From Stars & Stripes:
[Secretary of Defense Robert] Gates said both he and senior military leaders broached the subject with administration officials last week, discussing legal parameters for a repeal and interim steps before Congress passes legislation changing the policy.
“One of the things we’re looking at is there flexibility in how we apply this law,” he said. “To give an example … if somebody is outed by a third party, does that force us to take action?
“I don’t know the answer. But that’s the kind of thing we’re looking at, seeing if there’s a more humane way to apply the law until it gets changed.”
This is part of the request made by Rep. Alcee Hastings and 76 other members of Congress last week. This would be an excellent move, and Gates’s statement is itself quite a great sign of change from the Pentagon on Don’t Ask, Don’t Tell.
Could this be the behind-the-scenes work that we’ve been assured Obama is doing on Don’t Ask, Don’t Tell?
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Chris Geidner is the award-winning senior political editor at D.C.'s Metro Weekly and has written for The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. In 2011, he received the Excellence in News Writing Award from the National Lesbian and Gay Journalists Association for his coverage of "Don't Ask, Don't Tell" repeal. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
Key words “Until it gets repealed.” A lot of us justly raged at the Bush habit of ignoring laws he didn’t like, or ‘rewriting them’ through signing statements. We can’t, now get mad at Obama for NOT ignoring a law WE don’t like, especially if he has — and his SecDef agrees — promised to get it repealed.
But there has to be a way of ‘limiting the damage’ and they seem to be working on it.
Well compared to what can be done with a stroke of a pen if it is, its very lame behind the scenes work.
There really is NO excuse for not Stop-Loss- ing DADT Especially with a 70 percent approval of the reversal of DADT
I hope so
It sounds like they specifically have the case of Lt. Col. Fehrenbach in mind because he was deep in the military closet for 18 yrs. until someone outed him. BUT if this is a step in the right direction it’s being made with a club foot.
The Secretary of Defense should ALREADY ENTIRELY understand that the choice of investigating anyone whom someone else has accused of being gay is ALREADY ENTIRELY up to the servicemember’s commander.
The term is “credible evidence.” If the commander says it isn’t, CASE CLOSED!!!!
DADTDHDP is actually a set of policies wrapped around a law and much is left to the military to determine regarding its application.
Further, the law provides under Section (e) (2) of 10 USC 654 – “Policy Concerning Homosexuality in the Armed Forces”
(e) Rule of Construction.- Nothing in subsection (b) shall be construed to require that a member of the armed forces be processed for separation from the armed forces when a determination is made in accordance with regulations prescribed by the Secretary of Defense that-
(1) the member engaged in conduct or made statements for the purpose of avoiding or terminating military service; and
(2) separation of the member would not be in the best interest of the armed forces.
So, on top of ignoring 10 United States Code 12305 which empowers the President to “suspend ANY provision of law relating to promotion, retirement, or separation applicable to ANY member of the armed forces who the President determines is essential to the national security of the United States,”
Gates is apparently ignorant of the allowable exception above.
WHY?
Wolf,
Since you keep saying that Obama can avoid faithfully executing the laws of the United States simply with a “stroke of a pen” invoking STOP-LOSS, could you explain exactly how this works? My understanding is that stop-loss is a mandatory extension of a tour of duty for an entire group of soldiers. I have never heard that stop-loss can be used to prevent the discharge of an individual soldier whose discharge is otherwise mandatory under both federal law and the military’s regulations.
Is there sound legal precedent for the president to invoke military necessity in order to violate a duly-passed Congressional statute? Because as Prup says, this sounds awfully Bush-y.
To clarify, 10 U.S.C. § 12305 (Authority of President to suspend certain laws relating to promotion, retirement, and separation) is the statute that authorizes the president’s use of stop-loss. It applies only to people in the Reserves, and requires a determination that the people are “essential to the national security of the United States.” So while it might work for a few individuals like Dan Choi (NY Army National Guard and an Arab linguist), it doesn’t apply to someone in the non-Reserve service, nor to someone who has no special, difficult-to-replace skills.
Which will at least save some on a case to scase beasis until something is done.
And actually in 1983, Congress formalized it into United States Code 12305, empowering the President to “suspend ANY provision of law relating to promotion, retirement, or separation applicable to ANY member of the armed forces who the President determines is essential to the national security of the United States.”
“who the President determines is essential to the national security”
he can determine in a time of war that all Lesbian and Gay Military are essential.
There was something in the Washington Post this morning about why some of issues are pushed back its at my Blog
http://www.back2stonewall.com/?p=6473
The conjunction between those statements is “and,” not “or.” That means both must be present for it to be applicable.
PG, you really should try the lesson I’ve learned; reading more carefully.
ALL of my historical examples were draft-era, you say? Sorry, Sparky, there was no draft:
“During the first Gulf War, a Pentagon spokesman said in relation to gay discharges …
…after 9/11, President Bush signed executive Order #13223 …
In the “Army Commander’s Handbook,” updated in 1999 ….
In 2005, a military spokesperson….”
Nota bene: all in contradiction of DADT.
Can’t imagine what you’re smoking, but 10 USC 12305 ["stop-loss"] is just as much a “Congressional statute” as 10 USC 654 [DADT]. That Congress passed it ten years after they passed DADT and did NOT choose to specify that the President can “suspend ANY provision of ANY law EXCEPT DADT….” was transparently no accident.
And, if you read it slowly you’ll note that the 1999 Army Commander’s Handbook doesn’t say anything about applying only to troops they suspect is falsely claiming to be gay but “if [ANY] 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.”
Bottomline: I can’t even imagine what your point here has been except to find excuses for Obama’s not using the legal options before him to keep his promies, but, that’s only speculation. What’s fact, conceded by the military themselves, is that whether in defiance of policy or policy/law, for over half a century, the military has repeatedly chosen to allow some servicembers they KNOW to be gay to continue to serve when it has suited them.
PS: my reference to enlisting foreign nationals was clearly just another example of how far, in other times, the military has chosen to go to avoid retaining gays, and not remotely xenophobic. FYI.
I can personally testify that being outed by a 3rd party can and will cause military officials to take action. I was outed while serving in the Air Force in 2004. From the moment I was outed (which I never admitted to being gay, even after being discharged), I was treated like a lesser human being. I was investigated, discriminated against, had my top secret clearance taken away, and ultimately discharged for something that was never proven. This law needs to change now so that other military members who are gay and have dedicated thier lives to serving thier country will never have to go through what I had to. Obama needs to step up to the plate.
Michael,
Uh, how does that exception (what I think of as the “Alice’s Restaurant” exception, in which straight guys claim to be gay in order to avoid military service) have any impact on someone who actually is gay and was outed by someone else?
One more clarification — I misread the statute, and it actually does apply to people in the non-Reserve service. However, it applies only in periods when the Reserves are on active duty; if Iraq and Afghanistan calm to the point that we no longer need to use our Reserves, stop-loss is no longer an option.
But it hasn;t calmed and probably won’t in the near future.
The exception I was referring to is the second one:
(2) separation of the member would not be in the best interest of the armed forces.
Again, an instance of unlimited subjective discretion that is, for lack of any explanation I’ve seen, strangely, so far, being ignored/overlooked in regard to a highly accomplished combat pilot like Fehrenbach.
Yes, and could the anal retentives please stand down with their childish “but Mommy what happens when we’re no longer in a state of national emergency,” blah blah blah. Ask ANY gay servicemember about to be discharged if he/she doesn’t want to be saved NOW by any legal means and stop-loss IS legal NOW!
Even DADT “repeal” wouldn’t be “permanent” because a future Congress could resurrect it. MOVE ON!
Further, there is history of stop-loss application by military discretion long before its codification in 1983.
And not just, as some claim, apply to those in the process of being discharged…. WHENEVER the military has gotten to a point where they, as Candidate Obama phrased it when he promised to fight for DADT repeal…”need all hands on deck”…THEY have ignored the ban both when it was only “policy” and after it became “law.”
Based on research by Allen Berube for “Coming Out Under Fire,” in World War II it once took an extreme form when “the adjutant general ordered the commanding general of the West Coast Air Corps Training Center in California to review the cases of some men ALREADY CONVICTED OF SODOMY “to determine their respective availability for military service” with “the view of conserving all available manpower for service in the Army.” He canceled the men’s dishonorable discharges and made them eligible for reassignment AFTER COMPLETING THEIR PRISON SENTENCES!
In 1945, facing manpower shortages during the final European offensive in Europe, Secty of War, Harry Stimson, ordered a review of all gay discharges and ordered commanders to “salvage” homosexual soldiers for service whenever necessary.
The number of men discharged for being gay during WWII was only in the low thousands out of 16 MILLION men who served. That’s A LOT of “looking the other way” no matter how low one thinks the incidence of homosexuality is in the population.
Before and after both the Korean and Vietnam wars, gay discharge #s revealed an obvioius stop-loss pattern.
1950, during Korean War – 483 discharges.
1953, when the Armistice was signed – 1353 discharges.
1966 – the Navy alone discharged 1708 gays.
1970 – when the US was deep in Vietnam, they only discharged 461.
During the first Gulf War, a Pentagon spokesman said in relation to gay discharges, “Any administrative procedure is dependent on operational considerations of the unit that would administer such proceedings.” [And they will do whatever the President tells them to, formally or informally.]
Amplifying [or ignorant of ] 10 USC 112305, 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.
In the “Army Commander’s Handbook,” updated in 1999 and still in effect, under the criterion of homosexuality: “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.”
In 2005, a military spokesperson acknowledged they were sending openly gay service members into combat in Iraq.
Congressionally mandated legal authority, historical precedent more than half-a-century long, majority public opposition to DADT, and the documentable need of EVERY fit servicemember [versus the exceptions being given to convicted felons and bribing foreign nationals with promises of citizenship for enlisting] in sustaining the nation’s security when we are at war gives President Obama every justification.
All he NEEDS is the will.
Point perfectly taken. I stand corrected. Thank you!
And repeat asking why Gates and Obama are ignoring entirely the discretionary power behind “credible evidence” as well as legal stop-loss authority under 10 United States Code 12305 [and Bush Executive Order #13223 and prior Pentagon policy such as “Any administrative procedure is dependent on operational considerations of the unit that would administer such proceedings.”] IF Obama genuinely believes as he’s said repeatedly that DADT is morally wrong, and reiterated yesterday:
“I believe preventing patriotic Americans from serving their country weakens our national security.”
Michael,
If you don’t discern the difference between a power given to the executive to be used only in the limited circumstances of having Reserve members on active duty (e.g., a circumstance not in existence at the time DADT was enacted), and generally-applicable law as made by Congressional statute, then this conversation probably is going nowhere.
All of your historical examples are when we had a draft — when our military need was so great that we no longer could rely on an all-volunteer force. The military has said over and over that we should not have a draft for the wars in Afghanistan and Iraq. The only members of the federal government to “support” a draft are a few anti-war House members who put forward a bill that they then refused to vote for. Thus the level of military need is not comparable to the present situation.
Again, the point of not discharging people who suddenly say they’re gay when they hear they’re about to be shipped into combat is to prevent people’s using that as a way to evade their combat duties. It’s a lot easier to say, “I’m sexually attracted to members of the same sex” than to spend the rest of your life in Canada (and Canada isn’t as receptive to Americans dodging their military duty as it was during Vietnam).
Also? “Bribing foreign nationals with promises of citizenship for enlisting” comes off as just a tad xenophobic, FYI.