Tag: DADT

Judge Virginia A Phillips, US District Court, Central District of CA,  has issued an injunction which halts enforcement of the Pentagon’s discriminatory “Don’t Ask, Don’t Tell” policy, after ruling it unconstitutional last month on Sept 9, .

http://www.huffingtonpost.com/…

http://miamiherald.typepad.com…

“This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking,” said Alexander Nicholson, Executive Director of Servicemembers United and the sole named veteran plaintiff in the case along with the Log Cabin Republicans. “While this is certainly news to be celebrated, we would also advise caution in advance of a potential stay from the Ninth Circuit. If the appellate court wishes to put itself on the right side of history, however, it will allow this sound and long-over due decision to remain in effect.”

From the injunction ruling itself: (pdf download  http://www.ServicemembersUnite…  )

(3) 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 commenced under the “Don’t Ask, Don’t Tell” Act, or pursuant to 10 U.S.C. 654 or its implementing regulations, on or prior to the date of this judgement.

(4) Grants Plaintiff Log Cabin Republican’s request to apply for attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412  

(5) GRANTS Plaintiff Log Cabin Republicans’ request to file a motion for costs of suit, to the extent allowed by law.

IT IS SO ORDERED.

Virginia A Phillips

United States District Judge

dated October 12, 2010

A writeup yesterday from Law.com thinks that the Obama administration will continue to defend DADT, instead of letting the policy just die,  while waiting for  Congress to further write a new law, Sec of Defense Gates to complete his “study and survey,” and the Supreme Court to eventually issue their opinion on the appeal.

Senators Gillibrand and Udall have sent a public letter urging Attorney General Eric Holder not to appeal, saying such could hold back Congress further.

http://www.law.com/jsp/article…

Still, several signs indicate that the Obama administration plans to continue to defend Don’t Ask, Don’t Tell. When asked about the government’s next move, Justice Department spokeswoman Tracy Schmaler said in an e-mailed statement to The National Law Journal: “The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged.”

The Justice Department already has filed an opposition to a proposed permanent injunction that would bar enforcement of Don’t Ask, Don’t Tell worldwide. In it, the government said that an injunction, if granted, should be limited to members of the Log Cabin Republicans.

If Phillips grants the injunction, the government could ask the 9th Circuit for a stay pending any appeal and for a stay to be granted, said Adam Winkler, a constitutional law professor at the University of California at Los Angeles School of Law. “If she enters a permanent injunction without a stay of appeal, it will seem like a power grab,” he said of Phillips. “The 9th Circuit won’t look kindly upon it.”

As I pointed out previously, the Log Cabin Republicans are Republicans, and to limit the stay of this discriminatory law to their group, says that the US Constitution is not political party neutral,  and the Obama Administration thinks only Republicans are qualified to deserve civil rights and equal protection under the law. Another lawyer in the article pointed out there is a tendency for the judiciary to “defer” to the military.  The last time I looked, there is absolutely nothing in the Constitution which stated that military service can only be performed by members of one specific political party.   The Commander in Chief is still an elected civilian position, no party specified, at least in stated law.  Membership qualifications in a political party to obtain full benefit of the law, even military law, reeks of codified bribery.

The solution is obvious, the Attorney General of the U.S. should not appeal this ruling, to do otherwise implies Justice is for Sale, and our military forces are open to the highest bidder vying for the attention of one of 100 Senators.  This becomes an issue of national sovereignty.  Let DADT die.  Its time has passed.  

previous diaries on this:

Holder’s DOJ Attorneys Behaving Badly, File Objection on Dadt overturn

https://www.docudharma.com/diar…

DADT Overturned, How Hard Will Obama Admin Defend It ?

https://www.docudharma.com/diar…

Those of you who’ve followed my work over a period of time know that I’m usually the one suggesting moderation and keeping everyone in the big tent, and, even in this most difficult year, I’m the one telling folks that sometimes you just have to hold your nose and vote for the candidate that sucks less.

And even though the last thing I’d ever want is a Speaker Boehner or a Leader McConnell (or even worse yet, DeMint), the fact remains that there are two Democratic Senators I would actually vote against, even if the candidate that sucks more does win…and those two are Arkansas’ Blanche Lincoln and Nebraska’s Ben Nelson.

One of those two is up for re-election this year, and thanks to a particularly ridiculous vote by Senator Lincoln, we found ourselves in a bit of an email exchange, which is what we’ll be talking about today.  

Two weeks ago, I asked whether or not the Obama administration’s Department of Justice under Eric Holder would seek to thwart the ruling of Judge Virginia Phillips, when she ruled on 9/9/10 that Don’t Ask Don’t Tell, the military’s antiqued discharge policy used against gay people, was unconstitutional.  The lawsuit was brought by the Log Cabin Republicans, who won the ruling on the grounds of freedom of speech, freedom of association, and the ability to petition the government for the redress of grievances-  the good, old fashioned stuff.

https://www.docudharma.com/diar…

Since then, the Democrats in the Senate made another one of their feeble, half hearted attempts at accomplishing something meaningful and legally correct, and of course, failed, after 3 of their alleged Dem caucus bailed on them during a cloture vote to get an amendment to get rid of DADT tucked into the latest DOD spending bill for FY 2011.

Here’s the roll call on that pathetic 56 to 43 vote.   http://www.senate.gov/legislat…

Judge Phillips said in her ruling that she intended to issue an injunction to stop enforcement of DADT,  yesterday, the Obama Administration’s Dept of Justice Filed An Objection to Overturning DADT, and even said that the Judge would be overstepping her bounds if she did it.  

http://www.talkingpointsmemo.c…

“A court should not compel the executive to implement an immediate cessation of the 17-year-old policy without regard for any effect such an abrupt change might have on the military’s operations, particularly at a time when the military is engaged in combat operations and other demanding military activities around the globe,” federal attorneys said in their objection.

Department of Justice officials declined to comment further.

White House Press Secretary Robert Gibbs tried to pretend this was not backpedaling on that fierce advocacy for equal rights that was mentioned in the 2008 campaign.  Instead he tried to blame Congress, via an email, sent to the Associated Press.   Odd that he said “this clearly shows why Congress must end this policy.”   Because Congress is thought of as the House, and the House has its act together on this and would vote for it.  It’s the Senate, and more specifically a Democratic Majority Senate that is at fault,  that has decided a man or a woman in some states  gets to have 2 and 2/3 Senators, while the rest of the country only gets 1 and 1/3 Senator, every time they insist on a 60 vote majority to decide any procedure.

One potential solution to this would be for every person in the military who this policy impacts to immediately declare themselves a member of the   Log Cabin Republicans, since Judge Phillips could limit the injunction to them and not upset Attorney General Eric Holder’s Department of Justice…..  too much during an election season.   I’m not recruiting for them, but it looks like President Obama is confused about that equal protection under the law Konstitooshunal bipartisanshipthingee again.   I would love to see the Judge smack down more doofus crap from any administration who is telling her that the military members have to belong to the Republican Party to have equal protection, wouldn’t you ?

And of course,

Back in April in CA at the Boxer fundraiser

Back in April at the White House

Last year in DC , Oct 2009

They say that this country is free, and they say that this country is equal, It is not equal if it is “some times”

Aside from the legal and moral issues, since this is the height of campaign season, and the President is running around the country doing million dollar fundraisers for some of these Senatorial candidates, let’s say what they fear the most:

Don’t Equalize, Don’t Pay to Play.

Because there is nothing more obnoxious that watching the current spectacle of the Senate Democrat’s Villain Rotation being used as an extortion tool.  

Six years after the Log Cabin Republicans filed suit, and 7 weeks after closing arguments on July 23,  Judge Virginia A. Phillips of the US District Court, Central District of CA, issued a landmark ruling yesterday, which overturned “Don’t Ask, Don’t Tell.”   Judge Phillips said in her ruling that it violates servicemembers’ Constitutional rights, and that she would issue an injunction against the government to stop it from being further enforced.

Log Cabin Republicans (LCR)  said DADT violates due process guaranteed by the 5th amendment of the Constitution and their freedom of speech, association, and the ability to petition the government, guaranteed by the 1st amendment.

Is this finally the end of one of President Clinton’s least popular compromises of the last century ?  Or will the Obama administration, who has dawdled on fulfilling a campaign promise to end DADT by refusing to issue an executive order, appeal, and continue to waffle and defer to yet another Pentagon study after Defense Secretary Gates’ latest one is due out on Dec 1 2010 ?

Since the policy was first introduced in 1993, over 13,000 military personnel have been discharged because of DADT, with 619 being discharged in 2008 and 428 being discharged in 2009.  (In the first two years of the Bush administration, it was 1,241 and 1,273 troops discharged, respectively).  Per wikipedia, of the the 26 counties of NATO, more than 22 of those already permit gay people to serve,  all of the countries of the European Union except Greece permit gay people to serve, and of the UN Security Council, 3 countries, Great Britain, France, and Russia permit gays to serve, with only the United States and China still stuck in the past.  

http://www.guardian.co.uk/worl…

The decision puts the White House in a quandary, since it comes as the Obama administration is in the middle of a cautious and drawn-out attempt to lift the ban on homosexuals serving openly in the US military.

But those carefully calibrated plans may now be thrown out the window, after Judge Phillips granted a request for an injunction halting “Don’t Ask, Don’t Tell” from operating, saying evidence showed that it had a “direct and deleterious effect” on the military.

A pdf of the complete ruling by Judge Phillips is here, Log Cabin Republicans v. United States of America and Robert M Gates, Secretary of Defense:

http://www.cacd.uscourts.gov/C…

excerpt:

Many of the lay witnesses also spoke of the chilling effect the Act had on their ability to bring violations of military policy or codes of conduct to the attention of the proper authorities.

__

The Act prevents servicemembers from openly joining organizations such as the plaintiff in this lawsuit that seek to change the military’s policy on gay and lesbian servicemembers; in other words, it prevents them from petitioning the Government for redress of grievances. John Doe, for example, feared retaliation and dismissal if he joined the Log Cabin Republicans under his true name or testified under trial; thus, he was forced to use a pseudonym and to forgo testifying during trial. (Ex. 38 Doc Decl. pp 6- 8; see Trial Tr 88:19- 90:15, July 13, 2010, 708:21- 709:4, July 16, 2010 )

Furthermore, as discussed above, the Act punishes servicemembers with discharge for writing a private letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before volunteering for military service. It subjects them to discharge for writing private e- mail messages, in a manner otherwise approved, to friends or family members, if those communications might lead the (unauthorized ) reader to discern the writer’s sexual orientation. These consequences demonstrate that the Act’s restrictions on speech are broader than reasonably necessary to protect the Government’s interest. Moreover, the Act’s restrictions on speech lead to the discharge of servicemembers with qualifications in critically needed occupations, such as foreign language fluency and information technology. The net effect of these discharges, as revealed not only in the testimony of the lay witnesses but also of the experts who testified and Defendants’ own admissions regarding the numbers of servicemembers discharged and the costs of recruiting and maintaining an all volunteer military force, compel the conclusion that the Act restricts speech more than reasonably necessary to protect the Government’s interests.  

Finally, it again must be noted that Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act. This evidence, discussed in Section IV(C)(1) above, does not suffice to show the Act’s restrictions on speech are “no more than what is reasonably necessary” to achieve the goals of military readiness and unit cohesion. (See supra Section IV (C)(1)

VI. Conclusion

Throughout the consideration and resolution of this controversy, the Court has kept well in mind the overriding principle that “judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.” Rostker, 453 U.S.at 70.  Nevertheless, as the Supreme Court held in Rostker, “deference does not mean abdication.” Id. at 67,70.  Plaintiff has demonstrated it is entitled to the relief sought on behalf of its members, a judicial declaration that the Don’t Ask, Don’t Tell Act violates the Fifth and First Amendments, and a permanent injunction barring its enforcement.

“Deference does not mean abdication….”  but since the Obama Dept. of Justice abdicated putting on much of a defense, does this mean they’re finally going to stop deferring to this form of discrimination ?

 As the House convenes today, Tuesday, August 10, to vote on some Senate last minute leftovers, White House Press Secretary Robert Gibbs shows the House members hesitating on voting for more stuff how to communicate effectively with the voters when they resume their 6 week August vacation and fundraising break.

http://thehill.com/homenews/ad…

“I hear these people saying he’s like George Bush. Those people ought to be drug tested,” Gibbs said. “I mean, it’s crazy.”

The press secretary dismissed the “professional left” in terms very similar to those used by their opponents on the ideological right, saying, “They will be satisfied when we have Canadian healthcare and we’ve eliminated the Pentagon. That’s not reality.”

Of those who complain that Obama caved to centrists on issues such as healthcare reform, Gibbs said: “They wouldn’t be satisfied if Dennis Kucinich was president.”

Gibbs said the professional left is not representative of the progressives who organized, campaigned, raised money and ultimately voted for Obama.

Progressives, Gibbs said, are the liberals outside of Washington “in America,” and they are grateful for what Obama has accomplished in a shattered economy with uniform Republican opposition and a short amount of time.

In the spirit of bipartisanshipthingee, I’ll quote Fox News now on what happened next:

http://www.foxnews.com/politic…

Tues Aug 10

WASHINGTON — In a rare moment of bipartisanship Tuesday, the House approved $600 million to pay for more unmanned surveillance drones and about 1,500 more agents along the troubled Mexican border.

Getting tougher on border security is one of the few issues that both parties agree on in this highly charged election season. But lawmakers remain deeply divided over a more comprehensive approach to the illegal immigration problem, and it’s unclear if Congress will go beyond border-tightening efforts.

The House passed the bill by an unrecorded voice vote after brief debate.

In fact, although Pelosi was supposedly calling the House back into session during break to vote on a “jobs” bill, ( which went flying under the radar as some Senate amendment to a House Amendment to a Senate Amendment,)   the HR 6080 Emergency Supplemental for Border Security for Fiscal Year 2010 was the very first thing they debated and suspended the rules and passed by voice vote today, at 10:54 am EDT.  You can see the Clerk of the House’s record here, look up Aug 10, 2010, because there will be NO ROLL CALL VOTE RECORD of this.  http://clerk.house.gov/floorsu…

text of bill from THOMAS here:  http://thomas.loc.gov/cgi-bin/…

Honestly I can’t understand the resistance to gay people living their lives how they see fit.  I would hope that none of us can.  But what you and I understand that most people in this nation apparently don’t is that it doesn’t fucking matter what your neighbor does unless he is doing it to you…..

Hold on to your hats, ladies and gentlemen — Barack Obama is about to fulfill yet another campaign promise!

(Pregnant pause, whilst heralds blow trumpets and Obamatons fall over themselves in rapture)

White House Green Lights Repeal (of DADT)

Let the minstrels sing.  Let church bells be rung throughout the land!

In the letter, Orszag wrote that “ideally” the Pentagon’s review of implementation would be completed before Congress takes legislative action, but adds, “the Administration understands that Congress has chosen to move forward with legislation now…”

Wait….wait  Is that an actually an admission that the Obama administration never wanted, nor intended, to repeal DADT this year?  That Barack Obama always intended to break his solemn word to the honorably serving GLBT soldiers and the rest of GLBT America?

But, never fear, Obama will keep his promise.

The language would not include a automatic nondiscrimination policy but rather will return authority of the regulations for open service by gays and lesbians to the Pentagon.

Ok, in the words of Margaret Cho, “That’s not what I meant!”.  You mean, returning control of how and why gay people are drummed out of military to the very organization that has been witch hunting gays for 40 years?!

Remember when Sen. Barbara Boxer of CA said

“Elections Have Consequences”  ?

So do “unfulfilled for no good reason” campaign promises.

Last night, at a Los Angeles fundraiser for her re election, President Obama was heckled by protesters in the crowd.

Dave Dayen at FDL has the story, video link, and a partial transcript:

http://news.firedoglake.com/20…

Justice for bank fraudsters: Throw them in Guantanamo and sort it out later (speaking of the crooks at J.P. Morgan, Goldman Sachs, etc., etc.) Just like they do with “terrorists”.

If a military tribunal is good enough for Osama Bin Laden’s driver, it’s good enough for the bank fraudsters…and a firing squad at the end.

Justice for Karl Rove: Extraordinarily rendition him to Afghanistan, paradrop him into Kandahar wearing a sandwichboard saying “I Love Salmon Rushdie” on one side and “Death to Islam” on the other.

Justice for opponents of repealing DADT:  Fire them from their jobs and then enlist them in an organization that makes referencing, justifying or speaking anything in reference to Christianity or religion a court martial offense.  Assert that they have “freedom of speech” despite this but they have no rights in this organization.  Give them no privacy, forbid them heterosexual relationships and make them serve their country, only at the end to kick them out because they’re “immoral” and tell them their existence is “contrary to good order and discipline”.

Justice for Teabaggers.  Send them the full bill for their sewer, water, police and fire department protection.  If they object, call them dirty socialists.

Justice for opponents of granting GLBT couples full marriage rights and repealing DOMA:

First, dissolve their marriages and tell them they don’t have the right to use that word in regard to their relationships.  Then put them in a state that has “civil unions”.  Tell them these civil unions are the equivalent of heterosexual marriage and they ought to be happy with that.

Wait until said people get old with their unmarried but civilly unioned partners.  During this period, they have to file federal income taxes separately and cannot move to any other state while keeping their supposed “rights” intact.  

Then, when old, take one partner to the hospital, refuse to let the other partner see the first or make medical decisions on his or her behalf, then sell their belongings on EBay.  Let the first partner die in the hospital, confine the other to a nursing home and then tell him or her you don’t know what s/he is whining about, because s/he has “equal rights”.

Then tell them that Obama feels their pain.

It should now be apparent by those who are aware of the recent and not so recent sweep of history that a few facts have been coming into focus.  And if it is not, it should be.

Both major political parties of the United States use GLBT people.  It’s not that they ignore us, it’s not that they regard us as an inconvenience.  No, they actively use us to achieve the only thing that is important to them: achieving and maintaining political power, which power is used to enhance the wealth and status of selected groups in our society.

And if you look at the flow and ebb of political power, and what is done with this power with respect to not just GLBT issues, but women’s issues, immigration issues and all manner of social issues is this: Both parties have an interest in keeping the political game going.

It is well established among GLBT folks that the Republican Party has been and continues to be hostile to the well being and first class citizenship of our people; this is not and has not been in dispute for a long, long time.  They are hardly blameless in the game of American social values football, while they tend to be neglected because their position is and has been so clear for so long.  Nonetheless, the interest is in not so much oppressing GLBT people as using them.  Using our existence for fundraising, for demagoguery and for all manner of pandering in order to win elections; to keep and hold power.

Nonetheless, this leads to extremes of social discourse that tend to slide under the perceptual range of the average American; there are things we notice and pay attention to that average people who are not so much interested in GLBT issues tend to ignore, less those that spend inordinate amount of time on liberal political radio and so-called “liberal” blogs and websites.

Extremes such as this.

If you asked me, I would agree with a few propositions, were they brought to me by my GLBT friends and gay allies:

1.  Yes, there are people who genuinely hate and/or fear GLBT people, even people who occupy political office, and that for those people, this is not a game, given the opportunity, they would destroy us, and possibly have all of us killed.

2.  Yes, those people (who want to destroy us) tend to be concentrated on the far right, and that those people in the political center, or to the left of center, where anti-gay, tend to want more to use us and keep us from advancing, than they want to “destroy” us.

What is not so clear, however, to the average politically unengaged American, is the degree to which prominent Democrats, and the Democratic Party, also use GLBT people to their political ends, all of which makes the tolerance among Democrats to far right extremes doubly disgusting in that these extremes of hate and fear might not exist but for the fact that Democrats use this debate to keep and enhance their power.  

Remember, my proposition is the Democrats and the Democratic Party in general are using us despite full knowledge of the degree of damage this hate does to the social discourse.  And that this is a political game played out among Democrats and Republicans, not to settle the social debate on one side or another, but to keep the debate going, to serve their political ends.

This may be somewhat obvious to the average poster on Docudharma, but I would point things out that might not be so obvious to the average American.