Friday, October 22, 2010

NYTimes: Obama's DOJ should argue to 9th Circuit that DADT is unconstitutional, ending DADT permanently

Walter Dellinger has an important op-ed in the New York Times Oct. 21, “How to really end don’t ask don’t tell” (yup, a split infinitive!), posted by SLDN and tweeted today by “Freedom to Serve”. The link is (website url) here.

The columnist writes that while the Obama administration probably has the obligation to appeal the lower court’s injunction (resulting in the 9th Circuit’s Stay), it can tell the appeals court that it believes the law is unconstitutional. That would almost certainly result in the injunction being upheld, and a final end to DADT.

There is precedence for this approach, back in 1943 with a law prohibiting payment to certain government employees, and again in 1996, with a law (now often forgotten) requiring the military to discharge servicemembers with HIV.

The writer worked as the DOJ’s Head of Legal Counsel under President Clinton from 1993 to 1996, for me the “good old days”.

And now Ed O'Keefe of the Washington Post reports that the Pentagon has tightened discharge procedures under DADT. In a procedure resembling something that would be written up for a high school government test, military service branch chiefs must consult with with the Pentagon's top lawyer, Jeh Johnson, and the undersecretary of defense for personnel, Clifford Stanley, before discharging anyone, even for enlisted personnel. The story is here.

The policy seems to be going down in flames.  Some observers predict that Congress will pass the repeal in a lame duck session after the November election.

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