Gates Plan May Be Beginning of the End of ‘Don’t Ask, Don’t Tell’

Pentagon Studies Ways to Relax Enforcement as First Step; Impact on Troops Would be Minimal

SANTA BARBARA, Calif. — In the wake of yesterday’s unexpected Pentagon announcement about gays in the military, experts say the “don’t ask, don’t tell” policy may be on the brink of irreversible change that would speed up its demise. After speaking with President Obama last week, Defense Secretary Robert Gates has asked military lawyers to explore how to modify enforcement of the policy in ways that are “more flexible until the law is changed.” The President Monday reiterated his intention to end discrimination against gay troops, saying he is working with Congress and the military to do so.

Christopher Neff, political director of the Palm Center, said the remarks by Secretary Gates marked the first time the Defense Secretary has made clear that the Pentagon is onboard with the President’s determination to lift the ban. “‘Don’t ask, don’t tell’ is a package — both a law and a policy — that hasn’t been penetrated for fifteen years,” Neff said. “This is a crack in humpty dumpty, and it gets the ball rolling for a political solution since it gives cover to lawmakers who have been waiting for a nod from the Pentagon.”

Neff said that even a small change in how “don’t ask, don’t tell” is enforced could represent a seismic political shift, even if it does not have a substantial operational impact on most gay troops, who would still be subject to discharge. If the military stops applying certain provisions of the policy, as Gates says it is considering, it would send a signal to Congress about the inevitability of change. “That’s why executive action is the key to unlocking the political stalemate,” said Neff. “Even the statements themselves, although they do await follow-up action, have changed the political landscape.”

Last month, the Palm Center published a report which outlined several legal and political rationales for executive branch discretion in regulating, and even halting, discharges provided for by federal statute. One of those rationales is closely linked to the new review announced by Secretary Gates. According to the Palm Center study, “the ‘don’t ask, don’t tell’ policy itself, as codified by Congress, also grants authority to the Department of Defense to determine the procedures under which investigations, separation proceedings, and other personnel actions under the authority of 10 U.S.C. Section 654 will be carried out … The Secretary of Defense has discretion to determine the specific manner in which ‘don’t ask, don’t tell’ will be implemented.” Prior to the release of the Palm Center’s report, most observers had assumed that only Congress or the federal courts end the firings of gay troops.

Amidst mounting public pressure, White House press secretary Robert Gibbs said this week that he thought “don’t ask, don’t tell” would be repealed by the end of the President’s first term. Nathaniel Frank, senior research fellow at the Palm Center, said this week’s developments were politically significant. “Serious discussions have been launched by the President himself,” said Frank. “Obama has said this is a failed policy that harms national security, so these measures are not just fixes, but may be the beginning of the end.” Frank added that any regulatory changes that fall short of halting all discharges will be “window-dressing,” but he focused on the implications for further political change. “This means the hot potato party may finally be over, as the President understands where the buck stops.”

In the wake of this week’s developments, the Palm Center announced that it is preparing a more extensive legal analysis of administrative options for relaxing the application of certain provisions of “don’t ask, don’t tell.” Neff said that the Defense Department should invite public input as the rules are re-drafted, which would be consistent with past processes when military regulations have been

changed. “This review should be no different,” he said.

Organizations and individuals who have endorsed or endorsed consideration of the use of executive action based on the legal theories outlined in the Palm Center’s study include Secretary Gates, 77 members of Congress, the New York Times editorial page, Center for American Progress, Human Rights Campaign, Servicemembers Legal Defense Network, Hendrik Hertzberg of the New Yorker, the political consultant Robert Shrum, and former White House aide Richard Socarides.

The Palm Center is a research institute at the University of California, Santa Barbara. The Center uses rigorous social science to inform public discussions of controversial social issues, enabling policy outcomes to be informed more by evidence than by emotion. Its data-driven approach is premised on the notion that the public makes wise choices on social issues when high-quality information is available. For more information, visit www.palmcenter.ucsb.edu.

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Senator Harry Reid Says Obama Should Sign Order on Gay Troops, SLDN Also Joins Call for Executive Option

SANTA BARBARA, CA — Senate Majority Leader Harry Reid has called on President Obama to sign an executive order suspending the “don’t ask, don’t tell” policy, according to the Advocate magazine.

Referring to the repeal of the ban, Reid told Advocate reporter Kerry Eleveld that, “My hope is that it can be done administratively.” Eleveld added that, “A Democratic aide later clarified that Reid was speaking about the possibility of using an executive order to suspend discharges or perhaps halting enforcement of the policy by changing departmental regulations within the Department of Defense.”

As well, the Servicemembers Legal Defense Network (SLDN) has called on President Obama to sign an executive order. In a letter to the New York Times yesterday, SLDN Executive Director Aubrey Sarvis wrote that, “President Obama should consider all viable options he can take on his own to get rid of this discriminatory law, including issuing a ‘stop-loss’ order.” For more than a decade, SLDN has been the largest and most influential group in the country working on the “don’t ask, don’t tell” policy.

The idea of ending the ban by executive order gained momentum after the release last month of a Palm Center study showing that the president has the authority to suspend “don’t ask, don’t tell” via a stroke of the pen. Before that time, many argued that only Congress or the courts could lift the ban on service by openly gay troops.

Others calling for the President to sign an executive order include the New York Times editorial page, the Human Rights Campaign, Knights Out, an organization of gay and lesbian alumni of the U.S. Military Academy at West Point, Los Angeles Gay and Lesbian Center CEO Lorri Jean, and former Clinton White House official Richard Socarides.

Palm Center Director Aaron Belkin said that awareness of the executive option has changed the conversation about “don’t ask, don’t tell” substantially. “Obama used to duck the issue by blaming Congress for the inertia. Now it’s clear that he has unilateral authority to fulfill his campaign promise.”

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New Study Says Obama Can Halt Gay Discharges With Executive Order

Military Law Experts Chart Course to End 16-Year Ban

SANTA BARBARA, Calif. — A study released today by a team of military law experts shows that the president has the legal authority to end gay discharges with a single order. The idea of ending the ban by executive order has gained momentum in the wake of news that mission-critical personnel, including Arabic language speaker Dan Choi, continue to be fired under the Obama administration because they’re gay. Congressman Rush Holt endorsed an executive order to end the ban on Saturday and National Security Adviser James Jones was asked about it by George Stephanopoulos on Sunday morning. The report, “How to End Don’t Ask, Don’t Tell: A Roadmap of Political, Legal, Regulatory, and Organizational Steps to Equal Treatment,” is sponsored by the Palm Center at the University of California, Santa Barbara.

Many have argued that only Congress can lift the ban on service by openly gay troops. But according to the study, Congressional approval is not needed. Dr. Aaron Belkin, Director of the Palm Center and a study co-author, said “The administration does not want to move forward on this issue because of conservative opposition from both parties in Congress, and Congress does not want to move forward without a signal from the White House. This study provides a recipe for breaking through the political deadlock, as well as a roadmap for military leaders once the civilians give the green light.”

There are three legal bases to the president’s authority, the report says. First, Congress has already granted to the Commander in Chief the statutory authority to halt military separations under 10 U.S.C. 12305, a law which Congress titled, “Authority of President to suspend certain laws relating to promotion, retirement, and separation.” Under the law, the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States during a “period of national emergency.” The statute specifically defines a “national emergency” as a time when “members of a reserve component are serving involuntarily on active duty.”

The second and third bases of presidential authority are contained within the “don’t ask, don’t tell” legislation itself. The law grants to the Defense Department authority to determine the process by which discharges will be carried out, saying they will proceed “under regulations prescribed by the Secretary of Defense, in accordance with procedures set forth in such regulation.” Finally, the law calls for the discharge of service members if a finding of homosexuality is made, but it does not require that such a finding ever be made. According to the study, these provisions mean that the Pentagon, not Congress, has the “authority to devise and implement the procedures under which those findings may be made.”

Diane H. Mazur, Professor of Law at the University of Florida College of Law and another study co-author, said the presidential authority to stop firing gay troops, known as “stop-loss,” is different from the highly unpopular stop-loss policy that the Army recently announced it would phase out. “That use of stop-loss forcibly extends service by those who wish to leave the military,” she said, “whereas suspending discharges for homosexuality would do the opposite: allow ongoing service by those who wish to remain in uniform.” The study says the provisions of the stop-loss law, which are granted by Congress, are “sensible because they give the President authority to suspend laws relating to separation when a national emergency has strained personnel requirements.”

The other four authors of the study in addition to Mazur and Belkin are Dr. Nathaniel Frank, a Palm researcher and author of “Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America”; Dr. Gregory M. Herek, Professor of Psychology at the University of California, Davis; Dr. Elizabeth L. Hillman, Professor of Law at the University of California Hastings College of the Law; and Bridget J. Wilson, who practices law at Rosenstein Wilson & Dean in San Diego. The report will also be published in a forthcoming book, “Department of Defense Social Policy Perspectives 2010,” edited by James Parco, David Levy and Fred Blass.

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White House Sets Record Straight on Gay Ban

SANTA BARBARA, Calif — The following was released today by the Michael D. Palm Center:

Asked today if the White House would consider halting gay discharges by presidential authority, press secretary Robert Gibbs said it would not stop the firing of gay troops. That said, Gibbs insisted that the President believes that the “don’t ask, don’t tell” policy “isn’t working for our national interests” and that he “will work with the Joints Chiefs of Staff, the administration and with Congress” to change the policy.

In recent weeks, the President’s national security team has sent mixed messages. Defense Secretary Robert Gates spoke of what action would occur “if” the policy were repealed, suggesting it may not be; and national security advisor James Jones said this weekend he was not sure if the ban would be lifted.

Scholars said that Gibbs’ comments today indicate new leadership from the White House in reassuring the public that “don’t ask, don’t tell” will be repealed. Nathaniel Frank, senior research fellow at the Palm Center, said that “today’s remarks appear to send a signal to any member of the administration who questions the President’s resolve.”

At the same time, Gibbs’ statement raised questions by gay rights experts about why President Obama, who continues to say he wants the ban terminated, would preside over ongoing discharges when he has authority to end them by executive order. The Palm Center yesterday released a report by a team of scholars and legal experts showing that the president has statutory authority to halt discharges immediately.

Richard Socarides, who worked in the Clinton administration as special assistant to the president on LGBT issues, said that the current president should exercise the short-term options he has to end the ban. “I have long supported and advocated a moratorium on further discharges,” he said today, “and I think it’s well within the president’s discretionary authority to do that immediately.” Socarides said an executive order halting discharges would be consistent with Obama’s stated belief that the policy should end.

Website: http://www.palmcenter.ucsb.edu
Website: http://www.palmcenter.org

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Experts Question Obama Plan to Consult Military on Gays, Consultations Could Backfire As In 1993

Some experts are questioning President Obama’s effort to consult with military leaders as he plans to repeal the “don’t ask, don’t tell” policy. The AP reported today that Obama “has begun consulting his top defense advisers on how to lift a ban.” But Dr. Nathaniel Frank, author of a new book on the policy, says that “Last time political leaders consulted with the military on this issue, the brass still claimed they had not been consulted, and the result was a disaster. Remember, Clinton insisted he was consulting on how, not whether, to lift the ban, and even so, we got ‘don’t ask, don’t tell.’”

Frank’s new book presents never-reported evidence indicating that military officers who wrote the blueprint for “don’t ask, don’t tell” based the policy “on nothing” but their “own prejudices and fears.” The book, “Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America,” which was released today, contains the largest collection of evidence showing openly gay service does not undermine military effectiveness. Frank is Senior Research Fellow at the Palm Center at the University of California, Santa Barbara.

Last month, a retired Marine Corp General questioned a similar Obama administration proposal to study “don’t ask, don’t tell.” “There’s been enough studying throughout the years,” said General Hugh Aitken. “Creating a new study will not change the facts.”