BREAKING: Pentagon to certify DADT repeal

Secretary Panetta

Reports are coming in from sources including the Wall Street Journal and Fox News that Defense Secretary Leon Panetta and Joint Chiefs of Staff Chairman Adm. Mike Mullen are going to announce Friday that they are ready to certify repeal of the military’s anti-gay “don’t ask, don’t tell” policy.

Once they have signed off on repeal, the measure goes to President BarackObama for his signature, and he will send it back to Congress. Then there is a 60-day waiting period before repeal is officially implemented.

Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, issued a statement shortly after 6 p.m. Central time today saying the Pentagon’s certification of repeal is “is welcomed by gay and lesbian service members who have had to serve their country in silence for far too long.”

Sarvis added: “The troops and their commanders are ready. Our nation’s top military leaders have testified that commanders see no significant challenges ahead. The official certification to Congress that the armed forces are prepared for the end of ‘don’t ask, don’t tell’  should go to Capitol Hill tomorrow with the President’s signature.”

But Sarvis also warned closeted servicemembers that it’s not safe to come out yet. SLDN has posted a warning to lesbian and gay servicemembers here. He also advised LGBT servicemembers with questions to call the SLDN hotline at 202-328-3244, ext. 100, to speak to a staff attorney.

—  admin

SLDN: ‘The job is not done’

Aubrey Sarvis

This open letter addressed to servicemembers, the LGBT community and allies just came across from Aubrey Sarvis, an Army veteran who serves as executive director of the Servicemembers Legal Defense Network:

Dear Friend,

With the President signing legislation into law that provides a pathway to repeal, the SLDN family and greater LGBT community, along with our allies, should be proud of the role each person played in making history. But the job is not done.

Troops remain at risk under the law. Our service member hotline has not silenced. Since the President signed legislation, 135 service members and veterans have contacted our legal team for help. “Don’t Ask, Don’t Tell” will remain the law until certification and the 60-day implementation period have been completed.

While a measure of dignity has been restored to thousands of service members on active duty, and to over a million gay and lesbian veterans who served in silence – the uncertainty and fear in the ranks remains. Our mission and our services will continue: securing the freedom for all qualified to serve in the U.S. military with equality of treatment and opportunity.

We all know there is vital work unfinished.

—  John Wright

‘Chiefs don’t cry, but the allergens were very high’

Dave Guy-Gainer, second from left, of Forrest Hill celebrates with Army Major Margaret Witt, Servicemembers Legal Defense Network Executive Director Aubrey Sarvis and Air Force Lt. Col. Victor Fehrenbach after this morning’s DADT repeal signing ceremony. (Meghan Stabler)

We just got a call from Dave Guy-Gainer, aka “Chief,” who’s really become the face of the push to repeal “don’t ask, don’t tell” in North Texas over the last few years.

Guy-Gainer, a gay retired Air Force chief master sergeant who serves on the board of Servicemembers Legal Defense Network, was one of about 500 people who attended this morning’s signing ceremony for the bill to repeal DADT.

Guy-Gainer said he would have driven to D.C. for the ceremony if he had to, and he was the 12th person in line this morning outside the Department of the Interior.

“Chiefs don’t cry, but the allergens were very high in that room,” Guy-Gainer said. “You couldn’t help but shed a tear in there. It was just such an overwhelming feeling of weight being lifted and equality finally happening.”

Guy-Gainer said it was great to see “40 years of gay activists” assembled together, many of whom he’s met over the last decade at functions around the country — alongside lawmakers who’ve worked so hard to end the policy.

“For the first time in a long time I really said the Pledge of Allegiance with feeling,” Guy-Gainer said. “I gave a thumbs up to Sen. Lieberman and he gave me a victory sign back. … Looking at the kids around me. Dan Choi and I were talking for a while. …

“Another one was the standing ovation that [Rep.] Patrick Murphy got,” Guy-Gainer said, recounting some of his memorable moments from the ceremony. “I think he got more applause than the president. He was the real hero in this. …  He fell on his political sword for us.”

A year ago when we interviewed Gainer, he said if repeal didn’t happen in 2010, he’d “implode.” So what will he do now that it has finally happened?

“We still have transition to do. We still have to get the certification. We’ll still probably have some legal battles in the courts,” Guy-Gainer said. “There’s still more work to be done.”

—  John Wright

Obama to sign bill that DOES NOT immediately repeal ‘don’t ask, don’t tell’ on Wednesday

SLDN provided this image from Saturday’s ‘NBC Nightly News’ to illustrate how media outlets are incorrectly reporting that DADT has been repealed.

President Barack Obama will sign the bill that outlines a path for repealing “don’t ask, don’t tell” in a ceremony at the Department of the Interior, at 9:15 a.m. Eastern (8:15 Central) on Wednesday. However, the Servicemembers Legal Defense Network is reminding folks — and especially the media — that even after Obama signs the bill, the law will remain in effect for an unknown period of time.

“We need the media’s help to let troops know they remain at risk under the law even after the President signs the bill,” SLDN Executive Director Aubrey Sarvis said in an e-mail statement this morning under the subject line “URGENT: Media warning ….”

“The Pentagon just released new guidance that made clear ‘Don’t Ask’ may still be the law for some time to come,” Sarvis said. “We respectfully renew our call for Defense Secretary Robert Gates to use his authority to suspend all ‘Don’t Ask, Don’t Tell’ investigations during this limbo period. Until the President signs the bill, until there is certification, and until the 60-day implementation period is over, no one should be investigated or discharged under this discriminatory law. Certification and the implementation period must be wrapped up no later than the first quarter of 2011. The bottom line: for now, gay, lesbian, and bisexual service members must remain cautiously closeted.”

SLDN says LGBT servicemembers with questions should call 202-328-3244 ext. 100 to speak with a staff attorney.

For more on the process for repealing DADT, see this story from the Washington Post.

—  John Wright

DADT update: Discharged vets file lawsuit; standalone repeal bill up to 40 sponsors

Mike Almy, a highly trained communications officer who served in the Air Force for 13 years, is one of three plaintiffs in the lawsuit.

Three veterans discharged under “don’t ask don’t tell” filed a lawsuit earlier today against the government (read the filing here). The lawsuit brought by the Servicemembers Legal Defense Network seeks reinstatement as well as a ruling declaring the 17-year-old policy unconstitutional and unenforceable anywhere. And needless to say, the lawsuit is aimed in large part at putting pressure on Congress to repeal the 17-year-old policy during the lame duck session. The Associated Press reports:

The legal action came four days after the U.S. Senate for the second time this year blocked a military spending bill that also would have repealed the 17-year-old ban on openly gay troops.

Sens. Susan Collins, R-Maine, and Joe Lieberman, I-Conn., have introduced a standalone measure, but it’s uncertain if it will be brought for a vote before the Senate and House adjourn for the holidays.

Servicemembers Legal Defense Network director Aubrey Sarvis said the lawsuit was meant as a warning to lawmakers that if they don’t act to repeal “don’t ask, don’t tell,” the courts could step in and order an integration timetable that is less to the Pentagon’s liking.

“If the Senate fails to act in the lame duck session, we are prepared to litigate this aggressively,” said Sarvis, whose group coordinated the lawsuit and prepared it with lawyers from a private law firm.

“From my perspective, this is the first shot over the bow,” he said.

Meanwhile, the standalone bill that would repeal DADT now has 40 Senate co-sponsors, but only one of them is a Republican, and that’s Collins. A vote on the bill could come later this week or early next week, assuming the Senate sticks around that long.

We’ve contacted the offices of Texas Republican Sens. Kay Bailey Hutchison and John Cornyn to inquire about how they plan to vote on the bill, as if we don’t know already. But as of this post, we had received no response. Hey, anyone planning a sit-in?

—  John Wright

Reax to Pentagon report on ‘don’t ask don’t tell’

Here are some reactions to the Pentagon study on “don’t ask don’t tell” released this afternoon. We’ve posted the full text of the study below.

Human Rights Campaign President Joe Solmonese:

“This issue has been studied for fifty years, including by the military itself, and the results from over twenty-two studies are uniform: open service does not harm effectiveness. The small handful of Senators blocking repeal no longer have any fig leaves behind which to hide. The time for repeal is now. …

“America’s men and women in uniform are professionals who already serve with gays and lesbians and repeal will do nothing to change their dedication to protecting our nation,” said Solmonese. “Senators who said they want to hear from military leaders and troops now have their answers.  Repeal of ‘Don’t Ask, Don’t Tell’ will allow every qualified man and woman to serve without sacrificing the high standards that have made our military great.”

Servicemembers United Executive Director Alex Nicholson:

“This thorough and comprehensive report makes clear to lawmakers and the American people once and for all that the U.S. military is capable of handling the repeal of ‘Don’t Ask, Don’t Tell.’ The questions are now answered and the debate is now settled. It’s now up to the Senate to bring the defense authorization bill back to the floor, allow 10 to 20 amendments to be debated on each side, and get this bill passed. We have the votes now if the process is fair.”

Servicemembers Legal Defense Network Executive Director Aubrey Sarvis:

“This exhaustive report is overwhelmingly positive and constructive. The Pentagon validated what repeal advocates and social scientists have been saying about open service for over a decade. Still, some initial resistance may come from one or more of the service chiefs — the very leaders who will be charged with  implementing this change. Those chiefs will need to salute and lead in bringing about this needed change. Fortunately, the chiefs have already made it clear they will do precisely that if Congress acts. Now, it’s up to the Senate to make repeal happen this year.”

—  John Wright

Pentagon: No gays were discharged in past month

LISA LEFF | Associated Press

SAN FRANCISCO — No U.S. service members have been discharged for being openly gay in the month since the Defense Department adopted new rules surrounding the “don’t ask, don’t tell” policy, a Pentagon spokeswoman said Monday, Nov. 22.

Under new rules adopted Oct. 21, Defense Secretary Robert Gates put authority for signing off on dismissals in the hands of the three service secretaries.

Before then, any commanding officer at a rank equivalent to a one-star general could discharge gay enlisted personnel under the 1993 law that prohibits gays from serving openly in uniform.

Pentagon spokeswoman Cynthia Smith told The Associated Press that no discharges have been approved since Oct. 21.

Smith did not know if the absence of recent discharges was related to the new separation procedures. The Pentagon has not compiled monthly discharge figures for any other months this year, she said.

Based on historical trends, however, it appears the change, as well as moves by Gates and President Barack Obama to get Congress to repeal “don’t ask, don’t tell,” has caused discharge rates to fall dramatically, said Aaron Belkin, executive director of Palm Center, a pro-repeal think tank based at the University of California, Santa Barbara.

“Statistically, it would be extremely unlikely if we had a month in which there were no gay discharges,” Belkin said, noting that 428 gay and lesbian service members were honorably discharged under the ban in 2009.

A month without “don’t ask, don’t tell” discharges was welcome news, said Aubrey Sarvis, executive director of Servicemembers Legal Defense Network. Still, the organization continues to hear daily from military personnel who are under investigation for being gay and face the possibility of being fired.

“We have clients who are still under investigation, who are still having to respond, and in fact we have a client under investigation right now under suicide watch,” Sarvis said. “So ‘don’t ask, don’t tell’ has not gone away.”

Gates announced the change requiring the top civilian officials with the armed forces to personally approve “don’t ask, don’t tell” discharges after a federal judge in California ordered the military to immediately stop enforcing its ban on openly gay troops, declaring the 17-year-old policy unconstitutional.

An appeals court subsequently froze the judge’s order until it could consider the broader constitutional issues in the case.

Putting responsibility for firing gay personnel in the hands of the three service secretaries was not designed to slow the rate of discharges, Gates said at the time. Rather, concentrating that authority was meant to ensure uniformity and care in enforcement at a time of legal uncertainty, he said in a memo outlining the new rules.

Gates since has urged the Senate to repeal “don’t ask, don’t tell” before a new Congress takes office in January. He said this week he plans to release a monthslong study on how lifting the gay service ban would affect the armed forces and could be carried out on Nov. 30.

—  John Wright

Court allows military to continue enforcing DADT pending appeal

LISA LEFF  |  Associated Press

SAN FRANCISCO — A federal appeals court on Monday, Nov. 1 indefinitely extended its freeze on a judge’s order halting enforcement of the military’s “don’t ask, don’t tell” policy, heightening pressure on the Obama administration to persuade the U.S. Senate to repeal the law before a new Congress is sworn in.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals granted the U.S. government’s request for a stay while it challenges the trial court’s ruling that the ban on openly gay service members is unconstitutional.

The same panel, composed of two judges appointed by President Ronald Reagan and one appointed by President Bill Clinton, on Oct. 20 imposed a temporary hold keeping “don’t ask, don’t tell” in place.

Monday’s decision means gay Americans who disclose their sexual orientations still can’t enlist in the armed forces and can be investigated and ultimately discharged if they already are serving.

“We continue to warn service members that it is unsafe to come out as long as this law remains on the books,” said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network.

In an eight-page order, two judges said they were persuaded by the Department of Justice’s argument that U.S. District Court Judge Virginia Phillips’ worldwide injunction against the policy “will seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change.”

“The public interest in enduring orderly change of this magnitude in the military — if that is what is to happen — strongly militates in favor of a stay,” Judges Diarmuid F. O’Scannlain and Stephen S. Trott wrote in their majority order. “Furthermore, if the administration is successful in persuading Congress to eliminate (the policy), this case and controversy will become moot.”

Another reason they gave for imposing the freeze was decisions by four other federal appeals courts that cast doubt on whether Phillips exceeded her authority and ignored existing legal precedents when she concluded gays could not serve in the military without having their First Amendment rights breached.

Judge William Fletcher entered a partial dissent, saying he would have preferred the panel had heard oral arguments before granting the stay. Fletcher said he thinks “don’t tell, don’t tell” should not be used to discharge any existing service members while the case was on appeal.

“Defendants would not be required during the pendency of the appeal to change their recruiting practices, to change their personnel manuals, or, subject only to the requirement that they not actually discharge anyone, otherwise to change their practices,” Fletcher said.

President Barack Obama repeatedly has said he opposes “don’t ask, don’t tell” but favors ending it legislatively instead of through the courts. Over the summer, he worked with Democrats to write a bill that would have lifted the ban, pending completion of a Defense Department review due Dec. 1. The legislation passed the House but was blocked in the Senate.

The president has pledged to push for another vote during Congress’ lame duck session after Tuesday’s elections.

“The president claims to want to see ‘don’t ask, don’t tell’ ended. It is time that he stop talking and start working to make a real difference for gay and lesbian Americans by pushing for repeal when Congress returns,” said R. Clarke Cooper, executive director of Log Cabin Republicans, the gay rights group that sued to overturn “don’t ask, don’t tell” in Phillips’ court,

The court ordered the government to submit its brief in its broader appeal by Jan. 24 and gave Log Cabin Republicans until Feb. 22 to reply. It did not schedule oral arguments in the case.

“For the reasons stated in the government’s submission to the appellate court, we believe the stay is appropriate,” Pentagon spokesman Bryan Whitman said.

—  John Wright

BREAKING: Judge denies government’s request to resume enforcement of ‘don’t ask don’t tell’

As expected, a federal district judge in California on Tuesday denied the government’s request to delay her injunction from last week halting the military’s enforcement of “don’t ask don’t tell.”

The Associated Press reports:

U.S. District Judge Virginia Phillips issued her ruling Tuesday after saying the government had not proven that her order would harm troops or impede efforts to implement new military regulations to deal with openly gay troops.

Justice Department officials say the Obama administration will appeal to the appellate court in San Francisco.

The military has promised to abide by her order as long as it remains in place.

Phillips declared the “don’t ask, don’t tell” policy unconstitutional Sept. 9. Under the 1993 law, the military cannot inquire into service members’ sexual orientation and punish them for it as long as they keep it to themselves.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, issued the following statement in response to Phillips decision Tuesday to deny the government’s request:

“By the judge keeping the injunction in place, lesbian and gay service members are protected another day, but the uncertainty has not gone away. The Department of Justice will immediately ask the 9th Circuit to stay the injunction. We’re talking about the careers of patriots, people who are on the frontlines serving our country – some of whom are highly decorated – and the court needs to keep the injunction in place. As the DOJ fights to keep this unconstitutional and oppressive law, we are monitoring active-duty clients’ cases and fielding calls every day to our hotline. During this interim period of uncertainty, service members must not come out. Our service members need finality. Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington.”

Below is the full text of Phillips’ ruling:

LCR v USA – ORDER Emergency Stay Denied

—  John Wright

SLDN advises caution despite Pentagon announcement; Dan Choi attempts to re-enlist

Despite the Pentagon’s announcement Tuesday that military recruiters have been told they must accept gay applicants, the Servicemembers Legal Defense Network continues to advise caution.

“During this interim period of uncertainty, service members must not come out and recruits should use caution if choosing to sign up,” SLDN Executive Director Aubrey Sarvis said in a statement Tuesday afternoon. “The ‘don’t ask, don’t tell’ law is rooted in any statement of homosexuality made at anytime and to anyone. A higher court is likely to issue a hold on the injunction by Judge Phillips very soon. The bottom line: if you come out now, it can be used against you in the future by the Pentagon. As the DOJ fights to keep this unconstitutional and oppressive law, we are monitoring active-duty clients’ cases and fielding calls every day to our hotline. Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington.”

Of course, if you’ve already been discharged for being gay, you don’t have much to lose. Among those who plan to try to re-enlist in the wake of the Pentagon announcement is Lt. Dan Choi, according to his Twitter feed:

—  John Wright