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'Don't ask, don't tell': Now what?!

By Ed O'Keefe

Eye Opener

A California federal judge's order Tuesday that the military stop enforcing the "don't ask, don't tell" policy at all bases worldwide continues a back and forth between federal courts and Congress over the fate of the 17-year old law.

So what happens now? (We've answered this question before, but it's worth doing again.)

Tuesday's order immediately stopped investigations and discharges of openly gay troops -- but didn't kill the law entirely unless the Justice Department declines to appeal the injunction. (That's unlikely, because DOJ continues to appeal rulings on laws that President Obama personally opposes, including the 1996 Defense of Marriage Act. Government lawyers said Tuesday they plan to appeal a judge's July ruling that DOMA interferes with state definitions of marriage.)

If the government appeals, the case goes to the 9th Circuit Court of Appeals. But the Justice Department can only appeal the scope of the worldwide injunction, because the 9th previously established a higher legal standard for "Don't ask," requiring the government to prove that gays and lesbians are impacting military readiness. Judge Virginia A. Phillips used that standard in the California case to issue her injunction.

Of course, any and all legal efforts would end if President Obama signs legislation ending the gay ban. That's his preference, and Congressional Democrats have vowed to end the policy this year through the annual defense policy bill.

The House passed its version in May, but a test vote failed last month in the Senate. Democratic aides didn't know Tuesday if/when the Senate will reconsider the bill and include language repealing the law.

The Senate's failure to include repeal language in the bill would make efforts to end the law very difficult next year if Republicans retake the House and/or Senate. Republicans voted en masse against repealing the law in the House and hung together in the Senate to block the bill from moving forward.

But moderate Republicans, including Sen. Susan Collins (Maine), have said they're willing to lift the ban if they get an opportunity to review an ongoing Pentagon study of how the military would end the gay ban.

The report is due by Dec. 1, conceivably setting up a tight timetable that would allow the White House, Pentagon and Congress to review the law, have the Senate vote on a defense bill that includes repeal, merge it with the House version, and get it to President Obama's desk before Congress leaves for Christmas. The Pentagon would move forward with ending the ban once Obama signs the legislation.

So will legislation end the law later this year? Or does it face years of legal battles? Stay tuned.

Leave your thoughts in the comments section below

Question of the Week: Picking up on something we started Monday -- should federal workers have Columbus Day off? What other person/event deserves to be a federal holiday, if any? E-mail your answers to Please include your full name and hometown and we may use your answers in Friday's Post.

Cabinet and Staff News: Hillary Clinton compares her 2008 campaign against President Obama to reconciliation efforts in Bosnia and appears to be sitting out the 2010 midterms. Defense Secretary Robert M. Gates says U.S. has a "national interest" in Asian sea disputes. Why the GOP is holding up a Federal Reserve nominee. Dick Cheney, back on the road.

Hearing begins in Fort Hood shootings: Army Major Nidal Malik Hasan returned in a wheelchair and combat fatigues for a pretrial hearing 11 months after he was seen opening fire.

EPA expected to approve higher blends of ethanol in gasoline: But it's still weighing the use of such blends in older cars and trucks, administration and industry sources said last night.

Minutes show Fed leaning toward new stimulus: Most Wall Street analysts expect the committee to decide to resume the debt-buying strategy, known as quantitative easing, in which the Fed would buy government debt.

At FedTalks2010, networking goes high-tech with MingleStick: It's starting to make inroads in the Washington government conference technology world.

Al-Qaeda affiliate calls for strikes on U.S. targets such as D.C. restaurants: Their publication says using firearms to carry out "a random hit at a crowded restaurant in Washington D.C. at lunch hour for example might end up knocking out a few government employees."

DHS withholds probe into Prince William drunk driver who killed nun: It will not release the results of an investigation into why an illegal immigrant with two drunk driving convictions went almost two years without a deportation hearing before a crash that killed a Virginia nun.

White House lifts ban on deep-water drilling: Though it remains unclear how quickly oil and gas drilling will resume in the region, the announcement comes well ahead of the Nov. 30 date at which it was originally slated to expire.

Rand Paul would replace income tax with sales tax: The Kentucky Republican Senate candidate said he supports changing the federal tax code to get rid of the Internal Revenue Service and the federal income tax.

GOP prods Justice on military vote: A group of Republican lawyers and law students called Tuesday for the Obama administration to do more to ensure that members of the military are able to cast ballots in the Nov. 2 elections.

NASA contractors want retraction from Justice Dept.: They want Acting Solicitor General Neal K. Katyal to retract statements made last week to the Supreme Court regarding which agency facilities the contractors can access with their identification badges.

Health care costs for vets to soar: In a warning with big implications for future budget debates, the Congressional Budget Office estimates the cost of veterans health care will rise between 45 percent and 70 percent over the next decade.

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By Ed O'Keefe  | October 13, 2010; 7:00 AM ET
Categories:  Eye Opener  
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It's an Obamanation!

Don't Ask, don't tell is one of Bill Clinton's greatest achievements.

Without that, he has no legacy.

Posted by: battleground51 | October 13, 2010 8:23 AM | Report abuse

Now what, you ask? Give gays the full freedoms guaranteed by the Constitution to all citizens regardless of race, creed, religion or sexual orientation, and put an end to the bigotted and prejudiced attitudes and practices of the intolerant. Yes, holier-than-thou Christians. I'm talking to you.

Posted by: Byrd3 | October 13, 2010 9:20 AM | Report abuse

a federal judge in california,what a joke.nobody should have anything to say about this except the enlisted military people.they are the people who have to live and share sleeping quarters with gay people.the pentagon took a poll of what the enlisted people thought of gays in the military and it was so one sided against that they would not publish the results.remember generals and admirals have their own mess and sleeping quarters,and i still don`t believe that they are telling the truth about their enlistment quotas!

Posted by: SISSD1 | October 13, 2010 10:50 AM | Report abuse

"Don't ask, don't tell" is a principle I wish we could ALL follow but it hasn't really solved the problem of gays in military.

We should let gays serve. We have far too many people in this nation that seem to HATE their own country and we're going to prevent some of those who actually want to serve from doing so simply because they prefer the company of men? It's crazy.

Rather than singling out gays with "Don't ask, don't tell", the military should just tighten its rules on PDA in general and demand that ALL soldiers display proper military bearing and decorum and DON'T make their personal lives everyone else's business.

I don't like "flamers", gay people who seems obsessed with making sure that everybody knows they are gay right away and really, really gay at that. But the problem there is the promuscuity and the exhibitionism NOT the homosexuality; over-sexed and sexual aggressive straight people are just as offensive as over-sexed and sexually aggressive gay people, in NEITHER case is their behavior commiserate will military bearing and discipline and the armed forces shouldn't tolerate from ANYONE.

No one should have to hide who they are for fear of discrimination but neither should anyone take upon themselves to make their private sex lives a public matter. I don't know why people can't just be sane about things.

Posted by: andrew23boyle | October 13, 2010 11:16 AM | Report abuse

What next? It will appealed and eventually reach the SC. The SCotUS has already correctly determined that there is no constitutional right to serve in the armed forces based on abnormal human behavior.

Posted by: illogicbuster | October 13, 2010 11:41 AM | Report abuse

A close relative of mine served in the U.S. Army in the 1960s. He says that there were gays in the army then and their sexual orientation was well known among their colleagues, but was ignored as long as their behavior was consistent with the military code of conduct.

I am confident that the fear mongering on this subject is just that. The sky will not fall and the military will not be destroyed when DADT goes away. Gay members of the military will not suddenly transform into learing sexual predators.

Who knows - we might even get back some of the highly skilled linguists (among other specialists) we need so badly as we defend ourselves from terrorists who speak Farsi and other languages. Taxpayers spend a lot of money training these people. Throwing them out is fiscally irresponsible as well as a violation of basic civil rights.

Posted by: colton | October 13, 2010 11:44 AM | Report abuse

@andrew23boyle - Your line of reasoning betrays one really key false premise here - you're assuming that any instance of a gay person telling someone about their orientation must involve "over-sexed and sexually aggressive" behavior. Typical heterosexist BS - of course any time a gay person discusses being gay it *must* be because we're all sex-crazed fiends, right? But that isn't the case most of the time - most of the time, it's either someone going after someone else and dredging up details that the person was attempting to keep private in the first place, or it's because someone goes and gets married or whatever BS "civil union" junk they invented to keep us separate. Marriage isn't about being covert - you get married because you want everyone to know, and no one should expect people to hide their marriages just because they're in the military. Our soldiers are human beings and they should have the right to tell their colleagues about their families, gay or straight. I'm not saying all gays and lesbians are family people, but there's a lot more family-oriented gays then there are sex-crazed maniacs - that's just what you see on TV.

Posted by: jove4015 | October 13, 2010 12:32 PM | Report abuse


You're misunderstanding me and putting words in my mouth. I never said ANYTHING like a gay coming out automatically makes him or her "sex-crazed". That's in your own apparently VERY DEFENSIVE imagination.

I said that I don't think gays or anyone else should have to "hide" who they are. I knew plenty of gay people when I was in the service but I only found out that they were gay after I'd been friends with them for a while.

I'm not saying soldiers shouldn't be able to tell people they're gay; I SAID IT EXPLICITLY. I don't know how you missed.

What I was saying was that no one, gay or straight, should take it upon themselves to make a big deal about their sexuality in public because to do so is inconsistent with military bearing and decorum REGARDLESS of whether it's straights or gays who are doing.

AGAIN, I said EXPLICITLY that it is the EXHIBITIONISM of SOME PEOPLE GAY AND STRAIGHT that is the problem, NOT homosexuality.

I don't appreciate my word being misportrayed. I don't know if you are doing this because you are dishonest or because you misunderstood me, but if it is the former, why don't you go find an actual homophobe to argue with rather than misportray my condemnation of EXHIBITIONIST behavior IN GENERAL as a being somehow specific to gays ESPECIALLY as I REPEATEDLY STATED that the SAME STANDARD should be applied to both gays and straights.

Please read more carefully in the future.

Posted by: andrew23boyle | October 13, 2010 12:51 PM | Report abuse


For whatever it's worth, I've seen this first-hand.

I was an Arabic linguist in the USAF. I was stationed at Offutt AFB from late 1999 to early 2000 for flight training.

While I was there, there was basically an anti-gay "witch-hunt" going own in my squadron. It started because a gay NCO was accused of sexual harrassment by some airmen who wanted out of the service. It spiralled into an inquistion that ended up effecting the entire squadron and a number of gay linguists who had nothing at all to do with the actual incident ended up being "exposed" and kicked out. Most of them were Farsi linguists.

The squadron commander was VERY religious and not shy about it.

It was truly disgusting. The linguist career field is not a very big one to begin with and we desperately needed these people. Worse, these people already had TS/SCI clearance and had been trained at great expense to do a very difficult job that not everybody can do. Moreover, these particular linguists were flyers, which are even rarer. These airmen weren't bothering anybody, they hadn't done anything wrong but we still kicked them out and wasted millions in tax-payer dollars doing so.

After 9/11, in fact, they were trying to cross-train Arabic linguists into Pashtu and Urdu despite the fact that these are Indo-European languages and Arabic is Semetic, but they're weren't enough Farsi linguists to go around.

I don't know if there would been enough had it not been for the witch-hunt at Offutt, but it sure didn't help.

Posted by: andrew23boyle | October 13, 2010 1:22 PM | Report abuse

Get over it. There are 6 NATO countries with fighting troops in Afganistan, 5 of whom have openly gay troops. In joint attacks, US troops are now and have been for 9 years, fighting alongside openly gay guys, with absolutely no reports of inappropriate conduct. End of story!

Posted by: wp121606 | October 13, 2010 2:11 PM | Report abuse

60 days means December 12th.

The study comes out December 1st. Thus the Senate can review it and debate on the defense bill can happen on December 6th which gives time for the Senate to review the Pentagon's review.

The Senate will know whether or not they have 60 votes on December 6th.

If there are not 60 votes then Obama doesn't have to appeal the ruling and let DADT go away. Then it will be up to the military how they want to implement it.

Posted by: maritza1 | October 13, 2010 2:59 PM | Report abuse

The Senate bill doesn't have to merge with the House bill.

The House could just vote on the Senate bill.

Posted by: maritza1 | October 13, 2010 3:00 PM | Report abuse

20 days until Election Day.

The Democrats are going to get slaughtered in the midterm elections, with a huge Republican majority in the House; possibly a GOP majority in the Senate.

After a crushing defeat the lame duck Congress is not going to be able to pass what they were unable to pass when Democrats were a 60-seat majority.

The "repeal" that was passed by the House is going to be null and void when the next Congress begin on January 3.

Posted by: screwjob21 | October 13, 2010 5:38 PM | Report abuse

Now, at a time when our military is as heavily engaged as it has been for more
than forty years, at a time when individual troops are ordered to repeated
deployments to the war zones, now in a time of military uncertainty and maximum
commitment, is the wrong time for our politicians to advocate for a social
engineering experiment by endorsing an end to the current don't ask, don't tell

Neither the president nor an overwhelming preponderance of those in Congress
have served a single day in our country's military. For them now to pander to a
vocal minority seeking a liberal interpretation of society's rules is disturbing
and quite revealing as to the total lack of any consideration of the residual
effects of their actions. To politicize our military in a time of war is as
incredibly contemptible as it is indisputably ignorant of the military as an
institution, a separate and distinct body tasked with the most crucial tasks of
defending our nation in a time of war.

To our politicians I say: Tinker with the civilian world if you must; do not
impose your liberal agenda on America's military for the purpose of vote

Are there gays in our military? Certainly and always has been. "Don't ask, don't

You can read my complete article here:

Posted by: denniscopson | October 14, 2010 2:46 PM | Report abuse

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