DOJ Backing Down On DADT As Well?

Lee, from Clarksville, TN, from Jeff Sheng's DADT photobook. Soon to be a collector's item from a bygone era? Buy it here.

The Department of Justice met its deadline to file briefs in the Log Cabin Republicans Constitutional challenge to the "Don't Ask, Don't Tell Law," late yesterday.

The news seems to be not so much what they did say, but rather, what they didn't say.

There is no contemporary reference to the Constitutionality of the law.

Cross-Posted to Daily Kos. Rec if you got it, please.
I know, we thought we were done with DADT. But the New York Times legal analyst Josh Schwartz reported earlier this week on the pending motions in Log Cabin Republican's case, he explains:

"'Don't Ask, Don't Tell' Remains in Effect Months After Passage of Law to End It."

The bill passed by Congress did not actually repeal "don't ask, don't tell," but only created a mechanism for doing so. The policy will not end until 60 days after the president, the secretary of defense and the chairman of the Joint Chiefs of Staff certify that the Department of Defense "has prepared the necessary policies and regulations" to carry out the change, and that the shift will not damage the ability of the military to fight or recruit. Until then, the Don't Ask, Don't Tell Repeal Act of 2010 expressly states that the old policy "shall remain in effect."

This is the primary justification the plaintiffs have utilized to keep the suit alive. Arguing against the DOJ's motion to stay the case, the LCR contended:

"The government has acknowledged, in conversations with appellee's counsel, that the military has in fact continued to discharge individuals under Don't Ask, Don't Tell since the stay of the district court's injunction."

That discharges have continued was not disputed in the DOJ's response brief. The Justices of the Appellate court subsequently denied the DOJ's motion for a stay.

The New York Times also quotes Executive Director Aubrey Sarvis of the Servicemembers Legal Defense Network on the prospect of continuing discharges:

Mr. Sarvis said that his group was working with several service members who are currently under investigation, and that discharges were still possible. And that, he said, is "unfortunate."

It is also not clear if openly gay citizens are permitted to enlist. One presumes not as Defense Secretary Robert Gates has not updated his post-bill signing declaration that DADT is still in effect. I've seen no reports that confirm or deny the military's enlistment policies toward openly gay citizens.

Now, the DOJ's argument in the brief appears to have been rather meager and off-point. Chris Geidner at Metro Weekly answers speculation that the DOJ might not even step up to defend it again, and take a pass, as they did on DOMA, but:

It has done so, though, in a rather remarkable way: It changed the question of what the lawsuit is. Noting that "[t]he repeal process is well under way," the government argues that the appellate court should not be deciding whether DADT is constitutional but should instead be deciding whether the DADT repeal process is constitutional.

The government, in fact, doesn't even directly address the constitutionality of DADT, aside from a single mention of past cases and past briefs.

I might suggest an edit that included the DOJ TRIED to change "the question of what the lawsuit is." I am not convinced the Justices will agree that the suit has changed, or that the option exists to change the question before the court, although they may agree it's changed.

Plaintiff attorney for the Log Cabin Republicans, Dan Woods agrees the DOJ has ducked the question:

"The government's brief is stunning for what it does not say. As expected, it argues that Log Cabin Republicans lacked standing to bring the case and that Judge Phillips lacked authority to issue a world-wide injunction. Judge Phillips's 85-page decision from October 2010 covered these points in great detail, and we are confident that the government's arguments on these points will be rejected. The government's only other argument is that the recent repeal of Don't Ask, Don't Tell was constitutional but that was not an issue tried before Judge Phillips and was never part of the government's case before. The government's brief does not address the due process or first amendment issues on which Judge Phillips based her decision nor the standard of review applicable to our challenge to the constitutionality of Don't Ask, Don't Tell. By not arguing merits of the constitutionality of Don't Ask, Don't Tell, the government's brief, by its silence on these issues, is effectively conceding that Don't Ask, Don't Tell was and is unconstitutional. While it may be implicit, it is the first time in the six-plus-year history of the case that the government has not argued that Don't Ask, Don't Tell is constitutional. This is a major change in the government's position."

Tom Carptenter, board member of the Servicemembers Legal Defense Network has the same read:

"I concur with Dan, that the Government in its open brief concedes the unconstitutionality of DADT by omitting to even address Judge Phillips' decision on the most important issue in the case."

Now, I'm not an attorney. But a friend of mine is, and I bounced it off of him, and his off the cuff reaction was very similar:

I think Woods is absolutely right. DOJ's brief is just BIZARRE. It doesn't address the standard of review. It also doesn't address the substance of the two issues on which Philips invalidated the statute. It's like the legal version of an air ball.

If I were one of the judges on the panel, my first question to DOJ's lawyer would be, "Excuse me, but would you care to tell us whether you think this statute is constitutional or not?"

Seems the DOJ is attempting to change the subject by not addressing the underlying Constitutionality of the statute itself. Lisa Leff of the Associated Press describes the DOJ's position this way:

The relevant question now before the 9th Circuit, West maintained, is not whether "don't ask, don't tell" is unconstitutional, but whether it was unconstitutional for Congress to leave the policy in effect while the Pentagon works toward its repeal.

Generally this seems to have been met with a warm welcome in the gay community. John Aravois asks: Did Obama admin. just do a 180 on DADT's constitutionality?



One the one hand, "airballing" is a legal strategy the gay community could welcome. Many in the gay community do feel an investment in seeing a Court vindication the Constitutionality of LGBT discriminatory legislation (evidenced by the glee that erupted by the DOMA position reversal). A Brown v. Board of Education or Loving v. Virginia moment for our own community, if you will.

Of course, on the other hand, the Supreme Court of the United States is not the friendliest terrain. And the issue of "Don't Ask, Don't Tell" is more complicated than that of civil marriage recognition as it also bumps up against a long history of deferment to military authority on issues of civil rights.

It's very hard to divine what the DOJ's long-term strategy is in this case. If I had to guess, I'm betting they are hoping, regardless of the outcome in the Appellate Court that they never have to argue this case at the SCOTUS. They are perhaps banking on the hope the final certification of repeal of the statute predates any SCOTUS appeal and moots the case entirely. Even those who hope for a validating day in court may be wise to agree.

In fact, the news has been largely encouraging on the movement to actually repeal the policy. Air Force Times recently reported:

DADT training for broader force coming March 1

The Air Force has started instructing some airmen on the repeal of "don't ask, don't tell," with training headed to the rest of the force March 1.

The service began instructing the Air Force experts who implement policy changes and personnel who will provide repeal-related services the week of Feb. 14, spokesman Maj. Joel Harper said.

The most awkward position the administration could find themselves is defending the Constitutionality of this law at the Supreme Court, while still in the process of dismantling it on the ground. The specter of that is a pretty powerful incentive to cut through bureaucracy and resistance that might drag out implementation and certification.

More response briefs will be filed, and although not scheduled, oral arguments are likely. It will be interesting to see if the appeals court allows them to be aired as they did the Perry v. Schwarzenegger arguments. The most recent schedule seems to be:

February 25, 2011: Government's opening brief due

March 28, 2011: LCR response due

April 11, 2011: Government's reply due

Stay tuned.