Congress, Constitutional Law, Courts, Politics, Society

Federal Judge Imposes Nationwide Injunction of Don’t Ask Don’t Tell

While the Obama Administration has announced an appeal in Massachusetts to reverse the victory with regard to same sex marriage, U.S. District Judge Virginia Phillips in Riverside, California has upped the ante by imposing a nationwide injunction on the policy of Don’t Ask Don’t Tell– a move also opposed by the Obama Administration. The Administration is now likely to move to reverse this victory in California — further angering those “lethargic” liberals that the Administration has been pushing to work for the Democrats.


Phillips’ injunction for the first time would halt the obnoxious policy created by President Bill Clinton. The Obama Administration previously asked the judge not to enjoin the policy, which is viewed by civil libertarians as unconstitutional and unAmerican.

This case was brought by the Log Cabin Republicans, a gay rights group.

The injunction extends beyond the immediate parties in the case and could be challenged as excessive (as argued by the Obama Administration before the trial court). However, it is not unprecedented. Indeed, if the policy is unconstitutional, the court has good reason to enjoin it. Otherwise, it would require dozens of insular rulings to practically shut it down across the country. Generally, when a law is unconstitutional, it is struck down. In this case, the court did not want the military to continue to implement the policy on its own authority.

If true to its earlier filings in the case, the Obama Administration is likely to appeal the injunction and seek an appellate ruling to set it aside. That will only alienate civil libertarians and gay rights advocates further before the election. President Obama has proven to be a perfect nightmare on civil liberties. While often using rhetoric to denounce things like torture and DADT, President Obama has adopted many of the same policies as the Bush Administration and worked in court to extinguish dozens of civil liberties cases.

Indeed, while many have expressed surprise that Bush is re-gaining popularity in the polls, it should be little surprise since many of Obama’s policies have vindicated Bush. From privacy cases to off-shore drilling to assassination lists, Obama has affirmed the positions of Bush over objections from civil libertarians, liberals, and other groups.

Now, weeks before the November elections, the Administration is opposing a core constituency in seeking to preserve a policy of discrimination against gay and lesbian citizens. The Administration previously (and successfully) sought to extinguish dozens of privacy lawsuits as well as actions seeking review of torture and assassination policies. Now, on both coasts, it is seeking to limit or reverse victories in favor of same-sex couples and gay military personnel. That is likely to convert that “lethargy” to anger for many liberals who have complained of the betrayal of core values by President Obama.

Source: WSJ

96 thoughts on “Federal Judge Imposes Nationwide Injunction of Don’t Ask Don’t Tell”

  1. SwM,

    I know, I know … the more I read of Arizona’s history the more I understand that their craziness has been with them since they were a territory.

  2. Threats of Filibuster is just one more reason why we should trust the troops to participate in surveys about the records DOD keeps about them within systems of records and how and why they are used. Then real life situations can be discussed like the records involving transportation to and security at off base entertainment or on base video use. There are many other personal issues that troops might want private, health and family issues.

    Professional meetings professionals use techniques for creative problem solving. If it were city planning issues they would have breakout sessions with tables of 12 who would “envision” the best possible outcome to a moderator who would take notes. In this context, you might start by asking the troops for suggestions to improve their privacy. The suggestion process could be by anonymous computer terminals to a closed DOD system supervised by the DOD Data Integrity Committee per 5 USC section 552a.

    (3) Each Data Integrity Board—
    (E) shall serve as a clearinghouse for receiving and providing information on the accuracy, completeness, and reliability of records used in matching programs;
    (F) shall provide interpretation and guidance to agency components and personnel on the requirements of this section for matching programs;
    (G) shall review agency recordkeeping and disposal policies and practices for matching programs to assure compliance with this section; and
    (H) may review and report on any agency matching activities that are not matching programs.

    (7) the term “routine use” means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected;
    (8) the term “matching program”—
    (A) means any computerized comparison of—

    (ii) two or more automated Federal personnel or payroll systems of records or a system of Federal personnel or payroll records with non-Federal records,

    (B) but does not include—…
    (v) matches—
    (I) using records predominantly relating to Federal personnel, that are performed for routine administrative purposes (subject to guidance provided by the Director of the Office of Management and Budget pursuant to subsection (v)); or
    (II) conducted by an agency using only records from systems of records maintained by that agency;
    if the purpose of the match is not to take any adverse financial, personnel, disciplinary, or other adverse action against Federal personnel;
    (vi) matches performed for foreign counterintelligence purposes or to produce background checks for security clearances of Federal personnel or Federal contractor personnel;

  3. Blouise I don’t know about the people of Arizona anymore. They are going to elect Jan Brewer.

  6. There is an exception in the Privacy Act for statistical studies. DOD could use modern software to conduct a statistical study of 100% of DOD employees and ask their opinions as to what records within systems of records related to sex and other aspects of physical privacy such as reproductive records should be kept and how they are used. Suggestions about daily life, housing, shore leave etc. could be incorporated. Veterans may have good suggestions also. The results could be analyzed by the Data Integrity Committee. A high participation formal study could increase consensus within DOD.

    I think it would be difficult to Not Tell when Asked. It doesn’t sound like personnel are being disciplined for Asking, but I could be uninformed. Asking can come in many forms, some of them unintentional.

    Maybe the issues could be phrased in the context of how to advance military mandates by reducing stress in military lives. Something as minor as bigger towels could increase privacy. Providing more non sex oriented recreation could increase privacy too.

  7. The WSJ law blog today includes a story about a sailor who was dishonorably discharged for homosexual admission. That means that DOD is keeping systems of records and records within systems of records about homosexual admissions without disclosing that in the Federal Register as required by The Privacy Act. I used Google search to look for a military publication in the Federal Register exempting system of records including homosexual admissions from certain Privacy Act subsections but found no such publication.

    http://www.justice.gov/opcl/privstat.htm

    Each agency that maintains a system of records shall–
    (1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by Executive order of the President;

    Each agency that maintains a system of records shall–
    ….4) subject to the provisions of paragraph (11) of this subsection, publish in the Federal Register upon establishment or revision a notice of the existence and character of the system of records, which notice shall include–(C) the categories of records maintained in the system; (D) each routine use of the records contained in the system, including the categories of users and the purpose of such use;… (I) the categories of sources of records in the system;

    11) at least 30 days prior to publication of information under paragraph (4)(D) of this subsection, publish in the Federal Register notice of any new use or intended use of the information in the system, and provide an opportunity for interested persons to submit written data, views, or arguments to the agency;…

    Any officer or employee of an agency, who by virtue of his employment or official position, has possession of, or access to, agency records which contain individually identifiable information the disclosure of which is prohibited by this section or by rules or regulations established thereunder, and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000.
    (2) Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements of subsection (e)(4) of this section shall be guilty of a misdemeanor and fined not more than $5,000.

    When Congress passed the Privacy Act it was common knowledge that there were homosexuals in the military.

    (3) Each Data Integrity Board–

    (A) shall review, approve, and maintain all written agreements for receipt or disclosure of agency records for matching programs to ensure compliance with subsection (o), and all relevant statutes, regulations, and guidelines;
    (B) shall review all matching programs in which the agency has participated during the year, either as a source agency or recipient agency, determine compliance with applicable laws, regulations, guidelines, and agency agreements, and assess the costs and benefits of such programs;

    http://dont.stanford.edu/cases/elzie.pdf

  9. Dear James

    I missed your last comment while I was writing earlier. Why wouldn’t you want to get involved in my case “after reading the memorandum opinion” — because the facts include a can of worms?

    We, my husband and I, put our reply brief on-line at http://www.rightscase.com. We filed it on 7/26/10 and DOJ didn’t file a reply brief. We filed a petition for a settlement conference because our brief was unopposed almost three weeks ago and no objection to that either. Our “cert question” is “Does the First Amendment Limit Restrictions on Pro Se Speech”?

  10. “The term “criterion offense” means any felony or misdemeanor offense not included on the list of nonserious offenses published periodically by the FBI.” 42 USC § 14616. National Crime Prevention and Privacy Compact

    Sometimes the term “records of authorized law enforcement activity” is used to mean employment or even medical records of police officers but I think that is confusing. They should just call those records police employment records or police financial records. When there is a system of records published in the Federal Register it is given a name.

    Part of the APA prohibits the government from disadvantaging a citizen using unpublished procedures. The Rules of Civil Procedure don’t include “warrant”, “sentence”, “detention”, “jail”, “sentence”, “prisoner”, etc. Those words are only in the Rules of Criminal Procedure. So I don’t see how they could enforce it without criminal procedure or formal military procedure. I guess what they would have to do is create military codes to handle military sexual records if they are going to keep them in a non criminal and non medical context. So I think DOD might as well comply with the existing law and have a transparent procedure and have the Data Integrity Board per the Act. They had one at one time and made at least one Privacy Act Report — it is on-line.
    http://www.dod.mil/pubs/foi/reading_room/934.pdf

  11. kay,

    I’m not admitted to practice in D.C., so I can’t really discuss your case with you (and honestly, after having read the highlights of the memorandum opinion you linked, I wouldn’t want to get involved, even if I was admitted).

  12. All systems of records are supposed to be disclosed in the Federal Register with details about the individuals that are covered and the use of the records. It’s a crime for a federal employee to maintain systems of records that aren’t disclosed in the Federal Register — right?

    My interest in this subject is primarily because I have a pending Privacy Act lawsuit. Judge Bates ruled that DOJ, and presumably DOD, can keep records about First Amendment Activities if there is an order to appear for a civil contempt hearing to discuss First Amendment Activities. By extension I think this means that DOD could keep records whether true or not about military sex and imprison people if they don’t show up at hearings to discuss their sex lives. What do you think?
    https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0562-58

  13. In terms of best practices, I definitely agree with you.

    In terms of bringing a lawsuit? I think you’d need someone on the inside to tell you what kinds of systems actually existed — I don’t think speculation that such systems exist is going to be very helpful (partly because my own intuition is the opposite of yours, and partly because you’d probably need to plead with specificity on that issue).

    One provision of the Privacy Act that might be helpful to your argument is (e)(7). You could definitely argue that intimate associations are “First Amendment activities”. The question would then become whether enforcing DADT is a “law enforcement activity”.

  14. My thought is that DOD and all the other agencies should fully comply with the Privacy Act. I think that means that DOD would have a Data Integrity Committee and that that committee would have meetings about data collected about sexual preferences and how it can be used. Or, I think DOD could simply order that no records about sexual preferences and sexual acts should be collected and maintained inside systems of records, including individual’s files, unless there is a related criminal act such as rape or extortion. Then I think this means that if Don’t Act Don’t Tell were repealed individuals in the military could talk about their sex lives informally but the information couldn’t be entered into their files.

    What do you think?

  15. kay,

    I thought you were interested in discussing the Privacy Act’s applicability to Don’t Ask, Don’t Tell (you brought it up more than once, and seemed like you were looking for someone to engage on the topic with you). Had I known you just wanted someone to agree that you’re analysis was brilliant, I wouldn’t have bothered responding.

    what exactly is the basis for your familiarity with The Privacy Act?

    In law school I wrote my journal note (published) on an aspect of the Privacy Act.

  16. Well anonymous James what exactly is the basis for your familiarity with The Privacy Act? Can you analyze the Privacy Act and APA issues involved with the military keeping records of recruits sex lives?

    Clearly there are systems of records about military personnel that are accessed by their name and within those records there is information about them. Does this include their sexual orientation or other information about their sex life?

    “(1) Civil Remedies.— Whenever any agency…. (C) fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual;…. the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection….”

    So that applies to records whether or not they are computerized.

    “Conditions of Disclosure.— No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be—
    (1) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties;”

    So if there are records of sexual orientation or practices inside the individual’s files the disclosure of those records is supposed to be limited even within the military.

    The Privacy Act also would require that DOD get the records from the individuals and that they have an opportunity to correct them.

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