasp would be too small.

    Surely Pres. Obama could succeed at reaching for more and more quickly regarding DADT with this Congress and public as he has in relation to sending more troops, costing billions of tax dollars, to Afghanistan when the majority of the public and many Congressional Democrats oppose not just escalation but our being there at all. Freezing discharges wouldn't fill a sing body bag.

    As for the Palm Center’s predictions of what Secretary Gates might be intending, the theoretical limits on what “third-party” accusations could be accepted as “credible information” arise from the same SOD authority to prescribe the DADT process as the requirement for “credible information” itself. While seeming more “humane,” it would create an entirely new, layer of subjective interpretation by the local commander and fail to eliminate the main problem now: non-homophobic commanders frequently decide that whatever information they’ve gotten on a particular servicemember is not “credible” and choose not to start the discharge process while homophobic commanders always see “credible” information and do.

    The other prediction, requiring flag officers to sign off on discharges, is but a variation of what happens now as discharges can be appealed by the servicemember through the chain of command up to, e.g., the Secretary of the Army if that is his/her branch. I've yet to see an additional benefit.

    While tinkering with discharge policies is a third prong attack [along with an EO and repeal] better than no attack at all, MUCH more could be done. As Palm reported last summer, the SOD could LEGALLY

    “Invoke his authority to retain all service members identified under don’t ask, don’t tell, ‘who are otherwise eligible for continued service, for a limited period of time in the interests of national security.’ The ‘limited period’ would be the time it took Congress to repeal or amend the law.” This would save both Dan Choi and Victor Fehrenbach, both being past the point where information was found “credible” and they were recommended for discharge yet to be approved under current policy.

    Other legal change they called for was that the SOD “require that NO [new] INVESTIGATIONS BE INITIATED WITHOUT HIS SPECIFIC APPROVAL. This would concentrate authority to investigate with the defense secretary rather than individual commanders, ‘reducing inconsistent application’.”

    That would also be a “slow walk” approach to ending discharges entirely. Such strategies are what we should be DEMANDING rather than tolerating what appears to be happening despite the President’s goal: baby steps constituting a “slow walk” BY THE PENTAGON to stop the FEWEST number of discharges and delay repeal itself indefinitely.

    Tell me again, WHO is running this country?

    Posted by: Michael @ LeonardMatlovich.com | Feb 1, 2010 4:18:39 PM


  10. @Michael: Thanks.

    Posted by: DEREK WASHINGTON | Feb 2, 2010 3:31:25 AM


  11. @Michael

    Lawd, your ESSAYS!...

    No, I wasn't suggesting that Congress WOULD overturn a stop loss EO. I was only trying to say that there was a constitutional process by which Congress COULD overturn any EO. Congress defintely does not have the supermajority to do so now. In fact, I do not think that Congress will have the supermajority to do it after the midterms.

    (It is an interesting question as to whether Congress may have or would have overturned a Clinton executive order stating that gay and lesbian troops could serve openly.)

    On that front, add that Congress did not overturn Franklin Roosevelt's EO 8802 in 1941 (?) prohibiting racial discrimination in the defense industry (though the Southern Dems did some concessions fron President Roosevelt in the overall "teeth" of the enforcement of the EO.)

    Posted by: Chitown Kev | Feb 2, 2010 9:51:22 AM


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