Tanya Domi and Clinton Fein met 20 years ago when acclaimed author Randy Shilts was writing his tour de force book, “Conduct Unbecoming: Gays and Lesbians in the U.S. Military,” the 1993 historical account of gays who had served in the military. Domi was a subject of the book and Fein was the digital artist and producer of a companion CD-ROM which contained interviews of some of the veterans depicted in the book. Today, Domi and Fein are thinking of Randy Shilts and his legacy work. Shilts died in 1994 from AIDS.

A conversation.

TANYA: Clinton, while the entire country is seized with the debt ceiling crisis, we can for the moment celebrate today’s decision by the Obama Administration to certify Don’t Ask Don’t Tell (DADT), indicating to the Congress that the Department of Defense is ready to accept openly gay soldiers in the military. It is long, long overdue and feels anticlimactic to me, especially in light of the facts. During President Obama’s tenure approximately 700 soldiers have been discharged under DADT and America is a minority among our allies on gay equality in the military. For example, Britain and Canada have had openly gay soldiers serving since the early 1990s. Even Poland’s military has a non-discrimination policy.

When the history books are written about the repeal process, it will be a historical account about America’s intolerance of gays and Obama’s agonizing leadership style. The White House had to be pressured and fortunately GetEQUAL delivered the requisite pain, forcing the Administration’s hand to repeal one year earlier than originally planned.

Whatever happened to American pluck and “can-do”? It seems to have dissipated along with America’s bankrupt politics and treasury. I am ashamed that our country had to be dragged kicking and screaming through an excruciating process, supported by countless empirical studies, before repealing DADT. At its very core, DADT is thoroughly anti-American, particularly with respect to First Amendment rights. Let the record reflect that in the U.S. we do regulate, even censor speech as it relates to sexual orientation.

Let there also be no doubt that the Log Cabin Republican case, subject of a recent flurry of action in the Ninth Circuit Court of Appeals, also provided necessary pressure enabling certification today.

The Department of Justice’s request for an emergency injunction last week to reinstate DADT followed the 9th Circuit’s decision on July 6 directing the Pentagon’s to cease enforcement of the policy was a low moment for the community and its relationship with the Obama Administration (more about the enablers and apologists later).

CLINTON: I agree with you – the certification for the repeal is anti-climactic. It took me a while to wrap my head around what was going on with DADT in last week’s development in the Ninth Circuit.

Something had to happen, given the glacial pace of certification of the DADT repeal. As of today, despite the repeal, servicemembers are still being discharged for being gay. Four that we know of since the repeal, but even one, at this point, is one too many. Now that the Pentagon is set to announce certification of the repeal today, there is still an inexplicable 60-day wait before it actually takes effect. Given the way this repeal has been handled to date, I wouldn’t be the least bit surprised if we see servicemembers discharged for being gay in the next 60 days.

Sergeant 1st Class Leroy Arthur Petry, who was just awarded a Medal of Honor, was deployed eight times with two tours to Iraq and six tours to Afghanistan. We are engaged in three wars (officially). How dare anyone claiming to care about national security think we are in a position to discharge servicemembers for being gay?  I’m glad you mentioned the manufactured debt ceiling crisis, because it’s the same fundamental inability to grasp reality that has the likes of John Boehner focused on overturning the repeal of DADT and bringing federal abortion legislation to the floor, when he should be focused on creating jobs – not spending money to eliminate them by trying to fire committed servicemembers we spent a fortune training to begin with.

TANYA:  Everyone should keep in mind that DADT as a policy is not over until the 60 days has expired, absent further interference by the Congress. Indeed Howard McKeon, chair of the House Armed Services Committee issued a statement this afternoon expressing his “disappointment that Obama has not properly addressed the concerns of the military service chiefs” (don’t expect them to give up).

Lawyers are advising service members not to come out until the 60 days has officially expired. The Log Cabin Republican case may be mooted, but that remains an open question, as only time will tell. We could obtain a future decision that speaks to broader constitutional rights of LGBT persons, which the government is clearly trying to avoid.

Bridget Wilson, a San Diego based attorney-at-law who is a military administrative law expert and an Army veteran (also consulting counsel to Servicemembers Legal Defense Network), shared with me earlier this week her view that the Ninth Circuit’s response to the government’s injunction indicated that they were not pleased that the government was trying to have their cake and eat it too. Wilson said, “I was rather amused by the latest court missive in which the stay was lifted in part but still prohibits the government from investigating, processing or discharging service members under DADT. It was rather a ‘screw you’ to the government in the case. Sure, you can argue your case, but we will hold your feet to fire and not let you use the opportunity to purge a few more”.

“The Ninth Circuit does not appear to be buying the government’s argument. But remember this is primarily [emanating from Chief Judge] Alex Kosinski, The Ninth is no longer the ‘liberal’ circuit. For example, Judge Jay Bybee of the ‘torture memo‘ was appointed by President George W. Bush.”

Wilson added, “I think the slow crawl through the Pentagon has not helped them.” Indeed, the slow rollout has been an agonizing process to monitor, while most Americans thought the deed was actually done in December. Obama brilliantly framed DADT as repealed, without explaining the next two steps before gays were actually freed.

CLINTON: The legal machinations are pretty complicated, but the government’s move to fight the Ninth Circuit’s ruling suggests that a definitive ruling by the courts that DADT is unconstitutional is critical.

And not because I’m a lawyer – I’m not – but because the historically the courts have always given deference to the military. Having looked at the documents being filed by the government, their reasoning is crafty and cunning. Essentially they seem to be arguing that there isn’t a controversy here because Don’t Ask, Don’t Tell is in the process of being repealed as Congress had intended. They argue that interference by the courts in a process that’s already underway would undermine the whole repeal process as envisioned and articulated by congress.

I believe that since there are already efforts by certain members of Congress to either rescind the DADT repeal or render it toothless, the Congressional repeal alone is not enough. A ruling on its constitutionality by the court would add a very important weapon into the arsenal against any attempts to reverse course. And given that Michelle Bachmann, Newt Gingrich, Tim Pawlenty, Mitt Romney, and Rick Santorum have all publicly stated that as President they would support reinstatement of DADT – unlikely as some of them are as contenders – the prospect of a different Administration or congress reinstating DADT is very real. We seem to be going backwards as a country in every other sphere.

The days of just accepting anything Obama does as strategy, and warnings against any attempts to call him on his bullshit are indefensible. I know there will be those who argue that we are politically naïve by refusing to so simply give Obama the benefit of the doubt. But if there’s a legitimate strategy behind requesting a stay on this demand to cease implementing DADT, the President, or his minions need to come forward and explain it. And what the pros and cons are before unilaterally making these decisions that don’t, on their face, make any sense at all.

TANYA:  When I spoke to Wilson yesterday as the news broke that the Pentagon would certify today, she added:  “…this will be used to bolster the government’s claim that the case is moot. It is my sense that this is what is motivating it”. She also made a point of asserting that the Administration has needlessly advanced the “Rehnquist Doctrine”, considered an overly broad legal approach taken by federal judges on due deference to the military that has effectively capitulated federal court review of military policies(a subject of a future blog). A sobering notion asserted by Wilson is that it is clear that the longest legal rollouts with respect to implementation in our country’s history is in the arena of civil rights.  In other words, this process will take many, many years to come.

Affirming Wilson, many gay activists are convinced that the Obama government does not want the Courts to establish sexual orientation as a protected class because it would open the door in the military to future law suits by those seeking redress for damages.

I already feel the pain of our gay soldiers—despite the repeal, they remain second-class and must be prepared to render service absent medical benefits for their families, on-base housing and the minimal perks that go along with these small, but important measures that provide support to all other military families.

Add in the complicity of gay politicos like David Smith of the Human Rights Campaign and Winnie Stachelberg, formerly with HRC, now with the Center for American Progress, who both eagerly carried the White House’s political “water” to the detriment of gay service members. Strachelberg personally negotiated away the non-discrimination clause from the House version of the bill and proudly took credit for it, when the White House yielded to the Pentagon’s demand for no protections.

Neither of these political insiders has a realistic clue about the life of a soldier, nor about the sacrifices military families must endure.  Smith and Stachelberg’s unprincipled leadership and complicity should be noted for posterity sake.

CLINTON: That’s unfortunate. Once again these morons having the audacity to make deals on behalf of communities that don’t respect them nor want them doing anything in their name. If I remember correctly, Stachelberg was one of those “saviors” who signed onto the original DADT policy as a reasonable compromise.

The notion that allowing this decision to stand would open the door to restitution and other punitive actions is legitimate, but I think that if a lawsuit was filed on that basis, the government could argue that it was implementing a policy that had been ordered by congress and signed into law by President Clinton. A court could side with the administration and say that in view of the fact the military was adhering to the policy, it cannot be held retroactively responsible for damages that occurred or actions that were taken prior to the repeal.

When President Truman signed his Executive Order in 1948, he too could have refrained, claiming the only reason he wanted to defend segregation in the armed forces was to avoid responsibility for damages or actions taken prior. In my mind it’s worth the risk. Even if, in the end, a court rules that gays and lesbians are indeed entitled to full compensation and repayment of their tuition costs, then so be it.

We don’t deny people civil rights on the basis that providing them is too expensive. Imagine if that was used as a justification for the continuation of Apartheid.

TANYA: Defenders of the Administration are already engaged like Sue Fulton of Knights Out, who was recently named by Obama to West Point’s Board of Visitors. Last night she said that the certification was timely as planned by the White House. Let’s hope Fulton will be as quick to criticize Obama during post-repeal, especially in light of DoD’s overly reliant leadership driven, no anti-discrimination policy for gay soldiers. We will be watching too.

CLINTON: While I am pleased this process is moving forward, snail-paced as it may be, we can still expect the die-hard, pseudo-religious hater on the right, along with the self-loathing Auntie Toms at GOProud to be screeching like turkeys on Thanksgiving in their racist hatred of Obama, masked in “conservatism”. But that’s another conversation I look forward to having with you.

 

Tanya L. Domi is an Adjunct Assistant Professor of International and Public Affairs at Columbia University, who teaches about human rights in Eurasia and is a Harriman Institute affiliated faculty member. Prior to teaching at Columbia, Domi worked internationally for more than a decade on issues related to democratic transitional development, including political and media development, human rights, gender issues, sex trafficking, and media freedom.

Clinton Fein is an internationally acclaimed author, artist, and First Amendment activist, best-​known for his 1997 First Amendment Supreme Court victory against United States Attorney General Janet Reno. Fein has also gained international recognition for his Annoy​.com site, and for his work as a political artist. Fein is on the Board of Directors of the First Amendment Project, “a nonprofit advocacy organization dedicated to protecting and promoting freedom of information, expression, and petition.” Fein’s political and privacy activism have been widely covered around the world. His work also led him to be nominated for a 2001 PEN/Newman’s Own First Amendment Award.