Pentagon surveys troops on DADT (again)

[Lamplighter]

Well this didn't take long...

The Christian Science Monitor

'Don't ask, don't tell' back in force after appeals court issues stay
By Warren Richey,*Staff writer / October 20, 2010

An appeals court decides that 'don't ask, don't tell' can temporarily remain in effect as legal proceedings continue.

The Obama administration is appealing a ruling last week that 'don't ask, don't tell' must be abandoned immediately.
The action means the Pentagon’s ban on service members who are openly homosexual is, once again, in full force.

[classicman]

Yeh - We all knew it was coming, didn't we?

Too bad this administration "had" to appeal it.

At least it is headed in the right direction. It certainly wouldn't have gotten this far under the R's.

[TheMercenary]

Why would Obama shoot themselves in the collective foot after all those promises Obama made about DADT?

[Lamplighter]

The Obama Administration is not shooting themselves in the foot...

I do solemnly swear (or affirm) that I will faithfully execute
the Office of President of the United States, and will to the best of my ability,
preserve, protect and defend the Constitution of the United States.

[sexobon]

It's because the commander in chief has a responsibility to safeguard the authority of the office of the President IAW the separation of powers. As you have remarked, there needs to be an orderly transition. If some judge can bark orders at the military and force it to rearrange its priorities (to effect immediate implementation) on this issue, judges could do so on other issues for whatever reasons. It would set a precedent that undermines the power of the Executive branch.

[TheMercenary]

Originally Posted by Lamplighter

The Obama Administration is not shooting themselves in the foot...

I don't need you to quote the oath. Obama promised to do away with DADT. The simple solution would have been for the CIC to issue an order the day after he took office. The military does not need some orderly transition. It is no different from the integration of blacks and women. There were plenty of top down orders that came from the leadership that people didn't like and don't like. But you take your marching orders and make the appropriate change. Screw the lower court rulings, they are not needed and I don't think carry much weight when it comes to establishing policy and procedure in the military.

[Lamplighter]

Well, the oath Obama took is the basis for what is happening now.

There is a pretty good editorial in the NY Times today about this business,
and another possible route the CIC could possibly take.

But there does seem to be unanimity among the legal dogs
that since DADT is in a law passed by Congrees, it is not like the integration
of Blacks and women in the services to be voided by executive order.

At least that is how I understand and accept what is going on now.

[classicman]

Originally Posted by TheMercenary

What you don't understand is that it is a huge system and change comes slowly and needs to institutionalized. This is not simply an order that needs to be given, although it is that, it is more. Change needs to be introduced with a plan in a systematic fashion. I think most of the younger troops can accept it, most of the older folks will have to struggle with it. I support it and I am from the older group. But I am not foolish enough to think that you can foist it on the system with an order and think all will be well. It will not.

Originally Posted by TheMercenary

The simple solution would have been for the CIC to issue an order the day after he took office. The military does not need some orderly transition. You take your marching orders and make the appropriate change. Screw the lower court rulings, they are not needed and I don't think carry much weight when it comes to establishing policy and procedure in the military.

Wait which is it? The bold (mine) in the first or the second?

[TheMercenary]

Systematic in the since that the order is given, the troops are prepped for what is coming, and the change is made.

NOT, systematic in the sense that the military needs to do some study or poll among staff weenies to see if they are ok with it as Gates stated recently. There has been a sea of change in the attitude since the 70's when I first joined. It will not go well at first in many units. Others will not care. But as I listened to the discussion in the immediate news I have modified my stance on it and they just need to get it done. They need to stop circling around the issue and just do it.

[Happy Monkey]

Originally Posted by Lamplighter

But there does seem to be unanimity among the legal dogs
that since DADT is in a law passed by Congrees, it is not like the integration
of Blacks and women in the services to be voided by executive order.

At least that is how I understand and accept what is going on now.

It couldn't be voided, but it could be rendered toothless. But only so long as the executive order remains in effect.

It's possible that if he had issued the executive order, there would be less impetus for Congress to act, so maybe it's better in the long run to not issue the order.

The same might be true for the judicial order. It's a lower level court, so it can be overruled. If the Justice Department had declined to appeal, Congress may have thought that there was no longer any hurry to repeal the law, only to have another case come through later and put it back in effect.

Appealing to the Supreme Court is tricky. While it would be best for them to get to the Supreme Court and lose, that puts them in the position of actively supporting a Constitutional right for the government to discriminate against gays, which is not a defensible position. And given the makeup of the court, they could win, which would be the worst outcome. Even if Congress repealed the law, there would be Supreme Court precedent that homophobia is a valid government position.

I would have thought that leaving the anti-DADT judicial order in place might have been the best option. Enter the Supreme Court battle with months of openly gay military service already in place.

[TheMercenary]

The bottom line folks is that the CIC can issue an order and it will the lay of the land. Congress can back it up for him if they want.

[classicman]

This is exactly the type of situation where "change" is needed.
There shouldn't be all this time and money wasted on something so painfully
obvious to virtually everyone.
<insert frustrated smilie here>

[Lamplighter]

Merc, to your point about CIC issuing a order, the problem is that another CIC (President) could resend that order and the whole issue would ping-pong.

Here is what is happening today...


Posted on Advocate.com
November 05, 2010

Log Cabin Petitions Supreme Court
By Kerry Eleveld

The Log Cabin Republicans filed papers Friday asking the U.S. Supreme Court to reinstate
a worldwide injunction on enforcement of the military’s “don’t ask, don’t tell” policy
while the case is being litigated.
<snip>
Log Cabin's lead attorney in the case said the group was asking the Supreme Court
to get involved because officials believed the ninth circuit had overreached when it suspended the injunction.

"It's rare for any litigant to pursue an interim stay issue all the way to the Supreme Court.
It involves the court in the case at a very early stage of the appeals process and is often*considered*risky,"
he explained. "That said, I imagine the plaintiffs feel they don't have much to lose,
even though the*likelihood*of*success*on this interim request is low.
But if they do*prevail, they would gain a lot of strategic leverage."*

The appeal to Supreme Court justice Anthony M. Kennedy is seemingly a long shot.
Justice Elena Kagan may have to recuse herself from the case based on her former role as solicitor general
for the government while the case was in its initial stages.
That would leave four conservative-leaning justices (John Roberts, Samuel Alito, Antonin Scalia, and Clarence Thomas)
and three liberal-leaning ones (Sonia Sotomayor, Ruth Bader Ginsburg, and Stephen Breyer).
Justice Kennedy is considered the swing vote, as always, but Kagan's recusal leaves the left one justice short.

[TheMercenary]

Look, in my 20+ years the CIC issued a number of orders, and his subordinates did the same, and they all became the law of the land for the immediate. Whether is changes in 4 or 8 years is insignificant, the point is that the process is started and people accept it as the norm, whether we agree with it or not. And I assure you there are a few issues that we did not agree with. But you take your orders and drive on. That is what we are paid to do. The CIC can do the same with DADT.

[Lamplighter]

My understanding is that DADT is a law passed by Congress.

If any President/CIC were to issue such an order defying that law, it could be an impeachable offense.
Maybe my understanding is not correct, so enlighten me...

One of the issues Obama campaigned on was elimination of DADT.
Obama has said he wants Congress to overturn DADT.
Obama has had several opportunities to take the route of issuing an order as CIC,
but instead he has taken the route of formally appealing (via the Dept of Justice) the issue up thru the federal courts.

So, I ask you very specifically: why do you believe Obama is refraining from issuing an order as CIC to overturn DADT ?