Friday, August 13, 2010

SLDN challenges discharge of Fehrenhach under "Witt Standard"

Servicemembers Legal Defense Network (SLDN) and Morrison & Foerster LLP (MoFo) have filed a temporary restraining order to stop the Air Force from discharging Lt. Col. Victor Fehrenbach under “don’t ask don’t tell”, arguing that the Air Force can’t show that even under “don’t ask don’t tell” the field grade officer’s continued service hinders “morale, good order and discipline, and unit cohesion.”

Feherenbach’s case is one of the first DADT challenges under the “Witt” standard, regarding the case of Margaret Witt, which maintains a discharge is not constitutional unless: (1) the government advances “an important governmental interest;” (2) the government shows the intrusion “upon the personal and private li[fe]” of a service member “significantly furthers that interest;” and (3) the government shows the intrusion is “necessary to further that interest.”

The SLDN link is here, and it includes a petition.

Alexander Nicholson has a story on the Huffington Post, “Obama and Gates Fail the Fehrenbach test”, link here. The story reports that Fehrenbach was essentially outed by force to refute a phony charge.

On Saturday, Aug. 14, the Washington Post ran an editorial "'Don't ask, don't tell,' on its last legs, still has teeth", adds to the material on Fehrenbach (link). "The more humane application of the flawed policy, including the rejection of third-party allegations unless under oath, which was instituted this year and applied to all open cases, apparently has no bearing on the airman's current case."

Update 8/16:

 SLDN says "U.S. Dept. of Justice, U.S. Air Force Reach Federal Court Agreement with Lt. Col. Victor Fehrenbach. Here is SLDN's copy of the court document explaining the agreement (PDF), link.

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