We're not stupid. It's now common knowledge that the President doesn't have to appeal every court case, and it's common knowledge that this President routinely ignores laws he doesn't agree with. So why tell the MTV audience that he "can't ignore the laws that are out there"?
On “Don’t ask, don’t tell,” the president said he believes he has “enough votes in the Senate to go ahead and remove this constraint on me” as the House has done.
“This policy will end, and it will end on my watch,” Obama said.
After a federal judge ruled the policy unconstitutional earlier in the week, the White House has been scrambling to emphasize Obama’s opposition to the policy even as the Justice Department prepares an appeal.
“I can't simply ignore the laws that are out there,” Obama said.
That's incredibly disingenuous, factually inaccurate, politically tone deaf and too cute by half. Not to mention, no one is asking him to ignore the law. If he honestly thinks that that is what this issue is about, God help us.
The issue is about why the President continues to defend DADT and DOMA in court when he doesn't have to. How many times do we have to prove that he has a choice before the administration stops lying about this issue - stops telling everyone that we're asking him to break the law? We're asking him to show a little courage for once and do something bold that is entirely within his power.
Start acting like a leader.
As for believing he has the votes, that's absurd. No one believes we have the votes for the lame duck session. The President didn't lift a finger to get us the votes before, and we lost, and there's been no indication that any fingers have been lifted since. So how did we suddenly get the votes?
The President is simply saying this to get you to lighten up before the elections, and then, come December, he'll be just as "shocked" as you to find out that the DADT compromise doesn't pass, and won't for another decade.
But hey, the President did tweet about DADT today, around the same time his lawyers indicated they'll be going to court to get the policy reinstated - as if that somehow makes up for it.
Anybody who wants to serve in our armed forces and make sacrifices on our behalf should be able to. DADT will end & it will end on my watch.
When? 2017? We're to believe he's suddenly going to grow a spine during his second term?
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Christian Berle, Deputy Executive Director of Log Cabin Republicans: "After years of fighting this lawsuit, Log Cabin Republicans expected that the Obama administration would continue to pull out all the stops to defend 'Don't Ask, Don't Tell,'" said Christian Berle, Deputy Executive Director of Log Cabin Republicans. "Log Cabin Republicans will continue to advocate on behalf of the American servicemembers who everyday sacrifice in defense of our nation and our Constitution. If this stay is granted, justice will be delayed, but it will not be denied. Meanwhile, we urge Senate Majority Leader Harry Reid to do what it takes in the lame duck session to end 'Don't Ask, Don't Tell' legislatively. If Senator Reid treats the minority party fairly, the votes will be there to end 'Don't Ask, Don't Tell' once and for all."
Dan Woods, White & Case: "We are not surprised by the government's action, as it repeats the broken promises and empty words from President Obama avowing to end 'Don't Ask, Don't Tell' while at the same directing his Justice Department to defend this unconstitutional policy," said Dan Woods, White & Case partner who is representing the Log Cabin Republicans in Log Cabin Republicans vs United States of America. "Now that the government has filed a request for a stay, we will oppose it vigorously because brave, patriotic homosexuals are serving in our Armed Forces to fight for all of our constitutional rights while the government is denying them theirs."
SU's Alex Nicholson:
"This request from the Obama administration asking Judge Phillips to stay her own injunction was expected, but it is nevertheless disappointing in light of the president's claim that 'Don't Ask, Don't Tell' harms national security and impairs military readiness." said Alexander Nicholson, Executive Director of Servicemembers United and the sole named veteran plaintiff in the case along with the Log Cabin Republicans. "As Americans, we all hope that our Commander-in-Chief will fiercely advocate for the immediate elimination anything that stands in the way of national security and military readiness."
Servicemembers United also responded to the Pentagon's announcement today that it would comply with the court's injunction while it was in effect. Nicholson: "We would expect nothing less than the Pentagon to comply with the injunction. It would undermine our system of government if executive departments started openly defying our courts and their orders. The Defense Department is in the business of protecting and defending our system of government, not undermining it, so we are of course pleased that the Pentagon is complying with this injunction."
SLDN's Aubrey Sarvis:
“We are disappointed but not surprised to learn the Department of Justice appealed the decision by Judge Phillips and asked that the injunction not be enforced for now. Judge Phillips will need to decide if the injunction stopping the investigations and discharges is on hold. The earlier decision by the Staff Judge Advocate Generals from the Military Services to abide by the terms in the court's order barring the military from investigating or discharging service members was an extraordinarily positive development. Until that changes, we are monitoring active-duty clients and fielding calls to our hotline.
“It is clear there is confusion and this interim period is dangerous for service members. Our service members need finality. The President needs to deliver on his promise to end the law this year. Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington. Congress made this law over 17 years ago and Congress now has an affirmative responsibility to bring clarity and finality to ending this law.
“We need to put the safety and well being of gay and lesbian service members first. Service members continue to remain vulnerable under DADT. We have clients under investigation and facing discharge right now. We’ll be monitoring each case over the coming days.”
GetEQUAL's Robin McGehee:
“Today’s appeal by President Obama’s Department of Justice is not only indefensible -- it is yet another shocking lack of leadership from the White House on issues of equality for the LGBT community. Regardless of the White House’s claim that they had no choice in this matter, the fact is that there was no reason they had to move forward with appealing this decision today. For them to do so, particularly in the same week they also announced their appeal of the Defense of Marriage Act ruling that also found a section of that law unconstitutional, adds insult to injury for the relationship between President Obama and the lesbian, gay, bisexual and transgender community.
Yet again, we are faced with action by this Administration that stands in stark contrast to the campaign rhetoric and lofty speeches about equality that continue to be served up as progress to our community. We’d like to say we’re still hoping in the change promised to us two years ago, but that hope is fading away quickly -- particularly when the lives and livelihoods of our brothers and sisters are on the line.”
The Department of Justice has asked Judge Phillips to issue a stay of her DADT injunction and indicated that it will appeal the decision. This was not unexpected, but it is certainly disappointing. Here's an excerpt from the introduction:
Defendants request that the Court issue an order to stay pending appeal of its Order, dated October 12, 2010 (Doc. 252), permanently enjoining enforcement of the “Don’t Ask, Don’t Tell” (DADT) statute, 10 U.S.C. § 654, and implementing regulations.1 Defendants also request that the Court issue an immediate administrative stay of its October 12, 2010 Order to allow time for the orderly litigation of that request for a stay pending appeal both before this Court and, if this Court were to deny the stay request, before the Court of Appeals. At a minimum, if this Court declines to enter a stay pending appeal or any administrative stay to allow its own consideration of the request, defendants request that the Court enter an immediate administrative stay to afford time for filing a request for a stay pending appeal in the Court of Appeals and an opportunity for that Court to consider that request in a meaningful and orderly manner. Given the urgency and gravity of the issues, defendants respectfully request that the Court rule on this ex parte application no later than noon PDT on Monday, October 18, 2010. If an administrative stay is not entered by that time, defendants intend to seek a stay pending appeal from the Court of Appeals and will request an immediate administrative stay from that Court to allow the orderly litigation of the stay request before that Court.
And, DOJ invoked the Pentagon Working Group as a reason for needing the delay:
In support of the President’s decision to seek a congressional repeal of the law, and as directed by the Secretary of Defense, the Department of Defense has established a high-level Working Group that is currently conducting a comprehensive review of the statute and how best to implement a change in policy in a prudent manner. The Working Group is nearing completion of its report to the Secretary, which is due on December 1. The immediate implementation of the injunction would disrupt this review and frustrate the Secretary’s ability to recommend and implement policies that would ensure that any repeal of DADT does not irreparably harm the government’s critical interests in military readiness, combat effectiveness, unit cohesion, morale, good order, discipline, and recruiting and retention of the Armed Forces.
In the first sentence above, you'll notice a footnote. This is what it states:
1 As the President has stated previously, the Administration does not support the DADT statute as a matter of policy and strongly supports its repeal. However, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Administration disagrees with a particular statute as a policy matter, as it does here.
Got that? Remember, DOJ does not have to appeal this decision. But it is going to do just that.
The Courage Campaign posted the DOJ application for the Emergency Stay here.
From here, Judge Phillips will probably issue her decision in the next couple days. She could order a stay pending the appeal -- or not. She could do any number of things, including denying DOJ's application. Whatever she does will lead to DOJ's next step. This could mean that DOJ may have to ask the Ninth Circuit for a stay, too. What is clear is that the DOJ has every intention of appealing this ruling and dragging out this process. DOJ has 60 days to file its notice of appeal.
We'll have more on this, as you can imagine.
NOTE FROM JOHN: This is disingenuous as hell. No one thinks we have a bat's chance in hell of passing the DADT legislation during the lame duck, yet this is what Gates (and Obama) keep telling the court - oh, just let the study finish (conveniently after the elections). So the Obama White House asks the court to delay things just a wee bit longer, and in 3 weeks, after the elections, we'll be screwed for years to come and the White House will express utter shock and sadness, telling us if we just vote for a few more Democrats, then they'll get to our civil rights next time. Mark my words.
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The President is doing a Town Hall meeting on MTV, BET and CMT this afternoon at 4 PM ET. As Nick broke the story that MTV wants "light questions." Let's hope that doesn't happen.
Be interesting to see how 2010 Obama will answer questions about LGBT equality today's forum -- if he gets any. The President will be taking questions via social media, one of the young people will ask him something LGBT related. Freedom To Marry has been tweeting this:
@BarackObama When & how can we expect you to take action to overturn #DOMA? #askLGBT
Getting a real answer on that would be a good start. Explaining what the hell is going on with DADT, too.
Sounded good, huh? But, actions, as we all know, speak louder than words.
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Wow. This is really interesting, especially given the accusation from LCR that DOJ is in contempt.
Got this latest development via SLDN (and SLDN once again warned gay and lesbian servicemembers that DADT isn't over. They've got a site addressing that here.)
Now, the Air Force is telling its attorneys that they must comply with the ruling. Of course, we keep hearing that DOJ will ask for a stay of the decision. But, for now, DADT isn't in effect -- and the USAF JAG admits it:
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 "orders 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
This will change if a stay is granted. Stay tuned.
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At 4pm ET today, President Obama is participating in a "youth town hall" with MTV, CMT and BET. Last week I submitted my name to be a participant and was called back for the second round of "casting" (their word, not mine) with a representative from one of the networks.
After asking what topics I was personally interested in, they asked what question I'd want to ask President Obama if I were in a room with him. I gave a sample question to give them a sense of where I'd go, but not anything specific (something about the role that federal policy plays in preventing bullying in light of the recent attention to suicide). The next question was: What lighter question would I ask the President -- something related to pop culture perhaps. I hadn't given any thought to this because, really, what moron blows this opportunity by asking the President "Mac or PC?" I gave them some light question and it was the one note that was made during the interview. I was not invited to attend.
It drives me crazy that in a time when we face such serious issues, networks are trying to figure out a way to include levity in a conversation with the President of the United States. No one cares if a leader wears boxers or briefs. What we do care about is how any leader can rationalize opposition to marriage equality, or promise to repeal DOMA and DADT without actually pursuing it, and then actually defending it when they could let it die at the hands of the courts. The laws that stand now and declare LGBT Americans less than equal set the tone in our society that results in a culture where people think it's fine to see LGBT Americans as somehow "less." This is part of what leads to bullying, isolation, and in some tragic cases, even suicide.
We all have our own issues that we want answered, but no one -- absolutely no one -- cares if he watches "Glee."
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After making wildly offensive comments about gay people and the threat that we “brainwash” kids, and a failed attempt to explain it away on the morning shows, Carl Paladino issued an email apology, which I’ve included below. Among his “personal beliefs” he states that he is both “100% against discrimination of any group” and that he doesn’t support marriage equality.
So how does GOProud, the new-ish gay republican group react to these offensive comments, failed explanations, and bizarre apology? By releasing this statement:
Yesterday, Carl Paladino issued an apology for sweeping comments he made about gay and lesbian people over the weekend. In his apology, Mr. Paladino not only admits that he made mistakes in what he said, but he also makes a firm commitment to be a Governor for all New Yorkers, to oppose discrimination against gays and lesbians, and to reach out to leaders in the gay community. People are entitled to make mistakes and are entitled to second chances. GOProud takes Mr. Paladino at his word and accepts his apology.
Somehow, GOProud believes that opposing discrimination and opposing marriage equality are values that can be held simultaneously by one person. Apparently they're ok being used as punching bags. After all, Paladino is certainly approving of gay culture when he profits off of gay bars.
LGBT New Yorkers deserve better and LGBT republicans should step up and stop supporting organizations that support candidates who hold LGBT people in such contempt based on bizarre and offensive stereotypes.
Paladino’s letter full letter is after the break.
Here it is:
I am Carl Paladino, a father, a husband, a builder and a business owner. I am neither perfect, nor a career politician. I have made mistakes in this campaign - I have made mistakes all my life- as we all have. I am what I am - a simple man who works hard, trusts others, and loves his family and fears for the future of our State.
Yesterday I was handed a script. I redacted some contents that were unacceptable. I did also say some things for which I should have chosen better words. I said other things that the press misinterpreted and misstated. I sincerely apologize for any comment that may have offended the Gay and Lesbian Community or their family members. Any reference to branding an entire community based on a small representation of them is wrong. My personal beliefs are:
1) I am a live and let live person.
2) I am 100% against discrimination of any group. I oppose discrimination of any kind in housing, credit, insurance benefits or visitation.
3) I am 100% against hate crimes in any form.
4) I am in support of civil agreements and equal rights for all citizens.
5) My position on marriage is based on my personal views. I have the same position on this issue as President Barrack Obama. I have previously stated I would support a referendum by New York voters. I have proposed Initiative and Referendum so New Yorkers can decide important issues like this.
6) The portrayal of me as anti-gay is inconsistent with my lifelong beliefs and actions and my prior history as an father, employer and friend to many in the gay and lesbian community.
I am concerned with the future for all our citizens, gay, straight, Catholic, Protestant, Jewish and Muslim and Agnostic. Although I am not perfect I do admit my mistakes. I will reach out to leaders of the gay community to educate me on how to better represent my support for the rights of all citizens. If elected as your governor I will stand and fight for all gay New Yorkers rights. I ask you for forgiveness on my poorly chosen words and the publication by others not involved with our campaign of unredacted script that did not reflect my oral statement or match my personal feelings. Please go to my website www.paladinoforthepeople.com to learn more detail about the issues including my staunch support for civil rights for all New Yorkers.
"Based on this advice from the Department of Defense and Joint Chiefs of Staff, and after consulting with the Department of Justice about the legal effect of that advice, the President concluded that the Dornan Amendment is unconstitutional. It arbitrarily discriminates and violates all notions of equal protection. Again, at the direction of the President, the Attorney General and the Department of Justice will decline to defend this provision in court. If the Congress chooses to defend this treatment of men and women in the military, it may do so. But this administration will not." - White House Counsel Jack Quinn, 1996, in transcript quoted in full below.
[UPDATE: I've just posted a DOD memo from 1996, below, confirming that the Defense Department was on board with not appealing these cases.]
I keep writing posts saying "this is huge," and once again, it is.
I've just been sent a White House transcript from 1996 showing the Clinton administration, explaining in detail, how it was not going to defend in court any cases kicking HIV+ service members out of the military because it believed the law requiring such discharges to be unconstitutional.
This is exactly what we have been arguing for a year and a half, and what the Obama administration and its apologists have been denying: The President has the power to not appeal a case if he so chooses. We were told that simply wasn't an option, we were told that even if it were an option it certainly wouldn't apply to a case involving gays being kicked out of the military, and we were told that all hell would break loose if it ever happened, and now we find out that it didn't only happen, it happened on a case dealing with kicking gays (let's face it, back then HIV+ was code for "gay") out of the military, and all hell didn't break loose, a later Republican president didn't retaliate, and locusts didn't descend from on high.
The Justice Department is generally required to uphold existing law and is expected to appeal rulings even when the president might agree with them. But Walter Dellinger, who was solicitor general in the Clinton administration, said an appeal could make clear that the president believes the law is unconstitutional, an approach President Bill Clinton took in 1996 concerning a law that would have required the discharge of HIV-positive service members from the military.
"I think this is the answer," Dellinger said, noting that it would be politically untenable to allow a single district judge to set law for the country in a case that the Supreme Court has not heard. "Let the courts decide, but tell them what you think."
Richard Socarides, a New York attorney and former Clinton White House adviser on gay issues, agrees that this solution gives Obama the out he's been looking for. Richard told me today:
The suggestion by former Solicitor General Walter Dellinger in this morning's Washington Post is to "appeal" the order but tell the appellate court that the government agrees with the lower court's reasoning and decision: The law is unconstitutional and should not be enforced. It's a great solution because it gets the right result -- a swift end to the ban -- and puts the President where he says he wants to be, both politically and legally: For equal rights and for the orderly transition Secretary Gates wants. Plus, he no longer would be defending the indefensible -- a policy that is morally unjust, constitutionally infirm, and one not in our national security interest.
A DOD memo at the time confirms the administration's policy - that DOD was on board with - to not appeal these cases.
Now, the Clinton administration did not believe that they had the authority to simply ignore the law and stop the HIV+ discharges themselves. They believed that the Supreme Court had to rule against the law before they could stop enforcing the law, as compared to defending it in court. But as we've pointed out before, the Obama administration has routinely ignored the enforcement of laws with which it doesn't agree, so that argument is irrelevant - Obama is already picking and choosing what laws he enforces, why don't anti-gay laws meet his test?
I'm going to post the entire transcript from the Clinton White House. It's fascinating. This proves beyond a shadow of a doubt that President Obama has a choice, he doesn't have to appeal a law kicking gays out of the military. There is legal and political precedent. It's only a matter of whether he has the courage to do so.
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release February 9, 1996
PRESS BRIEFING
BY COUNSEL TO THE PRESIDENT JACK QUINN
AND ASSISTANT ATTORNEY GENERAL WALTER DELLINGER
The Briefing Room
1:41 P.M. EST
MR. MCCURRY: Good afternoon, everyone. I apologize for the delay, but I wanted to be in a position to report to you on several decisions the President has just taken.
As you know, the President is expected to render final judgment tomorrow on the FY 1996 Defense Authorization bill. More on that subject -- much more later. But there was a provision of that bill that was of very great concern to the administration. The President 's just made decisions concerning the legality of that provision; also signed a directive related to how the Executive Branch will cope with the consequences of that provision. What I'd like to do is ask legal counsel Jack Quinn to talk about the decisions the President has just taken. With him is Assistant Attorney General Walter Dellinger. And it is a great honor to turn the podium over to my colleague, Jack.
MR. QUINN: Thank you, Michael.
Thank you and good afternoon. As Mike indicated, we anticipate that tomorrow the President will sign the Department of Defense Authorization bill. As you also know, the President's indicated previously that there's a provision in that bill that he finds completely abhorrent and offensive -- the Dornan Amendment, which would require the Armed Forces to toss out of the military everyone who is HIV positive, no matter what the cause of that affliction, and despite the fact that these people are physically and medically able to perform their military duties.
This provision of the bill, in the President's judgment, is mean-spirited and serves no purpose other than to punish people who deserve this government's help, not its hatred.
The President's response to this provision is three parts. First, we will vigorously support the Kennedy-Cohen legislation which we anticipate will soon be introduced to repeal the Dornan Amendment. The President calls upon Congress to act swiftly on this legislation and pass it.
The second, the President has determined that this provision is unconstitutional. He's, therefore, directed the Attorney General not to defend it in court. The President has been informed in this regard by the Department of Defense that in its judgment the Dornan Amendment serves no legitimate military purpose; that it is arbitrary, unwarranted, and unwise.
If I may, I'd like to read a portion of the joint statement which the President received on this recently from Secretary Perry and Chairman of the Joint Chiefs Shalikashvili. It reads in pertinent part as follows:
"To discharge all of these service members arbitrarily, as Section 567 mandates, would be both unwarranted and unwise. Section 567 is unnecessary as a matter of sound military policy because there is already in place a physical evaluation system to determine the fitness for duty of HIV positive personnel. Discharging service members deemed fit for duty would waste the government's investment in the training of these individuals and be disruptive to the military programs in which they play an integral role.
"This provision violates a standard traditionally used by the services for retention and, thus, undermines a fair policy of evaluating retention on medical and service issues on an individual basis.
Based on this advice from the Department of Defense and Joint Chiefs of Staff, and after consulting with the Department of Justice about the legal effect of that advice, the President concluded that the Dornan Amendment is unconstitutional. It arbitrarily discriminates and violates all notions of equal protection. Again, at the direction of the President, the Attorney General and the Department of Justice will decline to defend this provision in court. If the Congress chooses to defend this treatment of men and women in the military, it may do so. But this administration will not.
Finally, we hope that no service member will be discharged under this provision if Congress does what it should and repeals it. But in case that does not happen quickly enough, the President is directing the Departments of Defense and Veterans Affairs, as well as the Department of Transportation, which is responsible for the Coast Guard, to take all necessary steps to ensure that separated service members and their families will get the full measure of benefits that they should, including disability retirement pay, health coverage for their families, and transition benefits such as job training.
We'll be happy to take questions, but I'd like to invite Assistant Attorney General Dellinger to add to my statement.
MR. DELLINGER: We advised the President that this provision, which discriminates against a group of healthy and productive members of the Armed Services, would be constitutional only if it serves a legitimate governmental purpose. After consulting with Secretary Perry and the Joint Chiefs, the President concluded that the provision does not serve any valid military or other purpose. Based on the Pentagon's military conclusion, and after consulting with the Department of Justice about the legal effect of those conclusions, the President appropriately determined that the provision is unconstitutional and that the Department of Justice should not defends its constitutionality in any litigation.
We'd be happy to answer questions.
MR. QUINN: May I just add -- Mike reminds me that copies of the statement by Secretary Perry and General Shalikashvili, as well as the directive I alluded to, will be available to you in a few minutes.
Q Did the President have the opportunity to tell the Defense Department not to enforce the law if he finds it unconstitutional?
MR. QUINN: We discussed that matter. I'm going to ask Walter to elaborate on it. There are ample reasons why we're not in a position to direct the Secretary of Defense not to enforce it. What it boils down to, frankly, is that we don't have the benefit of a prior judicial determination to the effect that this provision is unconstitutional, and in circumstances where you don't have the benefit of such a prior judicial holding, it's appropriate and necessary to enforce it. Among other things, by setting in motion enforcement of this policy, that is how we will get a case moving, the ultimate result of which, of course, we believe firmly will be for the courts to strike this down as unconstitutional.
Q Will that be tomorrow, immediately after --
MR. DELLINGER: Let me add one point to that, Ms. Thomas. When the President's obligation to execute laws enacted by Congress is in tension with his responsibility to act in accordance with the Constitution, questions arise that really go to the very heart of the system. And the President can decline to comply with the law, in our view, only where there is a judgment that the Supreme Court has resolved the issue. And here the courts have not had an opportunity to resolve it, and the action the President is taking, if the leadership of the House and Senate choose to defend this provision, will ensure that the courts are presented with a full range of argument in making their determination.
Q How long will that take?
Q Is there a particular case you will rely on in your judgment that this is unconstitutional, or is it just some reading you're making of the Constitution as written?
MR. QUINN: We are going to rely upon the judgment that the President has made in consultation with the Joint Chiefs and the Secretary of Defense that this provision serves no valid military purpose. And if that is the case and that is their determination, we'll present that determination. That is the basis of the President's decision that the Department will not defend the constitutionality of this provision.
Q That phraseology itself suggests that there must be some body of case law that derives from this that you would cite as an example.
MR. QUINN: In cases like this where you have a discrimination worked on the face of a statute, the question the courts ask is, is there a rational basis for this discrimination? Does it serve some valid, legitimate, rational government objective? The people to whom that question is properly put by the President are the Secretary of Defense and the Chamber of the Joint Chiefs. They've indicated to the President that, in fact, no, this provision does not pass that test. It does not serve a valid military purpose, and, in fact, according the statement I just read you, it is detrimental to the military mission.
Q There must be some cases where that's been found an applicable standard, though. There must be --
MR. QUINN: There are a ton of cases, yes. There are a ton of cases, absolutely. Absolutely.
Q Jack, you mentioned that the -- if the law goes into effect, that the discharged members will receive a full measure of benefits. Would they receive benefits above and beyond what any honorably discharged member of the service --
MR. QUINN: Yes. Here's what we're trying to do with this directive. What we want to do, what the President is determined to do with this directive is to make sure that in the unhappy event that the court doesn't quickly enough strike down this provision and some of these people are discharged, that they would get the full measure of benefits that they would get if they were retired for medical reasons.
Now, the directive, you'll see, asks the affected departments to flesh that out. But, again, we're talking about disability retirement. We're talking about the provision of health insurance for families and making transition benefits available. None of those things will now be available in the absence of this directive. The President is determined to make sure we do everything we can to soften any blow if we're unsuccessful in warding off that blow.
Q -- definitely will receive medical --
MR. QUINN: I'm not an expert on -- the answer is yes. I'm advised the answer is yes.
Q Jack, is there any precedence -- do you know of a precedence for a President refusing to enforce a -- to defend a law?
MR. QUINN: Yes. Yes, there's ample precedent for Presidents refusing to defend enactments of the Congress in court. President Roosevelt -- Franklin Roosevelt -- did this in what at the time was a well-publicized matter, but there have been many other occasions. I'll let Walter elaborate on that.
MR. DELLINGER: Let me give you just one example. In 1943, President Roosevelt signed the Urgent Efficiency Appropriation Act notwithstanding his reluctance because of a provision that in his view violated the Constitution by depriving named individuals who were singled out by Congress of the right to ever receive any pay from their government jobs. The President directed the Attorney General not to defend the constitutionality of the provision. The Senate, in fact, defended in the Court of Claims through counsel, and the court ruled in United States versus Lovett that the President was correct in his conclusion and held that provision of the Urgent Efficiency Appropriations Act unconstitutional.
Q So what you're trying to do is you're looking for a case? It sounds as though what you're doing is you're seeking a case as soon as you can --
MR. QUINN: Well, it is as sure as the sun will come up tomorrow that a lawsuit will be filed the moment that this provision is put into effect. We don't have to seek one out, one will be filed.
Q What will be the mechanics, the legal mechanics of that at that point? Is the idea that if the administration doesn't defend the constitutionality of this in court that in essence you're --
MR. QUINN: The Attorney General -- my expectation is that the Attorney General, having been directed by the President not to defend this in court, will notify the congressional leadership and indicate to the congressional leadership that if it chooses to defend this enactment it may do so, but that this administration will not. I can't answer -- I'm sorry?
Q Any indications of what the leadership will do? Have you talked to them about it, working with them on the repeal, or whatever?
MR. QUINN: No. I have no idea --
Q Do you know what their --
MR. QUINN: I do not. I do not. I look forward to seeing how they will respond.
Q Maybe I just didn't notice, but we did not see a lot of administration public complaint about this provision when the bill was working its way through Congress, nor, as far as I know, was it a veto element in the -- or was it? I mean, I don't -- what's the history of you trying to get this done before it happened?
MR. QUINN: I'm advised that our opposition to this provision was stated clearly in our statement of administration policy on the bill.
Q But not as -- you said then you wouldn't veto the bill over it, right?
MR. QUINN: The President is not vetoing the bill.
Q On its effect on the military, the argument you're using that it's arbitrary, the congressional Republicans who sponsored this say that the current policy does affect military readiness because people who test positive for HIV are given shore leave while others have to go overseas or on ship, and that they right now get preferential treatment. What is your response to that?
MR. QUINN: Well, I can't rely on Congressman Dornan to give us advice about military readiness. We have to rely on General Shalikashvili and Secretary Perry, and they conclude to the contrary. And, frankly, I'm satisfied with that, as is the President.
Q -- to knock down the Dornan provision? Aside from taking a hands off position, would the administration file a -- brief in support of the plaintiff? Would you join as a party in court, or would you just not appear at all?
MR. QUINN: We would certainly consider that. I'm not prepared today to give you a definitive answer to that, but nor will I rule it out.
Q As a practical matter, how many people are affected by this?
MR. QUINN: About a thousand. About a thousand.
Q If the court -- successful, would you make any promises to them that they would be rehired or accepted back into the military?
MR. QUINN: I'm sorry -- if the --
Q If you have to start discharging these people, then six months later, nine months later you win in court -- or, I'm sorry, plaintiff wins in court, are you going to make any kind of promises these people will be able to go back into the military?
MR. QUINN: I'm sure that we will do everything we can not only to keep these people in the military, but to reinstatement in the event that separation procedures are started.
MR. DELLINGER: Let me make one thing -- the statute provides that separation can take place at a period up to six months. It says, as soon as practicable, but not later than the last day of the six months. So there is a six-month period of separation. So that there is not a requirement under the law that separation be immediate, given the practicalities of the military determination. So that will not take place.
MR. QUINN: Let me add to this point that no one will be separated until the last possible moment.
Q But could you explain -- you'll have a thousand people who will lose their jobs because of a provision that the President believes is unconstitutional. Why did he, therefore, decide to sign it?
MR. QUINN: There are ample good reasons why the President is in a position that he has to sign this bill in order --we are going to do more on that, I guess, at a 2:00 p.m. briefing, laying out in some detail the many parts of this bill that really do impel the President to sign it.
Q Jack, does the consideration for dismissal begin immediately? And as that consideration is underway, there's this six-month lag time -- is that what you're telling us?
MR. QUINN: I'm telling you that the -- I hope this answers the question -- that the Secretary will undertake to set in motion procedures to effectuate this provision.
Q Immediately?
MR. QUINN: Immediately. That, we believe, will create the condition under which a lawsuit might appropriately be brought on behalf of the potentially affected military men and women.
Q So a lawsuit could be brought immediately if someone was under consideration for dismissal?
MR. QUINN: Yes.
Q And do you already have somebody picked out to do that?
MR. QUINN: No. We don't represent the plaintiffs in those cases.
Q How long would it take, ballpark, for it to work its way up through to the Supreme Court before we get an answer?
MR. QUINN: I don't know. It could take a good deal longer than six months before you get a final resolution of this. But bear in mind that that does not mean that in the meanwhile there will necessarily be a separation of these people from the military. It is entirely possible that a court will enjoin the separation of these people from the military pending final resolution.
What happens in a case like this is that a court will have to consider at some point early in the process the question whether an injunction should issue. Whether it should issue or not turns on the relative burdens that would be imposed on either side by granting or not granting, and on the important question of likelihood of success on the merits eventually. In our judgment -- and I think our having taken the position we do contributes to this outcome -- the likelihood is that a court will see at an early point in time that the plaintiffs in these cases have a very high likelihood of success on the merits. That being the case, combined with the fact that their discharge would work a real injustice and burden on them, it well may be that any such separations will be enjoined. But we'll just have to see how that plays out.
Q Jack, there have been cases where military people were discharged from the service as incapable of performing service, highly decorated people, because war wounds created a disability. I think, if not mistaken, one case in point was Jim Webb who went on to become Navy Secretary. How are people who are separated because war wounds disabled them different? I think you're establishing a double standard here.
MR. QUINN: Not at all. Not at all. They, in fact -- on the contrary. It is the judgment of General Shalikashvili and Secretary Perry that each and every one of these people is able to perform his or her military duty.
Q What is the current policy for someone who is not -- who is diagnosed with AIDS as opposed to HIV-positive?
MR. QUINN: If they meet the standards, if a person has AIDS and meets the standard of medical disability for a separation, they are separated on the same basis of everyone else who meets the -- I believe it's a 30-percent disability standard or some other disability standard. It's the same standard regardless of the condition.
The group of people that are affected by this law are people who are not medically disabled; that is, they're healthy individuals performing their tasks. Anyone who is medically disabled, whatever the cost, is transferred on the same basis, whether it is AIDS -- these are people who have at this point -- it includes people who are only tested as being positive for the HIV virus.
Q And diagnosis of AIDS renders them medically disabled?
MR. DELLINGER: It subjects them to the same standards of disability, depending on what the actual disability is. All conditions, what the military looks to in those instances of discharge, is what someone's condition is, regardless of its cause.
Q What's the practice with people with AIDS? Are they discharged or not?
MR. DELLINGER: I assume they're treated under the same medical disability as others. But that's a question for the Defense Department.
Q You keep saying that, but you can't -- that doesn't answer the question. Do you know what happens to them?
MR. DELLINGER: Mike will check it for you. I'm sure that's right.
The Pentagon task force charged with examining the issue [this is in reference to the survey about how to lift DADT] is "well along" in formulating recommendations, and the [new DADT injunction] ruling is not expected to affect its work, [said] another senior military officer. The task force found deep resistance to the idea of repealing the law in some elements of the armed services, especially within the combat units, an officer familiar with the findings said. [emphasis mine]
What else do you expect the Pentagon to do? Their commander in chief is a pushover. They can do whatever they want, and they know he won't touch them. He never goes after anyone who undercuts him. Gates rolled Obama on this issue early on, and kept rolling him. And nothing happened. So is it any wonder that DOD has decided - as predicted - to start leaking negative survey results in order to kill the repeal of DADT, and undercut the President of the United States?
Americans don't vote for weak leaders. This is an incredibly dangerous message that this President continues to send about his own character. On issue after issue, he caves, or does nothing in response to a direct challenge. And regardless of his motivation, he's coming off as a bit of a coward. At some point, the negatives are going to stick and there's going to be nothing he can do to turn things around.
Not that anyone thinks he'd ever try.
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It's been almost 48 hours since a federal judge threw out DADT. It is no longer the law of the land. The judge specifically ordered the Obama administration to stop investigating, discharging and turning away gay service members.
In response, what did the Obama administration do when a gay vet went to a recruiting station to re-enlist? They turned him away because he's gay.
That is a direct violation of a judge's order. It's breaking the law.
Why does this matter? Because up until now the President has been telling us that he can't stop the discharges without congressional action because then he wouldn't be upholding the law, and he must uphold the law, regardless how onerous, lest he be as bad as George Bush who broke lots of laws. (Mind you, Obama has frequently refused to uphold the law on other non-gay matters - it's only on gay ones that he suddenly finds Jesus and won't bend. And, mind you, issuing a stop-loss order on DADT isn't breaking the law, it's enforcing the stop-loss law.)
But Barack Obama didn't uphold the law of the land yesterday. He broke it. (And his Defense Department made clear that, in any case, they have no intent to follow the judge's order.)
So, to be clear, the President upholds the law of the land on DADT when it hurts gays, and he violates the law of the land on DADT when it helps gays. The only thing consistent in the President's actions is that he always seems to take the position that's anti-gay.
So much for the President's holier-than-Bush justification.
But it's actually worse for the President, far worse. The latest administration talking point for why they continue to appeal our DADT and DOMA victories in court is that if they don't, a future Republican president might not appeal a case striking down health care reform or hate crimes.
First, the talking point is absurd, as I explained in the post linked to above. But back to the matter at hand, Obama has just outright ignored a court order. Under the administration's logic, that gives future Republican presidents the right to ignore court orders telling future Republican presidents to abide by the health care reform law or to abide by the hate crimes act. But funny how none of that mattered when the administration had the chance to take another swipe at the gays.
Don't let another Obama administration official or apologist - DNC Treasurer Andy Tobias comes to mind - lecture you about how they're being anti-gay in order to uphold the rule of law and be better than Bush, or to save health care reform and the hate crimes law. Those arguments went out the window yesterday when the Obama administration disobeyed a direct order from a federal judge.
Not that we didn't already know this, but President Obama's moral authority is gone.
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As of this morning, the Department of Justice hasn't sought a stay of the DADT injunction. We're expecting it. The White House has been telegraphing it.
The New York Times has a great article on the history of the Log Cabin Republicans lawsuit against DADT. It was an improbable quest, but they prevailed. And, the piece quoted the named plaintiff in the case, our friend Alex Nicholson:
“We have been surprised at every stage of this,” said Alexander Nicholson, a member of the Log Cabin Republicans and a former Army intelligence specialist who was discharged because of the policy. “We thought the judge would follow every other pattern the other judges have followed: deference to the military.”...
...“The fact that she did not dismiss the case was a huge surprise,” Mr. Nicholson said. “Then she continued to surprise us.”
Then, there was this interesting development at the end of the piece. In the wake of the decision, a discharged Vet, joined by GetEQUAL, tried to re-enlist:
But with the ultimate fate of the “don’t ask, don’t tell” rule still unclear, some celebrations are being delayed.
With a briefcase full of commendations under his arm, Omar Lopez walked into an Austin, Tex., recruiting office Wednesday. Mr. Lopez, 29, had served nearly five years in the Navy. He was honorably discharged in 2006 for “homosexual admission,” according to documents he carried. He wanted to re-enlist.
But recruiters turned him away hastily, saying they had no knowledge of any injunction or any change in military policy.
“I like the civilian world, but I miss it,” Mr. Lopez said of the military, as he arrived with a worker for Get Equal, a gay rights advocacy group. “I feel lost without it.”
