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As you saw in the last post, it literally is legal and organizational chaos in response to the injunction. Without any leadership from the WH, each branch of the military is doing its own thing. Hot from SLDN:
Internal Memo from U.S. Air Force Judge Advocate General to JAG Officers: Uphold Court Injunction
WASHINGTON, D.C. –
Servicemembers Legal Defense Network (SLDN), a national, legal services and policy organization dedicated to ending “Don’t Ask, Don’t Tell” (DADT), learned today an email was sent to JAG officers in the U.S. Air Force stating that until the Department of Justice makes a decision on the recent ruling by judge Virginia A. Phillips, the Air Force needs to abide by the district court injunction. The injunction said to “immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding” related to DADT.
Statement by Army veteran and SLDN Executive Director Aubrey Sarvis:
“This is an extraordinarily positive development and we would anticipate each Judge Advocate General from all the branches would follow suit in providing similar legal guidance to their respective commands. This interim period is dangerous. We need to put the safety and well being of gay and lesbian service members first. Service members continue to remain vulnerable under DADT. The President needs to deliver on his promise to end the law this year. Unfortunately, it is becoming more and more clear that the Obama Administration intends to seek a stay to this injunction and it is going to appeal the decision. DADT may well be in a state of flux. It will remain the law unless the U.S. Senate acts in December and we have certification by the White House and Pentagon shortly thereafter.”
Warning to service members:
SLDN re-issued its warning to active-duty service members, including those in the reserves and the national guard, to know they’re at risk. We have clients under investigation and facing discharge right now. We’ll be monitoring each case over the coming days. Anyone in the armed forces with questions or concerns should call our hotline or visit www.SLDN.org/StillAtRisk.
Email from Richard C. Harding, The Judge Advocate General, U.S. Air Force:
Members of The Judge Advocate General’s Corps,
On 12 October 2010, a federal district judge of the Central District of California issued an injunction barring the enforcement or application of 10 USC 654, commonly known as the “Don't Ask, Don't Tell” statute. A copy is attached. At present, the United States Government is contemplating whether to appeal and to seek a stay of the injunction. In the meantime, effective 12 October, the Department of Defense will abide by its terms, as follows:
The District Court “permanently enjoins defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys and all persons acting in participation or concert with them or under their direction or command from enforcing or applying the “Don't Ask, Don't Tell” Act and implementing regulations, against any person under their jurisdiction or command.”
The District Court further “orde
rs defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don't Ask, Don't Tell” Act or pursuant to 10 USC 654 or its implementing regulations, on or prior to the date of this Judgment.”
Further guidance on this and related issues will be provided as it is made available by DoD. Inform your commanders of this injunction and its terms. Direct any questions to the Administrative Law Division, AF/JAA.
RICHARD C. HARDING
Lieutenant General, USAF
The Judge Advocate General
The question now is the Obama DOJ going to stop the wheels that are in motion?
UPDATE: (4PM):
BREAKING UPDATE:
Pentagon Confirms Judge Advocate General Memo
A Pentagon spokesperson released this written statement moments ago:
“Earlier today, the Staff Judge Advocate Generals from the Military Services, in consultation with the OSD Office of General Counsel, sent to their Service Staff Judge Advocate counterparts in the field an e-mail informing them of the ruling by Judge Virginia Phillips of the Central District of California, issuing an injunction barring the enforcement or application of 10 USC 654, commonly known as the “Don't Ask, Don't Tell” statute. The e-mail noted that the US Government is contemplating whether to appeal and to seek a stay of the injunction.
The Department of Defense will of course obey the law, and the e-mail noted that, in the meantime, the Department will abide by the terms in the court's ruling, effective as of the time and date of the ruling.
We have no further information or comment at this time, but when and if we do, we will provide that to you.”
Col. Dave Lapan, USMC
Acting Deputy Assistant Secretary of Defense (Media Operations)
11 Comments
Yep.When a court tells you to do something you do it.
If necessary, it’s the job of the executive to enforce that court ruling or to provide justification to delay that enforcement.
That’s why it was Dwight Eisenhower’s constitutional duty to send troops into Little Rock, Arkansas.
That’s why when the Florida Supreme Court told the various County people to count all of those ballots, they did it.
And when the U.S. Supreme Court issued an order to stay the recount pending their review of Bush v. Gore, the recounters did exactly what the court told them to do.
Of course, that’s what SHOULD happen…
…but as noted in an earlier thread, Obama, Inc., is already being sued by Lambda Legal for refusing to obey a judge’s order to allow federal employee Karen Golinski add, at no cost to the government, her legal-in-California wife to her medical insurance DESPITE the fact that the judge also stipulated such action would not violate DOMA.
I can imagine ways that Gates could intimidate a coward like Obama into surrendering his ball re the ban, but WHERE is the pressure that they’re buckling to re Golinski? Maggie Gallagher throwing a hissy fit?
This limbo is embarassing…Im utterly embarassedU mean to tell me that the American legislative process cannot decide how to handle this? If this is going to be appealed then they should do it already..if not then the judge’s decision should stand. What the hell is going on anyhow??
Im really curious to see how this will play out.
See how hard that was?This is the equivalent of that executive order we all have been seeking to halt DADT discharges while the policy it self is under investigation.
Guess what? The military still goes on. No en masse quits from officers. No drop in recruitment – hell a number of those fired because of DADT wanted back in.
No mass insubordination because “I’m not going to serve next to gays”.
No barracks fiascoes. No “There’s a gay everyone out of the shower!”.
No gay orgy in berthing. Nothing that they feared would happen came to pass. It’s like a breeze. You notice it, and you carry on.
Obama would be making the single, most disastrous decision of his political career to appeal this.
Shoulda, coulda, woulda…Both the DOJ and the DOD should have been prepared with pre-written responses to the probability that Judge Phillips would issue this injunction. Embarrassing lack of planning on both their parts. On the other hand the confusion they’re displaying has given me a chuckle — the first I’ve had on DADT.
Yeah, it’s like the Keystone CopsThey were totally unprepared for this, that is surprising.
And even then, how long has it been since Judge Phillips issued this ruling? 2 weeks or something like that?
a major developmentThe unit and theater commanders might be of two minds about obeying a court, but the JAG organizations, these days, have a separate line of authority going up to the judge-advocate general (TJAG) in each of the 3 service departments. And every lawyer in each JAG corps has a code of professional ethics in their service regulations, comes with being licensed to practice, even here.
Most of them would like to be able to practice before normal courts, one day, I’m sure — and a lot of them do take their profession seriously.
http://www.loc.gov/rr/frd/Mili…
A Simple Statement from ObamaIs all it would take to end all this, how hard can it be.
apparently Obama’s DOJ is appealing the stayTo Judge Phillips then to 9th Circuit. Log Cabin is contesting.
http://www.advocate.com/News/D…
If the stay is lifted, the DADT discharges continue while ODOJ fights this through the various motions at 9th Circuit, then 9th Circuit en banc, then SCOTUS. Two years more at least.
Of course, if he issues a simple statement that the Administration accepts the verdict, that’s it. That’s simple.
Now this is real irony, in light of the servicemembers who will be discharged:
I think that may be significant.I have a suspicion as to the motivation of at least some of the JAG people, which would have to be supported or contradicted by people who know the military better than I do:
Given the right-wing project in recent years of placing the military outside of an not in any way answerable to the civilian government (or the Constitution), there must be some appeal for those members of the armed services who are in a position to do so to make a principled statement that no, the military is not a power unto itself. The JAG statement that the USAF will, in fact, comply with a court order should be a no-brainer, but the fact that it isn’t (that we have right-wingers both in and out of the military insisting that generals and admirals in particular answer to no authority but their own and maybe the President’s if they approve of his orders) might mean this is a bit more significant. That it’s the lawyers within the USAF saying this might also be significant — this is a reminder to the rest of the USAF that the military is supposed to be under civilian control.
At the same time…There is only “no discharge at the moment.”
There is no “we will keep you in the job you have been doing.”
There is no “we will take assault, rape, and harassment as seriously as we would for others.”
There is no “we will not allow this to be used against you in fitness evaluations, considerations for promotion, and job assignments.”
We have to see whether this is in effect a functional trial run for repeal, or whether all out or outed gay servicemembers get rounded up and given alternate duties. Or whether attacks and harassment of serving servicemembers go overlooked.
For that matter, there is no guarantee this isn’t a matter of “make sure to take good notes, because the instant there’s a break in this, we’ll pitch them all out at once.”