News Analysis: What Is DOJ Thinking?

Posted by Chris Geidner
October 13, 2010 3:56 AM |

I'm going to try and avoid going too deep into the woods tonight -- because it's late and because I'm tired -- but I have to note the essential facts that exist right now, a result of the permanent injunction granted Tuesday by U.S. District Court Judge Virginia A. Phillips in the Log Cabin Republicans v. United States case:

  • The military's "Don't Ask, Don't Tell" policy, in place since 1993, is not currently in effect.
  • Discharge proceedings, for example, could not begin against a servicemember who announces that he or she is married to a same-sex partner in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire or the District.
  • That freedom could be gone in a second -- with the past statement used for future discharge proceedings -- if a stay of Tuesday's injunction is requested of and granted by the U.S. Court of Appeals for the Ninth Circuit.
  • The Department of Justice -- which has been expecting at least the possibility of this injunction since Phillips issued her opinion in the case on Sept. 9 -- was reviewing the six-paragraph order and had no comment all Tuesday. The White House issued no comment on the case other than to say that DOJ was reviewing the ruling and that questions about the litigation should be directed to them. DOD's response was not much different that that of the White House.

In the Massachusetts cases regarding the Defense of Marriage Act (Gill v. Office of Personnel Management and Massachusetts v. Department of Health and Human Services), DOJ worked with the plaintiffs to get a stay put in place while the appeal is pending prior to the issuance of the judgment by U.S. District Court Judge Joseph Tauro.

In the Proposition 8 case (Perry v. Schwarzenegger), the proponents had requested a stay from U.S. District Court Judge Vaughn Walker pending any appeal before Walker even issued his ruling.

Here, however, the U.S. Department of Justice apparently had no plans in place to deal with one of the most likely outcomes of Judge Phillips's ruling. This, despite the DOJ statement in its earlier filing (pdf) before Phillips:

Entering an injunction with immediate effect would frustrate the ability of the Department of Defense to develop necessary policies, regulations, and training and guidance to accommodate a change in the DADT law and policy.  An injunction with immediate effect will put DoD in the position where it must implement ad hoc potentially inadequate policies at a time when the military is in the midst of active combat operations.

So, the question I end this day with is: What is DOJ thinking?

The answer could go in several directions:

  • Is Justice actually considering not appealing the decision?
  • Is Justice actually considering defying Phillips's order?
  • Was Justice truly unprepared for Phillips's broad order?
  • Is Justice taking time to consider seriously the difficulties of following Phillips's order -- specifically its immediate application -- in order to make a stronger case for a stay to the Ninth Circuit?
  • Is Justice considering how to deal with the question of whether -- in the absence of class certification -- Phillips had the authority to order a halt to all DADT enforcement?

All of these questions, of course, echo out to the White House and President Barack Obama, who ultimately could direct the Justice Department not to appeal the injunction. He also, in the opposite direction, could direct the DOD to defy Phillips's order. (This is -- as David Law put it at Above the Law -- the "Virginia Phillips has made her decision; now let her enforce it" option.)

There are legitimate questions to be discussed about whether either or both of those are proper actions, but the singular point on which I'd like to focus people's attention tonight is the strange circumstance of the Justice Department -- even if only for a half-day at this point -- allowing a single federal trial judge to put an abrupt and total stop to a 17-year-old law relating to military policy.

The questions this raises multiply as one moves from the initial and obvious questions. Were any directives sent to commanders in the field alerting them to this changed circumstance? If so, what did they say? If not, what's happening right now? If the law is invoked and a DADT investigation is begun by an unknowing commander, is someone in contempt of court? How would Phillips deal with such a situation?

Of course, in the morning, a motion for a stay pending appeal could be filed in the Ninth Circuit, and the motions panel could -- and I imagine, likely would -- grant an emergency, temporary stay until it could decide whether to grant the stay pending appeal.

But, in the meantime, there are a bundle of law students' constitutional law, federal courts and civil procedure exams getting questions written for them in real time.

I am seeking out others' views on this issue -- particularly as the circumstance becomes more strange every hour that passes without DOJ action -- and will provide them as I receive any.

[UPDATE @ 5 P.M. WEDNESDAY: Some people expected a filing by now, but it's clear from everyone with whom I've spoken today that they agree this is worth very close attention being paid to it.]

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