What Is DOD Thinking?

Posted by Chris Geidner
October 14, 2010 2:21 PM |

Early Wednesday morning, I wrote, "What Is DOJ Thinking?"

Today, the bigger question appears to be, "What is DOD thinking?"

As reported in The New York Times, the Department of Defense does not appear to be following U.S. District Court Judge Virginia Phillips's order that all enforcement of the "Don't Ask, Don't Tell" policy be halted immediately. From the Times:

With a briefcase full of commendations under his arm, Omar Lopez walked into an Austin, Tex., recruiting office Wednesday. Mr. Lopez, 29, had served nearly five years in the Navy. He was honorably discharged in 2006 for “homosexual admission,” according to documents he carried. He wanted to re-enlist.

But recruiters turned him away hastily, saying they had no knowledge of any injunction or any change in military policy.

The attorney for Log Cabin Republicans, Dan Woods of White & Case, has followed up today with the attorneys for the government. (Download the letter here: WoodsLtr-101410.pdf)

He wrote:

Please let us know immediately what steps the government has taken to communicate the terms and requirements of the Court's order to military personnel, including field commanders and military recruiting offices, who are in a position to violate the requirements of the injunction under the cover of ignorance of its terms or existence.

In light of these developments and as noted on Wednesday, I am posting my communications with Defense Department spokeswoman Cynthia O. Smith about this issue below the jump. Metro Weekly specifically requested information on Tuesday about "any guidance to commanders in the field regarding Phillips's order that all investigations related to DADT enforcement be suspended immediately." Metro Weekly received no response at that time.

On Wednesday, Metro Weekly followed up by asking whether "the Department of Defense stopped enforcing 10 U.S.C. 654 at this time, as it was ordered to do so more than 24 hours ago." Metro Weekly has received no response.

So, what is DOD thinking?

[UPDATE: Servicemembers Legal Defense Network announced "an email was sent to JAG officers in the U.S. Air Force stating that until the Department of Justice makes a decision on the recent ruling by judge Virginia A. Phillips, the Air Force needs to abide by the district court injunction."

Lt. Gen. Richard C. Harding, Air Force Judge Advocate General, wrote:

Members of The Judge Advocate General’s Corps,

On 12 October 2010, a federal district judge of the Central District of California issued an injunction barring the enforcement or application of 10 USC 654, commonly known as the "Don't Ask, Don't Tell" statute. A copy is attached. At present, the United States Government is contemplating whether to appeal and to seek a stay of the injunction. In the meantime, effective 12 October, the Department of Defense will abide by its terms ....

DOD spokeswoman Cynthia Smith did not respond immediately to an email requesting information about whether a similar email was sent to the other branches.]

* * *

Below is the email exchange that Metro Weekly has had with the Department of Defense since Phillips's injunction was issued on Tuesday afternoon:

From: Christopher Geidner
Date: Wed, Oct 13, 2010 at 5:27 PM
Subject: Re: Fwd: DOD response to the DADT injunction
To: "Smith, Cynthia Ms OSD PA"

Has the Department of Defense stopped enforcing 10 U.S.C. 654 at this time, as it was ordered to do so more than 24 hours ago by U.S. District Court Judge Virginia A. Phillips in Log Cabin Republicans v. United States?

-Chris


On Wed, Oct 13, 2010 at 5:24 PM, Smith, Cynthia Ms OSD PA  wrote:
Nothing at this time.

 

From: Christopher Geidner
Sent: Wednesday, October 13, 2010 05:21 PM
To: Smith, Cynthia Ms OSD PA
Subject: Fwd: DOD response to the DADT injunction
 

Do you have any update about the DOD's current policy regarding Phillips's order that all investigations related to DADT enforcement be suspended immediately?

-Chris

---------- Forwarded message ----------
From: Christopher Geidner
Date: Tue, Oct 12, 2010 at 5:30 PM
Subject: Re: DOD response to the DADT injunction
To: "Smith, Cynthia Ms OSD PA"


Thank you.

Please update me if DOD issues any guidance to commanders in the field regarding Phillips's order that all investigations related to DADT enforcement be suspended immediately.

-Chris

On Tue, Oct 12, 2010 at 5:11 PM, Smith, Cynthia Ms OSD PA wrote:
Hi Chris,

Please attribute the statement below to Cynthia O. Smith, DoD spokeswoman.

We have just learned of this ruling.

We are now studying it and we will be in consultation with the Department of Justice.

I would refer you to DOJ regarding any potential future litigation.

Thanks,
Cynthia

-----Original Message-----
From: Christopher Geidner
Sent: Tuesday, October 12, 2010 4:31 PM
To: Smith, Cynthia Ms OSD PA
Subject: DOD response to the DADT injunction

Cynthia --

What is the Defense Secretary's response to Judge Phillips's permanent injunction halting all enforcement of "Don't Ask, Don't Tell"?

Thanks --

Chris


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