Obama ‘can end military gay ban with a single order’
Military law experts have said that President Barack Obama can end the dismissal of openly gay soldiers with just a single order.
The study from the Palm Center at the University of California claims that despite popular opinion, Congressional approval is not needed to lift the ban, which was introduced in 1994.
Dr Aaron Belkin, co-author of the study, said that a “political deadlock” was in place between the White House and conservative opinion from both Republicans and Democrats.
He added: “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.”
According to the study, there are three legal bases to the President’s authority on the issue.
A law granted by Congress titled 10 U.S.C. 12305 allows the authority of the President to “suspend certain laws relating to promotion, retirement, and separation” in the case of a national emergency, which is defined as a time when “members of a reserve component are serving involuntarily on active duty”.
The Army recently announced it would cease its unpopular ‘stop-loss’ policy, in which those who wish to leave the military are forcibly required to extend their service periods.
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Diane H Mazur, Professor of Law at the University of Florida College of Law and another study co-author, said: “That use of stop-loss forcibly extends service by those who wish to leave the military, whereas suspending discharges for homosexuality would do the opposite: allow ongoing service by those who wish to remain in uniform.”
The second and third bases of presidential authority are contained within the Don’t Ask, Don’t Tell legislation itself.
Under these bases, the Defense Department has the authority to determine how discharges should be carried out. The law also states that servicemembers can be discharged if they are found to be gay, but does not require such a finding to be made.
Around 12,500 servicemembers have been ejected since the Don’t Ask, Don’t Tell policy’s introduction in 1994, including 60 Arabic linguists
Speaking on Sunday on ABC’s This Week with George Stephanopoulos, White House National Security Advisor James Jones said he didn’t know whether to the policy would ever be overturned, describing it as a “complicated” and “sensitive” issue.
However, he added that the President was holding “preliminary talks” on the issue.