Where things stand with DADT

WHERE THINGS STAND WITH DADT…. There were a handful of developments yesterday afternoon related to the military’s “Don’t Ask, Don’t Tell” policy, so let’s take a moment to recap where things stand.

At an MTV forum, President Obama made clear that, even as a court process continues to play out, his commitment to ending DADT has not changed.

At a town-hall-style meeting with young adults on Thursday, Mr. Obama noted that he had been working on getting the law repealed and that a court had recently struck it down as unconstitutional, although he did not specifically address his administration’s appeal of the ruling.

“I agree with the basic principle that anybody who wants to serve in our armed forces and make sacrifices on our behalf, on behalf of our national security — anybody should be able to serve, and they shouldn’t have to lie about who they are in order to serve. And so we are moving in the direction of ending this policy,” he said.

But, he added: “It has to be done in a way that is orderly, because we are involved in a war right now. But this is not a question of whether the policy will end. This policy will end, and it will end on my watch. But I do have an obligation to make sure that I’m following some of the rules. I can’t simply ignore laws that are out there. I’ve got to work to make sure that they are changed.”

On this, the White House has at least been consistent — officials want to end DADT, but on their timeline, and through an act of Congress.

But every time I hear an official talk about the need for an “orderly” repeal process, I wonder exactly what that means. When the policy changes, it changes. One day certain statements lead to a discharge, the next day they don’t. What needs to be “orderly”?

Jeh Johnson, the Pentagon’s general counsel, fleshed this out in a little more detail yesterday, noting that a shift away from DADT would require reworking of dozens of policies and regulations involving issues like “housing, benefits, re-accession, military equal opportunity, anti-harassment, standards of conduct, rights and obligations of the chaplain corps, and others.” He added that changing “all of the implicated policies and underlying regulations will require a massive undertaking.”

And with that in mind, as expected, the Justice Department said it intends to appeal the recent court ruling ending “Don’t Ask, Don’t Tell,” and asked the appeals court to allow the existing policy to continue as the case proceeds.

At the same time, however, the court-issued injunction is, at least for now, the law the Pentagon has to follow. And so, as of yesterday, DADT is no longer being enforced. That may change quickly if the 9th Circuit stayed the injunction*, but as of this minute, any ongoing investigations and/or discharges of gay or lesbian service members have been brought to a halt.

Uncertainty rules the day. What if a soldier came out yesterday, but the 9th Circuit allows DADT to be re-implemented on Monday pending appeal? No one seems to know for sure, which is why the Servicemembers Legal Defense Fund, among others, is encouraging gay military members not to disclose their sexual orientation until after this is resolved further.

One final point. An administration spokesperson said yesterday that the Justice Department “is defending the statute, as it traditionally does when acts of Congress are challenged.” I spoke to a few legal folks yesterday who agreed with this — an administration may not be required to appeal rulings, but there is an expectation that an administration will do its due diligence when it comes to defending laws passed by Congress.

I mention this because, appealing the DADT ruling doesn’t necessarily mean that the Obama administration disagrees with the outcome.

* corrected