Last night, as the compromise deal on "Don't Ask, Don't Tell" repeal appeared to offer an opportune legislative window to ditch the discriminatory ban on gays serving openly in the military, some members of the LGBT community were hailing it, while others were throwing up warning flags.
Read the full language of the repeal amendment above, which includes the following conditions:
"This includes 'a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff' that all three considered the recommendations of the working group, the Defense Department prepared the necessary policy and regulatory changes and the changes are 'consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.''
As such, and as separately noted in a subsection of the language, the change would have 'No Immediate Effect on Current Policy.' The proposed amendment specifically notes that it does not ''require the furnishing of benefits in violation of'' the Defense of Marriage Act."
"Some gay rights advocates complained that too many conditions were attached to the repeal. But the president of the Human Rights Campaign, Joe Solmonese, said the deal 'puts us one step closer to removing this stain from the laws of our nation.'"
Or does it?
Plenty of people are saying that the compromise is a risky one.
Americablog's analysis is that it leaves open the possibility that DADT could remain in place:
The House and Senate will pass legislation this year that provides that "Don't Ask, Don't Tell" will be considered repealed if and when the following happens:
1. The Secretary of Defense receives the "study."
2. The President, the Secretary of Defense, and the Chairman of the Joint Chiefs certify that:
– They have considered the recommendations in the study
– DOD has prepared the necessary policies and regulations needed to implement a repeal
– The implementation of the repeal is consistent with the standards of military
readiness, military effectiveness, unit cohesion, and recruiting and retention.
Current policy will remain in place until the above conditions are satisfied. And if the above conditions are never satisfied, the current DADT policy will remain in place.
There is nothing in the legislation that says the repeal must happen.
Activists Dan Fotou, David Fleck, and Alan Bounville from Queer Rising have launched a campaign against the repeal compromise. They write, similarly, that it gives politicians cover while leaving those most at risk — service members — open to continued discrimination without a timeline for ending it:
WHAT WE KNOW:
The repeal language will do several things that are EXTREMELY UNFAVORABLE for our LGBT servicemembers. It will:
1. Eliminate any kind of timeline to implement the repeal
2. Put the decision-making power solely in the hands of the President, Chairman of the Joint Chiefs of Staff and the Secretary
3. The decision as to "when" will presumably become a matter of "if"
4. Repeal will be based on certification that the new law will not have a negative impact on readiness, recruitment, retention and other key factors that affect the military. (What one considers "negative impact" is subjective and leaves plenty of room for indefinite delay on repeal)
5. Putting the decision making power solely in these hands will eliminate any oversight and accountability, as the Pentagon is not an institution that can be lobbied or voted out of office – WE LOSE ALL POWER TO PERSUADE
6. The President can now pass the buck and blame the Pentagon
7. This repeal provides cover for November elections as the buck has now been passed, and those running for office can say "I voted to repeal DADT" and that's all it will take to get the "gay vote".
8. Worse of all, and the greatest concern is the REMOVAL of any non-discrimination language from the repeal language – essentially, returning authority for open service by gays and lesbians back to the Pentagon (this is code for allowing discrimination based on sexual orientation to factor into discharge but to effectively deny that it played any part of the discharge. Ironically, DADT at least provides a reason for discharge, whereas this absence of a discrimination policy will afford the military the right to discharge because of sexual orientation, but cloaked in a lack of "readiness".)
We must do all we can to insist that the repeal be a full repeal – not another bogus attempt at pacifying our community.
Still, advocates in the military community appear to be fully on board with the language.
"Although the language was not a passionate case for repeal, Aubrey Sarvis, the executive director of the Servicemembers Legal Defense Network said on Monday evening of the administration's letter, ''The bottom line is in the last sentence.''
Orszag concluded his letter, ''The Administration therefore supports the proposed amendment.'' …
Aaron Belkin, the director of the Palm Center, said via e-mail on Monday night, ''This policy has been incredibly difficult to dismantle, and only Presidential leadership could rip it down. That's what we got today.''
The Palm Center has been a leading source of academic research on the policy over the past decade, and Belkin, who has been skeptical of the chances of repeal this year, said, ''The White House showed real leadership today in dismantling 'Don't Ask, Don't Tell.'''
As Solmonese said, ''Today's announcement paves the path to fulfill the President's call to end 'Don't Ask, Don't Tell' this year and puts us one step closer to removing this stain from the laws of our nation."
Sarvis concurred, saying, ''The amendment that's going to be fully aired tomorrow is going to put us on the path to repeal.
''When 'Don't Ask, Don't Tell' is fully repealed, it is my hope that the White House would issue an exec order . . . with respect to sexual orientation,'' he said. ''The reality is that the nondiscrimination policies that are in place in agencies have all been done by exec order since 1948.''
In a statement released Monday evening, Servicemembers United executive director Alex Nicholson said, ''We have been making the case to White House staff for more than a year now that delayed implementation is realistic, politically viable, and the only way to get the defense community on board with repeal.''
Nicholson concluded, ''[W]e are glad to see the community and now the administration and defense leadership finally rally around this option.''
About the White House support, Sarvis said, ''I think it makes a difference to a number of House members.'' About the Senate, however, he was more circumspect, saying, ''I'm not at liberty to say what Senator that makes a difference to.''
Said Richard Socarides, attorney and former advisor to President Clinton, in a statement to Americablog:
"I know we are all thrilled tonight that there may be a break in the logjam over DADT legislation. And it is always important to keep focused on the art of the possible. This has been a long fight and it is not over.
"I am concerned, however, that the bill released tonight is being mis-characterized. I was expecting to see a bill providing for repeal of DADT now with delayed implementation. As far as I can tell, the proposed legislation instead makes repeal conditional on a future discretionary certification which may or may not occur.
"It may be the best we can get, and if so, I say let's grab it. But it is not repeal with delayed implementation. It's conditional future repeal."
Should the LGBT community just swallow what we can get at this point? And if not, how to ensure the concerns made by skeptics in the LGBT community are met? These are valid questions.