Lambda Legal slams Obama administration for appealing Witt’s DADT ruling

Via press release, here’s the very strong statement from the Legal Director of Lambda Legal, Jon Davidson (with my emphasis added):

“We congratulate Major Witt on her return to service and our colleagues at the ACLU of Washington who represented her. However, the decision to appeal by the Department of Justice leaves us wondering just what part of ‘Don’t Ask, Don’t Tell, Don’t Pursue’ does the Obama Administration not get? Notwithstanding President Obama’s concession that the military’s current anti-gay policies are hurting national security, his administration is continuing to pursue the discharge of a decorated officer who did not ‘tell,’ who would not have even been investigated under the military’s current guidelines, and whose discharge has been found not to promote unit cohesion or morale. While it is good that the administration decided not to seek a stay of Major Witt’s reinstatement, there was no necessity for an appeal to be filed, contrary to suggestions of Obama Administration representatives. After a trial, Major Witt was found to be ‘an exemplary officer,’ ‘an effective leader,’ ‘a caring mentor’ and ‘an integral member of an effective team,’ whose ‘loss within [her] squadron resulted in a diminution of the unit’s ability to carry out its mission.’ Filing this appeal and refusing to suspend discharges pending the repeal of the military’s current anti-gay policy is a significant failure on the part of our nation’s Commander in Chief.

We agree with Lambda Legal. Robert Gibbs was wrong. There was no necessity for this appeal to be filed. It’s is a significant failure.

Sign our letter to the President, urging him to become actively involved in the effort to pass the Defense bill with the DADT language. We’re running out of time — and we don’t need another significant failure. The letter is here.




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DOJ will appeal decision in Major Margaret Witt’s DADT case

Remember yesterday how Assistant Attorney General Tony West told reporters how hard it was for the Obama administration to defend DADT and DOMA in the courts? Yeah, right.

On September 24, 2010
, Federal District Court Judge Ronald Leighton ruled that Major Margaret Witt’s discharge under DADT was unconstitutional. Leighton “started breaking up and was in tears” as he announced that Witt won her case against DADT and must be reinstated into the military. At the time, I wrote:

Now, we have to wait to see if the Department of Justice will appeal this case, too.

Well, guess what? Today, DOJ took the first step to appeal the decision that reinstated Major Margaret Will. Igor Volsky has the details:

Moments ago, the Justice Department appealed a federal district court ruling reinstating Air Force Major Margaret Witt after she was discharged from the military under Don’t Ask, Don’t Tell to Ninth Circuit Court of Appeals. But the government did not ask the court to stay the decision — suggesting that Witt will be able to serve in the Air Force through the duration of the appeal process.

How magnanimous of DOJ to allow her to serve.

No wonder we’re disappointed and disillusioned. (And, we are.) This appeal, aimed at Major Witt, seems particularly shameful.

UPDATE: This lame-ass statement from Robert Gibbs doesn’t help:

“Today, the Department of Justice filed a notice of appeal in a case involving a legal challenge to the Don’t Ask, Don’t Tell (DADT) policy, as the Department traditionally does when acts of Congress have been held unconstitutional. This filing in no way diminishes the President’s — and his Administration’s — firm commitment to achieving a legislative repeal of DADT this year. Indeed, it clearly shows why Congress must act to end this misguided policy. In recent weeks, the President and other Administration officials have been working with the Senate to move forward with the passage of the National Defense Authorization Act, including a repeal of DADT, during the lame duck.”

First, let’s be clear: despite the constant assertions to the contrary, DOJ did not have to file this appeal.

The filing further diminishes the President’s credibility with the LGBT community. He really better get that Defense bill with the DADT language passed during the lame duck. He promised. Repeatedly.

Witt Notice of Appeal




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In Maj. Witt’s upcoming DADT trial using the ‘Witt Standard,’ ‘facts are not on the government’s side’

Excellent editorial in the Tacoma News Tribune about Don’t Ask, Don’t Tell with two key points: 1) the U.S. Department of Justice won’t be able to meet the “Witt standard” in the upcoming DADT trial of Major Margaret Witt — and it couldn’t meet that standard against Victor Fehrenbach and 2) DADT has to end.

On Witt:

A federal judge, in a trial set to begin Sept. 13, will apply a new standard to the military’s “don’t ask, don’t tell” policy. This time, the burden will be on the military to prove not that Witt is a lesbian – her sexual orientation is not in dispute – but that her homosexuality is harmful to her unit’s cohesiveness.

It will be the first judicial application of the so-called “Witt standard” established by the 9th U.S. Circuit Court of Appeals. The Obama administration let pass a May 3 deadline to appeal the 9th’s decision to the Supreme Court, setting the stage for the trial in U.S. District Court next month.

The facts are not on the government’s side: More than a dozen of Witt’s colleagues have given sworn declaration objecting to her dismissal; one was so angry that he refused to re-enlist.

Should the Witt standard blunt the don’t ask, don’t tell policy as expected, it could prove a boon to gay service members who have been waiting on Congress – to date, in vain.

Waiting in vain for Congress — and the President.

The conclusion:

But the Witt standard is a stopgap measure and no more. It provides limited relief since it applies only to cases in Western states that make up the Ninth Circuit. And it isn’t preventing people like Jonathan Hopkins of Morton – a West Point graduate who led three combat missions in Iraq and Afghanistan – from having to leave careers they love.

Don’t ask, don’t tell needs to go, and it’s up to the Senate to finish the job when it returns next month.

The Senate needs to finish the Defense bill in September and get it to conference ASAP. Delay hurts the chances for passing the compromise bill this year. Opponents of DADT repeal know that and will do everything possible to cause problems. Our allies, starting with the President, have to make sure that nothing interferes with the process of getting the compromise DADT bill signed into law..




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—  John Wright