The Obama administration has filed for a stay to the 9th Circuit Court of Appeals decision to uphold a worldwide injunction halting enforcement of “Don’t Ask, Don’t Tell.”
The “emergency” request for a stay, filed late Thursday, asks that in the case Log Cabin Republicans v. United States the 9th Circuit once again suspend the “Don’t Ask, Don’t Tell” (DADT) injunction so the open service ban can remain in effect until the legislative repeal is certified. This, the motion asks, should be decided by close of business Friday. The request also confirms the Obama administration intends to defend the law until it is repealed.
Interestingly, the brief argues that the 9th Circuit has misunderstood the government’s stance on DADT, and that the court based its reasoning to enforce the injunction, at least in part, on the idea that because the executive branch had moved to repeal the law the administration thought it was suspect. This, the DOJ argues, is not the case. While repeal is only a matter of weeks away, the brief argues the administration believes DADT is constitutionally sound, that there will be real harm in halting DADT enforcement before service chiefs have certified the repeal, and more than that, that it would allow one judge, Judge Virginia Phillips, to have overruled Congress’ decision that the repeal should be carefully coordinated. This, the brief summarizes, comes down to a matter of separation of powers.
“This latest maneuver by the President continues a pattern of doublespeak that all Americans should find troubling. All this does is further confuse the situation for our men and women in uniform,” said R. Clarke Cooper, Log Cabin Republicans Executive Director, combat veteran and captain in the United States Army Reserve. “Let me be clear – the president is asking the court for the power to continue threatening servicemembers with investigation and discharge, and the right to turn away qualified Americans from military service for no reason other than their sexual orientation. Even if the administration never uses that power, it is still wrong, and the Ninth Circuit was clear that there is no justification for continuing the violation of servicemembers’ constitutional rights. ‘Don’t Ask, Don’t Tell’ is an offense to American values that should have been gone long ago. It is shameful that a president who has taken credit for opposing the policy is taking extreme measures to keep it on life support.”
“The motion that the government filed today has no other purpose than to request – on an emergency basis – that the military be permitted to investigate and discharge servicemembers, and block new enlistments, based solely on those individuals’ sexuality,” said Dan Woods, partner of White & Case and lead attorney in Log Cabin Republicans v. United States. “The government’s request is inexplicable on any other basis.”
While DADT is undeniably offensive, this isn’t really double-speak, nor is it an “extreme measure.” The administration can state DADT is unfair while still believing it to be constitutional in much the same way that Obama can defend the law as it stands (which would be normal procedure for the presiding administration) while going through the process of repealing it.