The Justice Department asked a federal judge Thursday to set aside her decision stopping the “don’t ask, don’t tell” policy for gays and lesbians in the military until it can appeal the ruling, saying the decision would “irreparably harm our military and the national security of the United States.”
Government lawyers told U.S. District Judge Virginia A. Phillips of Riverside that if she did not lift her order by Monday, they would ask the U.S. 9th Circuit Court of Appeals to halt it. If the appeals court in San Francisco fails to act, the government probably will ask the Supreme Court to intervene to prevent an abrupt change to the military, which says it is not yet prepared to handle the transition.
The confrontation comes at a politically awkward moment for President Obama. He opposes the “don’t ask, don’t tell” policy, but now — just weeks before the midterm election — risks alienating his liberal base by seeking to halt the judge’s order.
On Thursday at a town hall meeting in Washington, Obama pledged he would end the highly controversial 17-year-old policy for removing homosexuals from the armed forces.
“Anybody should be able to serve, and they should not have to lie about who they are in order to serve. This policy will end. It will end on my watch,” Obama said.
But the president acknowledged that he is hamstrung by the fact that the policy is written into law and said “this is not a situation where I can, by the stroke of a pen, end this policy.”
In the meantime, the Pentagon said that it would suspend enforcement of “don’t ask, don’t tell” while Phillips’ injunction remains in place.
“The department will abide by the terms in the court’s ruling, effective as of the time and date of the ruling,” Col. Dave Lapan said Thursday.
Under the law, enacted in 1993 under President Clinton, commanders cannot ask about a service member’s sexual orientation, but if a soldier volunteers the information, then he can be removed. About 13,000 have been removed so far.
Despite the ruling issued Tuesday that the law is an unconstitutional violation of due process and 1st Amendment rights, the president signaled that he preferred Congress to repeal the law. The House voted for repeal this year, as did the Senate Armed Services Committee. But the repeal was blocked by Republicans on the Senate floor. Now, some in the Senate hope the matter can be reexamined during the lame-duck session this fall.
Clifford L. Stanley, undersecretary of defense for overall military readiness, cautioned that an abrupt transition would ruin the Pentagon’s work surveying military commands around the world to determine how best to create a new policy that allows people who are openly homosexual to serve.
The judge’s injunction, Stanley said in a sworn declaration submitted with the government’s appeal, “will have adverse effects on both military readiness and the department’s ability to effect a smooth and lasting transition to a policy that accommodates the presence of openly gay and lesbian service members.”
“The stakes are so high, and the potential harm so great, that caution is in order,” he said.
Stanley, a 2009 Obama appointee, said a working group of Pentagon officials was still struggling to figure out the best way to run the military without the “don’t ask, don’t tell” policy, but their recommendations are not expected until Dec. 1.
Then, he said, there would be command review and final decisions made on how best to run an efficient military operation while also safeguarding soldiers, sailors and Marines who are homosexuals.
He said military leaders would need time to learn the new policy and how it prohibits discrimination against gays and lesbians.
“Without this education and training,” he said, “commanders in the field will not have the necessary guidance and will not be able to enforce the new regime in the consistent, even-handed manner that is essential to morale, discipline and good order.
“Equally importantly, service members must know what is expected of them.”
Stanley also warned that “a poorly implemented transition will not only cause short-term disruption to military operations, but would also jeopardize the long-term success of the transition. Either outcome would irreparably harm our military and the national security of the United States.”
He added that gays who took advantage of the ruling could face expulsion if the decision is later overturned and the military decided to move against them.
Christian Berle, deputy executive director of the Log Cabin Republicans, a conservative organization that initially brought the suit, said the group would “continue to advocate on behalf of American service members,” adding that “if this stay is granted, justice will be delayed but it will not be denied.”
In the government appeal, Justice Department lawyers said Phillips’ order would require “a precipitous change in policy that threatens the public interest in a strong military.” They also argued that her ruling was a setback to “the orderly repeal” of the policy that has been discussed in Congress.
They said that such a quick transition could “harm the government’s critical interests in military readiness, combat effectiveness, unit cohesion, morale, good order, discipline, and recruiting and retention of the armed forces.”
The government also filed a notice of appeal with the 9th Circuit Court, making clear that it intends to challenge the ruling if the judge does not set it aside for now.
Lapan said the Pentagon e-mailed military judges that the Tuesday ruling was to be followed immediately. One e-mail, made public by the Servicemembers Legal Defense Network, was sent by Lt. Gen. Richard C. Harding, the Air Force judge advocate general. He ordered military lawyers “to inform your commanders of this injunction and its terms.”
Aaron Tax, the network’s legal director, said the Pentagon’s move “keeps the injunction in place and it gives it effect, and that’s good news for lesbian, gay and bisexual service members.” For now, he said, “no one will be discharged.”
But if the judge or the 9th Circuit temporarily sets aside the ruling, homosexual service members will “remain at risk,” Tax said.
David S. Cloud, Christi Parsons and David G. Savage in the Washington bureau contributed to this report.