Military Ready for DADT Repeal Certification, But Log Cabin Pushes Forward With Court Challenge

Posted by Chris Geidner
July 21, 2011 11:55 PM |

Thumbnail image for Panetta_Leon.JPGPentagon officials told Metro Weekly this evening that Defense Secretary Leon Panetta and Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, were ready to recommend certification of "Don't Ask, Don't Tell" repeal to the president, possibly as early as Friday, July 22. That news did not, however, stop attorneys for Log Cabin Republicans from hitting back at the government in a pair of court filings this evening in LCR's ongoing challenge to the law.

Earlier in the afternoon, the Wall Street Journal and NBC broke the certification news, with NBC News reporting that senior officials say that Panetta and the Joint Chiefs already have certified that the military is ready to repeal the 1993 law banning out gay, lesbian or bisexual individuals from military service.

Under the Don't Ask, Don't Tell Repeal Act, Mullen and Panetta, as well as President Barack Obama, need to certify to Congress that the changes needed to implement repeal are "consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces." Mullen and Panetta are scheduled to have an afternoon meeting on Friday with Obama in the Oval Office.

Thumbnail image for mullen-500.jpgThe news came hours before lawyers for the Log Cabin Republicans filed their required response to the Department of Justice's supplemental brief that was filed earlier this week in DOJ's attempt to get the appellate court hearing the appeal of LCR's challenge to DADT's constitutionality to keep the 1993 law in effect while the executive branch implements repeal.

Under the act, though, even if the certification is completed on Friday, a 60-day congressional review period follows certification before the law -- 10 U.S.C. 654 -- is removed from the books. If the certification happens on Friday, then, the law would be repealed on Sept. 20.

Until then, though, 10 U.S.C. 654 remains law -- although the military is currently prohibited by the U.S. Court of Appeals for the Ninth Circuit from "investigating, penalizing, or discharging anyone from the military pursuant to [DADT]."

Regardless of the news, LCR pushed forward with the lawsuit, arguing in the court filings this evening that the law remains wholly in effect until repeal is certified and the 60 days have passed and that, even upon repeal, the lawsuit should not be dismissed as moot and the trial court ruling declaring the law unconstitutional should not be vacated.

LCR strongly criticized the government's argument that the DADT Repeal Act, by providing a path for its repeal, "significant[ly] and substantive[ly] change[d]" the law and that it is, therefore, "a different legal provision from the one the district court examined at trial."

To that, White & Case attorney Dan Woods responded for LCR in the first filing tonight, "If the government's argument were accepted, Congress would be free to enact any unconstitutional law it pleased, so long as it provided that the law would expire at some point in the future. The Constitution does not permit such a thing."

Screen shot 2011-07-21 at 11.12.51 PM.pngOf that argument, Woods explained, "[S]ection 654, as it exists today, is no more 'fundamentally different' from what it was seven years ago when this lawsuit commenced than the line segments in this familiar optical illusion are fundamentally different from each other.

"The government's argument is as much a legal illusion as the above is an optical illusion."

What's more, LCR argues that certification and subsequent repeal do not end matters, noting, that -- in addition to the injunction it sought -- U.S. District Court Judge Virginia Phillips's judgment in the case included a declaration that "DADT infringes the fundamental rights of current and prospective servicemembers and violates their Fifth Amendment due process rights and their First Amendment rights of freedom of speech and petition."

Accordingly, Woods writes, "Because individuals who were discharged under DADT during the 17 years that statute has been in effect continue to this day to sustain identifiable collateral consequences from their unconstitutional discharges, a substantial controversy continues to exist between the parties that will not be removed by repeal and the case will not then be moot."

In the second filing, the lawyers for LCR argue against the government's emergency motion asking the court to reconsider its July 6 order lifting the stay on Phillips's judgment pending the outcome of the government's appeal of that judgment.

Contrary to the DOJ's position expressed on July 14 that the appeals court "lifted the stay based in part on an apparent misunderstanding of the government's position regarding the constitutionality of § 654," LCR argues that the court correctly understood what DOJ is arguing.

"The Court's July 6 order saw through the government's double-speak and correctly recognized that the government had shifted its position to attempt to convert its appeal from a defense of the constitutionality of DADT to a defense of a statute which was not at issue below and which had not been enacted at the time of the judgment," LCR's attorneys write. "The government's position on this motion remains the same: regardless of what it may say it is arguing, it is not defending the constitutionality of DADT."

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