Barack Obama’s Department of Justice today argued in a federal court that the “repeal” of Don’t-Ask-Don’t-Tell signed by the President (which provides a pathway via certification to the Congress by the military, the Secretary of Defense, and the President that the DoD is ready to end DADT) means that there’s no need for them to continue their appeal of the Log Cabin Republicans’ case in the Ninth Circuit: it’s moot.
In a late Wednesday filing to the U.S. court of appeals for the ninth circuit, Justice Department attorneys wrote that the “orderly” terms of repealing DADT as set forth by the law will likely obviate the government’s appeal in the case.
Of course, gay and lesbian servicemembers can still be investigated and discharged during the interim, prior to implementation of actual open service in the United States military. So the Log Cabin Republicans are having none of it.
But Log Cabin Republicans executive director R. Clarke Cooper called the motion a stall tactic that would delay the government’s opening brief in the appeal due January 24. “The DOJ can hardly argue now that ‘don’t ask, don’t tell’ is constitutional,” Cooper told The Advocate. “The government is trying to avoid an embarrassing situation, and it ignores the fact that the military remains free to discharge personnel.”
Dan Woods, lead attorney for the Log Cabin Republicans, told The Advocate following the repeal bill signing ceremony last week that he would not agree to suspend the suit, given that “don’t ask, don’t tell” technically remains in effect. “[U]nless the government agrees not to discharge any more service members, our lawsuit is alive and kicking,” Woods said.
I find it quite ironic that while Democrats celebrated at year-end the “repeal” of DADT, members of the GOP continue to pursue an actual end to the witch-hunts, exposure, and career-ending investigations. Even though the President will not commit to ending discharges under the current policy, his Department of Justice wants the court to believe that everything is fine:
“In granting a stay pending appeal, this Court recognized the necessity of an orderly process in the Executive and Legislative Branches regarding any repeal of [DADT],” government attorneys wrote. “Since that time, that process has been proceeding in a timely manner in both Branches. This Court should now suspend the briefing schedule and hold the case in abeyance to allow that process to continue to completion.”
Open service? Hardly.