Defense Department lawyers warned this week in a letter to the Ninth Circuit Court of Appeals that a judge's order for the Pentagon to stop enforcing the ban on openly gay troops serving in the armed forces could “irreparably harm our military and the national security of the United States.”
This admonition came on the heels of a court order for the Defense Department “immediately to suspend and discontinue any investigation, or discharge, deparation, or other proceeding that may have been commenced under the ‘Don’t Ask, Don’t Tell Act.” The Justice Department Thursday filed an appeal to the court’s decision, and it is seeking a stay of the injunction while the appeal is pending. If its initial bid is rejected, the Obama administration could ultimately appeal the decision to the Supreme Court.
Around the Pentagon halls, however, there is no question that an end to the ban is imminent. “The president has made his intention clear,” says a senior US military official, adding that Defense Secretary Robert Gates and Chairman of the Joint Chiefs of Staff Mike Mullen have done the same.
Why then such strongly worded resistance to the court decree? The Pentagon says it must first finish up a study – due to be completed Dec. 1 – investigating precisely what the impact of lifting the ban will be. This change has implications for regulations surrounding spousal health care and base grocery store privileges, for example, as well as housing issues for single soldiers.
“The study is not intended to say whether or not it should happen,” explains the senior military official. “It’s about what the impact is going to be.” This, in turn, will help to show the Pentagon where any pockets of resistance may be “so we can do education outreach,” as well as identify branches and bases where dropping the ban is expected to go relatively smoothly, the official adds.
Undersecretary of Defense for Personnel and Readiness Clifford Stanley speculated in a memo to the court what might happen if the Pentagon is not given another 1-1/2 months to complete its study. “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,” he wrote.
Critics say that the Pentagon has had plenty of time to study the problem. The military specializes in quickly carrying out orders, they add, and changing DADT policy should be no different.
Visible questions and confusion remain, however, about what the court order means for Pentagon officials now. Mr. Stanley pressed this point in a memo to the chairman of the Joint Chiefs of Staff and the general counsel of the Department of Defense, released by the Pentagon Friday. “In light of the appeal and the application for the stay, a certain amount of uncertainty now exists about the future of Don’t Ask, Don’t Tell law and policy.”
These questions include, for example, whether an openly gay potential soldier could walk into a recruiting office, announce his sexuality, and still enlist for service. Pentagon spokesman Col. Dave Lapan said there are no answers, yet, for such a scenario.
In the meantime, he emphasized in an e-mail statement sent late Thursday night that the “Department of Defense will of course obey the law.” Determining precisely what adherence to the law now entails, Pentagon officials say, will be a trickier proposition.