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. kay,

    I’m not sure why you just quoted those passages, without responding. Presumably you think I’m wrong, and that those passages prove you’re right? However, I’m already very familiar with the Privacy Act, and quoting it to me without analysis is not going to make your point.

    Regarding (k)(5), determining that someone is gay is to determine that they are ineligible for military service. Hence, (k)(5) is directly on point. The specific exemptions allow the agency to retain unnecessary information and deny access to their records, but eliminate the “routine use” exception to distribution.

    Regarding a system of records, I’ll reiterate that you’re assuming that there is one big “database of gayness”. I doubt any such system of records exists. Just because you see a thematic link in a bunch of disparate records, doesn’t mean it is a system of records under the definition of the Privacy Act. To wit, it is not a “group of . . . records . . . from which information is retrieved by the name of the individual“.

    It is much more likely that the information about those investigations is contained in other systems of records which have already been disclosed.

  2. (4) the term “record” means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph;
    (5) the term “system of records” means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual;

    (k) Specific Exemptions.— The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553 (b)(1), (2), and (3), (c), and (e) of this title, to exempt any system of records within the agency from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of this section if the system of rec ords is—

    (5) investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence;

  3. kay,

    You’re assuming that some big system of records exists compiling all the gay / not gay evidence about everyone that has to be disclosed. I don’t think that’s how it works. It’s far more likely just kept in whatever department’s normal working records.

    Regarding individual investigations, 552a(k)(5) is going to protect any information gathered with a promise of confidentiality (including most background check material).

  4. Frank Mascagni III:

    You are quite welcome sir,what caught my ear was the author was saying that columbus trip cost was equal to the wedding that was given to the daughter of one of the important people who was behind the excursion.

  5. In the 2008 presidential election, 17,000 soldiers, sailors, and Marines mailed home completed ballots that were never counted.

    Usually these ballots didn’t get home in time, mostly because they weren’t sent overseas early enough. One cause of this catastrophe is the Keystone Cops routine the Department of Justice Voting Section uses to enforce federal laws protecting the rights of military voters. Unfortunately, all signs point to a comic sequel in the upcoming November elections.

    Congress tried to fix the problem last year by mandating that all ballots must be sent overseas at least 45 days before the election. But Military Voter Protection Project Director M. Eric Eversole has accused Justice Department officials of encouraging states to seek an exemption to the law. The law indeed grants states the right to ask the Pentagon to opt out of the law. Even worse, Eversole says the Department is telegraphing to states that it doesn’t want to pursue litigation to enforce the law.

    Some voting rights are more important than others, it seems. Where have we heard this before?

    http://pajamasmedia.com/blog/disgrace-doj-fails-to-protect-military-voting-rights/

  6. eniobob:

    Thanks for the site. I read the pages referenced from DON’T KNOW MUCH ABOUT HISTORY: EVERYTHING YOU NEED TO KNOW ABOUT AMERICAN HISTORY BUT NEVER LEARNED….by Kenneth C. Davis. Very interesting about Christopher Columbus. I ordered the book on amazon.com for $10.19. Once again, this blog as an information source, is invaluable. Well worth the price of admission. Thank you so much for educating this ole/old Italian man. Frank

  7. CHICAGO (WLS) – The U.S. Justice Department is investigating whether the state of Illinois missed the deadline for mailing absentee ballots to members of the military and other overseas American voters as part of a new federal overseas voting law.

    Cris Cray, Director of Legislation at the Illinois State Board of Elections, says not all of Illinois’ 110 jurisdictions were compliant with the 2009 Military and Overseas Voter Empowerment Act (MOVE).

    The law requires every state to mail their absentee ballots 45 days prior to Election Day to overseas troops, government employees and other Americans who want to vote from abroad.

    http://www.wlsam.com/Article.asp?id=1985148&spid=

  8. WASHINGTON (AP) – As the Obama administration considers appealing a judge’s order to stop the law prohibiting gays from serving openly in the military, some officers and service members say they are uncertain how to react.

    The Pentagon said Wednesday it had not issued written guidance on the ruling, and commanders in the field said they did not know how to proceed on sensitive questions like pursuing existing investigations against gay service members.

    Defense Secretary Robert Gates warned of “enormous consequences” for troops if the court order is allowed to stand, saying the decision on repeal of the law known as “don’t ask, don’t tell” should be decided by Congress and not the courts.

    He has said he wants more time to prepare for a circumstance in which, for the first time, gay members of the military could declare their sexual orientation without fear of dismissal.

    http://apnews.myway.com/article/20101014/D9IREGK00.html

  10. BTW,This circus is still going on:

    Rabbi Breaks With Paladino Over Apology
    By ELIZABETH A. HARRIS
    Published: October 13, 2010

    Well, that didn’t last long.

    Bebeto Matthews/Associated Press
    Rabbi Yahuda Levin, at St. Patrick’s Cathedral, said he felt betrayed.

    The alliance between the Republican Carl P. Paladino and an Orthodox rabbi from Brooklyn has fallen apart, with the rabbi denouncing Mr. Paladino on Wednesday for his apology over remarks he had made about homosexuality on Sunday.

    http://www.nytimes.com/2010/10/14/nyregion/14paladino.html?_r=1

    This was also breaking news:

    http://www.9wsyr.com/news/local/story/Report-Paladino-once-rented-to-gay-clubs/DA-n6lbRokCj6-CGSrSm4Q.cspx

  13. Frank,

    I will have to do that and the beauty of it is I was planning on hitting Central for a muffaletta and a new apron next time I was there anyway (I lost my old Central apron last move). Which may be this weekend at this rate! Grazie signore!

  14. Buddha:

    Next time you’re in New Orleans, go to Central Grocery Company at 923 Decatur, on the shelves near the table island in the back, you’ll see for sale some Sicilian extra virgin olive oil (first cold pressed) in a red label, 3 liter can “PARTANNA”. It is produced only once a year in October. Maybe it will take you back to NONNA! Buon appetito!

  15. Thank you for the gift, Frank. You, sir, are a gentleman and a scholar. And Sicilian cooking is hard to beat. No disparagement to the rest of Italian cuisine, but I had a formative eating experience prepared at the hands of a Sicilian grandmother who learned to cook from her grandmother I had to talk to through her daughter as she had no English and I have no Italian. Everything was from scratch. She brought her own olive oil to cook with from Sicily and it was like wine.

    I’m drooling right now thinking about it and it was 20 years ago.

  17. Buddha:

    Frank Sinatra came to Louisville, KY. Asked for the best Italian restaurant in town to prepare him (and band) pasta and bring it over. My friend Vincenzo Gabrielle (Palermo, Sicily) was selected and served Frank during his last visit here. I enjoyed the show very much. The reason I bring this up also, is because I brought Jonathan to Vincenzo’s restaurant when he was in town. He loved it!

    Women….You can’t live with them, and they can’t pee standing up. What ya gonna do?

  18. Blouise

    No apology to me is necessary. My ability to explain what I think is about the level of my knowledge of law – limited at best.

    We all want the right thing done and done the right way – whatever that is.

  19. One of my few regrets (I’ve had a few, but I did it my way) is that when I was law school, I had a chance to see Sinatra on the last tour he did and didn’t take it.

    Why?

    Because I already had a date set up, could only get one ticket, and kept my date like a gentleman as it was a first date.

    It was also a last date and one of the most excruciating evenings of conversation possible.

    Sinatra would have been a much better use of that time.

  20. Ahhhhh, you know the way to get to a real old school Italian Man…Grazie! I cannot believe anyone on this blog is older than me, 1947-49 era. You write and think like my daughter Brooke, 35 years your junior. Wow! Good for you and your young at heart attitude. I’m seriously impressed. Now I know why I like you. Frank

Comments are closed.