Moratorium Issued on DADT Discharges; No Decision on Appeal

Posted by Chris Geidner
July 8, 2011 2:07 PM |

The Pentagon has stopped all enforcement of "Don't Ask, Don't Tell" in a memorandum issued to military branch secretaries dated today, following a July 6 order from the U.S. Court of Appeals for the Ninth Circuit reinstating an injunction ordering the military to do so.

According to a memorandum from Undersecretary of Defense for Personnel and Readiness Clifford Stanley, "On July 6, 2011, a federal appellate court reinstated the injunction, originally issued on October 12,2010, ordering the Department of Defense to cease enforcement of the "Don't Ask, Don't Tell" law (10 U.S.c. § 654) and implementing regulations. The reinstatement of that injunction (a copy of which accompanies this memorandum) is effective immediately. The Secretaries of the Military Departments shall ensure immediate compliance with the injunction and this memorandum. The appeal from the injunction remains pending."

The Army Times first reported the news a little before noon today. The moratorium issued today follows the July 6 ruling by the U.S. Court of Appeals for the Ninth Circuit to lift the stay on an injunction of DADT enforcement issued in October 2010 by U.S. District Judge Virginia Phillips in the Log Cabin Republicans v. United States case.

Panetta_Leon.JPGPhillips's injunction -- which applies worldwide -- ordered the government "immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding" begun under DADT.

Pentagon spokeswoman Cynthia Smith wrote to Metro Weekly that, pursuant to the memorandum from Stanley, "The Secretaries of the Military Departments shall ensure immediate compliance with the injunction."

The move represents the second time the military implemented such a moratorium, having originally done so in October 2010 in its effort to follow Phillips's injunction. The Department of Justice also sought a stay of the injunction then while it appealed the case, however, and the Ninth Circuit eventually granted that request later that month.

The July 6 order from the Ninth Circuit lifted its own earlier stay, which then led to today's move. Today's move also comes as Secretary of Defense Leon Panetta finishes his first full week on the job, having taken over for former Secretary Robert Gates, who retired on July 31.

LGBT advocates have been hoping Panetta takes quick action to certify DADT repeal -- a move required of him, the chairman of the Joint Chiefs of Staff and the president under the Don't Ask, Don't Tell Repeal Act before the 1993 law is taken off the books. The July 6 order from the Ninth Circuit adds an unexpected element into the timing of that certification decision, which President Barack Obama said on June 29 was coming "in a matter of weeks, not months."

The Pentagon's Smith wrote, "[I]mplementation of the DADT repeal voted by the Congress and signed in to law by the President last December is proceeding smoothly, is well underway, and certification is just weeks away."

In a statement, Servicemembers Legal Defense Network executive director Aubrey Sarvis said, "SLDN welcomes this temporary suspension of 'Don't Ask, Don't Tell' discharges  in the wake of this week's court decision, but we urge the Pentagon to go further by suspending all investigations of service members that are currently ongoing, and confirm that the Department of Defense and Department of Justice are not preparing to appeal the court's ruling. It's imperative for service members, gay and straight, who have been living with ambiguity for far too long as this process has languished unnecessarily. The time for clarity and finality is long overdue."

Asked whether a decision had been made to appeal the July 6 order lifting the stay, Smith only wrote, "We are studying the ruling with the Department of Justice."

Read Stanley's memorandum: Memorandum to Military Departments DADT Injunction July 8.pdf

[Photo: Panetta]

[NOTE: This report was exanded and changed at 4 p.m. to reflect the contents of Stanley's letter and the Pentagon's response.]

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