Just What the “Fierce Advocate” PlannedWhile I am happy that Senator Gillibrand is doing this, it is unfortunate that our Fierce-Advocate-in-Chief sits back and continues to let injustice rule the day. I imagine the Obamapologists will say it is all part of the Great One’s master plan for bringing equality to the LGBT community. I call BS. I need to SEE him do heavy lifting, not imagine that it is happening behind the scenes. Obama could have done this on Day One but he was (and is) too afraid to expend political capital. Change I can’t believe in…..
A Disappointed Democrat from Texas

But…An 18 month moratorium isn’t a “durable” solution!
It’s even less durable than a presidential order which would have lasted for 4 years.

You have to wonder if DADT repeal has a snowballs chance in hell of passage.
There are 255 Democrats in the House and 60 in the Senate. Less than half, 153 according to SLDN, signed up as sponsors to repeal Clinton’s deadly law. No Republican cosponsor can be found in the Senate and I don’t if the 3 House Republicans who supported repeal in the previous Congress got reelected or not.
The House Democratic leadership is dead set against repeal. According to an article in the Bay Area Reporter

“A military newspaper reported last week that House Democrats blocked consideration of two measures to repeal the anti-gay “Don’t Ask, Don’t Tell” policy just days before LGBT veterans and their supporters marched to the White House in protest of the ban on gays serving openly in the armed services.
Congress seems intent on delaying any debate” on the anti-gay military policy known as DADT, according to a report in the June 26 edition of Military Times. The paper said the House Rules Committee blocked consideration of two repeal amendments to the defense authorization bill.”

Obama, who pretends to be opposed to DADT, sat in the Senate for years and never quite got around to sponsoring a bill to repeal DADT.  Nor did Hillary Clinton, his primary opponent.
DADT transformed old policies into law and because of that military  it’s not going away easily. Bush and Obama’s Secretary of War Gates admits that money is still being spent to vigorously enforce DADT. Like DOMA, it’s part of Bill Clinton’s legacy of bigotry. It was voted in by an overwhelming majority of bigots in the Senate, 77 to 22, and 273 to 135 in the House, with only a scattering of Democrats and even fewer Republicans voting against it.
Clinton wants’ to deny his bigotry from time to time. Here’s a YouTube snippet from CNN where Clinton vainly tries to rewrite history and defend himself from the widespread and growing belief that he’s just another bigot like Bush and Obama.
But more and more often these days Clinton just accepts the fact that most of us consider him a bigot. He unashamedly crossed a trade union and GLBT picket line to speak at the Manchester Grand Hyatt San Diego on Feb. 15.  Cleve Jones and other trade union and LGBT activists tried to present him a petition with 30,000 names collected on short notice demanding that he the honor the union/GLBT boycott. He ignored them, pigheadely refusing to even speak with them.
For bigots on the make money comes first.

Many Implementation Questions Remain to Be AnsweredAs someone else pointed out, this is hardly a “durable” solution.  And while I applaud Gillibrand for wanting to do something (she’s the first Senator, after all, to actually acknowledge on the record that she is seriously considering a bill), there are several questions that should be addressed:
1. What happens to service members who are somehow “outed” during the 18-month window if the ban is reinstated?  Do they enjoy a permanent reprieve from dismissal?  Or will they be retroactively discharged?
2. What would be the timeline for beginning the 18 month window?  The Joint Chiefs and Pentagon have said they need “time to prepare” for lifting the ban.  Do they need 6 months to get ready for 18 months?  Or, will the halt to discharges be immediate?
And, just as significantly, this measure (while better than a proposed executive order, which has numerous, troubling constitutional questions attached to it), also puts the ban, more than ever, at the changing whims of Congress.  Blocking discharges 18 months at a time then makes it easier than ever to reinstate the ban if Congress changes hands . . . blue dog Dems get nervous . . . or, God forbid, some piece of news about an LGBT service member sends lawmakers into a tizzy.  (You can bet people like Elaine Donnelly will look for any story to take out of context and try to bully Congress into putting a ban back on the books.)
The best solution is a complete, non-temporary repeal.  And the question is:  If Congress has the courage (if it really takes any at this point) to vote for a temporary halt, why won’t they vote for a permanent repeal?
This solution isn’t just short-term, but it’s a bit short-sighted, too.  And while the intent is admirable, the devil is in the details of the implementation.
It’s time to call out Congress:  Equality in year-and-a-half chunks doesn’t cut it for service members who bravely enlist to serve for years and years.  End the ban once and for all.  We need a solution that is durable and permanent.

Actually, it’s a very good solution.But not without some element of risk. A lot of people come out, they serve the 18 months, nothing happens.
It’s the end of the story.

It still doesn’t address the military cultureThe senior NCO and mid-level officer ranks are heavily infiltrated by fundies, and too many contract support services are also run by them.  I still think that is why Rahm and Congress are so afraid to do anything.  These mid-level career people have gotten through to the top generals and threatened mass resignations and retirements if the ban is lifted.  The big shots are afraid that their ranks will be decimated in the middle of two wars.  There have to be plans in place ready to implement to do major sensitivity and inclusiveness training to keep the fundies in check for the change in the law to be successful.  They need to be doing that now and not wait until later.

Wow! Sign me back up!A whole 18 months where I don’t have to hide and be afraid of losing my job, or of being raped as blackmail, only to get kicked out after the expiration date because those cowardly fuckstains in Congress and the White House refuse to move past 1993? Well golly gee whillikers, Batman, I’ll get right on that reenlistment paperwork! OH BOY!! /snark

Well, it WOULD be the end of the storyif the policy was based on anything rational. Assuming that DADT’s proponents will suddenly see the light of day and start acting reasonably seems like a vain hope, at this point.  DADT repeal has a higher approval rating than Obama himself, and he still won’t do anything about it, and neither will his Democratic pals in Congress.

How do people attack this…and yet continue to support Obama signing an executive order that is equally limited? An EO does not remove the law. The next GOP president could just as easily withdraw the order.
This is precisely why the President is correct that CONGRESS must change the law.
Thsy should not spend time writting letters or pushing for a moratorium. They have it within their ability to simply eliminate the law entirely.

Anything less than a repeal by Congress…is easily undone by the next President. Remember, a clear majority of Americans supported stem cell research yet Bush put a funding ban in place anyway to appeal to his narrowminded backers.
A GOP President could easily gain points with their conservative base by repealing an executive order. It would cost them nothing since voters (especially those likely to vote Republican) don’t feel strongly about this.  

WHICH “numerous, troubling constitutional questions”?
1. One had thought that the moment that no less than Senate Majority Leader Harry Reid, not given, last time I looked, to throwing Molotov cocktails at the Constitution, said that he hoped the President would “administratively” stop discharges until Congress repealed DADT, that others would stop repeating the fiction regarding such action herein expressed as “numerous, troubling constitutional questions”….aka Excuse #427 for Obama Betraying His DADT Promises. But no.
Shortly thereafter, when 77 members of Congress wrote the President urging him to do something similar, we thought, “Ah, now the 427 Naysayers will abandon such nonsense.” Alas….
2. “Federal law recognizes that the President and Congress share authority to govern the military. In fact, by law currently in effect, CONGRESS HAS ALREADY GRANTED THE PRESIDENT AUTHORITY with respect to military promotions, retirements, and separations in a time of national emergency. This authority includes the power to suspend laws such as 10 U.S.C. § 654. [DADT]
Under 10 U.S.C. § 12305 (“Authority of the President to Suspend Certain Laws Relating to Promotion, Retirement, and Separation”), CONGRESS GRANTS THE PRESIDENT AUTHORITY TO SUSPEND ANY PROVISION OF LAW relating to the separation of any member of the armed forces who the President determines is essential to the national security of the United States, during any period of national emergency in which members of a reserve component are serving involuntarily on active duty.” – How to End “Don’t Ask, Don’t Tell” – A Roadmap of Political, Legal, Regulatory, and Organizational Steps to Equal Treatment, Palm Center
University of California, Santa Barbara
3. “The “don’t ask, don’t tell” policy itself, AS CODIFIED BY CONGRESS, also grants authority to the Department of Defense to determine the procedures under which investigations, separation proceedings, and other personnel actions under the authority of 10 U.S.C. § 654 will be carried out. Section 654(b) states: “A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulation.” Under this section, the Secretary of Defense has discretion to determine the specific manner in which “don’t ask, don’t tell” will be implemented. Furthermore, the statute does not direct the military to make any particular findings of prohibited conduct or statements; it only states that members shall be separated under regulations prescribed by the Secretary IF such findings are made. The Secretary has broad authority to devise and implement the procedures under which those findings may be made.” – ibid
4. Some have suggested that some disgruntled homophobe would file a lawsuit to stop such an action. It could not be more obvious that the courts would dismiss such a suit for both lack of “standing” and because of the combined Constitutional powers of Congress and the President.
5. Why anyone who genuinely cares about gays continuing to be discharged…which is happening even as you read this…and about our nation’s security would object to ANY LEGAL solution, however “temporary” is beyond me. Let’s say one came upon a multi car traffic accident shortly after a group of Boy Scouts did who are using their scarves as tourniquets to stop the victims from bleeding to death. Someone is screaming at them: “You musn’t do that. It’s not a permanent solution. And you’re not doctors. Stop!” What would you say to such a person insisting that others be allowed to bleed to death?
6. The “permanent” argument is ridiculous on its face because nothing legislative is necessarily permanent. Even the Constitution can be changed by amendment. DADT repealed by this Congress could be passed again by the next Congress or one after that.
But that is no more reason to NOT demand repeal as soon as possible any more than there is reason not to demand a Congressionally empowered interim freeze on discharges by the President.

As if you cared…
The “permanent” argument is ridiculous on its face because nothing legislative is necessarily permanent. Even the Constitution can be changed by amendment. No less than a future President undoing something this one did, DADT repealed by this Congress could be passed again by the next Congress or one after that.
But that is no more reason to NOT demand repeal as soon as possible any more than there is reason not to demand a Congressionally empowered interim freeze on discharges by the President.

Read:
Why can’t you just leave Britney er Barack alone????!!!

There’s a dfference between regulation changes & executive ordersWhile the commander-in-chief does have authority on military matters, in the case of “Don’t Ask, Don’t Tell,” Congress actually took that authority away, and codified the ban into federal law.  Prior to 1993, it was part of the UCMJ, which the President does have the ability to change and control. That has not been the case since 1993, however, when lawmakers made the gay ban the purview of the legislative, and not executive, branch.
There has never – not once – been an instance where a President has signed an executive order to over-turn, or stop implementation, of a Congress law.  That’s because of the separation of powers.  And I have to think that even the fiercest supporters of repealing the military’s ban would pause and think twice about setting a precedent wherein the White House has the ability – via executive order – to usurp their authority.  It does, in fact, set off a number of constitutional questions about the separation of powers.
What the 77 Members of Congress, who signed a letter several weeks ago, proposed is NOT an executive order.  They have suggested that the President modify the implementing regulations of “Don’t Ask, Don’t Tell,” which he still maintains the authority to do.  Under that premise, the commander-in-chief was essentially “re-define” what is asking and telling and order the armed forces to implement the policy in a different way than has been done over the past 15 years.  That is very different, from a legal perspective, than halting a Congressional law completely.  
During the Bush (II) administration, there were stop-loss orders, via executive order, that prevented discharges . . . but they specifically noted that gay discharges should continue.  Why?  Because those discharges – unlike every other discharge – are mandated by a Congressional law.
It’s important to note that changing implementing regulations is within the authority of the President, but there is a legal question as to whether an executive order to stop a Congressional law altogether is or not.  
The 77 Members of Congress did not suggest an executive order, but rather a change in implementation regulations.  There is an (important) difference.  
(And Senator Reid’s proposal – for an “administrative” solution – also does not refer to an executive order.  Administrative changes, in the military, involve changing regulations, not Congressional law.)

you are just wrong on thiswhen congress passed the DADT legislation, they INCLUDED IN THAT LEGISLATION the authority for the president to suspend discharges by executive order.  In fact, it’s been done before.

and full repealfull repeal will take some time, so it makes sense to temporarily suspend discharges while waiting for the full repeal.  The full repeal should be able to be complete in the 18 month window.

You prove you don’t know what you’re taking about…
1. The policies banning gays in the military before DADT were NEVER a part of the Uniform Code of Military Justice. The UCMJ then, and now, only criminalized ACTS of “sodomy”…for both gays and nongays. Both pre and post DADT gays could present a letter signed by God and notarized by Jesus Christ declaring them virgin Marys and they could/can still be discharged.
[However, CANDIDATE Obama had the prescience to understand that, in order to make gays entirely safe, repeal of DADT would need to be followed by removal of the sodomy ban in the UCMJ.]
2. You repeatedly and ridiculously contradict yourself. At the same time you claim Congress has ultimate authority re the laws they pass you declare that YOU are above Congress in denying THEM the power to give authority to the President to do whatever.
Try reading 10 U.S.C. § 12305… the LAW that CONGRESS PASSED…more slowly, out loud if it helps [annotation mine]:
“Authority of THE PRESIDENT to SUSPEND CERTAIN LAWS RELATING TO Promotion, Retirement, AND SEPARATION. Notwithstanding ANY other provision of law [INCLUDING DADT], during any period members of a reserve component are serving on active duty pursuant to an order to active duty under authority of section 12301, 12302, or 12304 of this title, THE PRESIDENT MAY SUSPEND ANY PROVISION OF LAW [INCLUDING DADT] relating to promotion, retirement, OR SEPARATION [AKA DISCHARGES] applicable to ANY MEMBER OF THE ARMED FORCES [INCLUDING GAYS] who THE PRESIDENT DETERMINES is essential to the national security of the United States.”
That is what is known colloquially as a “blank check” and cashing it in the form of stopping discharges during this Congressionally-defined time of “national emergency” is NOT overriding ANY law but IMPLEMENTING ONE. It is CONGRESS that gives him that power. If THEY had wanted to prevent him from suspending the separation of gays they would have WRITTEN THAT INTO 10 U.S.C. § 12305…but they did not.
“The statutory authority that Congress has given to the President means that there is no need to decide broader constitutional questions.” – The Palm Center.
3. Neither do you accurately describe the actions during the reign of George Bush fils.
Amplifying [or ignorant of ] 10 USC 12305, after 9/11, President Bush signed executive Order #13223 that authorized the individual service branches to initiate a stop-loss which allowed them “to suspend certain laws relating to promotion, involuntary retirement, and separation” of military personnel.
Likewise, it contained no “EXCEPT FOR GAYS” limitation; no reference to DADT.
True, at various times, spokespersons for the Pentagon claimed that they were absofuckinglutely following the orders of Congress and discharging all gays, but their actions and procedural manuals proved they weren’t [and aren't].
In the “Army Commander’s Handbook,” updated in 1999 [SIX YEARS AFTER DADT] and still in effect, under the criterion of homosexuality, it says: “if discharge is not requested prior to the unit’s receipt of alert notification, discharge isn’t authorized. Member will enter active duty with the unit.”
“A 2004 [11 YEARS AFTER DADT] Palm Center study of gay and lesbian troops who fought in Iraq and
Afghanistan found that, among those studied, most service members were out to some or most of their peers, often including their superiors.” – http://www.palmcenter.org/
publications/dadt/gays_and_lesbians_at_war_military_service_in_iraq_and_afghanistan
In classic Military Speak in which Up is Down and Black is White, in 2005 [12 YEARS AFTER DADT], Kim Waldron, spokesperson at the U.S. Army Forces Command at Fort McPherson, acknowledged publicly that the Pentagon was sending openly gay service members into combat in Iraq: “The bottom line is some people are using sexual orientation to avoid deployment. So in this case, with the Reserve and Guard forces, if a soldier ‘tells,’ they still have to go to war and the homosexual issue is postponed until they return to the U.S. and the unit is demobilized.” Talk about having it both ways.
4. How is “changing implementing regulations within the authority of the President” but regulations that include NOT discharging gays by not, e.g., initiating an investigation that could reveal one’s being gay not within the President’s authority?
5.  Not apparently content to declare that you understand Congress better than Congress does, you also contradict the staff of Sen. Reid.
“A Democratic aide later clarified that Reid was speaking about the possibility of using AN EXECUTIVE ORDER TO SUSPEND DISCHARGES or perhaps halting enforcement of the policy by changing departmental regulations within the Department of Defense.” – The Advocate, June 15, 2009.  

Deploy Elaine DonnellyElaine Donnelly needs to be deployed to Afghanistan or Iraq in an all gay/lesbian platoon and then we would really see how important it is to her to uphold and continue DADT.

I concur with the Washington Post editorial board:” . . . the political heat Mr. Obama would face for doing so without first getting the military and key congressional constituencies on board would be intense.” . . . “So gay rights advocates shouldn’t be looking for ways to get around existing policy; they should be looking to change it without evasion.”
http://www.washingtonpost.com/…
Congress gave the President authority to temporarily suspend discharges in a time of national emergency.  It did not give him the authority to suspend a Congressional law simply because he disagrees with it.  There is a difference, whether you want to admit it or not.  And, as The Post points out, attempting to circumvent Congress and repeal a law it made would ignite a firestorm of debate about what constitutes a “national emergency” and, as I said earlier, about the separation of powers.
We wouldn’t want a future President, for example, to have the authority to stop implementation of the Lily Ledbetter Act, if he or she disagreed with it.  And that’s exactly the precedent an executive order action would create in the case of “Don’t Ask, Don’t Tell.”
And besides, if we can convince Congress to end the ban for 18 months, why shouldn’t we be able to convince them to end it completely?

You’re actuallytrying to explain/justify Obama’s inaction by citing Bush as a precedent?!  Thanks for finally acknowledging There’s very little difference between them.

“The full repeal should be able to be complete in the 18 month window.”AHAHAHAHA!!! HAAAHAHAHAAA..aahaaa…haha..**wheeze**
Tim, you make the best jokes. Repeal won’t happen until the two oldest generations of Congress and the White House, and the entirety of American evangelical christianity, are truly dead and buried. Those of us who live under this tragedy are resigned to that fact, and are simply getting what we can out of life in the meantime.
Why yes, I’m bitter; is it that transparent?

Just because it’s WAPO
…doesn’t mean they are incapable of error. The New York Times says a freeze SHOULD be considered. Which paper is more respected?
In either case, that ridiculous WAPO editorial was clearing written by an Obambot because, in addition to totally misrepresenting the connection between Clinton and DADT, in typical myopic fashion, he/she claims in one breath that Obama would face intense political heat for a freeze then, unintentionally, proves that he wouldn’t because
“A July 2008 Washington Post/ABC News poll showed that 75 percent of Americans approved of allowing gays to serve openly.”
They could have added, as The New Republic has since, that public support for ending DADT
“is 25 points higher than the percentage of Americans who endorse Obama’s handling of health care,
19 points higher than the percentage who currently support the war in Afghanistan,
and 18 points higher than the percentage who approve of the administration’s economic policies.
Obama is not afraid to push health care reform, send more troops to Afghanistan, or stand by his stimulus program-nor should he be. But why, when it comes to the far less controversial cause of gays serving in the military, is he apparently willing to punt?”
Yes, some Repub Troglodytes would declare that the sky if falling, but if an imbecile like Bush II can exploit fear of terrorism for 7 years for the wrong reason then surely a brilliant man like Obama could quickly chop those red necks off in the name of “national security.” In fact, he unintentionally indicted himself during La Tea Soire Gai that he was “weakening national security” by continuing to discharge gays.
He would NOT be suspending discharges simply because he disagrees with the law but, just as 12305 EMPOWERS HIM TO DO, suspending discharges of people “who THE PRESIDENT DETERMINES is essential to the national security of the United States.”
It is NOT a conflict between separation of powers-it is one power giving another special permissions during time of national emergency. Again, you have NO answer to the question, “if they didn’t mean it to apply to gay discharges why didn’t they say that”?
Your Lily Ledbetter law analogy is asinine on its face because it has nothing to do with 12305 or anything else “national security” related.
Your Congressionally approved 18 month suspension vs. repeal question is just another distraction from your real agenda:
Leave Britney er Barack alone!

What he could do with an executive orderAfter reading over the legislation I really don’t see a way around the President or the Defense Secretary (which is actually the person mentioned in the legislation), being able to suspend DADT simply on the basis of war and or need. In that I have to say the law is well written since it requires a dual reason for that suspension.
However, what I think Obama should consider is gay and lesbian diversity training for the Pentagon brass and for the Administration until DADT gets past. He would be demanding nothing more than what the many American industries have done to not only create cohesion and develop respect but he would also keep this issue in the forefront of those who are obviously doing their best to sweep the issue under the rug for bigoted reasons of their own.
I believe we should continue to move forward on all fronts but if Obama wants to send a message of who the commander and chief really is he should find more creative ways to push his agenda while he supports others in congress who are doing the same. I can understand where his hands are tied but if that was ever a reason to cease fighting he would never be President in the first place. If you can’t beat them right now, sit them down and school them until you can.

He’s pushing his agenda quite well enough alreadyif Obama wants to send a message of who the commander and chief really is he should find more creative ways to push his agenda
I’m not sure I understand what you mean. Obama’s agenda as Commander-in-Chief is very plain and clear: no repeal of the ban on LGBT people in the military and continuance of two wars that are eating our troops and families alive. There is no agenda for him that involves treating LGBT people like real human beings, let alone citizens or honorable troops, and it is disingenous and delusional to ignore that fact.
His agenda for LGBT people was to lie to us for our votes, then drop us like a smelly football on November 5th while he went about pandering to christian bigots and corporate interests on LGBT rights, reproductive rights, health care, environment, investigation of Bush war crimes, and big business bailouts. There is no progressive agenda to push.

“What thought can think….
“Device of man in working hath no end,
What thought can think, another thought can mend.”
- Robert Southwell, 1595        
Sorry, Kudo. You are not looking at the larger picture, which includes the fact that one piece of legislation can, under circumstances contained therein, trump another piece of legislation.
And there is no more perfect example of that than Congressionally passed 10 United States Code § 12305, titled “Authority of THE PRESIDENT to SUSPEND CERTAIN LAWS RELATING TO Promotion, Retirement, AND SEPARATION” which trumps 10 U.S.C. § 654 aka DADT. As annotated above:
“Notwithstanding ANY other provision of law [INCLUDING DADT], during any period members of a reserve component are serving on active duty pursuant to an order to active duty under authority of section 12301, 12302, or 12304 of this title, THE PRESIDENT MAY SUSPEND ANY PROVISION OF LAW [INCLUDING DADT] relating to promotion, retirement, OR SEPARATION [AKA DISCHARGES] applicable to ANY MEMBER OF THE ARMED FORCES [INCLUDING GAYS] who THE PRESIDENT DETERMINES is essential to the national security of the United States.”
If you are genuinely interested in benefitting from the knowledge of “three of the top experts on military law in our community, all of whom are nationally respected law professors or practitioners, and military veterans” who wrote the Palm Center’s analysis re an executive order, I respectfully suggest you read:
http://www.palmcenter.org/file…
Then, one should read their recent addendum regarding legal options available to the Secretary of Defense:
http://www.palmcenter.org/file…
Thank you.