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5 Years After DADT Repeal, A Look Back At How We Won The War

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Although President Obama Often Gets Credit For Lifting The Ban, LGBT Servicemembers And Grassroots Activists Led The Charge

On Sept. 20, 2011, the U.S. military policy that prohibited the service of openly gay men and women finally and officially ended.

In effect since 1993, Don’t Ask, Don’t Tell was responsible for curtailing the military careers of more than 14,000 American servicemembers and causing psychological damage to many more. The policy forced gay men and lesbians in the military to live in constant fear of exposure as they served under the threat of losing their jobs should their sexual orientation become known.

The cost to American taxpayers of discharging openly LGBT servicemembers under DADT is estimated at some half a billion dollars. But the cost to military effectiveness and governmental integrity was even more staggering.

As proponents of ending DADT pointed out, the ban promoted a hostile working environment, wasted crucial resources on unnecessary investigations, forced many qualified service members to leave the military, and caused others not to join, thus depriving the military of much-needed talent.

In addition, as Adm. Michael Mullen, former Chair of the Joint Chiefs of Staff, observed in 2010, the policy forced members of the military to violate the honor code by lying: “I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens,” he said, adding, “For me, personally, it comes down to integrity — theirs as individuals, ours as an institution.”

Frustration and Disappointment

The struggle to end the odious policy was a long and frustrating one, filled with disappointments and surprises. The struggle began as soon as it was enacted in 1993, when David Mixner, who had supported President Bill Clinton in the 1992 presidential election in part because of his commitment to end the military’s blanket prohibition on LGBT servicemembers, broke with him over the “betrayal” that was Don’t Ask, Don’t Tell.

The policy was originally touted as a way to end the witch hunts to which LGBT servicememers were subjected. The “compromise” was supposed to be “Don’t Ask, Don’t Tell, Don’t Pursue.” But in implementation, LGBT people were in fact “pursued.” The number of troops dismissed under “Don’t Ask, Don’t Tell” was higher than had been dismissed under the blanket exclusion of gay and lesbian personnel.

But with the election of President Barack Obama in 2008, hopes were high that the DADT policy would soon be history. During the campaign, then-Sen. Obama said that repeal of the policy would be a top priority of his administration.

Following his assumption of office in 2009, however, Obama disappointed many of his LGBT supporters by his timidity in confronting the issue. He indicated that plans to repeal the policy would be delayed so that he could confer with Secretary of Defense Robert Gates, a Republican holdover from the President George W. Bush administration, the Joint Chiefs of Staff, and his new political appointees at the Pentagon to reach a consensus, and then present legislation to Congress.

During the campaign, Obama intimated that he would end the ban by executive order. After the election, however, he insisted that only Congress could change the policy. And despite the fact that his party had large majorities in both Houses of Congress, he did not make repeal a legislative priority of his administration during the first year.

Although military law experts concluded that the President as commander-in-chief had the authority to suspend discharges under the policy, and thereby end it in practice, Obama refused to exercise this authority.

Moreover, the justice department continued to oppose court challenges to Don’t Ask, Don’t Tell, even saying in briefs that dismantling the policy by court order would create chaos and endanger the nation’s safety.

New Activism

The Don’t Ask, Don’t Tell policy discriminated against gay men and lesbians so starkly that it became emblematic of the injustices LGBT individuals experience in American society generally, particularly since those who experienced the discrimination directly wanted only to serve their country.

Its repeal became a priority of the LGBT movement even though the number of individuals affected by it was relatively small compared to those who experience discrimination in the private sector or in the area of partnership rights (before the landmark Supreme Court rulings that dismantled the Defense of Marriage Act and mandated equal marriage rights), and even though the number of servicemembers discharged under the policy declined in its later years, falling from more than 1,300 discharges in 2001 to 499 in 2009, owing largely to the need for recruits to fight two wars.

DADT also became emblematic of the difficulties of effecting real change in the United States and of the unresponsiveness of American political institutions to popular will. Despite the fact that large majorities of Americans believed that gay men and lesbians should be permitted to serve openly in the military, the DADT policy proved extraordinarily resistant to change.

Because the policy became such a symbol of injustice, its repeal sparked a new and fierce activism. Legal organizations, academics and individual servicemembers emerged to lead the movement against the policy.

The Servicemembers Legal Defense Network (SLDN) — now known as OutServe-SLDN, an organization dedicated to ending discrimination and harassment against military personnel affected by DADT — became a leading voice for change. It offered free and confidential legal advice to those directly affected by the policy; it lobbied Congress and other political institutions for repeal of the policy; and it challenged the constitutionality of the policy in court.

The work of the Palm Center, a think-tank originally at the University of California, Santa Barbara, but subsequently relocated to UCLA, and now independent, which concentrates on the study of sexual minorities in the military, was also influential in attacking DADT. Its research thoroughly undermined the assumptions about the deleterious effect of gay men and lesbians on unit cohesion that allegedly justified the policy in the first place. The numerous books and articles — both scholarly and journalistic — of Nathaniel Frank and Aaron Belkin were especially significant.

In addition, a number of individuals who were directly affected by the policy also emerged as effective activists against it.

Perhaps the best known of these was a charismatic infantry officer and Arab linguist who served in Iraq in 2006 and 2007, Lt. Dan Choi, who outed himself in March 2009 on MSNBC’s The Rachel Maddow Show. A 2003 West Point graduate, Choi challenged the policy on a number of fronts, from an open letter to Obama to acts of civil disobedience.Â

Capt. Jim Pietrangelo also frequently engaged in civil disobedience to protest the policy. He fought in Iraq in 1991 as an infantryman and returned as a JAG officer for the second Iraq War. As he was readying for a third combat tour in 2004, he was honorably discharged after being outed by a third party. Pietrangelo sued the government, charging that the policy is unconstitutional. He appealed to the Supreme Court, but in June 2009, pursuant to a request from the Obama administration, the Supreme Court rejected the case.

Army Sgt. Darren Manzella came to national attention in 2007 when he announced on the CBS news program 60 Minutes that he was gay. He became the first openly gay service member on active duty to speak to the press from a war zone.

Because of his frequent appearances on television in opposition to the DADT policy, Air Force Maj. Michael Almy became a familiar critic of the regulation. Almy was named one of the top officers in his career field and led 200 airmen in Iraq. He became the subject of an investigation after his e-mails were illegally read. He was relieved of his duties in 2006 after he refused to make a statement about his sexuality without the presence of his attorneys.

An active duty Air Force Lt. Robin Chaurasiya faced disharge under DADT because she entered into a civil union with her partner. In speaking out against the policy, she received widespread support from her unit.

Air Force Lt. Col. Victor Fehrenbach was one of the highest ranking servicemembers to fight against the DADT policy. After 18 years of service as a decorated pilot — the recipient of nine Air Medals, including one for heroism — Fehrenbach was investigated on suspicion of homosexuality in 2008.

At first he decided to go along with the discharge, despite being close to a full pension, just because he wanted the ordeal behind him. But then he had a change of heart. “The military was taking everything away from me, but the one thing I realized they couldn’t take from me is my sense of right and wrong,” he concluded. So he decided not only to fight the discharge but to go public with his case on The Rachel Maddow Show.

A transgender activist who served for 20 years in the Navy as a male and who retired in 2000 as a First Class Petty Officer, Autumn Sandeen suffered harassment as a result of her presentation as an effeminate male, but knew the regulations well enough to fight back when targeted for a DADT investigation. She participated in many protests, including one in which she was arrested with Choi and others for handcuffing themselves to the fence in front of the White House.

Servicemembers United Executive Director Alexander Nicholson was also one of the leaders in the fight to repeal Don’t Ask, Don’t Tell. A former Army human intelligence collector who speaks multiple foreign languages including Arabic, Nicholson was discharged from the military just six months after the terror attacks of Sept. 11, 2001. In 2005, Nicholson went public about his own experience with DADT and began encouraging other veterans to become active in opposing it.

National Equality March on Washington

The National Equality March on Oct. 11, 2009 was born out of frustration: frustration with the loss of referenda on same-sex marriage and other rights; frustration with the alleged co-opting of the gay rights movement by the Democratic Party; and frustration with the failure of Obama to fulfill the promises he made in his 2008 campaign for the presidency, including his failure to lead the battle against DADT.

The March, which was hastily organized in only six weeks, initially without the support of the major gay rights organizations, was called by veteran activists Cleve Jones and David Mixner, but those who responded to the call and made the March a success were primarily young activists who had been stirred into action by the passage of Proposition 8 in California, which they attributed to a failure of strategy and vision on the part of the established gay political organizations.

Despite detractors such as Congressman Barney Frank, who said the march was an exercise in futility that would apply pressure only to the grass, the Equality March attracted upwards of 250,000 highly diverse but predominantly youthful participants. Since the march was promoted primarily by bloggers through the Internet, its success was itself a tribute to the growing power of the World Wide Web.

Mixner captured the spirit of the March perfectly in the following words: “When people tell me to be patient, when people tell me, ‘Oh lord, not now,’ all I can think about is how many more tears must be shed so some politicians in a back room can figure out when it’s convenient to join us and to fight for our freedom.”

An immediate outcome of the National Equality March was the founding of the direct action group GetEqual by Robin McGehee and Kip Williams, with the financial support of philanthropist Jonathan D. Lewis. The group came to national attention through its demonstrations against DADT, especially the arrests of McGehee, Choi, Pietrangelo, Sandeen and others who chained themselves to the White House fence on several occasions, most notably in November 2010 when it appeared that the long-sought repeal of DADT would fail.

Response of the Obama Administration to Grassroots Pressure

In October 2009, on the eve of the National Equality March, Obama was picketed by grassroots activists as he arrived to deliver a speech at the Human Rights Campaign’s annual gala. Under pressure from frustrated gay and lesbian activists, he again promised that he would repeal Don’t Ask, Don’t Tell, but also again failed to offer a detailed plan or timetable.

However, during the President’s State of the Union Address on Jan. 27, 2010, he announced that he would work with Congress and the military to “repeal the law that denies gay Americans the right to serve the country they love because of who they are.”

In testimony before Congress on Feb. 1, 2010, Secretary of Defense Gates and Admiral Mullen, chair of the Joint Chiefs of Staff, committed to ending the ban, though they said that yet more studies were needed in order to implement the repeal.

In his testimony, Secretary Gates implied that the military might soon adopt a more humane interim enforcement protocol before Don’t Ask, Don’t Tell was actually repealed legislatively.

On March 25, 2010, Gates announced some details of the “fairer and more appropriate” enforcement protocol. Henceforth, he explained, third-party complaints about servicemembers must be given under oath and third parties would be scrutinized more thoroughly to prohibit disclosures by those with vindictive or inappropriate motives. He also struck down the practice of allowing confidential conversations with lawyers, clergy, physicians and therapists to be used in fact-finding inquiries.

In addition, he announced that henceforward only generals and naval flag officers would be authorized to initiate fact-finding inquiries.

Steps Toward Repeal

In the spring of 2010, activists became increasingly frustrated at the prospect of having to wait almost a year for yet another Pentagon study before the DADT policy was finally dismantled. In addition, some suspected that the President and Secretary Gates were not acting in good faith.

The suspicion was that Gates had agreed to support repeal only after exacting a promise from Obama to delay legislation until after the study scheduled for completion in December 2010. That in effect would mean that repeal would not be considered until 2011, by a Congress that would likely contain far more Republicans than did the 2009-2010 Congress. Many political analysts believed (correctly, as it turned out) that in 2011 there would be fewer supporters of repeal in Congress than there were in 2010 and that if Republicans gained control of one of the Houses of Congress, they would prevent repeal.Â

After several acts of civil disobedience, and even the heckling of Obama at fundraising events, activists pleaded with the president to keep his promise to repeal DADT in 2010 and to exert control over the Department of Defense and the Department of Justice, which were defending the policy in court.

These calls were met mostly with silence from the White House. In response, many leaders and bloggers urged LGBT voters to withhold support from the Democratic Party if action on repeal was not forthcoming.

It is believed that House Speaker Nancy Pelosi and Chair of the Senate Armed Services Committee Carl Levin in effect forced the president’s hand. Allegedly, they told him that they were close to having sufficient votes to repeal DADT and were planning to proceed with legislation regardless of his support. They warned that if they succeeded without his support, he would get no credit; and if they failed, he would be blamed.

In response, the president and Secretary Gates tepidly endorsed a compromise in which Congress would vote to authorize repeal of the ban subject to the December study and to assurances from the president, the secretary of defense, and the Chairman of the Joint Chiefs that the repeal would not affect military readiness, unit cohesion, and recruitment and retention.

Even after agreeing to the compromise, however, Secretary Gates and some of the military leaders campaigned against it.

Nevertheless, on May 27, 2010 the Senate Armed Services Committee endorsed the compromise on a 16-12 vote and the House of Representatives voted in favor of the compromise on a vote of 234 to 194.

Filibuster and Disappointment

However, soon after these important votes, Republican senators, led by an embittered and erratic John McCain, vowed to filibuster the repeal of DADT when the Defense Appropriations bill came to the Senate, thus requiring 60 votes to allow the amendment authorizing repeal to be considered.

On Sept. 21, 2010, Senate Majority Leader Reid moved to invoke cloture to kill the Republican filibuster. This motion received 57 votes, three short of the necessary count. All the Republicans and two Democrats (Senators Pryor and Lincoln of Arkansas) voted to sustain the filibuster, thus dooming the attempt to repeal DADT to failure.

Immediately after the vote, Nicholson of Servicemembers United issued the following statement: “Today’s vote is a failure of leadership on the part of those who have been duly elected to serve this nation and to put the best interests of the country ahead of partisan politics. It is simply inexcusable that this vote failed today.”

When it was revealed that President Obama had lobbied not a single senator to vote in favor of breaking the filibuster and that the day after the vote Vice President Biden flew to Arkansas to attend a fundraiser for Sen. Blanche Lincoln, who had joined the filibuster, many activists came to the conclusion that the entire vote was a charade so that Democrats could pretend they were trying to repeal DADT even as they were not.

Majority Leader Reid announced that the Senate might again attempt to repeal DADT during the lame-duck session following the November 2010 elections, but Sen. McCain said that he would again filibuster any such attempt.

Perhaps not coincidentally, in the November elections the Democrats suffered what President Obama described as a “shellacking.” In the Congress that would convene in January 2011, Republicans would control the House of Representatives and hold additional seats in the Senate.

Court Rulings

Although some individuals had successfully sued to block discharges under the military’s anti-gay policies, most notably Sgt. Leonard Matlovich in the 1970s, Sgt. Perry Watkins and Sgt Miriam Ben-Shalom in the 1980s, and Col. Margarethe Cammermeyer in the 1990s, courts had been unwilling to declare the Don’t Ask, Don’t Tell Act unconstitutional. This is partly because of the deference that courts traditionally pay to military policy and partly because at the time courts had not recognized a constitutional right to homosexual sexual expression.

This latter condition changed with the 2003 Supreme Court decision in Lawrence v. Texas, the decision that invalidated sodomy laws. In that decision, Justice Anthony Kennedy wrote for the court’s majority that, “The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.”

Lawrence v. Texas proved crucial to two decisions that led to the declaration of Don’t Ask, Don’t Tell as unconstitutional by a federal district court and that altered the environment in which legislative repeal of DADT occurred.

In a 2008 case, Witt v. Department of the Air Force, the U.S. Court of Appeals for the 9th Circuit determined that the precedents upholding Don’t Ask, Don’t Tell needed to be reconsidered in light of Lawrence v. Texas.

The case involved Maj. Margaret Witt, a highly decorated Air Force flight nurse, who was discharged under Don’t Ask, Don’t Tell. After losing her case at the district court level, she appealed to the 9th Circuit.

The effect of the appellate ruling was to force the military to justify its allegations that the presence of an openly gay servicemember negatively affected unit cohesion and that Don’t Ask, Don’t Tell was necessary for purposes of military readiness. It thereby established a test by which the policy’s constitutionality could be measured.

While the ruling did not declare Don’t Ask, Don’t Tell Act unconstitutional, it made discharging soldiers under the policy potentially much more difficult. The military could not rely upon mere assertions of hypothetical risk, but had to demonstrate the dangers posed by openly gay servicemembers.

During the retrial of her case in September 2010, Major Witt’s former colleagues testified to her exceptional skills and to the fact that knowledge of her sexual orientation had no effect on unit cohesion and morale. Indeed, they testified that her firing adversely affected morale and cohesion.

On Sept. 24, 2010 U.S. District Judge Ronald Leighton ruled in favor of Major Witt and ordered her reinstated in the Air Force as soon as practicable. He found that her discharge under DADT violated her due process rights under the Fifth Amendment to the Constitution.

He wrote: “The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important governmental interest in advancing unit morale and cohesion. To the contrary, the actions taken against Major Witt had the opposite effect. … Her loss within the squadron resulted in a diminution of the unit’s ability to carry out its mission.”

Just before the Witt case was retried, on Sept. 9, 2010, District Judge Virginia Phillips of Riverside, California, released her opinion in another case in which she had applied the Witt test. Using that standard in Log Cabin Republicans v. U.S.A, Judge Phillips ruled forcefully that Don’t Ask, Don’t Tell was unconstitutional.

Referring frequently to the 9th Circuit’s 2008 ruling in the Witt case and to Lawrence v. Texas, she declared that Don’t Ask, Don’t Tell violated the due process clause of the Fifth Amendment and the guarantees of freedom of speech and petition of the First Amendment to the Constitution.

In her ruling, she rehearsed the testimony of military experts, who explained how the policy is harmful to the military, and of servicemembers whose privacy was violated and whose expression was unconstitutionally inhibited by the policy.

In many ways, the 85-page decision is a crushing analysis of all that was wrong with the enforcement of the policy. Judge Phillips pointed out, for example, that the military often suspended investigations of troops accused of homosexuality if they were to be deployed abroad, waiting to discharge them only when (or if) they returned. This practice, she observed, is utterly inconsistent with the military’s contention that gay and lesbian servicemembers undermine unit cohesion. If they really did that, then the military would surely not want troops accused of homosexuality to serve in battle.

Quite apart from the harrowing accounts of injustice suffered by those who were directly affected by Don’t Ask, Don’t Tell, perhaps the most damning revelation of the trial was the disconnection between the ostensible aims of the legislation and its effects. As Justice Phillips wrote, “Taken as a whole, the evidence introduced at trial shows that the effect of the Act has been not to advance the Government’s interests of military readiness and unit cohesion … but to harm that interest.”

On Oct. 12, 2010, Judge Phillips issued her final judgment and a worldwide injunction against enforcement of the DADT Act. She ordered the government to suspend and discontinue all pending discharge proceedings and investigations under the policy.

Dan Woods, the attorney who represented the Log Cabin Republicans in the landmark suit, released a statement on Oct. 12 declaring Don’t Ask, Don’t Tell dead: “This is an extremely significant, historic decision. Once and for all, this failed policy is stopped. Fortunately now we hope all Americans who wish to serve their country can.”

However, the declaration of victory was premature. The Obama administration moved quickly to resurrect the policy. On Oct. 14, the Department of Justice indicated that it would appeal the decision and asked Judge Phillips to issue a stay of her injunction against enforcement of the Don’t Ask, Don’t Tell Act. They indicated that if a stay of the injunction were not granted, they would seek an emergency stay from the Court of Appeals, alleging that the military would be thrown into chaos if they could not enforce DADT.

On Oct. 19, Judge Phillips rejected the government’s request for a stay, but on Oct. 20, a three-judge panel of the Ninth Circuit Court of Appeals issued a temporary stay pending a hearing on Oct. 25, 2010. On Nov. 1, on a 2-1 vote, the panel issued an indefinite stay pending the duration of the appeal or until legislative action rendered the question moot.

The Obama administration’s choice to appeal Judge Phillips’ ruling, and especially to request a stay of her injunction, deeply disappointed supporters of repeal.

Perhaps as a sop to the outcry against the decision to appeal the ruling, Secretary Gates announced that subsequently no discharges could take place without the approval of the secretaries of the military branches. He claimed that the change in protocol was not an attempt to stop the discharges, but it in fact did. The first month following this change was the first month since the adoption of DADT that there was not a single discharge under the policy, and subsequently the few known discharges were at the request of the servicemembers.

Lame-Duck Hearings and Legislative Repeal

The question of repeal during the lame-duck session (i.e., the session after the November elections, but before the new Congress convened in January 2011) became urgent because it was widely believed that if DADT were not repealed then, it could not be repealed during the next two years when Republicans would control the House of Representatives and have a larger minority in the Senate.

On Nov. 30, 2010, 17 years to the day after President Clinton signed the Don’t Ask, Don’t Tell Act, the long-awaited study that Secretary Gates demanded was released. Costing about $9 million, the 362-page report concluded that a large majority of troops were comfortable with overturning restrictions on gay men and lesbians in uniform and that they expected it would have little or no effect on their units.

On Dec. 2 and 3, the Senate Armed Services Committee again held hearings on the policy. Secretary Gates and Adm. Mullen again indicated their support for repeal, especially since they now feared that the policy would soon be overturned by the courts, giving them little time to prepare for the repeal.

Two of the service chiefs were less enthusiastic about repeal, though they all said that if the law were changed they would implement the new policy.

Although Sen. Joseph Lieberman announced that there were 60 senators in favor of repealing DADT, it was still unclear whether there were sufficient votes in the Senate to defeat a filibuster led by Sen. McCain.

On Dec. 9, 2010, an attempt to invoke cloture in order to debate the Defense Authorization bill, which contained the DADT repeal as an amendment, was again defeated, on a 57-40 vote, with Sen. Susan Collins the sole Republican voting in favor of cloture and Sen. Joe Manchin the sole Democrat voting against cloture.

After the defeat, Sens. Lieberman, Mark Udall and Collins announced that they would introduce a stand-alone bill to repeal DADT. Subsequently, Reps. Patrick Murphy and Steny Hoyer introduced a companion bill in the House.

On Dec. 15, 2010, the House of Representatives passed the bill authorizing repeal of DADT by a vote of 250 to 175.

On Dec. 18, 2010, the Senate finally invoked cloture to cut off debate on the bill and end the filibuster. The vote was 63 to 33, with 57 Democrats (including two independents who caucus with the Democrats) joined by 6 Republicans to invoke cloture. McCain reacted to the vote by throwing a tantrum on the Senate floor.

The final Senate vote on the bill authorizing repeal took place later on Dec. 18. It passed on a vote of 65 to 31, with 57 Democrats and 8 Republicans voting in favor and 31 Republicans voting against repeal.

The bill was then sent to the president for his signature.

Soon after the vote to invoke cloture, President Obama issued the following statement: “By ending ‘Don’t Ask, Don’t Tell,’ no longer will our nation be denied the service of thousands of patriotic Americans forced to leave the military, despite years of exemplary performance, because they happen to be gay. And no longer will many thousands more be asked to live a lie in order to serve the country they love.”

On Dec. 22, 2010, at an elaborate ceremony to which many activists and servicemembers who had been discharged under DADT were invited, President Obama signed into law the bill authorizing repeal of Don’t Ask, Don’t Tell.

The bill did not itself repeal the Don’t Ask, Don’t Tell Act. Rather, it authorized repeal, contingent on the certification of the president, the Secretary of Defense, and the Chairman of the Joint Chiefs that ending the policy would not negatively affect military readiness. Once that certification was issued, the law authorized the Pentagon to put in place any necessary regulations to ensure an orderly transition.

The DADT policy would remain in effect until 60 days after the certification.

Subsequent Developments

Meanwhile, the Log Cabin Republicans lawsuit continued in the Court of Appeals for the 9th Circuit. Following the passage of the legislation authorizing repeal, the government asked the court to hold the appeal in abeyance. The Log Cabin Republicans opposed this request, pointing out that as long as servicemembers could be discharged for their sexual orientation, the lawsuit was still relevant.

Moreover, they also observed that there was no enforceable timeline for lifting the ban or even any guarantee that the ban would actually be lifted.

On Jan. 28, 2011, the Court of Appeals rejected the government’s request to suspend consideration of the lawsuit and set a new schedule for filing briefs.Â

Significantly, the government in its briefs no longer argued that the Don’t Ask, Don’t Tell Act was constitutional. They merely pointed to the fact that repeal had been authorized and was underway.

On July 6, 2011, a three-judge panel of the 9th Circuit Court of Appeals, including Chief Judge Alex Kozinski, granted a motion to lift the stay of District Judge Virginia Phillips’ decision of Oct. 12, 2010 in which she declared Don’t Ask, Don’t Tell unconstitutional and issued a permanent injunction against “enforcing or applying the ‘Don’t Ask, Don’t Tell’ Act.” The Court also ordered that oral arguments in the case be held in the week of Aug. 29, 2011.

On July 15, in response to an emergency appeal by the Justice Department, the 9th Circuit modified the injunction in light of new information supplied by the military to the effect that the repeal process would be ready for certification in a matter of weeks. The new ruling enjoined the government “from investigating, penalizing, or discharging anyone from the military pursuant to the Don’t Ask, Don’t Tell policy.”

The modified injunction in effect ended enforcement of the DADT policy except that it allowed the military to refuse to accept or process applications from openly lesbian, gay, or bisexual people until the repeal process was completed.

On July 22, 2011, the White House announced that President Obama, Secretary of Defense Leon Panetta, and Chair of the Joint Chiefs Admiral Mullen had certified that the repeal of Don’t Ask, Don’t Tell would not negatively affect military readiness or unit cohesion. Sen. Carl Levin, Chair of the Senate Armed Services Committee, announced: “Today’s certification for all practical purposes marks the end of a discriminatory policy.”

Sixty days later, on Sept. 20, 2011, the Don’t Ask, Don’t Tell policy was officially repealed.

Even though Don’t Ask, Don’t Tell was now dead, many questions remained, including whether DADT was or was not unconstitutional. Whether that question will ever be answered is less likely than it once appeared. On Sept. 29, 2011, a three-judge panel of the Ninth Circuit Court of Appeals dismissed the Log Cabin Republicans suit as moot.

More surprisingly, and disappointingly, the panel also deemed the opinion by District Judge Virginia Phillips without precedential value.

A lawsuit filed by the ACLU on behalf of former Air Force Staff Sgt. Richard Collins in the Federal Claims Court sought full severance pay for gay and lesbian servicemembers who were discharged under DADT and received only half the severance pay offered others who involuntarily left the service.

On Sept. 22, 2011, Judge Christine Odell Cook Miller indicated that she would probably rule that Collins v. U.S.A. be allowed to proceed to trial, but urged the government to settle the suit rather than attempt to defend a policy that may be indefensible. In response, the government changed its policy and settled the suit.

The military moved quickly to adopt policies ensuring that LGB servicemembers were treated equally. One barrier to equal treatment, however, was the Defense of Marriage Act, which prohibited the provision of many benefits to the spouses and partners of gay and lesbian servicemembers. When that barrier fell on July 26, 2013 as a result of the Supreme Court ruling in Windsor v. U.S., which declared Section 3 of the Defense of Marriage Act unconstitutional, the military moved swiftly to recognize the legal same-sex marriages of servicemembers.

None of the parade of horribles predicted by opponents of repeal occurred.

The Department of Defense has since added “sexual orientation” to its nondiscrimination policy, and has ended the ban on service by transgender Americans.

Once a bastion of homophobia in American society, the U.S. military has been transformed into an institution dedicated to diversity and inclusion.

The repeal of Don’t Ask, Don’t Tell is now considered one of the signature achievements of President Obama. But the accomplishment probably owes more to the activists who pressured him to act than to his own efforts at the time. In his first two years, the president was too deferential to Secretary Gates to exercise the kind of leadership that was needed. Indeed, Gates later claimed that he was “blindsided” by Obama’s decision to move forward with repeal of DADT in 2010.

Obama may have feared that DADT repeal might cost him support among the military and divide the country the way President Clinton’s attempt to end the ban on LGBT servicemembers did in 1993. However, in failing to act decisively, he came perilously close to failing to deliver on a significant campaign promise, one which enjoyed wide support in the general population, and to disillusioning many of his most ardent supporters.

Paradoxically, after losing the large majorities he commanded in Congress during his first two years in office, President Obama became a much more effective president. Faced with a hostile Congress intent on obstructing his agenda and unwilling to work with him to fashion compromises and solutions to national problems, he learned to use his executive authority to accomplish his goals.

Not only did he come to rely on executive orders, such as the one that prohibited federal contractors from discriminating on the basis of sexual orientation and gender identity, but he also transformed the Justice Department from an obstacle to equal rights into a means of advancing them, as when he and Attorney General Holder announced that the Justice Department would no longer defend the Defense of Marriage Act.

Buoyed by the praise he received for repealing Don’t Ask, Don’t Tell, President Obama became not only the fierce advocate for equal rights that he promised to be in the 2008 presidential campaign, but he also secured his legacy as a transformative leader whose presidency significantly changed the country for the better.

 

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Trump Could Face 20 Years Behind Bars for ‘Serious Felonies’ at Mar-a-Lago: Legal Analyst

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A legal analyst for ABC News pointed out that former President Donald Trump is potentially facing 20 years in prison for “serious felonies” after the search of his Mar-a-Lago home.

Dan Abrams told ABC host Jonathan Karl that the Department of Justice could indict Trump for multiple crimes after finding classified documents during the search.

“They’re very serious,” Abrams said of the charges. “And the one that’s being talked about most is this espionage act because it has the word espionage in it. But the truth is that when it comes to potential criminal sentences, the obstruction of justice statute is the one with the most potential prison time.”

“There you’re talking about up to 20 years behind bars,” he added. “So these are not sort of minor crimes we’re talking about here. We’re talking about the potential for serious felonies with regard to all three of the crimes being investigated.”

But Abrams threw cold water on the idea that a Trump prosecution would be easy.

“The fundamental question is going to be intentionality,” he opined. “How much do they believe that they did this on purpose? Were they intentionally ignoring subpoenas? Were they literally destroying documents?”

Watch the video below from ABC.

 

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Trump Makes False Claims About Classified Documents – And Obama

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Donald Trump is responding to news reports he is under FBI investigation for actions covered by the Espionage Act by making apparently false claims about his mishandling of classified documents and about former President Barack Obama.

“Number one, it was all declassified,” Trump says in a post on his Truth Social site, a claim legal experts say is incorrect. For any president to declassify documents, experts say, there is a process that involves actions being taken on each individual document. They also say the president does not have legal authority to declassify documents related to nuclear weapons.

“Number two,” Trump continues, “they didn’t need to ‘seize’ anything. They could have had it anytime they wanted without playing politics and breaking into Mar-a-Lago. It was in secured storage, with an additional lock put on as per their request.”

READ MORE: FBI Agents Searched Mar-a-Lago for ‘Classified Documents Relating to Nuclear Weapons’: Report

Again, according to reports, that too is false. DOJ issued a subpoena after the National Archives tried to get all the documents back and Trump still did not comply.

“They could have had it anytime they wanted—and that includes LONG ago,” he continues in a separate post on Truth Social. “ALL THEY HAD TO DO WAS ASK.”

Again, multiple reports say they did, numerous times.

READ MORE: DOJ Served Trump With Grand Jury Subpoena for Classified Documents Months Before FBI Raid: Report

None of his responses explain why he had at Mar-a-Lago what we now know were at least 35 cartons – 20 retrieved on Monday and 15 earlier this year – of items including confidential, classified, and top secret documents that were required by law to have been handed over to the National Archives.

“The bigger problem is,” Trump says, “what are they going to do with the 33 million pages of documents, many of which are classified, that President Obama took to Chicago?”

That is also false.

The National Archives on Friday issued a statement after Trump repeatedly spread the false claim that former President Barack Obama had 33 million documents in his possession.

“President Barack Hussein Obama kept 33 million pages of documents, much of them classified. How many of them pertained to nuclear? Word is, lots!” was one of Trump’s false attacks on his Truth Social site.

“The National Archives and Records Administration (NARA) assumed exclusive legal and physical custody of Obama Presidential records when President Barack Obama left office in 2017, in accordance with the Presidential Records Act (PRA),” the Archives said in a statement posted to its website Friday.

“NARA moved approximately 30 million pages of unclassified records to a NARA facility in the Chicago area where they are maintained exclusively by NARA,” the Archives added. “Additionally, NARA maintains the classified Obama Presidential records in a NARA facility in the Washington, DC, area. As required by the PRA, former President Obama has no control over where and how NARA stores the Presidential records of his Administration.”

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‘So Much Worse!’ Morning Joe Rips GOP for Defending Trump After Burying Clinton Over Classified Info

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MSNBC’s Joe Scarborough hammered Republicans for spending years excoriating Hillary Clinton’s handling of classified materials and then turning around defending Donald Trump over far worse allegations.

The FBI carried out a search of Mar-A-Lago this week, where agents reportedly expected to find nuclear secrets among the classified materials Trump took from the White House, and Scarborough and “Morning Joe” co-host Mika Brzezinski laid into Republicans for attacking law enforcement to protect the former president from serious allegations.

“The conundrum you just put out there,” Brzezinski said, “about it being just as bad when a Democrat has some improper use of classified documents as when a Republican does, on this show, you will see us saying the same thing in each situation. Roll the tape, you know, rewind the tape — critical of Hillary Clinton, everything to do with the email, very, very critical. Here, you have a situation where Trump’s following and his friends on TV won’t cover the story the same way. In fact, they will go to fantastical lengths to not ask the right questions, to twist the truth, to push his big lies. It is dangerous.”

Scarborough said there was no comparison between what Clinton did and what Trump has been accused of doing, even as the facts remain scant.

READ MORE: ‘Deranged’ Republicans have gone off the rails with FBI attacks after Mar-a-Lago search: conservative

“What is so maddening about the Republican response to this is, despite the fact — and I hope our liberal friends can deal with this — despite the fact we brought up Hillary Clinton’s emails, in this same time, we’re bringing up Donald Trump’s classified information that he’s reportedly taken to Mar-A-Lago, there is no moral equivalency,” Scarborough said. “The two are brought up because what Donald Trump has done is so much worse, so much more dangerous.”

An Ohio man tried to force his way into FBI headquarters in Cincinnati on Thursday, apparently prompted by Republican attacks on law enforcement officials over the Trump search, and Scarborough called out their violent rhetoric.

“The order of magnitude is overwhelming, and I bring it up to make a bigger point about Republican hypocrisy,” Scarborough said. “They were worried about a former secretary of state’s emails. They’re completely discounting the possibility of nuclear secrets being stolen from the White House and taken down to Mar-A-Lago and hidden from the Department of Justice.”

“Where are the Republicans? Where are the Republicans? Where are the Republicans?” he added. “Hold a press conference, condemn these actions, condemn the hate speech, condemn the targeting of law enforcement officers. Condemn the targeting of FBI agents and professionals at the Department of Justice. Is there not one that will do it?”

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