‘Don’t ask, don’t tell’ injunction now up to judge

JULIE WATSON  |  Associated Press

SAN DIEGO — U.S. government lawyers are trying to stop a federal judge from issuing an injunction that would immediately do what President Obama has yet to accomplish so far in his first term: Halt the military’s ban on openly gay troops.

Now it is up to U.S. District Court Judge Virginia Phillips to decide if she is willing to do that.

The White House says the legal filing Thursday, Sept. 23 by the U.S. Department of Justice attorneys in a federal court in Riverside follows government procedure by defending an act of Congress that is being challenged, but it does not detract from the president’s efforts to get ‘don’t ask, don’t tell’ repealed.

“This filing in no way diminishes the president’s firm commitment to achieve a legislative repeal of DADT — indeed, it clearly shows why Congress must act to end this misguided policy,” White House Press Secretary Robert Gibbs said in a statement e-mailed to The Associated Press.

Phillips declared the military’s “don’t ask, don’t tell” policy unconstitutional in her ruling Sept. 9 following a three-week, non-jury trial and said she would issue a nationwide order to stop the ban. She asked both sides for input first.

The Log Cabin Republicans, the gay rights organization that filed the lawsuit to stop the ban’s enforcement, wants her to issue an order that would stop the policy from being used to discharge any U.S. military personnel anywhere in the world.

Their attorney, Dan Woods, called the Department of Justice’s objections to the possible injunction hypocritical. He said the administration should be seizing the opportunity to let a judge do what politics has not been able to do.

“It’s sad and disappointing that the administration would file such a document days after it urged Congress to repeal ‘don’t ask, don’t tell,”’ Woods said.

In their court filing Thursday, U.S. Department of Justice attorneys argued the possible move would be “untenable” and that Phillips would be overstepping her bounds by halting a policy under debate in Congress.

Instead, she should limit any injunction to the 19,000 members of the Log Cabin Republicans, which includes current and former military personnel, the lawyers said.

“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.

The “don’t ask, don’t tell” policy prohibits the military from asking about the sexual orientation of service members. Under the 1993 policy, service men and women who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base, are subject to discharge.

In her ruling, Phillips said the policy doesn’t help military readiness and instead has a “direct and deleterious effect” on the armed services by hurting recruiting during wartime and requiring the discharge of service members with critical skills and training.

—  John Wright

Log Cabin asks federal judge to halt DADT

Sides make closing arguments after 2-week trial

JULIE WATSON  |  Associated Press Writer

RIVERSIDE, California — Lawyers for a Republican gay rights organization asked a federal judge Friday, July 23 to issue an injunction halting the military’s ban on openly gay service members.

Government lawyers countered by warning U.S. District Judge Virginia A. Phillips not to overstep her bounds while ruling on the lawsuit by the Log Cabin Republicans.

The exchange came as both sides made closing arguments in the case after a two-week trial.

It was unclear when Phillips would make a ruling on the policy that forbids openly gay personnel in the military. Legal experts say she may hold off to see if Congress is going to repeal the policy.

Attorney Dan Woods, who represents the 19,000-member Republican group, argued the policy violates the constitutional rights of gay military members to free speech, due process and open association.

“Log Cabin Republicans have brought this case to trial to call out the government on the wrong it’s doing on current and future homosexuals who wish to serve their country. We ask you to do them right,” Woods told Phillips.

The case is unique in that it is not based on an individual’s complaint but rather is a sweeping attack on the policy. It is the biggest legal test of the law in recent years.

The trial could not come at a worse time for President Barack Obama, who has criticized the military’s “don’t ask, don’t tell” policy for gays since taking office last year but has failed to get Congress to repeal it.

U.S. Department of Justice attorney Paul G. Freeborne said during his closing argument that Woods was asking the judge to go beyond her powers.

“We do not believe the court has the authority to issue a nationwide injunction,” he said.

The U.S. House of Representatives voted May 27 to repeal the policy, and the Senate is expected to take up the issue this summer. In deciding to hear the challenge, Phillips said the “possibility that action by the legislative and executive branches will moot this case is sufficiently remote.”

During the trial, plaintiffs presented seven expert witnesses and six military officers who have been discharged under the policy. Lawyers also submitted remarks by Obama stating “don’t ask, don’t tell” weakens national security.

Woods asked Phillips to impose a permanent injunction that would prevent the policy from being applied not only within the U.S. but anywhere in the world.

“Even if ‘don’t ask, don’t tell’ once did further an important government interest, it no longer does so,” Woods told the judge.

Government attorneys have said Congress should decide the fate of the policy — not a federal judge. They presented only the policy’s legislative history in their defense.

“Don’t ask, don’t tell” prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity, even in the privacy of their own homes off base.

The Log Cabin Republicans, which includes former and current members of the military, said more than 13,500 service members have been fired under the law since 1994.

Testimony from former service members ranged from a decorated Air Force officer who was let go after his peers snooped through his personal e-mail in Iraq, to a sailor whose supervisor concluded he was gay after he refused to visit prostitutes.

Woods argued the policy harms military readiness and unit cohesion by getting rid of talented people. He pointed out the military has relaxed its standards and now allows convicted felons to make up for a shortage of personnel while the country is at war.

“In other words, our military will give a convicted felon a gun but will not give a gay guy a typewriter,” he said.

Freeborne told the court Obama’s statements criticizing the policy underscored that the decision should be made in the political arena.

“What you’ve essentially heard is a policy debate, a debate that should occur in Congress, not before a court,” he told the judge.

Phillips told Freeborne his argument overlooks the fact that the court “is directed to look at the effect of the statute.”

—  John Wright