DOJ Argues to Keep DADT Repeal In Executive Branch’s Control, Out of the Courts
The government this evening continued its attempt to keep the end of the “Don’t Ask, Don’t Tell” policy in the hands of the executive branch, asking a federal appeals court to keep the policy in place for now and hold off on hearing the appeal of the Log Cabin Republicans v. United States lawsuit — which is scheduled for Sept. 1 — in order to allow the “orderly process for repealing” the DADT law to continue under the Don’t Ask, Don’t Tell Repeal Act.
In today’s filing, Assistant Attorney General Tony West reiterates the Department of Justice’s July 14 request for the U.S. Court of Appeals for the Ninth Circuit to “reinstate the stay” of U.S. District Court Judge Virginia Phillips’s October 2010 injunction of government enforcement of 10 U.S.C. 654 — the DADT law.
DOJ is asking the court to reconsider reinstating its November 2010 stay, which it had lifted in a July 6 order stating that circumstances had changed significantly since the court had issued the stay. While it considers the July 14 request, the appellate court partially reinstated the stay in a July 15 order that prohibits “investigating, penalizing, or discharging” servicemembers under DADT.
In accordance with the July 15 order, DOJ filed the 10-page supplement today to explain why certain information about discharges and the timeline for the certification required under the repeal act were contained in the July 14 filing but not in an earlier filing opposing LCR’s request that the stay be lifted.
Regarding the certification timeline, the government attorneys write:
The government explained in its May 20, 2011, opposition that the process for implementation of the Repeal Act was “well underway,” that there was only a “short period of time until the process for repealing the statute is completed,” that the preponderance of the armed forces were expected to “have been trained by mid-summer,” and that the repeal was expected to become “effective later this year.” But at that time the implementation process had not yet advanced to the point where the government could provide the particular details that were contained in its July 14 motion for reconsideration.
As to the information about discharges, DOJ states it didn’t view earlier LCR filing as claiming that “significant numbers of Service members had been discharged after enactment of the Repeal Act” and, thus, hadn’t focused on discharges in its previous filing. The July 14 filing, however, as well as tonight’s filing, focus on the fact that only one servicemember has been discharged since passage of the repeal act.
Tonight’s filing notes also that “any other Service members who have been approved for discharge since passage of the Repeal Act are those who, despite being advised about enactment of the Repeal Act, have continued to press for their own separation.” This comports with a response Metro Weekly received this past week about the discrepancy between the claim of one discharge and numbers of servicemembers approved for discharge that had previously been reported. In addition to the one discharge, there are at least two other servicemembers who have been approved for separation but have not yet been discharged.
DOJ concluded by asking that the court “reconsider its decision to lift the stay pending appeal, reinstate that stay, remove the case from the oral argument calendar, and permit the orderly process for repealing § 654 to resume.”
A response from attorneys for LCR is due by Thursday, July 21, and a final reply from the government is due by the following day, July 22.
Read the filing: GovtSupplement-LCRvUS.pdf
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